Qualified Immunity

Qualified Immunity Is a Disgrace, No Matter Where You Live

Even the most police-skeptical courts grant the doctrine in egregious circumstances.

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Whether police officers are granted qualified immunity—the legal doctrine that makes it considerably more difficult to sue civil servants who violate your rights—largely depends on where the offense occurred, and thus where it's litigated in court, according to a recent Reuters investigation.

But even in the courts that try to hold public servants to a higher standard, officers routinely receive qualified immunity for conduct that shocks the conscience.

The doctrine, conjured into existence by the Supreme Court rather than by legislation, requires plaintiffs to show that misconduct was "clearly established" as verboten in a court precedent prior to the alleged offense. Judges have applied a strict interpretation of that standard in which civil servants cannot be sued unless courts have expressly condemned a near-identical situation. Without such notice, the thinking goes, public employees couldn't know their bad behavior was unlawful, as if they study case-law texts before going to work.

The high court's decision, which came in Harlow v. Fitzgerald (1982), directly cut against the Civil Rights Act of 1871, the law that expressly permits the American public to sue civil servants who acted unconstitutionally. In theory, the ruling was supposed to shield state actors from groundless lawsuits. But as a practical matter, it has taken away the rights of many to bring civil suits against public officials who have flagrantly trampled on their rights.

Judges in the Fifth Circuit—which covers Mississippi, Texas, and Louisiana—"are more likely to prioritize police power over citizens' rights and liberties," Reuters reports. That deference to the state doesn't stop at the police. The Fifth Circuit Court of Appeals recently granted qualified immunity to a group of prison guards who forced a naked inmate, Trent Taylor, to stay in two squalid cells, one with "massive amounts of human feces" and the other with raw sewage overflowing on the floor. Though the judges on that panel acknowledged that Taylor's Eighth Amendment rights had been violated, they granted the group qualified immunity on the basis that the precise amount of time the inmate spent in those cells—six days—had not been spelled out in pre-existing case law.

"Though the law was clear that prisoners couldn't be housed in cells teeming with human waste for months on end, we hadn't previously held that a time period so short violated the Constitution," wrote Circuit Judge Jerry E. Smith. "That dooms Taylor's claim."

Alternatively, the Ninth Circuit, which covers California, Washington state, Alaska, Arizona, Hawaii, Idaho, Montana, Nevada, and Oregon, "has set a higher bar for police," granting qualified immunity in 42 percent of excessive force complaints. But even that appeals court has awarded qualified immunity in some head-scratching cases.

In 2019, for instance, the Ninth Circuit gave qualified immunity to Los Angeles police officer Michael Gutierrez who, without warning, shot a 15-year-old boy as he was preparing to make his way to school. The teen's friend was holding a plastic Airsoft gun replica. "Under the circumstances, a rational finder of fact could find that Gutierrez's use of deadly force shocked the conscience and was unconstitutional under the Fourteenth Amendment," the Ninth Circuit wrote. But that wasn't enough. "Because no analogous case existed at the time of the shooting, we hold that the district court erred in denying Gutierrez qualified immunity for this claim."

The same federal court also granted two cops from Fresno, California, qualified immunity after the pair allegedly stole $225,000 while executing a search warrant. The decision followed a similar trajectory: Though the judges agreed the officers' conduct was unquestionably bankrupt, that didn't matter in the context of qualified immunity, leaving the victims little recourse in seeking recompense for their lost assets. "The panel held that although the City Officers ought to have recognized that the alleged theft was morally wrong," they wrote, "they did not have clear notice that it violated the Fourth Amendment."

The latter case was not an excessive force complaint, and thus wouldn't have influenced Reuters' investigation. It's a good reminder that misbehavior in law enforcement involves more than excessive force. And it's an unpleasant confirmation that civil servants are granted qualified immunity in even the most baffling circumstances, no matter what the offense or location.

NEXT: Nixon May Be Trump's 'Law and Order' Model, but He Was Smarter on Crime

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  1. I won’t post the links again, but to successfully reform or deal with Qualified Immunity, I believe it needs to be a truly bipartisan issue. And the problem with that is, Democrats quietly like Qualified Immunity because there are other branches of civil servant unions that enjoy its protections, and Democrats don’t want to interfere with that.

    Republicans (probably) like it as it relates to cops because they (probably) believe that in its absence, officers will be too tentative or reluctant to act in a dangerous situation, where police protections and risk is required.

    I’m not making a case for either of these opinions, just stating their existence as I see them. I believe that for this reason, Qualified Immunity is a dead letter as a political reform topic.

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      1. If you want government powerful enough to close businesses, lock people in their homes, shut down travel and force people to cover their faces, then you have to have qualified immunity for the police enforcing it.
        Hitler understood this simple point.
        REASON magazine has been a very strong supporter of lockdowns / qualified immunity.

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    2. I agree, it is a complex issue.

      I’d say that an employee of the government, acting within the bounds of their employment with the government, should be protected.

      So a tax assessor should not have to face personal lawsuits over tax assessments.

      And a police officer should be able to affect a lawful arrest without facing a personal lawsuit.

      They should even be able to make honest mistakes within the realm of their responsibility. Pulling over the wrong silver sedan shouldn’t mean bankruptcy for a traffic cop.

      It is a tough balancing act. It would be difficult to properly craft. But it is pretty trivial to see that the current slate of immunities that the courts have created out of whole cloth are way too far to one side.

      In fact, I would argue that the balance of immunity is more screwed up at the top than it is at the bottom. They’ve decided that judges are absolutely immune. And so are prosecutors, within the confines of their job. That’s ridiculous. Of course, the ones inventing these rights are judges, so it makes sense.

      But a judge is surely better placed to be able to carefully consider his actions, while a beat cop is less well trained, less well compensated and faces much more subjective judgments on much shorter deadlines and with much more immediate consequences. How in the world the beat cop is the one afforded less protection and less leeway is beyond me.

      All of which should just serve to underscore exactly how jacked up our ideas of immunity are. In a world where stealing a quarter of a million dollars from someone is under the umbrella of immunity for police and framing people for capital murder and depriving them of their constitutional rights is under the umbrella of immunity for prosecutors, what in the world must be in that “absolute” immunity umbrella the judges carry around?

      1. Judges know that if they allow a little whittling away for the cop, it leads to a future whittling away for judges.
        They are about as likely to do that as they are to declare lawsuits frivolous, resulting in sanctions for lawyers who bring them.

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      2. Two words: liability insurance.

        1. Agreed.

          A fucking barber or a painter has to be licensed and insured by a private company (BS licensing disclaimer and all that). Why, then, should not cops?

          If they can’t carry a policy because of too many or too severe infractions, then they need to find some other costume to wear.

          1. Municipalities do have insurance. This conversation needs to address state tort immunity laws – they’re probably more important than qualified immunity to getting the cops to be competent/properly incentivized. QI is mostly an issue because tort limit laws exist, leaving the civil rights claims as the way to be made whole.

        2. So chemjeff completely missed the point.
          Unsurprising

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      3. I’d say that an employee of the government, acting within the bounds of their employment with the government, should be protected.

        I’ll bang this drum again.

        They are. They have always been protected by Absolute Immunity – where a government agent, acting *legally* and within the scope of their duty, is protected from liability.

        Qualified Immunity is for government agents *that screw up* – initially it was ‘screw up innocently while otherwise legally performing their duty’. Now it ‘screws up, legally, illegally, whatever, we’ll give you a pass as long as no one else has fucked up in exactly the same way before’.

      4. I don’t think it’s all that complicated or hard to strike the balance at all. Can you as a private citizen be sued making honest mistakes at your job? Of course, you can. Can you be arrested based on an honest lack of knowledge of the law? Or because you misinterpreted an ambiguous law? Of course, you can. Hole police to the same standards. If we can be charged with novel interpretations of laws, if we can be held accountable for violations that are not “clearly established”, then so can the police.

        If you don’t think that’s fair to the police, then change it for the rest of us. No double-standards.

    3. It would be a gift to trial lawyers and the tax payers would pay dearly for it. Every civil interaction will become grounds for a lawsuit.

      The disgrace is that the author completely ignores the obvious outcome if it is eliminated. This is common with the superficial treatment that people like Binion give an issue when writing an article because they are incapable of looking at the entire issue.

      1. This is just more scaremongering bullshit. “Any change would lead to devastating consequences so let’s leave the broken status quo in place”. No, get rid of QI because it is an immoral horrible policy, and what will emerge in its place is a system of liability insurance for police and first responders that makes it ruinously expensive for the bad cops to keep doing their jobs – just like the same process works for bad doctors or bad lawyers.

        1. This literally happened in he medical markets you ignorant fuck. Go look at liability insurance costs in America as compare to Canada.

          You are fucking ignorant.

          1. @Jesse – You seem to have a good point to make. Please make it and dispense with the name calling and cursing.

      2. QI didn’t exist before 1969.

        And I don’t see anything in history talking about the massive number of trial lawyers enriched by suing government agents doing their jobs.

      3. Like every interaction a cop becomes an opportunity for physical injury and incarceration, even for the innocent? Boo f’ing hoo. Volunteer cops can have QI all day long, how’s that compromise?

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    7. Can it even be reformed statutorily? That is, can the civil rights law be amended in a way that sticks in cases like this? Or would the judges say that violates the separation of powers? That it’s a legislative usurpation of judicial authority?

      As far as i can see, it’s going to take either a US Constitutional amendment or a lot of lobbying thru the law schools to get a more reasonable interpretation of liability.

    8. If we remove qualified immunity with respect to police, why not do so with respect to prosecutors, judges, governors, mayors, and all other public officials.

    9. Don’t forget judges aren’t going to cutoff their own pay by letting people sue their employer to bankruptcy,

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  2. That a cop could not realize stealing six figures worth of footwear under color of authority would be a violation of a person’s civil rights is a conclusion only someone who has not been out of the ivory tower for decades could come to.

    1. It’s fucking baffling.

    2. Nah, just a reflection of our retarded legal system, where objective determination matters less than clever procedure.

      1. And actual justice maters not at all.

    3. See, the case hinges on the fact that the cops had already seized the property in the course of their serving the warrant – so they were stealing *from the government*. How could the cops know that stealing from the government would be a violation of the original owner’s rights?

      There’s just no way.

  3. Some times I think the judges are deliberately going to extremes to goad the legislature into action.
    Why they don’t just admit the precedent is and always has been wrong is yet another mystery for the ages.
    Oh, wait. Raging ego comes to mind even as I type.

  4. I teach people to write as if everything if it will be read, out loud, in a deposition. There always will be an expert witness testifying what a “good and prudent [professional of your choice]” would do. You better be ready to defend your actions against a hostile audience if you did or documented something else.

    It’s ironic the lawyers created that level professionalism and paranoia, but work hard not hold police to that standard.

    1. More interesting that they have conspired to hold members of the bar involved in the judicial system to an even lower standard.

      Connick V Thompson comes to mind.

      1. Jesus first Kyle rittenhouse and now this what’s with the a plus marksmenship all of a sudden.

  5. What a radical idea: make every person responsible for their actions. Good for cops, good for perps, and good for over-eager lawyers. File a suit, and now face three potential outcomes: suit gets upheld, suit gets dismissed, and suit gets dismissed plus plaintiffs and attorneys pay penalties.

  6. Will Reason lay off QI already? Republicans reject the idea and Democrats support it! That’s all you need to know to see that reform is an antifa anarchist communist plot! Trump supports QI! Love QI or hate America! MAGA 2020 means QI is just fucking fine the way it is! Reason hates Trump! They are delusional! They are the delusional ones! It’s them! Not Trump supporters! No, no delusion here! Trump 2020! Aaaauuuggghh!

      1. I’m seeing TDS infecting his supporters more than anyone else lately. Reflexive hostility to criticism, reflexive agreement with all policies, and it’s stupid. Thought I’d have a sargasm to that effect. Whatever. Not like anyone gives a shit. Minds are made up, and the close we get to the election the more closely the views of the faithful will coincide with their Dear Leader. Just watch.

        1. Which comment was this reflexive to dipshit?

        2. So you’re sick of people not giving your positions an objective thought because they are already fully entrenched in their preconceived beliefs?

          Welcome to earth dumbass.

    1. Were both the guys that spit roasted your girl in maga hats?

  7. Qualified Immunity Is a Disgrace . . .
    I disagree with this unilateral statement. The reason sometime in what is called the heat of battle it is very difficult to read accurately what is going on and if the officer does not act the police officer(s) could be the victim. So I think that there is room for limited Qualified Immunity of the officers from being sued. But that should NOT free the city or other political entity from liability, something like a commercial business is responsible the actions of its employees when that employees are on duty.

    1. “sometime in what is called the heat of battle it is very difficult to read accurately what is going on”

      That is true, but it is not a valid reason to absolve police officer from any consequences when they make a mistake in “the heat of battle”.

      1. Why not? We give QI to people that never even come close to the heat of battle.

        That said I get it cops remind you of the kids on the football team in high school. Not the stars of course but the second stringers who were most eager to keep you in your place.

        1. QI should not exist for anyone [full stop].

        2. Why not? If there are no consequences of any kind when they screw up (and police screw ups often end with dead bodies) then there is no incentive for them to make even minimal efforts to get it right.

    2. “…something like a commercial business is responsible the actions of its employees when that employees are on duty.”

      Not true. Employers are liable when employees are acting within the scope of their duties, not at all times they are on duty. The same applies to government entities and their employees.

    3. Cops are supposed to be professionals. If they cannot act reliably and responsibly in “the heat of battle” then they should pay the price. Ending QI would mean that a system of liability insurance would emerge, the “good cops” would have affordable premiums and the “bad cops” would have ruinously expensive premiums which would force them out of their jobs – which is the WHOLE POINT here.

      1. I agree that liability insurance for LEOs is a solution. At least a partial one that will help out with abuse a bunch. If it’s a bad cop, make him pay dearly for it. If it’s a really bad cop, insurance companies won’t cover him. Both are good things that will provide good incentives for cops to not whip out their authority boners too quickly.

        But one thing would need to be a must: unions cannot negotiate this insurance to be paid as part of their salary, or that cities can only pay for a fixed amount not to exceed the minimum coverage necessary for a cop in good standing. Cities pay out millions after lawsuits. They’ll have no problem shifting that to paying for insurance premiums for bad cops. That can’t happen, or we’re in the same spot for all intents and purposes.

        1. Look at medical liability costs. Hope you don’t bitch about medical costs.

    4. QI isn’t limited to the heat of battle. Did you even read the article? It covers the most blatant abuses of power as long as they haven’t been specifically prohibited. Stealing $225K wasn’t in the heat of battle. QI prevents the courts from even considering whether police behavior was out of line.

  8. QI didn’t exist until what, the 70s?

    If the nation survived 200 years without it, well I think it isn’t needed.

    1. I agree same with judicial review. We made it through the entire presidency of George Washington and John Adams without it. No reason some nerds in dresses need to weigh in on things. Abolish QI right after we abolish judicial review.

  9. The almost universal granting and protecting of Qualified Immunity documents how government has a pervasive and ongoing conflict of interest about the issue. It is like the perpetual violation of “shall not be infringed” in that it seems to touch on aspects of government power that government officers just cannot bring themselves to view from the standpoint of liberty and limited powers.

  10. These judges rule in favor of Qualified Immunity because its the public servants get out of trouble free card that they want to ensure will be there for them should they ever get caught. It doesn’t take much common sense to see when law officers are abusing their positions. The lawyers and their frivolous lawsuits have definitely contributed to the problem making it impossible to run courts using common sense but even if that were not the case Qualified Immunity would still be a problem because its what lets those who work for government get away with it.

    Support to change or over turn Qualified Immunity isn’t there because most people are completely unaware of it. As law abiding citizens most can not believe that those who work in law enforcement don’t have to follow the law. If anything most believe cops are held to a higher standard.

    I’m no fan of Black Lives Matter but this kind of BS, qualified immunity, only helps to fuel support for them.

    1. The support isn’t there because the left will never ever ever completely abolish the concept and the right after throwing the cosmos and rinos overboard is done with unilateral disarmament.

      1. So the right-wing will support a horrible policy just to spite the left. Got it. Remind me again why I or anyone else with a conscience should support what Team Red has devolved into.

        1. And the left will support a horrible policy to make sure their loyal civil servants have a get out of jail free card.

        2. You shouldn’t be supporting either team red or team blue. Neither one deserves it.

          Go team purple.

          1. Fuck purple, I don’t want to be tied down to a particular team.

  11. Regarding the opening of this article, about courts issuing qualified immunity without pause, one wonders as to why, if that be the case.

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  13. “”Even the most police-skeptical courts grant the doctrine in egregious circumstances.””

    This is for two very easy reasons;
    1) People are stupid, ignorant of the law and fall for the scam the B.A.R. Association feeds them like simple minded fools. They don’t understand the first thing about jurisdiction and bring these actions against the police in a jurisdiction where the entire concept of “qualified immunity” was created and they have no hope of winning. Like walking onto a football field, dressed and ready to play hockey and they can’t understand why they get handed their ass. Pure ignorance of law! By design, courtesy of the public fool indoctrination centers.
    2) These municipal terrorist code enforcers work for these “courts” as a vital part of the revenue extortion machinery. Asking these kangaroo courts to go against their own enforcers is like asking the cops to cut off their own gun hand. Again, stupidity.

  14. “””Even the most police-skeptical courts grant the doctrine in egregious circumstances.””

    This is for two very easy reasons;
    1) People are stupid, ignorant of the law and fall for the scam the B.A.R. Association feeds them like simple minded fools. They don’t understand the first thing about jurisdiction and bring these actions against the police in a jurisdiction where the entire concept of “qualified immunity” was created and they have no hope of winning. Like walking onto a football field, dressed and ready to play hockey and they can’t understand why they get handed their ass. Pure ignorance of law! By design, courtesy of the public fool indoctrination centers.
    2) These municipal terrorist code enforcers work for these “courts” as a vital part of the revenue extortion machinery. Asking these kangaroo courts to go against their own enforcers is like asking the cops to cut off their own gun hand. Again, stupidity.
    If you want to take down the crooked cops, you first have to take down the crooked courts and the B.A.R. Association.
    https://www.nationallibertyalliance.org/ – Sign up, get started.

    1. Oh look, it’s QAnon.

      1. Oh look, it’s another one of the simple minded imbeciles I was just talking about…

        1. Your website is this insane mixture of Bible verses, Trump worship, and QAnon conspiracy bullshit. Go away.

          1. So it’s more realistic than anything you have to say…

          2. The National Liberty Alliance teaches constitutional law and helps people organize in their communities to take the governance of them back from the career bureaucrats. Teaches people how to restore constitutional Sheriffs as legitimate law enforcement and to put these corrupt kangaroo courts in their place. They have also restored a Unified Common Law Grand Jury, outside the domain of the B.A.R. Association and the politicians influence, to indict corrupt judges and other officials. https://www.nationallibertyalliance.org/jury
            If you knew anything about the history of the founding of this country, you’d know that much of what was in the Declaration and much of the constitution, was drawn from basic tenants of the Christian bible, otherwise known as natural law. Not trying to turn anyone into bible thumpers, but this is key to establishing the truth about our constitutional law, that we as free people are not subject to the regulations of the legislature as the BAR Association would like us to believe, only to the laws of our creator. Congress has the authority, by our consent and only by our consent, to regulate commerce, not our private conduct.
            The Alliance has some appreciation for Trump but only because he is the first none B.A.R. Association Pres. in decades and has been responsive to actions filed by the Alliance against the corrupt judiciary and appears to be working toward the restoration of constitutional law. They also have no problem taking him to task if he steps outside his authority, which he hasn’t.

  15. Immunity for looters with badges is bad, but asset forfeiture wrecks entire banking systems with sudden monetary contractions, liquidity crunches, bank destabilization, recessions and unemployment. Voting LP tells looter politicians to get rid of both, or lose that election.

  16. Qualified Immunity has to go. Period.
    What will emerge in its place is a system of liability insurance, the same as doctors and lawyers and other professionals have. Many bad doctors and bad lawyers are chased out of their professions when they cannot afford their liability insurance anymore. Let’s see the same for cops. The asshole cops who murdered George Floyd or Jacob Blake would see their premiums rise to unsustainable levels that they couldn’t afford them, which is what we should see happen. THAT is one very powerful libertarian way to deal with bad cops. Make them pay for their bad behavior or have them lose their jobs because they cannot afford their insurance.

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  18. Qualified immunity is a scam resulting from a conspiracy. Judges created it for cops and that or other forms of immunity for prosecutors, for themselves and for many other “public officials.”

    Power always corrupts, which is why such immunity persists.

  19. Make all lawsuits loser pays.

  20. Funny, you would think the cops in Fresno understood that STEALING IS AGAINST THE LAW.

    1. The judges said they assumed the LEOs knew they were committing an immoral act. That was irrelevant. All that matter to them was the defendants state of mind, e.g., did they know they were violating rights? That sets the bar beyond reach, i.e., allows for any decision.
      Of course, citizens are judged differently. They may be judged guilty even if they didn’t know, e.g., “ignorance of the law is no excuse (defense)”. This is clearly a “justice system” in name only. Logically, it is “inequality before the law”, i.e., an unjust system.

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  23. These cops make a ton of money with ridiculous pensions and benefits. We should expect them to at least have the common sense of some kid working at McDonald’s

    1. You assume their “ignorance” defense was genuine? Why?
      No matter. You rob, violate rights, then claim: “Sorry, I’m stupid and didn’t know what I was doing.” Citizen, you’re guilty! Why? Because we live in a society with a double standard. The politically connected are exempt from the law common citizens suffer under. Don’t like it? Tough! The majority has decided for everyone that authoritarianism will protect us. Why? How? Authoritarians don’t use reason, only pretend to, and when they get exposed, they bring out the gun.

  24. Doesn’t a search warrant specify the object of the search and the location? Or, can that be anything in a house? Can a warrant be that broad? If so, what protection of rights exists? Clearly, none.
    So, are citizens obligated to live without rights, without equality under the law? Or, are we obligated to boycott authority that extorts us? Isn’t it written in the DOI that our duty is to revolt and abolish such a govt.?

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