Qualified Immunity

Cops Who Assaulted and Arrested a Man for Standing Outside His Own House Got Qualified Immunity. SCOTUS Won't Hear the Case.

The Supreme Court delivers another blow to a victim of egregious police abuse.


On July 28, 2016, a group of Cleveland police officers dressed in plain clothes and driving in an unmarked car idled up to a house, where they spotted a man on the front porch. The man was named Shase Howse, and he lived in that house with his mother. The police proceeded to beat and arrest him.

Last year a federal court ruled that those two cops were protected by the legal doctrine known as qualified immunity. And this morning, buried in the Supreme Court order, came the news that SCOTUS will not hear the case.

On the day he was arrested, Howse says, he was searching for his keys when the officers—who he didn't realize were officers, since they were dressed normally—appeared. They asked if Howse lived at the residence. Howse replied yes, and the cops drove away. They soon doubled back. As I wrote in June:

After Howse answered in the affirmative, Officer Brian Middaugh of the Cleveland Police Department (CPD) pressed Howse on if he was sure he lived there. "Yes, what the fuck?" Howse allegedly responded, still unaware Middaugh was a cop. Middaugh, commenting on Howse's bad attitude, then exited the unmarked vehicle and approached him on the porch, asking him once again if he lived there. Howse said he did.

Following that exchange, Howse alleges that Middaugh commanded him to put his hands behind his back because he was going to jail. Howse did not oblige, telling Middaugh that he lived at the residence and that he'd done nothing wrong. Middaugh then threw him to the ground, and with the help of CPD Officer Thomas Hodous, handcuffed him while Howse resisted. It was after he was tackled that Howse realized the men were police officers.

As he lay on the porch, Howse's mother, who heard the noise from inside, exited the residence, where she says she saw one man straddling her son while another punched his head with a closed fist, causing Howse's head to hit the porch. She, too, did not initially realize they were officers.

Howse was charged with two counts of assault and one count of obstructing official business. He then sat in jail for several days. The charges were eventually dropped.

Howse countered with his suit, arguing the officers had violated his Fourth Amendment rights with excessive force and malicious prosecution. The U.S. Court of Appeals for the 6th Circuit rejected this, saying that the cops were protected by qualified immunity. That doctrine shields public officials from certain sorts of civil rights suits if their alleged misbehavior was not "clearly established" in case law.

In other words, for a plaintiff to have the right to bring a case before a jury, he must pinpoint a precedent that outlines the factual circumstances of his case almost identically. A few choice examples: Qualified immunity has protected two cops who stole $225,000 while executing a search warrant, a cop who ruined a man's car during a bogus drug search, a cop who shot a 10-year-old, and two cops who sicced a police dog on a surrendered suspect. Howse can now add his case to that list, as he will not have another chance at appeal.

In awarding the officers qualified immunity last year, Circuit Judge Amul Thapar wrote: "'Clearly established' means that the law is so clear at the time of the incident that every reasonable officer would understand the unlawfulness of his conduct. To avoid 'paralysis by analysis,' qualified immunity protects all but plainly incompetent officers or those who knowingly violate the law."

That's what the "clearly established" standard is supposed to do. But that's not what it does in practice. What public official does not know stealing is wrong? Should an officer have to study case law texts in advance to know that beating and arresting someone on bogus charges is a constitutional violation? Thapar has unintentionally explained why the doctrine is so obscene.

"It requires a certain amount of effort to write an exceptionally bad qualified immunity opinion, but this is, by any standard, an exceptionally bad one," Clark Neily, vice president for criminal justice at the Cato Institute, told me last summer. "Simply refusing to interact with police, and even being rude to them, does not provide probable cause for them to make an arrest, which is really what this case boils down to."

Howse's attorneys asked the high court to consider two issues: "whether the law is clearly established that an officer cannot arrest a person whom the officer has no reason to believe committed a crime, tackle him to effect the arrest, and then strike him in the neck when he poses no threat to anyone's safety," and "whether a Fourth Amendment malicious prosecution claim must be dismissed simply because one of the underlying charges is supported by probable cause."

They will hear neither. Although Howse committed no crime by standing outside his own home, he stiffened his body and screamed while being arrested, which the majority thought was enough to void the entire malicious prosecution claim.

The Supreme Court's announcement adds to its mixed legacy on qualified immunity. It has refused many other chances to fundamentally reassess the legal doctrine. But in this recent session, it has been willing to reshape its application. In November, it overturned a federal court decision giving qualified immunity to a group of prison guards who locked a naked inmate in a cell filled with "massive amounts" of human feces and another cell overflowing with raw sewage. And last month, the Court reversed another federal ruling—which granted qualified immunity to a correctional officer who pepper-sprayed an inmate without provocation—and told the 5th Circuit Court of Appeals to reconsider.

It's progress. And it's true that it's the legislature, not the Supreme Court, that is supposed to create policy. But then again, qualified immunity itself was not created by legislature. It was created by the Supreme Court.

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  1. So the court decided that the man doesn’t have standing to sue, thus conclusively proving that he was not wronged. That’s how it works, isn’t it?

    1. Welcome to the revolution.

      1. The court will side with the police, yes. Last I checked, even in an imagined libertarian utopia, there would be cops. Because even libertarians, want SOME laws. And if there are cops, then there has to be some incentive to have them. Remove qualified immunity, and the cops will leave. Theoretically, you could get rid of qualified immunity if you greatly increased their wages and benefits. But I don't think that would fly for libertarians. Cops are human and they make mistakes. That is the crux of the problem, and I don't think you'll remedy it soon.

        1. Bullshit. Wrong is wrong, and thugs (wearing colors or a uniform) are thugs.

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          2. Absolutely! And these danged thugs with badges don’t need case law to tell them when they are stepping over the line! They know exactly what they’re doing and are acting with intent because they know the courts have their backs at nearly every turn. I’m telling you folks you’re going to have to lean on your legislators and get them to draft bills that get rid of qualified immunity when simple preponderance of the evidence shows clearly officers should have had the common sense to know they were crossing the line.

            We cannot continue to let courts legislate from the bench!

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          3. This is exactly why any cop, plain clothed or otherwise will be shot on site the moment they cross my property line. Castle Doctrine… and I’m the fucking king of the castle.

        2. How do you even manage to type while jerking off a dozen cops simultaneously?

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        3. That was no mistake. It was assault and battery. The cops, the judges, including the ones in scotus all deserve bankruptcy and free dental work performed by very large unqualified people.

    2. I think people are being too hard in the Supreme’s.

      Once the court starts down the slippery slope of protecting our Constitutional Rights, who knows where it would ultimately lead.

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    3. Not sue them personally.

    4. Actually nit, but standing is odd, and qualified immunity has been defined to defend the indefensible. SCOTUS needs to act to correct the interpretation; more appropriately the congress should rationally limit the protections of qualified immunity. Regrettably, Mr Bumble was right, the law often IS a ass, and rationality, or common sense, is a quality rarely fund in the congress.

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  2. 1. It has been clearly established since cops were invented that beating the hell out a law abiding citizen is “clearly established” as wrong.
    2. Maybe we should take a hint from the fascists in DC and all put up 7 foot fences with razor wire. (zoning laws be damned)

    1. I’m down for #2. 🙂

  3. “But then again, qualified immunity itself was not created by legislature. It was created by the Supreme Court.”

    Well, if we are going to skewer court created rules, perhaps we can start with the mystical penumbras that created the indelible right to kill a child in utero, gay marriage, and the absolute and most important right of having grown ass dudes compete in women’s sports.

    1. Abortion is a question of property rights.
      The government shouldn’t be involved in marriage or sports.

      1. >Abortion is a question of property rights.

        I thought the 13th Amendment overturned the whole Dred Scott “humans as property” precedent.

    2. Interesting you regard those as a greater priority than government agents assaulting and kidnapping people.

    3. You sure hit a homerun with that comment! Amen! If we were neighbors, I’d have to buy you an ice-cold Pepsi. (Won’t by Woke-A-Cola!)

  4. The same court that refused to review the evidence of election fraud.

    1. Holocaust denial will FIX it all for us, won’t it, Miserable (Un)-reality-Miser-Misek?

    2. There was no evidence of election fraud.

      1. We don’t know because the courts refused to look.

      2. Oh God, yet another election fraud denier. Might as well engage the same rhetoric the opposition does.

  5. To avoid ‘paralysis by analysis,’ qualified immunity protects all but plainly incompetent officers or those who knowingly violate the law.

    Lives depended on they’re being able to fuck this guy up on his porch without a second thought.

  6. Clear evidence you live in a police state and the stalinist left wingers will use that power against you. So thank you reason for helping get them back in power.

    1. Trumpanzees gone apeshit will replace democracy with mobocracy, and THAT will fix it all for us! Their violence GOOD, BLM violence BAD! My tribe GOOD, your tribe BAD!

      (Hey, has anyone ever tried these ideas before? What were the results?)

      1. Trumpanzees want me to stop eating poop and, libertarian-style, end collusion between the Government Almighty (DNC) giving orders to “privately” owned websites! Trumpanzees ***ARE*** a (Libertarian) TURN-Coat that wants to join the proletariat gone democratic in Washington DC, and replace oligarchy with democracy! (Regular readers here DO know that Trumpanzees are from Inner Mormon Utahistanistanistan).

        1. ENB is okay with your shit eating fetish and is totes on board with no penalty for your chocolate obsession. In fact, she is down with a UBI for you to continue your dalliance and the creation of a special job just for you to be paid for said services as part of the green new plan to end zip locked baggies of poo in the landfills. Privately owned companies should be free to censor whomever they want, as long as it is an unequal balance of THE tribe over, you know, the othern’. Democracy should be a wolf in sheep’s clothing or better, two wolves – one sheep.
          The sheep’s vote will be totes fortified in the same manner as the wolves’ employ. Democracy, after all, is not self propelled by the voters but supported to ensure only the best candidate is given a seat at the table.

  7. SCOTUS Won’t Hear the Case

    Imagine that. Roberts’ SCOTUS mostly spends its time avoiding controversy and anything that won’t earn the Chief Justice attaboys in the clubhouse.

    He was the lone dissenter on the free speech case the court just ruled on too, and for the weaseliest of reasons:

    “Chief Justice John Roberts, in an unusual lone dissent, said he thought the dispute was now moot. Roberts stressed that the student had graduated and that the challenged restrictions “no longer exist.”

    1. “There is no need to rule on the constitutionality of the prisoner’s torture and death in the labor camp, for he is now dead and his estate has long been liquidated in the name of equity. The camp authorities, moreover, assure us this is no longer happening. We scarcely see cases before this court so thoroughly fitting the legal definition of mootness.”

    2. “It took us so long to get this case to SCOTUS that the student has graduated, so it’s moot.”

      That ranks right up there with:

      “Restrictions on machines guns are constitutional because they are ‘not in common use,’ due entirely to the unconstitutional restrictions we put in place in 1934 when they were.”

    3. Does that mean if I kill someone than I can’t be charged because the case would be moot as the other person is already dead?

      1. Sounds right.

    4. Mother’s Lament, I TRULY AND SINCERELY THINK the Democrat LIBTARD SCUMBAGS have something on John Roberts. I think there’s something about the way he adopted his children that they could exploit and take his kids from him and his wife. That’s the only thing I can see going on with him. Somebody or several somebodies have something big on him. Either that or he’s just such a pro-cop dickhead that just doesn’t care about our rights!

  8. And I trust these officers received no sanction from their department? Also, knowing the qualified immunity doctrine is in place, did Howse’s attorneys consider suing the department or city?

    1. Well, I guess his lawsuit named both the city and the officers.

      This case is definitely a travesty of justice and it’s clear to me that the mechanisms of accountability stretching way up the chain have failed here.

      1. I loved this part: “Nugent wrote that he considered all the facts of the incident and that ‘the Detectives used force no greater than necessary to control the situation.’”

        The cops alone created “the situation,” you jackhole.

  9. Has it been thoroughly proven to the satisfaction of the court that attaching jumper cables to a suspect’s balls in order to extract a confession meets the doctrine of “clearly established violation of Constitutional rights” or is this something we still have to worry about? How about lopping off fingers with a pair of gardening shears? Gouging out eyes with a nut pick? Breaking kneecaps with a baseball bat? And what if they used poultry shears, a Phillips-head screwdriver and a tire iron, respectively?

    1. Well, it depends:
      1. Were the cables attached positive to right ball, negative to left? because unless it was done that way before, and got to court, and there was a ruling, then QI.
      2. Have garden shears been used before, or was it a totally different situation where a knife was used? QI.
      3. Nut picks? Before it has always been knives (again) or chisels. QI.
      4. Baseball bats? Not by the cops before, so QI. Yeah, the (other) bad guys use ball bats, but not cops before.

      Bullshit has very particular rules, you know.

      1. Well, the court asks exactly what type of garden shears we’re talking about here.

        1. Fiskars? Greenlee? Husky? If you don’t have the brand down, QI it is!

  10. It is as if SCOTUS is daring the government (more broadly known as We the People) to resolve the Courts’ unconstutionally legislating from the bench itself.

  11. Nothing will change until QI cops are hunted by vigilantes, tortured, and neutered in some fashion. Sorry, not a threat but just facts. If the courts refuse any form of justice to extreme police malfeansance people will revolt and it ain’t going to be pretty. Maybe not today, maybe not next week, but one day and one day soon. History will repeat itself. That’s a fact, Jack.


  12. “That doctrine shields public officials from certain sorts of civil rights suits if their alleged misbehavior was not “clearly established” in case law.” Now there’s a Catch 22 for ya. Why don’t you grow a pair and make this the precedent ya fn jholes? Or better yet, admit this doctrine is fn bs and friggin overturn it once and for all.

  13. The courts are eliminating the Constitution by establishing rules and procedures than override law and the Constitution. What can be done to stop it? Don’t suggest voting for any politician?

    1. The tree of liberty must from time to time be watered with the blood of patriots and tyrants.

  14. I can only assume that no one here actually read the Sixth Circuit opinion or the briefs in this case. In sum, this was a terribly argued case for the plaintiff. When faced with an uphill battle (which QI surely is), you better come up with some good arguments. And when your constitutional claim is based on excessive force, you better find an excessive force case to rely on — not just Terry v. Ohio, which doesn’t do much for your argument.
    And if you think that the Supreme Court is gonna grant cert in a potential bombshell, QI-changing case, it ain’t gonna be one as sloppily litigated as this one.

    1. This is very true and an angle I hadn’t considered. A poorly crafted argument will screw you over every single time. A shit-lazy attorney or just one dumber than a box of rocks will screw you every time.

  15. “The great masses of men, though theoretically free, are seen to submit supinely to oppression and exploitation of a hundred abhorrent sorts. Have they no means of resistance? Obviously they have. The worst tyrant, even under democratic plutocracy, has but one throat to slit. The moment the majority decided to overthrow him he would be overthrown. But the majority lacks the resolution; it cannot imagine taking the risks.” ~ H. L. Mencken (1926). “Notes on Democracy,” p. 50, Alfred A. Knopf
    “And how we burned in the camps later, thinking: What would things have been like if every Security operative, when he went out at night to make an arrest, had been uncertain whether he would return alive and had to say good-bye to his family? Or if, during periods of mass arrests, as for example in Leningrad, when they arrested a quarter of the entire city, people had not simply sat there in their lairs, paling with terror at every bang of the downstairs door and at every step on the staircase, but had understood they had nothing left to lose and had boldly set up in the downstairs hall an ambush of half a dozen people with axes, hammers, pokers, or whatever else was at hand?… The Organs would very quickly have suffered a shortage of officers and transport and, notwithstanding all of Stalin’s thirst, the cursed machine would have ground to a halt! If…if…We didn’t love freedom enough. And even more – we had no awareness of the real situation…. We purely and simply deserved everything that happened afterward.” ― Aleksandr I. Solzhenitsyn , The Gulag Archipelago 1918–1956

  16. I personally think that we should take whatever steps would be necessary to stop anyone who has ever been a prosecutor of any kind from being on SCOTUS because their natural bias is going to be toward law enforcement and the prosecution side of the issue at every turn, I believe.
    Look at how many judges give so much benefit of the doubt to the prosecution, but not to the accused, who should be the ones getting benefit of the doubt. If there is any doubt whatsoever, the doubt should always without exception favor the accused.
    Look at how prosecutorial misconduct is never punished. Look at how one of the most vicious and crooked prosecutors in America is now the Vice-President!

  17. > What public official does not know stealing is wrong?

    Joking, yes?

    1. Not knowing that is a prerequisite to being a politician.

  18. The court that refused to review the evidence of election fraud.

  19. And it’s true that it’s the legislature, not the Supreme Court, that is supposed to create policy. But then again, qualified immunity itself was not created by legislature. It was created by the Supreme Court.

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  20. Had the victim’s mother, upon seeing her son assaulted, grabbed a shotgun and dispatched the attackers and were charged for doing so, any decent juror would vote to acquit.


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