Qualified Immunity

Tucker Carlson Might Want To End Qualified Immunity If He Actually Knew What It Was

The Fox News host says reforming qualified immunity would "end law enforcement." That's not even close to being true.


Last night Fox News host Tucker Carlson vigorously defended qualified immunity, the doctrine that allows public officials to avoid federal civil rights lawsuits if the way they violated your rights has not been outlined with exacting detail in previous case law.

Carlson offered an alternative definition for his viewers. "Qualified immunity means that cops can't be personally sued when they accidentally violate people's rights while conducting their duties," he said. "They can be sued personally when they do it intentionally, and they often are."

There are a few problems with the statement, the largest being that it is not true.

Qualified immunity provides no distinction between accidental and intentional rights violations. A quick review of previous qualified immunity rulings proves as much. Consider the cops in Fresno, California, who were granted qualified immunity after allegedly stealing $225,000 while carrying out a search warrant.

It was not an accidental robbery, and the U.S. Court of Appeals for the 9th Circuit acknowledged as much in their ruling last September. Though "the City Officers ought to have recognized that the alleged theft was morally wrong," the unanimous panel wrote, it concluded that they "did not have clear notice that it violated the Fourth Amendment." They both received qualified immunity.

Translation: The officers should've known that stealing from someone is ethically and legally indefensible. But without a court precedent spelling that out for them, the two were off the hook, leaving the plaintiffs no recourse. That is how qualified immunity works in practice.

"Civil immunity has precisely nothing to do with anything that happened in the George Floyd case," Carlson continued. "Just in case you were wondering, that cop is in jail."

Again, that represents a fundamental misunderstanding around where and when qualified immunity applies. The doctrine solely pertains to civil liability—a public official who breaks the law and is awarded qualified immunity is not protected from criminal prosecution. The two are entirely unrelated, although it's worth noting that state prosecutors often decline to bring such charges in the first place.

Put more plainly, former police officer Derek Chauvin may indeed receive qualified immunity from any civil suit brought by the family of George Floyd—the unarmed man who died after Chauvin dug his knee into Floyd's neck for almost 9 minutes—even if Chauvin's trial yields a murder conviction.

Carlson continued:

Qualified immunity has worked so well because police officers, maybe more than anyone else in society, must make difficult split-second decisions on the job, and a lot. They do it constantly. Whether to arrest someone, whether to conduct a search, whether to use force against a suspect. Sometimes, actions they sincerely and reasonably believe are legal are found later by courts to be unconstitutional. Sometimes the very laws they enforce are struck down. That's not their fault, obviously, but without qualified immunity, police could be sued for that personally. They could be bankrupted they could lose their homes. That's unfair. It would also end law enforcement. No one would serve as a police officer.

There's quite a bit to unpack there. First, as Institute for Justice attorney Patrick Jaicomo notes, qualified immunity has nothing to do with reaction times but "is about whether the right that was violated was 'clearly established'" in pre-existing case law. That standard was concocted by the Supreme Court in Harlow v. Fitzgerald (1982) in spite of Section 1983 of Title 42 of the U.S. Code, the statute that previously allowed the American public to sue for violations of their constitutional rights. It's the epitome of the high court legislating from the bench, something conservatives typically oppose.

But perhaps Carlson's most significant misinterpretation is his claim that cops caught up in such compromising situations usually "sincerely and reasonably" believed their misconduct was both legal and constitutional. That assertion can only be explained by a lack of familiarity with qualified immunity case law. Take the cop who received qualified immunity after shooting a 10-year-old while in pursuit of a suspect that had no relationship to the child. The officer, sheriff's deputy Matthew Vickers, was aiming at the boy's nonthreatening dog.

There were also the cops who were granted qualified immunity after assaulting and arresting a man for standing outside of his own house. And the prison guards who locked a naked inmate in two cells, one filled with raw sewage and the other "massive amounts" of human feces. And the cop who, without warning, shot a 15-year-old who was on his way to school. And the cops who received qualified immunity after siccing a police dog on a person who'd surrendered. It doesn't take much thought to conclude that those courses of action were morally bankrupt.

Then there's the notion that police officers would lose their homes and leave the force in droves should qualified immunity meet its demise. Puzzlingly, that claim hinges on the assumption that a slew of officers would lose their cases—a tacit acknowledgement that police culture needs to change.

But even so, cops themselves are almost never on the hook for the bill. Cities are. It's certainly still not an ideal solution for taxpayers, but until police departments can grapple with reform, it's an option that should be available for those who have their rights flagrantly violated by those that swear to protect and serve.

Incidentally, qualified immunity does not apply only to those who take that oath. It applies to all public officials. That includes, for instance, university administrators who have infringed on students' due process rights. Carlson has been beating the campus culture war drum for a while. I assume he would not support qualified immunity in those cases, though one wonders if he knows it applies.

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  1. I think I’d like to see the effects of trying some other things first, before legislatively doing away with QI.
    – Require the public disclosure of all police who have been subject to disciplinary action for assaulting citizens
    – Establish a reporting database for police abuse of citizens
    – Prevent cops with a history of abusing citizens from moving between states and municipalities.

    Doing away with QI is a much bigger step. It might ultimately require that, but I think I want to try these other alternatives first. They’re way cheaper than city funded big-dollar settlements and tax increases.

    1. I watched that segment, and I was disappointed in Tucker. I don’t think abolishing QI isn’t going to fix all that much, but Carlson cherry-picked examples and ignored the many instances in which officers were indeed above the law.
      At the end of the day, it’s the citizenry and their local governments that enact meaningful change since most law enforcement is, well, local. The FBI needs to be shot into the fucking sun, however.

      1. Fuck, I didn’t mean to reply. Sorry.

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      2. Just to point out the obvious, if QI were abolished and citizens are allowed to sue police and other public officials IN NO WAY means that they will lose. All it does is allow a citizens day in court. It would then be a judge and/or jury to decide if action in question should be obvious to everyone.

        Without a doubt, there would be ridiculous, frivolous lawsuits if QI were abolished. But we currently have those same frivolous lawsuits against normal citizens. Everyone deserves their day in court regardless of the profession of the defendant.

        1. Unless that defendant is Big Tech

        2. and we’d have to have police forces 2-3 times larger with an army of lawyers paid by the Union, well the taxpayer, to cover for the mandatory paid defense days you’d then see covered as part of their contract.

          There is plenty of reason to have it limited to only what’s been proven as reasonable and legal rather than today’s open ended monstrosity that sees limits as the exception rather than the rule. Dispose of QI entirely and every arrest becomes an assault charge to an opportunistic lawfare machine.

        3. But I think that’s the fear, unfounded and frivolous suits tying up cops in court for years and ludicrous judgments by juries swayed solely by emotion or bias. Our civil courts are clogged with just suits now, and we’ve all found ourselves slack jawed at huge judgments against the wrong person because “the defendant deserved something”.

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      3. Yeah I saw it too. I’m sure I won’t make any friends by saying so but I generally agree with Carlson on a lot of subjects. He’s been very good on the Covid scam lately for example. But he really made an ass of himself on QI. He made no attempt to justify the endless examples of abuse a few a which are listed above. He simply regurgitated Bill Barr’s talking points. Billy seems to be giving him the benefit of the doubt here, pleading ignorance on his behalf. Well there’s ignorance and there’s willful ignorance. Either way Tucker’s not doing his homework.

        1. He’s talked about it elsewhere, just not in that segment. They are focusing on one segment where he discussed the extreme end all QI, not the middle ground of reforming it.

      4. You may be shocked to learn this… but Tucker has largely been against the ridiculous QI cases. But he also realizes total elimination is merely a wet dream for trial lawyers. There is actually a way to be in the middle.

        1. I don’t watch enough of his show to know that; so thank you for the perspective. However, in this particular segment, he was implying that no cop is above the law despite that being false. And that is what I take issue with.

    2. I’d much prefer that they actually had to legislate QI into existence first instead of making it up by judicial ruling.

      I don’t think QI is the end all be all. Though if municipalities had to weigh the cost/benefits of keeping bad cops vs raising taxes they may think twice about keeping bad cops.

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    4. QI has got to go, especially since police are rarely ever personally on the hook to pay any judgement.

      If there’s no risk of the cop having to pay anything, why does he need to be immune from being sued?

  2. Tucker Carlson doesn’t worry about truth or falsehood. His recent line about the statue of Teddy Roosevelt in front of the NYC Museum of Natural History proves it: he pretended that the city was removing the statue because it’s a statue of Teddy Roosevelt, when in fact it’s because the statue depicts him on a horse, flanked by, and towering over, a black man and an American Indian (Native American), who are on foot and clearly in a subservient position. THAT’S why the statue is being removed, and it may well be replaced by another statue of Teddy Roosevelt. Tucker Carlson didn’t mention this at all.

    1. +1 Fry questioning “Satire?”

    2. “clearly in a subservient position”

      What utter horseshit. They were standing tall beside him in the classical representation of a general’s aide-de-camps or lieutenants.


      You’re the one making things up.

  3. Fawkes is carrying the water for the 99% of awesome Officer Friendlys

  4. Tucker Carlson is a danger to this country and a shitty human being. He peddles constant fear with no regard for the facts. Plus he looks like an idiot reading his teleprompter. Can he not learn how to look into the camera? His latest rant was about removing the Teddy Roosevelt statue. First of all, this statue is on private land and the owners have decided to remove it. Yet he made it seem as if the protesters (rioting mobs, as he likes to call them) are coming to tear it down. Not once does he mention why this statue is controversial: TR is on horseback with a black man and an indigenous man beside him on foot. It’s clearly offensive. New Yorkers have been complaining about this statue for years.

      1. C’mon, be fair to Chipper. Whenever he says something dumb it’s simply a joke you didn’t understand.

    1. Teddy was always pictured on a horse. He was the Rough Rider. The black man portrays an African not an African American. The statue celebrates the great man’s friendship with diverse peoples of the world not their subjugation. It was pretty fucking woke back in the day. You can hate Teddy all you want. I’m not a fan either. But you’re projecting a meaning onto this statute that was not imagined by it’s creators.

      1. Yea, but eunuch is crazy desperate to be approved of as woke

    2. Nearly every sentence of this is false.

      The statue is located in Theodore Roosevelt Park, a little piece of city parkland that juts out of Central Park–except that it is even less private than Central Park, in that it’s managed directly by the Parks Department instead of a private conservancy. Like the park, the statue belongs to the NYC government; and it is they who are currently making the decision to remove it.

      This statue survived a purge of “problematic” monuments initiated by Bill De Blasio just two years ago. Hizzoner’s own handpicked Ministry of Truth officially determined that this statue was to be spared. Perhaps this is because it was not, indeed, very “clear” to anyone but yourself why two exceedingly proud, strong, and handsome looking figures depicting the Old and New Worlds should indeed be so “offensive” to New Yorkers that they must be memory holed. But on, more charitably, to the strongest part of your claim:

      New Yorkers have been complaining about this statue for years.

      Technically true, I will grant you, in the sense that there undoubtedly exists more than one New Yorker who has been complaining about this statue for more than one year. In the stronger sense that you are clearly trying to imply, your statement is preposterous. And judging from your level of familiarity with some of our most basic facts, I can only conclude that the closest acquaintance you have ever had with New York City is sampling some inferior picante sauce manufactured here in the 1980s.

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    5. I can’t agree with you about Tucker. Compared to most of the MSM he uses his brain and usually gets the facts right, though for QI he obviously got it wrong. I’m not surprised he will take a situation and mis-report it to buttress his thinking.

      As for the Teddy Roosevelt statue, it’s only offensive to people looking to be offended. It clearly was not meant to be offensive to indians or blacks. Personally I find their lack of tolerance to be offensive.

  5. police officers, maybe more than anyone else in society, must make difficult split-second decisions on the job, and a lot. They do it constantly.

    Well, just maybe, that is the fucking problem. I would expect someone to have carefully considered whether it is justifiable to inflict violence on another human being. At a minimum, they shouldn’t be allowed to enforce laws they have not demonstrated that they understand.

  6. “Tucker Carlson Might Want To End Qualified Immunity If He Actually Knew What It Was” written in English would read, “Tucker Carlson Might Want To End Qualified Immunity If He Actually Knew What It Is.”

  7. Nah, it’s not Tucker’s ignorance of what qualified immunity is that makes him oppose its abolition. It’s that he’s a police-state facist.

    1. Fuck off, Jeff.

  8. Jesus, Tucker Carlson is closer to being right than Billy Binion. Intentionally means what the country’s say it means.

    And, if there were no QI whatsoever, police officers would become full time defendants, and no one would be a police officer

    1. QI does nothing to keep the cops out of court, it just allows a judge to dismiss the lawsuit at an early stage. People who feel they’ve been wronged will always go to the court to seek justice, no matter their chances of prevailing.

      No, police officers would not become full-time defendants, and yes, people would become police officers at about the same rate they do now.

      1. QI does nothing to keep the cops out of court, it just allows a judge to dismiss the lawsuit at an early stage.

        amazing sentence

    2. “And, if there were no QI whatsoever, police officers would become full time defendants, and no one would be a police officer”

      I thought you were making the argument for KEEPING QI. All I see in that sentence are reasons for ENDING QI.

    3. Carlson is an ignorant moron babbling to his white nationalist audience.

      Fuck Carlson. If we were a just society he would be in the line trudging towards a guillotine.

      Cops almost never have to pay when they’re sued for on-duty conduct, so why do they need immunity?

      As noted in the article itself, your rationale for keeping it assumes cops break the law and violate people’s rights all the time. Do you really think police should be above the law?

  9. I remember when I accidentally stole $225,000. It was so embarrassing. I had to spend $1k of it on therapy. Thank god for QI.

  10. Tucker really changed when he stopped wearing the bow tie. Went from being a dweeb with some libertarian instincts to a better-dressed fascist.

    1. How cute, you now act like most democrats and call anyone you disagree with a fascist. So charming.

  11. Remember that QI is a defense in suits under 42 USC §1983. Citizens who are harmed by public officials may have rights of action under state laws (and if they don’t then maybe state legislatures need to make some changes). Personally I think SCOTUS got it wrong by creating the QI doctrine & would be happy to see Congress make that point legislatively. Peace officers and othes government officials SHOULD spend more time worrying about whether what they’re doing is violating our rights as citizens.

  12. GOP wants to murder George Floyd – Pelosi.

    No comment from Billy

    Histrionics from Tucker about lawsuits crippling police work…

    Binion to the typewriter!

    1. I don’t think a little single journalist is required to respond to and force his editors to publish his thoughts on every injustice or absurdity pertinent to a particular issue. This article simply lays out a problem with a “pop”personality who displays a clear inconsistency. (And, I think, add nuance to the discussion).

      1. Silence is violence

      2. At some time a pattern is formed and even solidified to any thinking person, so you’re excused for missing it. Billy is nothing if not a consistent cheerleader for leftist thought and ideas.

  13. Lots of talk about ending Qualified Immunity for officers who often face life and death decisions with only a split second to decide. Why no talk of ending Absolute Immunity for judges, prosecutors, and witnesses who can’t be sued for their false testimony. Seems to me Absolute Immunity is a hell of a lot worse than Qualified Immunity.

    1. I think it’s mostly social class. Also, ‘neo-liberals’ view judges as very important to the defense of democratic values against voters.

    2. Probably because judges and prosecutors aren’t shooting 10 year old kids in the leg or stealing hundreds of thousands of dollars and avoiding being held liable for those unlawful actions via that immunity.

      But absolute immunity absolutely needs to go. Like cops, they don’t need immunity. They would be indemnified by the government they work for if they were sued over their official actions.

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  15. I don’t necessarily think we need to get rid of QI to lead to better policing or accountability for when those police violate the rights of citizens.

    However, I’ve always wondered how often officers get QI protection from the federal courts even when they blatantly violate department policy for whatever agency they work for. Perhaps QI should be immediately null and void if an officer violates his department policy, which he is supposed to be fully aware and understanding of. For example, a federal court may not have established stealing $200,000 from a citizen is a violation of their civil rights, but if stealing from a citizen is blatantly against the department’s policy for the officer in question, then clearly the officer was operating outside the lawful established bounds of a law enforcement officer at that agency, and therefore would no longer qualify for QI.

    Ultimately, ending QI for cops across the board will lead to increased taxes or lower take home pay for officers (or a combination of both), neither of which is a desirable outcome. If police departments are to attract high quality applicants and officers, they need to be paid well.

    Ultimately, policing is just part of the labor market like any other job. If you require applicants that have a masters degree, excellent interpersonal skills, top notch physical fitness/hand to hand skills, and a willingness to work a dangerous job, and only offer mediocre pay and terrible hours, I actually question what kind of person would still want to do the job (probably someone that just wants a position of power, aka the last person we want patrolling the streets with a gun and a badge).

    1. The rules and regulations of a police department can only protect a cop, they can’t hurt him.

      If he’s following them he’s fine, no matter how brutal his conduct is. If he’s not, the courts will point out those rules and regulations aren’t law, and therefore can’t be used to hold him legally responsible.

  16. End qualified immunity for politicians as well! Oh wait that’s different.

  17. Argumentum ab prophetiae is the preferred procedure for arriving at conclusions among looters. Tucker says “no one would serve” as a cop. Democrats prophesy similarly to any suggestion that at-gunpoint regulations could be eased here and there, just as idiots arguing for legalized-murder anarchism come up with fantasy scenarios rather than real historical sources of anarchism in practice. Libertarians tend to point to how that actually worked out in the past. Hiring cops-as-looters has always gotten people that the politicians paid for.

  18. Reason might want to promote libertarianism if only its authors knew what libertarianism actually was.

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  20. Rather than debate what is or isn’t covered by QI, why not propose what it should be – or propose that it’s eliminated in full? I don’t want to see cops being fodder for criminals and trial lawyers, so I’d be open to QI defined narrowly. Is there no middle ground on this?

  21. I think it far more likely that he does know what QI is, and is lying for strategic benefit.

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