Qualified Immunity

Will SCOTUS Revoke Its License for Police Abuse?

This week the justices are considering 13 petitions involving the pernicious doctrine of qualified immunity.


Based on an erroneous report of a "domestic assault," police officers came to rescue Melanie Kelsay from the man who supposedly was attacking her at a community swimming pool in Wymore, Nebraska. Then one of them actually assaulted her, lifting the 130-pound woman off the ground in a bear hug and throwing her to the ground, breaking her collarbone and knocking her unconscious, because she disobeyed his command to "get back here."

Last year the U.S. Court of Appeals for the 8th Circuit ruled that the assault did not violate Kelsay's "clearly established" Fourth Amendment rights, meaning she could not sue the sheriff's deputy who had injured her. Kelsay's appeal of that decision is one of 13 cases involving "qualified immunity" that the U.S. Supreme Court will consider for review on Friday, giving the justices ample opportunity to revisit a misbegotten doctrine that shields police officers from liability for egregious misconduct.

Qualified immunity, which the Court invented in 1982, is supposed to protect government officials from the chilling effect of frivolous lawsuits under a federal statute that allows people to seek damages for violations of their constitutional rights. But in practice, the doctrine often means that victims like Kelsay cannot pursue their claims unless they can locate a precedent that closely matches the facts of their case.

In a recent analysis of 252 excessive-force cases decided by federal appeals courts from 2015 through 2019, Reuters found that most of the lawsuits were blocked by qualified immunity. It also found that the share of cases decided in favor of police has risen during the last decade and a half, from 44 percent in 2005–07 to 57 percent in 2017–19.

After 2009, when the Supreme Court said judges could grant police qualified immunity without even deciding whether their actions were unconstitutional, that shortcut became increasingly common, making it even harder for victims of police abuse to find apposite precedents. As 5th Circuit Judge Don Willett has observed, "important constitutional questions go unanswered precisely because those questions are yet unanswered."

Hard as it may be to believe, those questions include whether police in Idaho violated the Constitution when they wrecked a woman's home with tear gas grenades after she gave them permission to "get inside" so they could arrest her former boyfriend (who was not actually there). While musing that getting inside could be construed to include firing toxic, destructive projectiles into the house, the U.S. Court of Appeals for the 9th Circuit last year declined to decide whether that would be "reasonable" under the Fourth Amendment.

That ruling, which the Supreme Court also has been asked to review, not only left the plaintiff without recourse; it gave other police officers license to do exactly the same thing, since the 9th Circuit approved qualified immunity without resolving the constitutional issue. So did the 6th Circuit in a 2018 case involving a Nashville officer who sicced a police dog on a burglary suspect who said he had already surrendered and was sitting on the ground with his hands up.

Another petition the justices are mulling this week involves a Georgia sheriff's deputy who received qualified immunity after he shot a 10-year-old boy while trying to kill his dog. Neither the boy nor the dog had done anything to justify the use of lethal force, except that they happened to be in their own yard when the cops chased an unarmed suspect into it.

Further fodder for the Supreme Court's potential reconsideration of qualified immunity: the Fresno cops who allegedly stole cash and property worth more than $225,000 while executing a search warrant. Although the officers should have understood that theft was "morally wrong," the 9th Circuit ruled last year, "they did not have clear notice that it violated the Fourth Amendment."

Qualified immunity, by contrast, definitely gives police clear notice. It tells them they can get away with violating people's rights as long as they find new ways to do it.

© Copyright 2020 by Creators Syndicate Inc.

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  1. That theft one really bothers me. If you're going to erase the Fourth Amendment, at least charge the sons a bitches with plain old theft. Otherwise you have literally made plain old theft legal if wearing a uniform. How much would a goddam thieving cop have to steal before the Supreme Court wakes up? Could they empty Fort Knox? Hijack an aircraft carrier?

    1. The problem is that only the state's prosecutor can bring theft charges. If the prosecutor is in on it (or just owes a favor to the cop or is feeling lazy that day), you're out of luck. And very few prosecutors want to bring a case against the very people he/she depends on for their mutual livelihoods.

      These suits are being brought the way they are because it's the only private right of action we citizens have. Unless you're going to let any citizen stand in when the official prosecutor declines to do so, you're going to have this problem.

      Note that I am not advocating a private right to prosecution. The jurisdictions that have such a right have plenty of problems of their own.

      1. And very few prosecutors want to bring a case against the very people he/she depends on for their mutual livelihoods.

        Maybe I'm wrong, but it seems to me that cops could really mess up a prosecutor's career which depends on convicting as many peasants as possible. Cops could stop doing their job and the prosecutor would take the heat. After all, cops literally do whatever they want because nobody can stop them.

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      2. "If the prosecutor is in on it (or just owes a favor to the cop or is feeling lazy that day), you’re out of luck."

        Maybe the judge could appoint several amicus curiae organizations to make the case for prosecuting the cops.

        1. Why would they do that when half the time the judge is in on it/owes a favor too?

          The court system cannot treat people fairly when one of the parties to a suit is a member of the court system itself (which police are). The only way you are going to get that is if there is a parallel entirely separate court system for judging the interactions of the court systems themselves and the people. England tried it with the Star Chamber but the lack of transparency simply allowed it to double down on the problems it was supposed to solve.

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        2. No, they can't. Judges can (in some circumstances) appoint amici to argue a side in an existing case but they have no authority to independently start a case. There's no "live case or controversy".

          You could change the system to give judges that authority. Judges in Spain, for example, may independently investigate and open a case. I'm told that system has it's own share of problems, though.

      3. What jurisdictions have a private right of prosecutions? I don't think there are any in the US.

    2. Cops cannot get away with any of those things, because qualified immunity is unrelated to theft charges, except in this particular bizarre case.

      All the cases bother me. They illustrate why qualified immunity is an unqualified disaster, effectively allowing the government to abuse citizens constitutional rights without consequence as long as the abuse is occurring through a police officer. Qualified immunity is not just about police "getting away with it", it's about the negation of our Constitutional rights.

      1. It makes you wonder whether the lower courts purposely decided these cases this way to embarrass the Supreme Court into reconsidering the doctrine.

  2. It is difficult to comprehend the incompetence of the Georgia deputy that shot a child less than two feet away in the back of his knee while supposedly trying to shoot the dog.

  3. Memo to SCOTUS: The jury came back after 38 years; QI has to go.

  4. Government protects government.

  5. But there's no precedent for the Supreme Court to overturn the principle of Qualified Immunity so they're going to have to reluctantly let it stand.

    1. Roberts will declare that QI is a tax.

      1. But that tax does not have to be paid?

  6. Although the officers should have understood that theft was "morally wrong," the 9th Circuit ruled last year, "they did not have clear notice that it violated the Fourth Amendment."

    Every Judge that signed that opinion should have all their assets forfeited for criminal conspiracy, then tossed into the most C19 infected jail in the country.

    1. The only way I can reconcile this opinion is the judges wanted a case that so clearly does not meet QI standards to send to the Supreme Court so they can overturn it. There is no other reason I can find for this ruling.

      1. If you read the ruling, it's clear that it was rightly decided *on the basis for the appeal*. That is to say that the challenge was under the Seizures clause of the Fourth Amendment. But the seizure in this case was actually authorized by a warrant. So, the police didn't violate the Fourth Amendment, as they had the explicit right granted to them to remove ("seize") the money from the premises.

        What was obviously illegal (to any reasonable person) is that they then failed to report the extent of their seizures, instead pocketing the money. That is theft. Theft is illegal, but it's not necessarily something addressed by the Fourth Amendment when police have been given authority for a seizure. Appeals courts can only rule on the legal claims raised in the appeal. And, basically, the theft didn't occur until the police failed to report the stolen assets -- up until that point, they were acting within the law (and the Fourth Amendment).

        See, the problem with Qualified Immunity as currently applied is that it runs deeper than just a failure to hold cops accountable. The legal presumption seems to be that a violation of rights must not only be against established law, but it must be a violation of *Constitutional* rights. Effectively, the Founders' fear that creating a Bill of Rights would result in denial of rights not explicitly in that list has come true. Obviously, that's opposite to the way the Founders intended things to be, but that's the situation we're living in.

        So, the only avenue in this case open for appeal was under some explicit Constitutional argument, and the appeal (in my opinion) does fail that test. The problem isn't the ruling's logic, but that SCOTUS has effectively disallowed the possibility of arguing against qualified immunity simply because officers did something *illegal* (but not necessarily "unconstitutional" according to the limited set of clauses in the Constitution). The Circuit Court in this case had no wiggle room and were forced to rule this way according to precedent.

        If SCOTUS really wants to fix QI, they need to change a fundamental presumption inherent in police action, namely that cops are a bit "above the law." Obviously they're not, and courts always say they aren't. But the way QI jurisprudence is formulated, they basically are. The presumption seems to be that if an officer is acting in an official capacity (or even a quasi-official capacity, off duty) that *illegal* acts fall under QI unless there is established court precedent suggesting otherwise.

        Which is, of course, patently absurd. I don't even know that SCOTUS ever meant to carve out an exemption so broad in the first place. Contrary to the article here, QI wasn't invented in 1982 in Harlow v. Fitzgerald. That is only the case that established the current test for QI. Before that, cops were granted qualified immunity under a "good faith" standard. In fact, Harlow v. Fitzgerald (linked in the article here) repeatedly mentions "good faith immunity" as clearly meant to be a synonymous term with "qualified immunity."

        But "good faith" has a legal meaning. It's not just a subjective phrase. In civil law (and particularly contract disputes), "good faith" means that parties act in a way that isn't intentionally harmful to the other party. It doesn't absolve parties from damages based on gross negligence or incompetence. Moreover, "good faith" in contract law is specifically about how each party is presumed to not try to get out of responsibility for upholding a contract due to some technicality in the wording of a contract or obscure point of law.

        How absurd is it now that QI has become the epitome of "bad faith" legal argumentation, where officers abrogate responsibility through technicalities? If SCOTUS paid any attention to the "good faith" phrase repeatedly mentioned in their precedent, they could limit QI a lot more. To any reasonable person, for example, any police officer acting in an illegal fashion must have a "good faith" reason for doing so.

        Of necessity, police officers sometimes have to do things that normal citizens can't do and which are "illegal" (e.g., run red lights, detain people, sometimes subdue dangerous people with force). There are generally explicit guidelines written into state and local laws (as well as departmental policies) about when many of these exemptions are allowed. Cops, for example, cannot legally run red lights in most places if they are not responding to an emergency situation. They may do so and are not often called on it, but if they were fined and brought to court, they'd have no defense. Why should civil litigation against them be any different? If a cop slams into a car and injures someone by illegally running a red light at a time not authorized under state law, they may still not be able to be sued under QI. Why? If a cop caused injury or damage in an *illegal* act that was not performed within a "good faith" guideline of applicable laws and policies as judged by the "reasonable person" standard, how can they be granted immunity? If they caused harm through gross negligence or incompetence, even while acting in a mistaken "good faith" belief, contract law would still hold them accountable.

        The courts seem to fear huge numbers of frivolous lawsuits emerging in response to a more lenient standard. But why? The response of police departments and states who fear suits against officers should pass explicit guidelines detailing the exemptions allowed in the course of duty. We shouldn't just presume that an officer gets QI for any act, no matter how illegal or stupid, unless there's some clause in the Constitution that it explicitly violates.

        1. Thanks for that information, I wish the Reason writers would be as thorough. They are becoming as bad as CNN and Fox on that account, maybe the same people that bought out Drudge have taken over here as well.

  7. Although the officers should have understood that theft was "morally wrong," the 9th Circuit ruled last year, "they did not have clear notice that it violated the Fourth Amendment."

    "The Court hereby provides the officers clear notice that their theft violated the Fourth Amendment and sentences them to thirty years confinement in the Federal Penitentiary at Leavenworth."

  8. If you think the supremes will admit to a massive error causing constitutional rights violations for decades, you probably think Trump did conspire with Russia.

    1. Wow. And I was so enjoying reading 11 comments that actually had to do with the topic and without even mentioning Trump. Oh well, I knew it couldn't last.

  9. Qualified immunity, by contrast, definitely gives police clear notice. It tells them they can get away with violating people's rights as long as they find new ways to do it.

    "Yes, I did choke him to death for (not) selling loosies on the street. But you'll note that in the Garner case, the cop had his left arm in front, and I clearly used my right arm..."

  10. "they did not have clear notice that it violated the Fourth Amendment."

    Ignorance of the law is a pretty decent excuse. Also, surely it violated some law somewhere, like one of the many against theft.

  11. The QI doctrine is obviously precluded by the Equal Protection clause, and any judge who has ever upheld it violated his oath.

    I'll also just point out that the very beginning of American law, the Declaration of Independence, says "all men are created equal, and they are endowed by their creator with certain inalienable rights".

    The government likes to ignore the declaration, but it is an act of congress. It is a LAW.


    1. Since law enforcement refuses to acknowledge the obvious need for reform and a completely new approach to police training, this would be a necessary first step.

    2. If we're going to bring up the Declaration, the relevant line is this:

      "For protecting them, by a mock Trial from punishment for any Murders which they should commit on the Inhabitants of these States:"

  12. It seems likely to me that the court will somehow limit Qualified Immunity possibly if the police actions "shock the conscience" of the district or appeals court.

    1. Will they?
      Salinas V Texas, Watered down Miranda Rights (you now have to speak to enforce your silence)?
      Smith v Doe (confirming the governments ability to pass retroactive laws for the "protection" of the public)?
      Heien v. North Carolina (police do not have to know the laws they enforce)?

  13. It's weird that conservatives support some constitutional rights and liberals others, but everyone is willing to completely nullify major parts of the Constitution. Liberals generally support the 4th amendment, Sotomayor being exhibit A. But not so much conservatives, or at least not Conservative justices. Liberals have been waging aggressive war against the 2nd amendment for decades now, SCOTUS liberals included, but conservatives are what keeps that amendment alive. Back in the day liberals supported the 1st amendment, but not so much any more. It's now conservatives who are staunch 1st supporters. That 2009 decision is just about the most unjustified piece of trash ever put forth by SCOTUS. At best, qualified immunity grants cops one mulligan on trashing citizens' constitutional rights. In 2009 the SCOTUS conservatives did away with even that, using tortured reasoning that is remarkably similar to the how SCOTUS liberals negate the 2nd amendment.

  14. No.
    When all participants of a "system" are feeding from the same nose-bag, free from competition -- and are allowed (by your neighbors and friends -- hopefully not you) to
    • Make the laws,
    • Enforce the laws,
    • Prosecute the laws,
    • Hire the prosecutors,
    • License the “defense” attorneys,
    • Pay the “judges”,
    • Build the jails,
    • Contract jails out to private entities,
    • Employ and pay the wardens,
    • Employ and pay the guards,
    • Employ and pay the parole officers,
    One can't honestly call it a "justice" system. It's a system of abject tyranny.

  15. If they don't dump QI I can see an increase in doxxing these bad cops with an unsurprising increase in vigilantism where retribution against these cops is attempted. It's really the only logical conclusion once the people have decided they've had enough.

  16. Tell me how we are different than authoritarian regimes?

  17. Will SCOTUS Revoke Its License for Police Abuse?

    I wouldn't hold my breath. They fucking love cops, love 'em. Most likely because they're been inoculated from cops by virtue of comfortable backgrounds.

    The SC will almost certainly do nothing to ruffle the feathers of that most holy fraternal order.

  18. Then one of them actually assaulted her, lifting the 130-pound woman off the ground in a bear hug and throwing her to the ground, breaking her collarbone and knocking her unconscious, because she disobeyed his command to "get back here."

    I have footage.


  19. If the police ask for permission, the answer is always no. If the police ask you any other question, the answer is always "no statement". If the police take you into custody, you only reply is "I want a lawyer".

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