Qualified Immunity

Qualified Immunity Is a Test for Conservatives

The judicially invented license for police abuse undermines the rule of law and the separation of powers.

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Former Minneapolis police officer Derek Chauvin faces murder and manslaughter charges for kneeling on George Floyd's neck until he stopped breathing. But even if Chauvin is convicted, Floyd's family may not be able to pursue claims under a federal statute that authorizes lawsuits against government officials who violate people's constitutional rights.

The uncertain prospects for the lawsuit Floyd's relatives plan to file underlines the unjust and irrational consequences of qualified immunity, a doctrine that shields police from liability for outrageous conduct when the rights they violated were not "clearly established" at the time. Congress should seize the opportunity created by Floyd's May 25 death and the nationwide protests it provoked to abolish that doctrine, which the Supreme Court unlawfully grafted onto the Civil Rights Act of 1871.

Was it "clearly established" on May 25 that kneeling on a prone, handcuffed arrestee's neck for nearly nine minutes violated his Fourth Amendment rights? The issue is surprisingly unsettled in the 8th Circuit, which includes Minnesota.

The U.S. Court of Appeals for the 8th Circuit blocked civil rights claims in two recent cases with broadly similar facts: handcuffed detainees who died after being restrained face down by several officers. Unlike those detainees, Floyd was not actively resisting at the time of his death, except to repeatedly complain that he could not breathe.

While that distinction could make a difference in the constitutional analysis, we can't be sure. Even if the 8th Circuit concluded that Chauvin's actions were unconstitutional, it could still decide the law on that point was not clear enough at the time of Floyd's arrest, meaning Chauvin would receive qualified immunity.

The 8th Circuit could even reach the latter conclusion without resolving the constitutional question, as courts have commonly done since 2009, when the Supreme Court began allowing that shortcut. To defeat qualified immunity in this case, says UCLA law professor Joanna Schwartz, a leading critic of the doctrine, Floyd's family "would have to find cases in which earlier defendants were found to have violated the law in precisely the same way."

This term the Court had 13 opportunities to revisit qualified immunity, but it has not accepted any of those petitions and so far has rejected all but one. Those rejected cases included one that posed this question: "Does binding authority holding that a police officer violates the Fourth Amendment when he uses a police dog to apprehend a suspect who has surrendered by lying down on the ground 'clearly establish' that it is likewise unconstitutional to use a police dog on a suspect who has surrendered by sitting on the ground with his hands up?"

The U.S. Court of Appeals for the 6th Circuit thought not. Dissenting from his colleagues' refusal to review that decision, Justice Clarence Thomas reiterated his doubts about qualified immunity, saying "there likely is no basis for the objective inquiry into clearly established law that our modern cases prescribe."

Given the Supreme Court's lack of interest in reconsidering qualified immunity, Congress has a responsibility to reassert its legislative powers by revoking this license for police abuse. Last week Schwartz and more than 300 other law professors urged Congress to do so, noting that the doctrine gives cops not only "one free pass" but also a "continuing free pass" by allowing courts to block claims without ruling on their merits, "thus insuring that no law becomes clearly established."

The Ending Qualified Immunity Act, which Rep. Justin Amash (L–Mich.) introduced last month, so far has 64 cosponsors, all but one Democrats. The situation is similar in the Senate, where Mike Braun (R–Ind.) recently unveiled the Reforming Qualified Immunity Act, which would narrow the doctrine and make municipalities liable for police misconduct.

This issue is a test for conservatives who defend the rule of law and the separation of powers. Both of those principles are undermined by a judicially invented loophole that allows government officials to escape accountability when they abuse their powers.

© Copyright 2020 by Creators Syndicate Inc.

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  1. This issue is a test for conservatives who defend the rule of law and the separation of powers. Both of those principles are undermined by a judicially invented loophole that allows government officials to escape accountability when they abuse their powers.

    Yes it is. But Republicans anyway are not going to pass the test. Their re-election strategy is complete fearmongering. “If you get rid of QI then the thugs will rape your wimmin”. That is the level of discourse we should expect from Team Red in the coming days.

    1. No.

      I think we on Team Red™ would be open to ending or modifying Q.I. if we could see that its removal wouldn’t impact the rate or quality of police work being done by officers.
      I think there is general agreement on the right on the importance of being able to remove bad officers; we disagree that ending a tool which appears to protect officers and helps them do their job would be an unqualified boon.

      1. “We on Team Red”???

        Go on, pull the other one.

        1. That was a joke, dude.
          The argument is serious but the handle is a joke.

            1. The argument is irrelevant to George Floyd. Qualified immunity wouldn’t prevent his family from suing, if the facts are as alleged. As the civil-rights lawyer Chris Wiest observed, “I do civil rights cases. And I sue police. I assure you, there is no qualified immunity in [the Floyd] case for the officers involved on these facts with the video evidence.” Of course, the facts may not be as alleged: the video only captures part of the encounter, as Medium observed on June 11 in “Why Derek Chauvin May Get Off His Murder Charge.”

              Qualified immunity does not apply when a government employee infringes “clearly established” constitutional rights. That includes violations that are so outrageous or unique that no prior court ruling could ever have dealt with nearly-identical facts. As the Supreme Court emphasized in U.S. v. Lanier (1997), “The easiest cases don’t even arise. There has never been…a section 1983 case accusing welfare officials of selling foster children into slavery; it does not follow that if such a case arose, the officials would be immune from damages [or criminal] liability.’” So this claim made by a professor in the above article is wrong:
              “To defeat qualified immunity in this case, says UCLA law professor Joanna Schwartz, a leading critic of the doctrine, Floyd’s family ‘would have to find cases in which earlier defendants were found to have violated the law in precisely the same way.'”
              Courts reject that argument every day, and strip government officials of qualified immunity, in cases involving new ways of inflicting excessive force, see Headwaters Forest Defense v. Cty. of Humboldt, 276 F.3d 1125 (9th Cir. 2002), or new carcinogens inflicted on prisoners, see Vega v. Semple (2020), or killings of people being arrested, see Estate of Jones v. Martinsburg (2020).
              Qualified immunity should probably be abolished, but it is not nearly as extreme as many of its critics claim.

              1. I would have said Officers stealing $225,000 would have been an easy clear cut case….But the 9th circuit disagrees So yes, I would say it is that extreme.

                1. That’s my go-to case too. The answer is always that he only stole from the evidence locker, in effect; the victims can’t sue him because his actions with regards to them were normal search and seizure. The victims sued under the wrong law. etc.

                  1. You are referring to a case wrongly decided by the Ninth Circuit Court of Appeals, Jessop v. City of Fresno.

                    It said that stealing didn’t violate the Fourth Amendment or substantive due process. It didn’t address a procedural due process claim, because the challengers didn’t raise one (perhaps they had a remedy in state court that they would have had to exhaust before suing in federal court for deprivation of property without procedural due process).

                    I think the Ninth Circuit was wrong, even though the Fourth Amendment is commonly seen as protecting privacy rather than property interests, because the Fourth Amendment does, after all, apply to “seizures.” There is no reason the stealing had to only violate the 5th or 14th Amendment, as opposed to the 4th Amendment. The same conduct can violate multiple constitutional provisions, and other courts have found 4th Amendment violations in the face of government theft.

                    I didn’t say qualified immunity was consistently applied correctly, or even that it shouldn’t be abolished — it probably should be abolished. I only was pointing out that the law professor quoted above exaggerated in describing how hard it was to overcome qualified immunity in a typical case. Usually, courts do not behave as badly as the Ninth Circuit did in the Jessop case.

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              2. Actually, my comment may have been wrong to be so certain that Floyd’s family could defeat qualified immunity.

                A judge just ruled that the similarly outrageous killing of Tony Timpa was covered by qualified immunity:

                https://t.co/ISsuyogmWR?amp=1

                So perhaps a judge would be dumb enough to grant qualified immunity in the Floyd case. If so, that’s an additional reason to abolish qualified immunity (in addition to the fact that it is not found in the text of Section 1983).

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              3. It’s pretty obvious we could live without QI. Other countries somehow do it. Second step is breaking the power of police unions, or alternatively we need something like nationwide police license.

      2. What does the data show between 1871 and 1967 when QI was fabricated? There’s your answer.

      3. Perhaps you could use a little refresher on what their job is and how not to do it.

      4. I think we on Team Red™ would be open to ending or modifying Q.I. if we could see that its removal wouldn’t impact the rate or quality of police work being done by officers.

        Given the abuses of power that are being protected by QI, I should hope that its removal would affect the quality of police work… by raising it.

        1. Actually it probably wouldn’t. If part of being a police officer is responding to a civil lawsuit every time you arrest someone (especially someone from a protected class) the smarter people will choose another profession. And many who still choose it will choose to avoid the lawsuits by not arresting anyone, certainly not anyone in a protected class. So policing gets worse.

          So many of these incidents are in big cities that have been controlled by the democrats for years, decades…ever. They have had the ability to implement a system that punishes and removes bad offices, but they can’t resist the unions with their campaign cash and power. Chauvin was caught doing bad things on multiple occasions before, he should have been fired if not convicted before. What did the Democrat Mayors, or City Councils do about it then? Nothing.

          1. Republican mayors across the country also do nothing about it.

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  2. Uh huh. Obama was president for 8 years, and he did jackshit about this.

    1. That’s because he was an authoritarian.

      I’m getting fed up with hearing about conservatives vs the left in these articles. It’s as if the writers forgot what a Nolan chart is.

      As for “reforming” qualified immunity, it should not be limited to making municipalities liable for a police officer’s misconduct. It should make the accused personally liable. Only when jackbooted thugs start losing their family homes, their pensions, and their life savings will grownup playground bullies actually stop being attracted to police work. But that won’t happen, of course, because authoritarians on both sides of the aisle want to be able to employ jackbooted thugs to carry out their dictates.

      1. Only when jackbooted thugs start losing their family homes, their pensions, and their life savings will grownup playground bullies actually stop being attracted to police work. But that won’t happen, of course, because authoritarians on both sides of the aisle want to be able to employ jackbooted thugs to carry out their dictates.

        Cops and antifa and BLM and most governors or bureaucrats in general all fit this description. Power hungry thugs.

      2. God luck with that.
        In most states, bankruptcy laws allow you to keep your primary residence. Federal law protects most pensions, especially union backed pensions.

      3. There ya go with that ‘personal responsibility’ thing again….

    2. Completely idiotic response. What the hell does Obama have to do with it anyhow?

      He is not president and “all but 64 of the co-sponsors are Democrats.” It’s Congress’s job (or up to SCOTUS revision) to fix it.

      Save everyone the bytes and stop leaving stupid comments.

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  4. This is going to be the most interesting SCOTUS fall out I can think of. There are Copsuckers and civil rights liberals on all sides.

  5. The idea that putting limits on QI will cause cops to hesitate to enforce the law is a good thing. Many of us have the sorts of jobs where we have to stop and think for a moment about what we’re doing and how we’re doing it before we mess something up or get somebody hurt. Why are cops given a pass on thinking? Many of these cases aren’t even close, the idea that it’s unconscionable that a cop is going to hesitate to shoot a dog just because there’s a little kid in the line of fire unless he’s given immunity is just bizarre.

    1. Especially given the number of dogs Cops shoot that aren’t a threat in the first place. It’s not even cops being “given a pass on thinking”, it’s cops being “given a pass on criminal behavior”.

      https://abcnews.go.com/US/graphic-video-shows-nypd-cop-shooting-dog-point/story?id=37925487

      1. Wait. This happened in 2014?

  6. Police are officers of the court. Their job is to kidnap peasants and bring them in front of the king or the king’s representative for judgement. The peasant’s life does not matter. Only the lives of the king and his men matter.

    We still live in a feudal system. Only the costumes have changed.

    Policing will not change. It is inherently brutal by its very nature.

    So all this talk about police reform is completely missing the point. All interactions with police are potentially deadly. That’s because their job is to issue commands and force compliance. Obey or die.

    Interactions with police need to be minimized. That’s the problem. All criminal law needs to be reviewed and a few questions need to be asked. Questions like “Who is the victim?” “Does this deserve death?”

    But that will never happen. Government has declared itself to be God, and God does not make mistakes.

    1. In the feudal system the king had absolute power because it was granted to him by God.

      Today government has absolute power because it was granted to it by the Democratic Process.

      Instead of claiming “The Divine Right of the King,” our government invokes “The Will of the People.”

      Only the costumes have changed.

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  7. Given the Supreme Court’s lack of interest in reconsidering qualified immunity, Congress has a responsibility to reassert its legislative powers by revoking this license for police abuse.

    LOL

  8. Qualified Immunity Is a Test for Conservatives

    Please just stop.

    Qualified immunity is a test for BOTH of the political parties in power.

    BOTH will fail.

    Because BOTH are concerned only with self-preservation, never with upholding the rights of the least powerful, and most persecuted, minority.

    1. Yes. Notice how the Democratic House bill applies only to claims against cops. I’m guessing it’s further limited to only state and local cops.

  9. Is it even clear that QI can be abolished by amending the statute?

    1. Yes, basic separation of powers, the legislature can undo anything the court does to the extent that it doesn’t violate the Constitution. QI has no support in the Constitution.

  10. All I need to know is that the police are paid with stolen money.
    “The end cannot justify the means for the simple and obvious reason that the means employed determine the nature of the ends produced.” ~ Aldous Huxley

  11. Civil courts shouldn’t be accessible to any ordinary member of the unwashed citizenry. Civil courts should be reserved for important business v. business matters.

    Individual members of the unwashed just need to suck up whatever loss they incur. To do otherwise would be a cost to business, which of course, can’t happen. We maybe can pretend that the lone citizen has access to some civil case redress, by letting them go to private arbitration (which is another way of saying to just go home).

    Team red won’t ever touch qualified immunity for police. They’ll be too busy trying this summer trying to add more immunity for business from covid-19 liability of any kind.

    People just need to get it in their head that civil courts are just for business disputes (with other businesses). If the lone citizen is that desperate for some civil redress, and the waiting list for judge judy is too long, there are a lot of other judge shows in production right now.

  12. In my opinion, the concept of Qualified Immunity, applied to Police Officers or ANY form of Officialdom aka Officialdumb is a crock.

  13. Without some liability protection, no one would ever become police officers, especially in the current climate. They’ll be sued constantly, and the legal costs and mob action will ruin their lives even if body cams absolve them. When cops do a half ass job enforcing the law, an African immigrants can just bypass blockade and run into a bunch of protesters on a deserted highway.

    If we get rid of qualified immunity for cops, then why should politicians be exempt? Presidents kill way more than cops ever could. Maybe Cuomo should be sued personally for sending infected people to nursing homes.

    Again, stop assuming that you’re dealing with rational people who want due process served in any accusations. They don’t. Their default position is that cops are racist when they kill anyone. They still hold onto the “hands up don’t shoot” narrative even though Obama’s DOJ and black witnesses cleared officer Wilson.

    Reform qualified immunity, sure. But treating police officers strictly like free agents will inevitably lead to unintended consequences. Even private security officers would want some level of protection spelled out in contracts.

    1. This is the misconception that QI supporters push. If absolute immunity is 10 and Joe Public is 1, QI is like 9 when police should be at maybe 7-8 without QI. The opposition is not talking about giving police unmitigated legal exposure in their official duties.

      1. The opposition is not talking about giving police unmitigated legal exposure in their official duties.

        “The opposition” hasn’t made a clear proposal at all.

        And while many voters may oppose QI in principle, it just isn’t very high on their list of priorities, while at the same time being concerned about what unintended consequences abolishing QI might have.

  14. The judicially invented license for police abuse undermines the rule of law and the separation of powers.

    It does, and most conservatives would agree with you in principle. But QI simply isn’t very high on the list of priorities of conservative voters; why should it be? How does QI affect the average, law abiding middle class family?

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