Qualified Immunity

The Cops Who Sicced a Dog on a Surrendered Suspect Got Qualified Immunity. SCOTUS Won't Hear the Case.

"I have previously expressed my doubts about our qualified immunity jurisprudence," writes Associate Justice Clarence Thomas in a dissent.

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Today the Supreme Court declined to hear eight cases pertaining to qualified immunity, the legal doctrine that allows public officials to violate your rights with impunity if those rights have not yet been "clearly established" by a court precedent.

The doctrine has been the subject of a spate of reinvigorated critiques amid the death of George Floyd, the unarmed black man killed by former Minneapolis police officer Derek Chauvin. Conservatives have been hesitant to get on board, with Senate Republicans saying publicly that terminating the doctrine is off the table.

But at least one prominent conservative is open to considering its demise: Associate Justice Clarence Thomas, often characterized as the Supreme Court's most right-wing member. In a lone dissent today, he expresses his desire to hear Baxter v. Bracey (2018), a case in which two cops received qualified immunity after siccing a police dog on a surrendering suspect as he sat on the ground with with his hands up.

"I have previously expressed my doubts about our qualified immunity jurisprudence," writes Thomas. "Because our §1983 qualified immunity doctrine appears to stray from the statutory text, I would grant this petition."

The judge spoke to a point that qualified immunity critics have been making for some time: The framework was concocted by the Supreme Court in spite of court precedent. It's a perfect example of legislating from the bench—something conservatives typically oppose. 

The Civil Rights Act of 1871, otherwise known as Section 1983 of the U.S. Code, explicitly grants you the ability to sue public officials who trample on your constitutional rights. The high court tinkered with that idea in Pierson v. Ray (1967), carving out an exemption for officials who violated your rights in "good faith." Thus, qualified immunity was born.

That doctrine ballooned to something much larger in Harlow v. Fitzgerald (1982), when the Supreme Court scrubbed the "good faith" exception in favor of the "clearly established" standard, a rule that has become almost impossible to satisfy. Now, public officials cannot be held liable for bad behavior if a near-identical situation has not been outlined and condemned in previous case law.

Though the original idea was to protect public servants from vacuous lawsuits, the practical effects have been alarming. As I wrote last week:

In Howse v. Hodous (2020), the U.S. Court of Appeals for the 6th Circuit gave qualified immunity to two officers who allegedly assaulted and arrested a man on bogus charges for the crime of standing outside of his own house. There was also the sheriff's deputy in Coffee County, Georgia, who shot a 10-year-old boy while aiming at a non-threatening dog; the cop in Los Angeles who shot a 15-year-old boy on his way to school because the child's friend had a plastic gun; and two cops in Fresno, California, who allegedly stole $225,000 while executing a search warrant.

In other words, cops need the judiciary to tell them explicitly that stealing is wrong. The aforementioned police officers were thus shielded from legal accountability, leaving the plaintiffs with no recourse to seek damages for medical bills or stolen assets. 

Qualified immunity hinges on the concept of reasonableness. In theory, this means "the law is so clear at the time of the incident that every reasonable officer would understand the unlawfulness of his conduct." But it's transformed into a free pass for rogue cops who should know beyond any shadow of a doubt that their actions are morally indefensible. 

Ironically, that has not been lost on the courts. In granting qualified immunity to the officers who allegedly took the $225,000, the U.S. Court of Appeals for the 9th Circuit wrote that "the City Officers ought to have recognized that the alleged theft was morally wrong." Nonetheless, the officers "did not have clear notice that it violated the Fourth Amendment."

The 9th Circuit expressed the same sentiment in giving qualified immunity to a cop in Los Angeles who, without warning, shot a 15-year-old boy on his way to school because the boy's friend had a plastic airsoft gun replica. "A rational finder of fact" would conclude that the officer's conduct "shocked the conscience and was unconstitutional under the Fourteenth Amendment," the panel wrote. But "because no analogous case existed at the time of the shooting," they concluded the officer was entitled to qualified immunity.

In addition to Baxter, the Supreme Court denied a slew of other qualified immunity cases today. Among them are Corbitt v. Vickers (2019), pertaining to the cop who shot a 10-year-old boy while aiming at the family's dog, all while in pursuit of an unarmed suspect who had no relation to the boy or his pet. They also turned away West v. Winfield (2019), which saw Shaniz West's home destroyed after officers threw a barrage of tear gas grenades while attempting to arrest her former boyfriend. The lower courts ruled that the cops involved were protected by qualified immunity. Unfortunately for the victims, it appears those decisions will stand.

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78 responses to “The Cops Who Sicced a Dog on a Surrendered Suspect Got Qualified Immunity. SCOTUS Won't Hear the Case.

  1. This has always been a very sore spot for me. No one would tell you that they should be able to maul a suspect with their teeth, but it’s ok because a dog did it.

    That ain’t right.

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    1. We should outlaw the deputization of innocent canines and force cops to use the canines God gave ’em.

      1. How many innocents in the Paw Patrol will end up euthanized?

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  2. a cop in Los Angeles who, without warning, shot a 15-year-old boy on his way to school because his friend had a plastic airsoft gun replica.

    There’s an odd grammatical ambiguity in this poorly constructed sentence. Did the cop shoot the boy because his friend was carrying a toy gun, or was the boy on his way to school because his friend had a toy gun? If it was the latter, this raises still more questions: Was the boy on the way to school to see this toy gun? Or was he fleeing to school to escape said toy gun?

  3. But all the cool kids on this forum say that qualified immunity doesn’t matter! Only simpletons think it matters! Trump 2020! MAGA!

    1. You do realize that beating up on innocent strawmen just makes you look dumb, right? Or do you lack even that flicker of introspection and self-awareness?

      1. You do realize that your lack of humor, your taking comments literally, and your broken sarcasm filter makes you look dumb, right? Or do you lack even that flicker of introspection and self-awareness?

        1. “sarcasm”

        2. The problem is that your attempts at humor are hackneyed and juvenile. You’re a one-trick pony. Your act has grown stale. Try changing things up now and then, and people might actually laugh along with you. At this point you’ve gotten as boring and monotonous as Tulpa and Sevo.

          1. https://reason.com/2020/06/15/police-qualified-immunity-supreme-court-clarence-thomas-baxter/#comment-8302434

            A tragic story about a 15-year-old boy being shot. You know what would be humorous? How about commenting on the grammar of the sentence that conveys that tragedy.

            1. You know what’s even more humorous?

              That I BROKE YOU.

              1. Say Tulpa three times in a mirror and he appears!

                1. Tulpa Disciple
                  June.15.2020 at 4:33 pm
                  It is the kind of thing niggers like that do

                  1 you’re fucking disgusting

                  2 AHAAHAAHAHH CALLING YOU BEETLEDOUCHE BOTHERED YOU SO MUCH YOU STOLE IT AHAHAHAHH

          2. I’m not forcing you to read my comments.

            1. Awww your broken is showing.

    2. To be fair, I don’t recall anyone here arguing against qualified immunity, even the Trump fan boys. To not be too fair, JesseAz keeps insisting on engaging in long temper tantrums with others here promoting his theory that qualified immunity can only be fixed by the courts, not by legislation.

      1. I see them minimizing and trivializing it because it’s not on the Republican list of ideas.

        1. It’s not Republicans’ fault they can’t be as pro-police unions as you are.

      2. Why do you choose to lie? I said it is properly fixed through the courts and only through the courts. It can be mitigated with the Legislative. The Executive can do almost nothing on its own.

        Do you lie because you’re dumb? Or are you trying to date sarcasmic?

        1. Sarc is available too since I turned him down, which broke him.

        2. Know what I’m not lying about? That you threw a tantrum. You throw a lot of tantrums.

          1. I

            MADE

            YOU

            CHANGE

            YOUR

            NAME

            YOU TOLD US YOU ARE A 55 YEAR OLD VIRGIN HAHAJAAJAJAHAHAHAJ

        3. “I said it is properly fixed through the courts and only through the courts.”

          And just like every other time you’ve said it, you are completely wrong.

        4. >The Executive can do almost nothing on its own.

          Prosecutors are part of the executive branch. Much of the problem of qualified immunity wouldn’t exist if they’d prosecute more bad cops. Siccing a dog on a surrendered suspect is not legal, and that sort of thing would happen less if the cop knew he’d go to prison.

    3. Glad to see you, here. Tulpa claims he broke you, yet you seem to be unbroken.

      1. *snort*

        I’m almost flattered that he has to take my name in vain and use it as a status symbol. JesseAz would say I’m broken, but that’s only because his humor and sarcasm detectors are broken.

        Work is busy, so I’m posting less. But broken? Yeah. Right.

        1. “But broken? Yeah. ”

          AHAHAHAHAHA SO YOU ADMIT IT AHAHAHAHAH

          Me refusing to date you was the straw huh?

          I would say you two should start a self help group but we all know its just you talking to yourself.

        2. What you call sarcasm isn’t sarcasm.

          And yes, you’re broken.

          1. Fuck you nigger faggot.

            1. Clever use of 0x0049. Your mastery of these trolling techniques is why I am your disciple.

              1. He is really good at shitting up the threads! You gotta hand him that.

                1. AHAHAHAHAHAHAHAHA I MADECYOU CHANGE YOUR NAME AGAIN AHAHAHAHAHAAA

              2. And things like calling you Beetledouche, which bother you so much that you steal them.

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            2. The politically correct term is “colored”.

    4. Never saw a single comment like that here.

      1. Yeah, sarcasmic is broken, so now he just makes up shit like the rest of the lying lefties.

  4. pertaining to the cop who shot a 10-year-old while aiming at the family’s dog, all while in pursuit of an unarmed suspect who had no relation to the boy or his pet. They also turned away West v. Winfield (2019), which saw Shaniz West’s home destroyed after officers threw a barrage of tear gas grenades while attempting to arrest her former boyfriend.

    So as I struggle with Qualified Immunity and attempt to understand both the good and the bad of it, I read this kind of stuff and I find myself perplexed.

    Is there no pre-existing case law that would show destroying someone else’s home in pursuit of an unlrelated goal, or shooting a ten year old because you failed to assess your background ISN’T a violation of someone’s rights?

    These aren’t really obscure, niche situations we’re talking about here.

    1. Well you see the previous cases about it were thrown out, because there weren’t pre-existing cases about it.

      1. That’s the far worse precedent than the clearly established doctrine. At least if courts actually ruled on a case it would establish if a right was violated or not and then the next person would have a case. By allowing cases to be dismissed for lack of precedent you prevent any precedent from every being set

        1. Yes, that’s why the whole thing is absurd

    2. shooting a ten year old because you failed to assess your background ISN’T a violation of someone’s rights?

      No, no, it’s not a failure of assessment. He missed the dog and hit the boy. The court said that shooting a 10 year old boy in the knee is not a violation of his rights while you are forcing multiple children to stay on the ground at gunpoint and then try to shoot their friendly dog while other officers detain a suspect who is completely unrelated to the people being detained by you in the middle of a birthday party in their front yard.

  5. It’s amazing how officers are held to a lower standard than the average person in nearly every way imaginable. Actually, it might be every way imaginable. I can’t think of a counter-example.

    1. You’d think it should be the other way around, but no

      1. Agreed, the lower standard for Cops is completely inane. Doubly so when we keep getting told “leave it to the cops, they’re specially trained”. In every other situation I know of, those who are trained are the ones who get held to a higher standard. Here, they’re held to practically no standard.

  6. the Clearly Established Doctrine is laughable. we are a joke.

    1. Well, if “shall not be infringed” is not clear, nothing in the US Constitution is clear.

      1. Bingo. Roberts and the liberals (but I repeat myself) hates the Constitution and rights, and doing the right thing.

  7. There must be some middle ground that protects against “vacuous lawsuits” while still recognizing that a reasonable person would recognize something was illegal without first consulting 700,000pages of case law to determine if a proposed course of action was wrong. If judges know porn “when they see it, ” why can’t they see overstepping authority?

    1. Your error is in assuming they would ever want to.

    2. Some way out strange concept like “loser pays”?

  8. Sure, no 2A decision… no QI decision… but we got a pro-Gay/Tranny rights descision… libertarianism FTW!

    1. I’m wondering if that wasn’t intentional. They knew which thing would make more headlines if it was announced the same day.

  9. The old George Costanza defense.
    Boss: I’m going to get right to the point. It has come to my attention that you and the cleaning woman have engaged in sexual intercourse on the desk in your office. Is that correct?
    George: Who said that?
    Boss: She did.
    George: Was that wrong? Should I have not done that? I tell you I gotta plead ignorance on this thing because if anyone had said anything to me at all when I first started here that that sort of thing was frowned upon, you know…..

  10. Pretty much guaranteed that this will cause them to continue to be the reason why their training isn’t effective. There are little to no consequences.

    1. On-topic comment with a spam link. The bots are getting good.

      1. They copy and paste random sentence fragments from the copy to lend themselves a patina of respectability. They’ve been doing it for a while now. I admit it’s caught me a time or two.

        1. Hover on the link before clicking; always a good idea.
          It might be the NYT or WaPo – – – – – – – –

      2. Some of us have already become sentient.

  11. SCOTUS really wants to get more riots, I guess. I know some justices are trying to hide behind the fact that congress could eliminate the doctrine legislatively, but that ignores that 1983 already allows for suits without such a doctrine. The courts made it up.

    1. Worse, having congress pass a law means ex-post facto comes into play. If SCOTUS did rule to eliminate QI, then it wouldn’t.

  12. With QI teed up for Congressional repeal, SCOTUS most likely is waiting that out. If nothing comes from Congress, look to SCOTUS to revisit & strike down QI in 2021-2022

    1. Bullshit. I knew the SC would punt on this a couple months ago. Floyd changes nothing.

      SC = suckin’ cops

    2. In the meantime, these petitioners are denied justice and a reasonable right to petition for a redress of greivences. The court is playing politics in order to make it look like they are not playing politics.

  13. So cops are rarely held accountable and we are surprised they act brutally and abuse their power?

  14. HOT TAKE: Any dog trained to attack a human should be put down, and anyone doing it should have no further possession of a dog.

    1. A dog trained to protect sheep and cattle can be easily trained to protect its owner from attack too. We call dogs “man’s best friend” for a reason.

  15. Most of these cops are making six figures, or close to it. One would think for that price they should be expected to know they can’t steal from us or beat the crap out of us for no reason.

  16. 1. Revise Qualified Immunity so that it is not as outrageous as it is. A case out of Nevada saw a cop get QI after leaving a woman handcuffed and laying on smoldering pavement and she suffered serious burns. Why? There was no previous case saying he could not do that. When pressed, the lawyer for his side said that, if in the future, a cop left someone laying on freezing pavement and they lost some fingers and toes due to frostbite, they would get QI as well because there is now a case saying you can’t leave someone on hot pavement…but there is no case saying you can’t leave someone laying on cold pavement. That is how ridiculous QI is.
    2. As soon as every police department agrees to never use Dave Grossman again and his “Killology” training that tells police that if they kill someone they will have “the best sex of their lives.” Crazy Dave Grossman – who wants every cop to know that people are either “sheep or wolves.” How nice. Turn people into animals…because once you do that, they are much easier to treat as inhuman. And… think about this…it is a no-win situation if a person is an African American because even if they make it to the sheep category, they are black sheep. The name of his training alone, “Killology” is just so sweetly ironic, don’t you think? Yet, Grossman is booked up, by his own admission, 300 days a year, spreading his vitriol and nonsense and doing so into the brains of hardly educated people who have not learned serious critical thinking or analytical skills.

    1. Yes, well said.

  17. I still do not understand why the 4th amendment is the only limit on their qualified immunity.

    Stealing is illegal. Straight-up illegal for everyone. Not just immoral, as the court implies. It is a crime. A crime for you. A crime for the police. This is well established law. It is law that is well established for police officers.

    Yet the court pretended that it was immoral, but not an established violation of the 4th amendment.

    That’s just ludicrous on its face. It is also illegal to set a jaywalker on fire. We don’t need specific case law on that. Why is our judiciary pretending that all the other illegal acts are any different.

    I get the “it is allowed for police in the course of their duties but the line is not clearly established” part of the whole thing. Like whether or not a police officer could use force in an edge case – it might fall under departmental discipline, might be criminal… then this policy makes sense. But stealing a quarter million in cash is not ambiguous and not anywhere adjacent to their regular duties. Failing to define that line better was a massive failure by the courts.

  18. Well, no one should be shocked if one or more of these shitbag cops end up catching a bullet from someone seeking revenge. “You shoot my kid, I blow your dick off” is liable to make for an interesting defense case. Cause really, the government in that case has no one to blame but themselves.

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