Qualified Immunity

A Cop Shot a 10-Year-Old and Got Qualified Immunity. Tom Brady and 1,400 Other Pro Athletes Want To Fix That.

Citing work from Reason, players and coaches from the NFL, NBA, and MLB are urging Congress to end qualified immunity.

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Qualified immunity has gone from a little-known issue to problem du jour—and for good reason. The legal doctrine allows public officials, including police officers, to violate your rights without fear of recourse, if those rights have not been spelled out somewhere by a preexisting court precedent.

Now this doctrine has drawn the ire of the Players Coalition, a group made up of current and former athletes and coaches from the National Football League, the National Basketball Association, and Major League Baseball. Members of the group have sent a letter to Congress this week urging lawmakers to support the Ending Qualified Immunity Act, a bill introduced by Rep. Justin Amash (L–Mich.).

"The Supreme Court has caused irreparable harm to public trust by creating and then expanding the doctrine of qualified immunity, which often exempts police officers and others from liability, even for shocking abuse," the letter reads. The 1,400 figures signing the letter include Tom Brady, Drew Brees, Steve Kerr, Odell Beckham Jr., and Greg Popovich.

The letter details several cases they find particularly egregious, and it cites a couple of my Reason stories in the process. "The 9th Circuit applied the doctrine to two officers who allegedly stole $225,000 while executing a search warrant," the authors write. "The Eleventh Circuit applied the doctrine to protect an officer who unintentionally shot a ten-year old while firing at the family dog (who, much like the child, posed no threat). The list of officers who suffered no consequences because of this doctrine could fill a law book."

Their reference to the 9th Circuit decision includes a link to my May article detailing the Supreme Court's decision not to hear the case. That 9th Circuit ruling epitomizes the perverse nature of qualified immunity: The unanimous panel wrote that "the City Officers ought to have recognized that the alleged theft was morally wrong" but concluded that they "did not have clear notice that it violated the Fourth Amendment." Put more plainly, because no court precedent had yet established that stealing infringes on someone's rights, the officers were off the hook.

Their reference to the other case includes a link to my July article about a sheriff's deputy in Coffee County, Georgia, who shot a 10-year-old boy while aiming at the family's nonthreatening dog. The cop did so while in pursuit of a suspect who had no relation to the boy or his dog. Because there was no case law with a near-identical scenario, the deputy received qualified immunity, leaving the boy's mother no legal recourse to sue for medical expenses. The Supreme Court has not yet decided if they will hear the case.

"When police officers kill an unarmed man, when they beat a woman, or when they shoot a child, the people of this country must have a way to hold them accountable in a court of law," the letter reads. "And officers must know that if they act in such a manner, there will be repercussions. A legal system that does not provide such a recourse is an illegitimate one."

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77 responses to “A Cop Shot a 10-Year-Old and Got Qualified Immunity. Tom Brady and 1,400 Other Pro Athletes Want To Fix That.

  1. Tom Brady is against qualified immunity?

    It’s somewhat ironic that a quarterback, the most protected position in the NFL, would be opposing QI. Wrinkle their jersey and you get 15 yards and a $10,000 fine.

    1. Not to mention all the times he and his former coach got caught violating the laws of the NFL and yet managed to get immunity from the NFL.

      1. The air in those footballs was a result of the drug trade, and they were right to confiscate those assets.

        1. And they only unmasked those Jet tapes after getting credible evidence of an imminent attack.

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      2. That’s only true if by ‘immunity from the NFL’ you mean ‘a quarter million dollar fine for the coach and a four game suspension without pay for the player’,

    2. GET RID OF ALL COPS. THEY DO SHIT TO REDUCE CRIME, AND ARE, IN MANY PLACES, THE CRIMINALS THEY SUPPOSEDLY SHOULD BE FIGHTING

  2. That’s it? This article reads like Billy wanted everyone to know how his work got picked up by Tom Brady. Now if only something were, you know, done about it by Congress…

    1. Hey at least he is setting his sights higher then just the normal DC cocktail party invite; he may just get an invite to a genuine NFL sex party.

      1. I can just picture him walking in the front door and screaming “who wants to tryout a new tightend???????

        1. That would be false advertising.

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  3. And I give a damn what a pro athlete think? No, not at all.
    They can’t even figure out how to get back to work, why should I listen to what they think about taking work away form another group?

    “He can’t even run his own life, I’ll be damned if he’ll run mine”

    1. Another Jonathan Edwards song. Completely unrelated to the subject, but it’s better than “Sunshine”.

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  4. Let’s get Greta’s opinion before we make any rash decisions.

    1. How dare you!

      1. I prefer to picture her sighing, disgruntledly cranking on the preventer, and preparing to jibe.

    2. She’d hit that.

    1. He misinterpreted the rules. Go Patriots!

      1. I don’t think Chevron deference extends to the NFL.

  5. Nothing creates tension and rebelliousness more than hypocrisy, which, by the way, is the practice of claiming to have moral standards or beliefs but not actively demonstrating those standard or beliefs. No profession is more hypocritical than that of law enforcement. Whether they are speeding or shooting someone, there is a different set of standards for police officers. It used to be that they were held to a higher standard…now though, they are held to whatever standard allows them to escape responsibility, avoid transparency and evade accountability. Their blatant and deliberate disregard for any moral standards or beliefs leaves those whom they have jurisdiction over feeling resentment, anger and exasperation. Much like a father who chain smokes unfiltered Camels telling his son not to smoke, modern law enforcement blows the smoke in our faces while doing far worse than simply lecturing us. They blow the smoke in our faces while abusing, molesting and, in some cases, killing us, all while they get away with everything they can as often as they can.

    1. The latest example of a new disease, Cop Derangement Syndrome (CDS). Indications of infection include prolonged hyperbole and inapplicable analogies.

      1. How about a logical and analytical response? Good writing shows, it doesn’t merely tell. What do you not agree with? It seems that everything in my post was correct. Police are held to a different standard (Qualified Immunity, anyone?). They do, indeed, abuse, molest and kill people. Do you disagree? If so, you are tone deaf and culturally blind.

        1. Your “good writing” did not show anything. It was just an anti-cop rant from start to finish. No one would disagree that police do upon rare occasion abuse molest and kill people. No one not afflicted by CDS would argue it’s a systemic problem without statistics to support their point. Sorry, but there’s no known cure.

          1. But there is a systemic problem: the vast majority of cops don’t call out dirty cops. No one not affected by Cop Prostration Syndrome would argue otherwise. Therefore the vast majority of cops are complicit in cop misbehavior.

        2. Your comment is replete with unsupported and unsupportable hyperbolic assertions. As just one logical and analytical example of your excesses: you clearly mistake ‘qualified’ with ‘unqualified’. (Check out the words following ‘if’ in the last sentence of the first paragraph of the piece above.)

          Another example of your own illogic: In your reply to GKHoffman, you lament that police are held to a different standard. Yet, in your original post, you lament that police are no longer held to a different – higher – standard.

          The fact that you write in complete sentences does not conceal your furious outrage or magically transform your groundless exaggerations into accepted wisdom.

    2. Really? When? I just read a former Chief of Police in Detroit and he didn’t experience good standards until the 90’s, when he was chief. Even then, he was stopped.

    3. They only have jurisdiction on criminals. When you commit crimes you give up your rights and put yourself at the mercy of law enforcement. Stop breaking the law and your life will be much better.

  6. Where would we be without celebrities and athletes?

    WHERE?!

    1. America’s royal and noble classes.

    2. In one of the following shithole countries without a single gold metal, that’s where:

      Bolivia, Chad, Timor-Leste, Cambodia, Cape Verde, Bosnia and Herzegovina, Albania, Bhutan, Benin, Belize, Bangladesh, Andorra, Gambia, Guinea, Turkmenistan

      Also obligatory chant: USA! USA! USA!

      1. They don’t have the metal gold in those places? /wink.

        You may have to update the list to include Seattle.

        1. And the Zone Formerly Known as Seattle.

  7. Cops should not be permitted to write criminal laws or lobby a legislature. They should voluntarily agree to this and create a professional association to enforce the restriction on political activity.

    1. The 1st Amendment has something to say about your idea: “Nope.”

      1. Funny, it didn’t stop the Hatch Act.

  8. All of the sudden the rest of the world is noticing a completely f’d up part of the system that people of our ilk have been intimately aware of for years. Hopefully there’s some progress made before they are distracted by a different squirrel.

  9. The legal doctrine allows public officials, including police officers, to violate your rights without fear of recourse, if those rights have not been spelled out somewhere by a preexisting court precedent.

    This framing bothers me. Because I don’t think, taken at face value, that this is correct.

    My understanding is that it protects officers from being personally civilly sued for violating rights, if those rights have not been spelled out somewhere by pre-existing court precedent.

    That’s a much more narrow set of circumstances. There’s nothing stopping the officer from being prosecuted for a crime, or simply straight out fired by their management.*

    *Well, except for the union protections part.

    I’m not against looking at qualified immunity as part of the solution. But I think how its presented is important.

    1. to violate your rights without fear of recourse

      Further, I also believe this has not been phrased correctly. If a cop violates your rights, that presumes there is a court precedent declaring that there was a right, and it was violated. Forgive my technical language, but QA essentially says that if a cop does *something* to you which you find offensive to your person or being, that if that *something* has not been found to be a prior violation of rights, then the public official can be shielded from your lawsuit.

      That *something* should remain intentionally vague. Because if we say “a cop violated my rights”, you merely saying it doesn’t make it so.

      Am I off track here, lawyers?

      1. Am I off track here, lawyers?

        Whether you’re off track here or not, the bill shouldn’t simply say “End qualified immunity.” and leave the above unaddressed. Moreover, as near as I can tell the bill does nothing that could be construed as *ending* qualified immunity as much as dialing it back to the early 80s-late 70s, otherwise known as the halcyon days when black people weren’t getting beat up by cops.

      2. That’s not to say that the perfect should be the enemy of the good, but it’s like the Presidential Military Intervention Against Iran bill where, what we really needed was a repeal of the AUMF. Instead we got an anti-Trump piece of niche legislation specifically designed to tide the public over until COVID and George Floyd had people saying “What’s an AUMF?”

      3. ” If a cop violates your rights, that presumes there is a court precedent declaring that there was a right, and it was violated.”

        Not really. The first time a cop violates someone’s particular right in a particular way is still a violation regardless of whether there is an existing precedent.

        “Am I off track here”

        Not really, but the part that people really object to is that qualified immunity can protect a state agent from liability even if it has been determined that the agent did, in fact, violate your rights so that’s the part they emphasize. The other big problem is that courts can now take the easy way out and decide that the right wasn’t clearly established without deciding whether or not there was an actual violation, which then leads to the same result in the next case involving similar circumstances.

        “My understanding is that it protects officers from being personally civilly sued for violating rights, if those rights have not been spelled out somewhere by pre-existing court precedent.

        That’s a much more narrow set of circumstances. There’s nothing stopping the officer from being prosecuted for a crime, or simply straight out fired by their management.*

        *Well, except for the union protections part.”

        That’s correct, but lack of effective disciplining of state and local agents by state and local governments is the main reason why Congress passed 42 USC 1983 during Reconstruction.

        1. Thank you for your clarifications.

          Not really. The first time a cop violates someone’s particular right in a particular way is still a violation regardless of whether there is an existing precedent.

          I guess what I’m trying to get at here is, if I declare that an agent of the state interfered with my right to eat a tangerine under a streetlight*, and there’s no existing case law which suggests eating a tangerine under a street light is an enumerated right, then you can’t sue the cop individually for that right you constructed in your head, even if your arrest was thrown out of court.

          I also understand there’s nothing stopping you from suing the agency itself which has no protections under QI doctrine.

          It just seems to me that we’ve decided that because cops are A: notoriously difficult to prosecute under criminal statutes, and B: impossible to fire because of the phalanx of union protections, we think we can hold them civilly accountable in a flood of lawsuits, individually naming the offending agent. It’s rapidly becoming my opinion that we need to fix A and B.

          The other big problem is that courts can now take the easy way out and decide that the right wasn’t clearly established without deciding whether or not there was an actual violation, which then leads to the same result in the next case involving similar circumstances.

          I do definitely see the chicken-and-egg problem here. But at least in the context of this article, we’re talking about constitutional rights, there surely is some case law that gives us some precedent.

          *It’s a clumsy analogy because of course one has a right to eat a tangerine under a street light, but hopefully my intent comes across.

          1. “and there’s no existing case law which suggests eating a tangerine under a street light is an enumerated right, then you can’t sue the cop individually for that right you constructed in your head, even if your arrest was thrown out of court.”

            Under Section 1983, you can absolutely sue regardless of whether there’s an existing case supporting your claim. You would just have to prove that eating a tangerine under a street light was a constitutional right to win your case. What qualified immunity does is say that even if eating a tangerine under a street light is a constitutional right, if there’s no existing case (or the violation isn’t especially shocking) then the state agent will be entitled to summary judgment.

            “I also understand there’s nothing stopping you from suing the agency itself which has no protections under QI doctrine.”

            It’s very hard to sue an agency for the conduct of its officers. You have to be able to show that their bad behavior was the result of the policies or practices of the agency. Since few agencies actually have explicit policies that say, “go out and violate some rights,” that can be very hard to do.

            “It just seems to me that we’ve decided that because cops are A: notoriously difficult to prosecute under criminal statutes, and B: impossible to fire because of the phalanx of union protections, we think we can hold them civilly accountable in a flood of lawsuits, individually naming the offending agent. It’s rapidly becoming my opinion that we need to fix A and B.”

            A and B are definitely huge problems that need to be addressed as well. Not only did the cop who shot Daniel Shaver as he crawled down the hall crying get acquitted at trial, but he was reinstated and retired with disability benefits for the trauma that shooting Shaver caused him. The whole process is in shambles, and reforming qualified immunity certainly won’t fix all of it.

            “I do definitely see the chicken-and-egg problem here. But at least in the context of this article, we’re talking about constitutional rights, there surely is some case law that gives us some precedent.”

            It depends on the type of case. For searches and some types of seizures, yes, because the legality of those are important parts of criminal trials and those decisions are applicable in the civil context as well. But for things like excessive force, not really, because pretty much the only way to bring a claim is through a Section 1983 action.

            1. The Daniel Shaver cop was duly charged with a criminal offense but acquitted after a jury trial. Maybe just maybe there was more evidence adduced at trial about the incident than you put in your post?

              Whom would you have decide cop guilt or innocence other than a jury? A panel of BLM organizers maybe? Just you?

              Sounds to me like the system worked.

              1. “The Daniel Shaver cop was duly charged with a criminal offense but acquitted after a jury trial.”

                So was OJ.

                And then there’s all the innocent people that juries convict. Sometimes juries just screw up, and sometimes the deck is stacked against the jury reaching the right decision.

                1. “Whom would you have decide cop guilt or innocence other than a jury? A panel of BLM organizers maybe? Just you?”

                  1. Allow me to quote myself.

                    “So was OJ.

                    And then there’s all the innocent people that juries convict. Sometimes juries just screw up, and sometimes the deck is stacked against the jury reaching the right decision.”

              2. the whole god damn thing was on video. the guy an hands and knees begging for his life and the cop killed him WTF more evidence could there possibly be copsucker?

                1. An enterprising inquirer like yourself should have no trouble looking up that information. Assuming you want to know of course. Or, you may be happiest marinating in your own bile.

          2. The problem with QI is even if there is solid case law saying that you can eat an apple with a flashlight, and you get arrested for eating a tangerine under a streetlight, you will still lose. The facts in the cases have to be very close to win.

      4. QI, I’ve got Quality assurance on the brain.

    2. Yeh. When you start to see Popovich – heck the entertainment class – throwing his support behind something you may want to examine it closer.

      His dumb ‘America is now Rome’ because Orange Man Bad was just about as self-serving as it gets.

    3. I did further reading and it requires “willful disregard” of a person’s constitutional rights.

    4. “There’s nothing stopping the officer from being prosecuted for a crime, or simply straight out fired by their management.”

      Absolutely true, but that does nothing to give YOU recourse for your damages. Only a civil suit can do that.

  10. Darn, I’ve got to support Tom Brady.
    Well, I do. On this one, he’s right, it’s important, and a “celebrity” chose something of genuine public importance before using his fame to further a cause.
    Still, he did play for Michigan, therefore, I uhhh…. Well, no, he’s doing the right thing. He doesn’t have to and he doesn’t have to make it public, but he’s doing that anyway. So, credit where credit is due.

    (But, still,… ahhh, darn it! I can’t, well, no, I should, but…Oh, OK.)

    1. Darn, I’ve got to support Tom Brady.

      Says who? I’m supporting Drew Brees. Brady can go fuck himself.

  11. I think it’s important we try to suss out what we’re trying to do here. If people who want to completely abolish qualified immunity wink and nod at me, and tell me quietly that “Hey, all we’re really trying to do here is tear down the system, stop sweating the details!”, then I might be inclined to agree with them.

    For instance, there is an agency called the EPA which is staffed to the rafters with agents who can obliterate your property rights with a vague and dodgy interpretation of a rule or diktat that isn’t grounded in any meaningful reality as it relates to protecting the environment. This can then be followed up with the application of penalties and fines which can totally destroy a person and their livelihood. If we’re proposing that those same agents can now be named individually in direct, civil lawsuits and said agents receive no blanket legal protections, then I say to thee, bring it on.

    1. “there is an agency called the EPA”

      Federal agents generally are not subject to suit under 42 U.S.C. 1983, which only applies to people acting under the color of state law, so qualified immunity rarely applies to them. There are some instances where federal officials can be sued under the Bivens line of cases, but they are very limited and probably won’t help you against the EPA.

      1. Thank you for that detail.

        However, my point can probably still be applied to other state or local agencies as “qualified immunity” is not a law which only applies to cops.

        I’m guessing that if you just magically erased QA from legal scripture, that most state agents could find themselves flooded with lawsuits.

        1. “I’m guessing that if you just magically erased QA from legal scripture, that most state agents could find themselves flooded with lawsuits.”

          Perhaps, but I doubt it would increase all that much. To be able to prevail in a Section 1983 lawsuit, you need to be able to prove that an agent of the government deprived you of your rights. Given the broad police powers granted to the state governments, that’s not particularly easy to do.

  12. 1,400 athletes? Well if people who are employed based on their physical attributes and abilities say something, then of course I want to listen to what they have to say.

    Hey Billy, if there was a coalition of 5,000 professional athletes who opposed your position, would you write an article about it? Would you consider it even worth mentioning? If not, then why would you think 1,400 people whose opinion you only care about because it is the same as yours worth writing about?

    1. 4 in 5 athletes agree…..tartar protection is important!

  13. 1,400 Other Pro Athletes Want To Fix That.

    The politics is settled!

  14. goooooal
    worthy of backflips

  15. Citing work from Reason, players and coaches from the NFL, NBA, and MLB are urging Congress to end qualified immunity.

    I see: the ultra-wealthy are influencing our political system again, and Reason cheers them on.

    1. Well, I get the subtext here. The headline should have read, “Thousands of celebrities not as easily ignored by the MSM as they do libertarians want to end QI.”

  16. Why are there so many identifying only with a footballer when several other sports are represented ? I effectively boycott all sports
    and find activism within the professional , highly paid popular club of elites totally lacking motivation or conviction to a just cause. When I learned that MJ of Chicago Bulls fame made 10 times more just in endorsements over salary, one sees how players can and should be more vocal even as team coaches in football pretend they care .
    That sport personifies and maintains a plantation culture within the ownership group. Goodell was comically unconvincing saying BLM in a commercial minutes ago. A great moment I dream of but regard as fleeting is a complete strike and shutdown of those 3 sports Americans have come to support in one powerful unified voice with specific demands.
    Even so, white cops keep killing day in and day out while their peers merely watch and witness . How defective is that ?

  17. aw shut up tom brady. QI has been a problem for decades and NOW you got a problem? just stfu and play your game. i give a shit about your opinions like i care about any celeb’s…not at all

  18. Why anyone would listen to a player on anything besides how did the game go is beyond me. More moronic commentary comes from them than most places.

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      1. aw shut up tom brady. QI has been a problem for decades and NOW you got
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  19. It seems fairly obvious the problem is not with the concept of qualified immunity, but with the courts in applying the law.

    While this is just another in a litany of articles where Reason shows its animus to the police, the rest of the thinking public doesn’t have to buy into the tripe. Officers need to have the immunity to be able to enforce the law otherwise they would be frivolously sued for their actions.

    Again, the instances shown do not argue for complete repeal of qualified immunity but for the courts to judiciously apply it.

  20. As long as cops are only being hard on criminals why should any law abiding citizen care? When you commit a crime you are giving up some of your rights. If you don’t want a cop to mess with you don’t break the law.

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