Qualified Immunity

States Can Provide Their Own Civil Remedies for Police Abuse

They need not wait for the Supreme Court or Congress to restrict or abolish qualified immunity.


Former Minneapolis police officer Derek Chauvin is scheduled to be tried next month on murder and manslaughter charges in connection with the May 25 arrest of George Floyd, who died while Chauvin kneeled on his neck for more than eight minutes. Yet whether or not Chauvin is convicted, it is not at all clear that he can be held accountable for his actions that day under a federal statute that authorizes lawsuits against government officials who violate people's constitutional rights.

Despite the details of Floyd's death, which shocked Americans of all political persuasions and provoked a series of protests across the country, the federal civil rights lawsuit that his family filed last July must overcome "qualified immunity." That widely criticized doctrine, which the Supreme Court invented in 1982, bars such claims unless the misconduct they allege violated "clearly established" rights, which has proven to be a formidable obstacle for victims of outrageous police abuse.

Given the way that federal judges have applied qualified immunity, Floyd's relatives may not get their day in court unless the precedents they cite involve conduct very similar to Chauvin's. As UCLA law professor Joanna Schwartz, a leading critic of the doctrine, puts it, they "would have to find cases in which earlier defendants were found to have violated the law in precisely the same way."

After turning away a bunch of opportunities to restrict or reconsider qualified immunity last year, the Supreme Court recently suggested that the defense has been read too broadly. This week it vacated a decision in which the U.S. Court of Appeals for the 5th Circuit granted qualified immunity to a correctional officer who allegedly blasted a prisoner in the face with pepper spray "for no reason at all."

While the 5th Circuit agreed that such unprovoked use of pepper spray would violate the Eighth Amendment's ban on cruel and unusual punishment, it said the issue was not "beyond debate" at the time of the alleged assault. Think again, the Supreme Court said on Monday, calling the 5th Circuit's attention to a 2020 case involving a prisoner named Trent Michael Taylor, who was confined for six days in "a pair of shockingly unsanitary cells."

As the Supreme Court noted in November, the first cell was "covered, nearly floor to ceiling," in feces, while the second was "frigidly cold" and "equipped with only a clogged drain in the floor to dispose of bodily wastes." Because Taylor had no clothing and no bunk, "he was left to sleep naked in sewage."

In that case too, the 5th Circuit recognized an Eighth Amendment violation but concluded that prison officials did not have "'fair warning' that their specific acts were unconstitutional." The Supreme Court disagreed, saying "no reasonable correctional officer could have concluded" that "it was constitutionally permissible to house Taylor in such deplorably unsanitary conditions for such an extended period of time."

Whether or not the Court follows through on its apparent willingness to rein in qualified immunity, Congress could abolish the defense, which has no statutory basis. But with a few honorable exceptions, Republicans have shown little inclination to do so—a prohibitive obstacle with the Senate evenly divided.

Colorado exemplified a more promising strategy last June, when it passed a groundbreaking law that authorizes claims against police officers who violate rights protected by the state constitution. Connecticut legislators approved a similar law in August, and last week the New Mexico House of Representatives passed a broader bill that would cover all government officials.

All three measures specify that defendants cannot block lawsuits by claiming qualified immunity. To address the concern that personal liability could have a chilling effect on legitimate policing, they require government agencies to cover litigation costs and damages in all or nearly all cases.

These laws show that states need not wait for Congress or the Supreme Court to act. They can independently provide a remedy for citizens whose rights would otherwise be violated with impunity.

© Copyright 2021 by Creators Syndicate Inc.

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  1. Derek Chauvin is scheduled to be tried next month on murder and manslaughter charges in connection with the May 25 arrest of George Floyd, who died while Chauvin kneeled on his neck for more than eight minutes. Yet whether or not Chauvin is convicted, it is not at all clear that he can be held accountable for his actions that day under a federal statute that authorizes lawsuits against government officials who violate people’s constitutional rights.

    This is a strangely constructed sentence.

    Let’s surmise, for a moment, that Chauvin is in fact convicted of murder [or] manslaughter. Would that not be holding him accountable? The ‘yet whether or not’ clause seems to indicate that some individual or group of individuals related or tangentially related to Chauvin and their ability to directly sue the officer is the only thing that defines ‘accountability’.

    It’s sentences like these that make me wonder how many people understand what qualified immunity actually is, let alone what it means.

    If I murder a random person on the street, am charged and subsequently convicted of murder, I don’t understand why accountability has not been achieved when and only when a distant relative or non-related third party is able to personally sue me for what I have left in my bank account: ~$782.

    1. Agreed – It was weird sentence, sometimes I think they’d get their point across better just keeping it simple.

  2. At least a jury of supposedly disinterested persons will take a detailed look at the circumstances of his death and see if it was (beyond a reasonable doubt) caused by the cop. If so…well, then, Chauvin is gone. If there *is* reasonable doubt, I hope the National Guard is ready. If they can be spared from guarding the Capitol.

    1. If he’s convicted they might still need the guard those celebration festivals also seem to get out of hand.

  3. The solution to government abuses isn’t to make the government more vulnerable to lawsuits. That will only create a cash cow that will be exploited in new and unimaginable ways and guess who has to pay for it. Which then creates a perverse incentive to increase the size of government.

    The solution is to reduce the size of the government. As libertarians this concept should be obvious. What is wrong with us?

    As for Chauvin, he will be remembered for reflecting back to us what was happening to the country under the suffocating lockdowns. Similarly Pelosi and the liberals were kneeling on the neck of the economy until death – the real atrocity. Despite the tragedy here, his action inspired the world to get out into the streets after months of isolation. We could breath again. And again I fail to understand why even libertarians are jumping on the hate wagon.

    1. Reducing the size of government by repealing laws is proving to be a practical impossibility. Holding government functionaries accountable for their abuses a) redresses the immediate harm (at least partially) and b) starts to create an incentive among those government functionaries to effectively reduce the impact of government. If we hold enough Chauvin’s accountable for their abuses, they may eventually become less likely to prosecute the trivial non-crimes that get them in trouble. It’s an indirect play but arguably the least-bad choice we have right now.

      That said, abolishing QI probably doesn’t accomplish the goal because QI merely allows for civil liability and police departments and their unions insulate the individual officers from the consequences of their abuses. The costs are merely redistributed to the local taxpayers. But maybe if we keep it up long enough, those taxpayers will get frustrated seeing all their tax dollars going to police abuse victims instead of schools and roads and maybe finally vote in someone who will fix it. Fixing QI isn’t the best answer but it’s maybe a small step.

      1. In other words you’ve given up on libertarianism. I’m sorry to hear that but I haven’t. We need to lobby to rescind laws (e.g. drug laws, social security and medicare) not bemoan that it’s impossible.

        1. I haven’t given up. But I do recognize that a half a loaf today (and the hope of a full loaf in the future) is better than demanding a full loaf today and getting nothing (and maybe burning the chances to ever get that full loaf in the future). Libertarianism is an ideal goal for the future. Good libertarians can nevertheless disagree about the best way to get to that goal.

  4. States Can Provide Their Own Civil Remedies for Police Abuse

    Unless unfundable pensions count as abuse. Even then, in at least a couple of states, unless the officer committed a crime specifically related to his official duty, the state is Constitutionally incapable of stripping him of his pension or pensions.

    1. You don’t have to strip him of his pension. You just have to hold him financially accountable such that he has to use that pension to pay back his victims for the rest of his life.

      (Which doesn’t solve states’ problem of handing out pensions that they can’t afford – but that’s really an abuse by the people handing out the pension promises, not by the lucky recipients.)

  5. How can Chauvin get a free trial when the President and hacks like Sullum continue to say that Chauvin’s actions murdered George Floyd? It is an outright lie, the Coronor’s report proves it. Report the facts. Why lie? Chauvin hasn’t been convicted yet., and he won’t be convicted if he isn’t charged correctly.
    Chauvin should be charged for the crimes he is guilty of, not the crimes that the ignorant, looting, “denizens of the ghetto” and the press insist on. Hell, the Prosecutor is a proven, avowed racist, Chauvin could very well walk.
    I wish that everyone in America had to live in a US ghetto for an entire summer. The empathy people show for criminals like George Floyd is ridiculous. Junkies like Floyd are the main problem in poor areas. They are the “end user”. They contribute nothing but stolen cash to drug dealers and violence upon the taxpayers. They prey on poor people. Hell, George Floyd preyed on poor, pregnant women. George Floyd wasn’t special, he was a selfish, violent, drug-addicted scumbag that left poor crotch droppings all over the midwest. A President spoke at his funeral.
    Whenever a Junky died in my neighborhood it was a relief to the residents. The parents of the Junkie disposed of the body without fanfare, they were probably relieved too. That is reality.
    The conversation always went like this:
    Resident #1: “Joey the Junkie died”
    Resident #2 “Oh yeah, what killed him?”
    Resident #1 “It was time.”
    Resident#2 “Great”. “I can probably get a car stereo now.”
    There would be one less asshole breaking into houses, cars, and strong-arming the kids in the parks.
    Screw your murals and memorials. Screw your angelic painting of a man that put a gun to a pregnant woman’s stomach. I have known real Junkies, none of them are worth burning cities for. Chauvin will get his day in court, there was no need to burn and loot the nation.

    1. George Floyd may be all the things you claim. He was not, however, sentenced to ‘death by police abuse’ for those crimes. It doesn’t matter how big a dirtbag Floyd was – what Chauvin did was wrong.

      Whether what Chauvin did was criminally or civilly wrong deserves a trial, as you say. The problem with (un)qualified immunity is that doctrine short-circuits the process and prevents the civil trial from ever happening.

      1. Did you forget about the late released video of Floyd resisting arrest?

      2. Claim? He was convicted of putting a gun to a pregnant woman’s stomach. “Death by police abuse” isn’t what the Coronor’s report says. The heroin and fentanyl killed him. The evidence, gathered through scientific methods, has proven that Floyd died from the drugs, not from being kneeled on.
        Unless Chauvin injected the drugs that killed George Floyd, how can he be responsible for Floyd’s OD death? The Coroner’s report states that “fluid in the lungs” and a bad heart were major factors in Floyd’s death. Chauvin had nothing to do with either.
        During the Chauvin/Floyd arrest, Floyd was resisting for a very long time. The energy he expelled fighting the police accelerated what was happening inside his drug abused body. Floyd had a bad heart that was pumping at a murderous pace due to resisting. Floyd chose to fight the Cops, they didn’t choose to fight him. If Floyd had not resisted, he would have had more time. He would have been transported to the station. If he started to show signs of overdose while being transported he could have been transported to a hospital. Instead, he spent his dying minutes resisting the police.
        George Floyd broke a bunch of laws that day and by doing so, he caused his own death. He is responsible. Chauvin is a scumbag, but he is not a murderer.

        1. Drug use may well have been a contributing factor to Floyd’s death. It may have been so much a contribution that it would legally absolve Chauvin of responsibility for the death. Ditto for Floyd’s heart condition. I trust a jury to weigh the coroner’s credibility against other evidence and to figure it all out.

          What I don’t trust is the (un)qualified immunity rule that prevents victims from ever getting in front of a jury to make their case.

  6. Yes; State’s are in charge of criminal proceedings. One of the hardest hit to the Constitution this nation has ever seen was the ‘idea’ we only had one National Government in charge of everything.

    One size does not fit ALL…

    1. Exactly. What happened in Minneapolis is due to their poorly run government. They care more about junkies than they do about their law-abiding citizens, police, business owners, and taxpayers. Only the junkies and criminals are benefitting. Floyd should have been in jail.
      My town is about the same size as Minneapolis, we have much lower violent crime and half the murders. People are moving here in droves and paying very high prices for homes. Minneapolis morons are paying for people to move there, then they pay for their housing and give them a check. Those poor taxpayers.

  7. I would argue congress already abolished qualified immunity in the Civil Rights Act of 1871 when they passed what is now 42 USC 1983. It makes no meantion of such immunity, the courts made it up.

    Which of course leads to the next problem. What prevents any other such absurd doctrine eviscerating any reforms at any level? So to address this, we need to also address judicial immunity (also made up by judges), and I don’t see this happening any time soon. So in the short term, public social pressure on the courts seems to be a necessary bandaid.

  8. States Can Provide Their Own Civil Remedies for Police Abuse

    Can? Yes, obviously.

    Will? There isn’t a chance in Hell that all 50 states will choose to do so. Even when some states get it right on civil rights, we always, always have states that double-down on being evil to their own citizens.

    So I’m fine with letting the “laboratory of democracy” work, and see what solutions states come up with. But have no doubt, once we find one that works, it should be escalated to the federal level. Because we all know that there are many states that have no interest in correcting civil right abuses.

  9. Yes, I also believe that the state does not have to wait for action by Congress or the Supreme Court. They can independently provide remedies to citizens whose rights have been violated without punishment.

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