Qualified Immunity

Two Cops Were Given Qualified Immunity After Allegedly Stealing $225,000. SCOTUS Won't Hear the Case.

But the high court may consider other cases that could overturn the outrageous legal doctrine.


Last year, the U.S. Court of Appeals for the 9th Circuit Court decided that two police officers in Fresno, California, who allegedly stole more than $225,000 in assets while executing a search warrant, could not be sued over the incident. Though "the City Officers ought to have recognized that the alleged theft was morally wrong," the unanimous 9th Circuit panel said, the officers "did not have clear notice that it violated the Fourth Amendment."

In other words, the cops didn't have enough warning to know that stealing is an encroachment on one's constitutional rights. So it goes with qualified immunity, a legal doctrine that shields public officials from certain civil lawsuits as long as their misconduct has not been explicitly spelled out in pre-existing case law. The Supreme Court yesterday declined to hear that case, Jessop v. Fresno, along with two other cases pertaining to qualified immunity.

Jessop has all the baffling characteristics so often at the center of qualified immunity rulings. Amid the absence of a near-identical court precedent, we're supposed to believe that the officers in question could not have been aware that their conduct was constitutionally dubious. 

In theory, qualified immunity protects public officials from vacuous lawsuits that might hinder their job performance. In actuality, it often allows them to get away with offenses that would land a normal person behind bars. As Reason's C.J. Ciaramella has pointed out, a recent investigation by Reuters analyzed 252 federal appellate opinions dealing with qualified immunity and found that the courts granted such immunity to police officers more than half of the time.

"Even as the proliferation of police body cameras and bystander cellphone video has turned a national spotlight on extreme police tactics," the Reuters report notes, "qualified immunity, under the careful stewardship of the Supreme Court, is making it easier for officers to kill or injure civilians with impunity."

The high court yesterday also declined to hear Clarkston v. White and Kelsay v. Ernst. "This is disappointing," wrote Jay Schweikert, a criminal justice policy analyst at the Cato Institute. "The Kelsay and Jessop cases in particular involved especially egregious applications of qualified immunity that were crying out for correction, if not summary reversal."

Indeed, the ruling in Kelsay, decided by the U.S. Court of Appeals for the 8th Circuit, is perhaps even more confounding than the one in Jessop. In that case, Melanie Kelsay claimed that a police officer—who was responding to her complaint that a man was attacking her at a community swimming pool—actually assaulted her. After she did not obey his command to "get back here," she said in the lawsuit, the officer allegedly grabbed her in a bear hug and slammed her to the ground, breaking her collarbone and knocking her unconscious in the process. 

At its private conference this Thursday, the Supreme Court is scheduled to consider whether or not to hear another 10 qualified immunity cases. One of them is Corbitt v. Vickers, which I wrote about in July. In that case, the U.S. Court of Appeals for the 11th Circuit awarded Deputy Sheriff Matthew Vickers qualified immunity after he shot a 10-year-old boy while aiming at a nonthreatening dog. Vickers was in pursuit of a criminal suspect who had no relationship to the boy and who was eventually apprehended without incident. 

The 11th Circuit acknowledged that the boy has required ongoing care from an orthopedic surgeon due to the shooting and has "suffered severe pain and mental trauma." But the court declined to let his mother, Amy Corbitt, sue Vickers for damages. "Corbitt failed to present us with any materially similar case from the United States Supreme Court, this Court, or the Supreme Court of Georgia," the 11th Circuit wrote, "that would have given Vickers fair warning that his particular conduct violated the Fourth Amendment."

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  1. This was the one fucking case I thought SCOTUS would hear.

    1. Skipping out on this on is insane. The courts have decided that wearing a badge means you don't officially know that you aren't allowed to steal stuff, so you cannot be sued? Are they mentally ill? this is so very, very, very far over the line.... if we were not all so obsessed with proving that Orange Man is bad and protecting those who have been doing the lord's work in that regard, maybe the nation could have a little outrage to spare for something like this.

      This kind of thing should be "heads on pikes" level outrage by the people of this country.. instead we have complete indifference.

      1. There are really, really stupid things that only highly educated people can believe.

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      2. Yes! Fuck whether stealing is onconstitutional -- obviously the constitution does stoop to the level of standard morals. It's illegal by the very laws that cop is tasked with enforcing! Why don't the cops or the DA arrest the damned cops, charge them with grand theft? What the hell does constitutionality have to do with breaking the very laws they are supposed to enforce?

        I could see excusing the assault charge, since there is at least the excuse that she didn't obey his lawful order, if you want to go down that route. But theft? It's got nothing to do with their job!

        And cops and moral nannies wonder why cops are such thugs!

        1. Maybe the problem is that SCOTUS doesn't think this rises to a constitutional issue. Maybe they think, in other words, that the plaintiffs raised the wrong question in their briefs. I still don't understand how these cops could have been exempted from being prosecuted for the kind of grand larceny that would have mere mortals facing decades in prison.

          1. It's the only theory that makes a lick of sense, yet I've never seen an iota of discussion on that. Billy Binion! There's something you can look into!

            1. IIRC the issue is that they *could have* been prosecuted for the theft, but the prosecutors declined. The qualified immunity claim is for immunity from suit from the person that was stolen from-- stolen after the stuff had been seized in a raid. So the victim has a case for restitution against the county since the property was improperly seized, but not a civil rights claim against the officers, because the property was stolen once it was in possession of the state, making the state the victim of the theft itself.

              It is a bit messy; I'd agree with taking a more clear cut case to overturn QI.

    2. Or at least the one that I wanted them to hear.

    3. SC judges are too busy looking for "Women Have Dicks" in the constitution. It's in there somewhere.

  2. 1. The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no Warrants shall issue, but upon probable cause, supported by Oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized
    2. the unanimous 9th Circuit panel said, the officers "did not have clear notice that it violated the Fourth Amendment."
    3. Bullshit.

    1. Violating the 4th amendment is immaterial. Stealing is flat illegal, it's one of the laws they were hired to enforce, and they damn well ought to have been arrested and convicted by now. Nothing to do with constitutionality.

      1. It’s not immaterial at all, because qualified immunity only comes into play when the plaintiff sued the officer under a federal statute, 42 USC 1983, which provides a cause of action against local government employees (and others) for a violation of the constitution or a federal statute. There is no federal theft statute that would apply here, so the 1983 claim was premised on a 4A violation.

        It’s important to note that the plaintiff was free to sue the officer under state law, for conversion, etc. (And maybe the plaintiff has done that.) Qualified immunity wouldn’t apply to the State-law claims. While I agree that it seems a clear 4A violation, if the plaintiff is going to win a lawsuit it’ll probably be on a state tort claim, like conversion. Plaintiffs typically add federal claims under 1983 because they want a chance at recovering attorneys fees under 42 USC 1988, or they blew the government claims filing period under state law and have to rely on Section 1983 which isn’t subject to state-law claims filing requirements and defenses.

        1. It's theft, plain pure simple theft, and the cops should have been arrested and tried on theft charges. Yes, the QI is a travesty itself, but so is not arresting them. It should never have gotten to the 4A and QI stage.

    2. The fair notice rule isn't completely insane, what's insane is requiring that the "notice" must be in the form of a settled court case. I'm no lawyer, but it seems that the courts often use a "reasonableness" test to decide these kinds of cases. Thus, you could only receive qualified immunity if a typical officer could not reasonably know that he was violating the constitutional rights of victim. Using that standard would put these thieving police back on the hook where they belong.

    3. I do not get why cops exist if courts treat them as if they were infants. They weren't told that robbing somebody violates their civil rights?

      I taught my child that before he was three years old.

  3. >>"did not have clear notice that it violated the Fourth Amendment."

    Warning: Theft of $225,000.00 from this establishment without proper warrant constitutes a violation of the Fourth Amendment.

    1. It really is as absurd as that.

    2. But I only stole $224,999. That hasn't been established. Qualified Immunity!

  4. SCOTUS: The police allegedy stole $250,000...

    Police: I think if you check again, it was $225,000
    *slides 25K across the table*

  5. Can any of our resident attorneys offer some hypotheses as to why not even four justices considered this seemingly open-and-shut case to be a suitable test of the qualified immunity doctrine?

    1. What sort of case might they be waiting for?

    2. Hey, give them a break, decisions like this are above their pay grade.

    3. Presumably because a theft claim is more suitable for a state-law tort action like conversion, than literally making a federal/constitutional case out of it by suing under Section 1983 for a 4A violation. (Hopefully this plaintiff was smart enough to assert a state-law claim as well, which will be unaffected by qualified immunity.) Plaintiffs often add a 1983 claim in the hopes of getting a few award under Section 1988, or because they blew the state’s government claims process, or there is some state-law immunity for the officer that won’t apply to a 1983 claim.

      Don’t get me wrong, it seems like a 4A violation to me. But at the end of the day, I blame Congress more than current SCOTUS. Congress could have amended 1983 a long time ago to do away with, or at least reform, QI.

  6. While the reporting of these cases gives us a fascinating overview, and the SCOTUS choice not to hear them causes us to cringe, readers must remember:

    The news report is not a legal summary of the case. We do not know the details of the apparent CRIMES involved, only what the reporter has included to keep the reader involved with the story.

    We also do not have any ideas or clues regarding the appeals of each case, or why the Court declines to review them. Again the reported furnished just enough information to allow readers to engage in the emotions of the events without furnishing the various legal arguments for SCOTUS intervention.

    On the face of the story my own outrage at the entire “limited immunity” concept is reignited. And based upon the details presented in this article I maintain my long-held belief that Public Employees, Officials and Elected Political People should be held to the same standards as well the people’, not only in civil litigation such as these in the article, but encompassing criminal proceedings against these Petty Thieves and tyrants.

    But unless and until elected Legislators effectively bar Special-Interest Lawyers and Attorneys from participating in legislation composition, we are not going to plug all the loopholes in existing laws. Law Enforcement, Mayors, Governors, etc will continue to be free to stomp upon the Constitutional rights they are all sworn to uphold.

    1. "But unless and until elected Legislators effectively bar Special-Interest Lawyers and Attorneys from participating in legislation composition, we are not going to plug all the loopholes in existing laws."
      It is my understanding that self interested attorney write all statutes and regulations in their entirety. Our elected representatives are too stupid to actually write legislation so they rely on TOP LAWYERS then vote aye on the summary because nobody actually reads this shit. Except special interest lawyers.

    2. "But unless and until elected Legislators effectively bar Special-Interest Lawyers and Attorneys from participating in legislation composition, "

      ==> I'm afraid that ship long ago sailed away, never to be seen again.

  7. See, the cops were executing a lawful search warrant and consequently lawfully seizing evidence, if they mistakenly took things like jewelry, cash, artwork, stereo equipment or other valuables that weren't in fact evidence, well, it was, or could be, excusable as an innocent error. Cops aren't perfect, if they're looking for stolen goods they don't necessarily know what is stolen and what is not so they can take anything that they suspect fits the description. If they later appropriated those valuables for their own use, they weren't stealing the stuff from the homeowner, they were misappropriating the stuff from lawful police custody. They didn't steal the stuff from the homeowner, they stole it from the police department.

    I can see the next problem; the Constitution only protects you from government action, if the cops' actions become egregious enough, well, obviously they were acting so far beyond their lawful authority that they were no longer acting as government agents, were they? Heads they win, tails you lose.

    1. Okay, let's roll with the idea that they didn't steal the goods from the person the goods were seized from, they actually, technically, stole those goods from the police department.

      Why aren't they in jail for multiple counts of grand theft? If I broke into a police station and stole three cop cars do you think they would take me to jail for that?

  8. The 9th Circuit does some weird stuff, but this one boggles the mind. I spent 25 years in LE. Never had to tell me that during service of a search warrant I couldn't steal someone else's property. You find a bunch of cash, it's evidence and has to be handled as evidence. Hopefully at least an internal investigation will cost these two their jobs, they should not be cops.

    1. That's something that has been bothering me: how does this kind of theft not violate the chain of custody?

      1. To be in the chain of custody, it first has to be booked as evidence.
        If you just take it, it is never evidence.

    2. That is true for 99.9% of police. It's that 0.1% who fuck this shit up because they are career criminals who got past the screening. If you're cop you have met them.

      And why the fucking 9th circuit is so completely wrong and they know it. But the SC said in Kelo v London the city could take your house away and give it to a private investor. This is why we need to put constitutionalists on the court, not pseudo liberal authoritarian assholes. No democrat wants that to happen. They want this 9th circuit bullshit because they can fuck over anyone who gets in their way.

      1. Which of the 99.9% arrested these guys for theft then?

    3. "Never had to tell me that during service of a search warrant I couldn’t steal someone else’s property"

      Apparently they did, or else you could have claimed QI. Your only mistake was not committing a crime sufficiently outrageous that no direct precedent existed clearly establishing it as illegal (since apparently the "clearly established constitutional rights" bit is ignored now).

  9. "The whole good cop/bad cop question can be disposed of much more decisively. We need not enumerate what proportion of cops appears to be good or listen to someone's anecdote about his Uncle Charlie, an allegedly good cop. We need only consider the following: (1) a cop's job is to enforce the laws, all of them; (2) many of the laws are manifestly unjust, and some are even cruel and wicked; (3) therefore every cop has agreed to act as an enforcer for laws that are manifestly unjust or even cruel and wicked. There are no good cops." ~Robert Higgs
    “And how we burned in the camps later, thinking: What would things have been like if every Security operative, when he went out at night to make an arrest, had been uncertain whether he would return alive and had to say good-bye to his family? Or if, during periods of mass arrests, as for example in Leningrad, when they arrested a quarter of the entire city, people had not simply sat there in their lairs, paling with terror at every bang of the downstairs door and at every step on the staircase, but had understood they had nothing left to lose and had boldly set up in the downstairs hall an ambush of half a dozen people with axes, hammers, pokers, or whatever else was at hand?... The Organs would very quickly have suffered a shortage of officers and transport and, notwithstanding all of Stalin's thirst, the cursed machine would have ground to a halt! If...if...We didn't love freedom enough. And even more – we had no awareness of the real situation.... We purely and simply deserved everything that happened afterward.” ― Aleksandr I. Solzhenitsyn , The Gulag Archipelago 1918–1956

  10. Considering Reason's concern for the rule of law and the constitution I wonder when they'll address the recent actions of the celebrated Emmet Sullivan. Seems like he's shitting all over both. Maybe bring in Dopehat to tell us it's all good.

  11. ...the unanimous 9th Circuit panel said, the officers "did not have clear notice that it violated the Fourth Amendment."


  12. So then, we can effectively say that the police are above the law. This is madness.

  13. This is utterly disappointing. Cops are above the law.

  14. If you think cops are astonishingly stupid and incapable of basic reasoning, what other rule could you have?

  15. a legal doctrine that shields public officials from certain civil lawsuits as long as their misconduct has not been explicitly spelled out in pre-existing case law.

    IOW: "Anything Certain things not explicitly forbidden are allowed."

    Where will it all end?

  16. These two taxpayer fed low-life cops did not need to understand the 4th Amendment to know that stealing (theft) of someone's property is wrong and totally against the law.
    "Qualified Immunity" my foot! They committed a criminal act, while on police duty no less! ???? ????

  17. usd55 an hour! Seriously I don't know why more people haven't tried this, I work two shifts, 2 hours in the day and 2 in the evening…And whats awesome is Im working from home so I get more time with my kids. Heres where I went...........http://www.Dollars9.com

  18. America's Infamous inJustice System. Common quoted stat, roughly 95% of all US Attorney 'cases' end in Plea Bargaining. You know, that famous promise of trial by ones peers regarding such as Asset Forfeiture and Qualified Immunity!

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