Qualified Immunity

The Chauvin Verdict Is a Reminder That We Still Need To Abolish Qualified Immunity

Most victims of police misconduct never get to take their cases to court.

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A jury this week convicted former Minneapolis Police Department (MPD) Officer Derek Chauvin on all counts for the murder of George Floyd, but one case can't fix a series of broken systems. While Minneapolis has compensated the Floyd family and Chauvin has been convicted, few cases of police misconduct conclude in favor of their victims.

To help more people abused by police get justice, the U.S. must reform qualified immunity, the legal doctrine that makes it perniciously difficult to hold police officers accountable in civil court when they violate your constitutional rights.

It's remarkably rare for a police officer to face criminal charges for the misuse of force. We know that Chauvin had 22 complaints filed against him by the time he was arrested for Floyd's death, and that he was allowed to remain with the MPD through all of them.

When it comes to fatal encounters, we have a slightly better idea of the disparity: Only about 139 officers since 2005 have been charged with murder or manslaughter in relation to an on-duty shooting, though about 1,000 fatal police shootings occur each year. Of the officers charged, a small minority are convicted.

Counting fatal encounters omits many more victims of police misconduct who live to tell about it. The data we do have paints an incomplete but unsettling picture, as police departments often refuse to make public reports against officers. A report from ProPublica is instructive: "In 2018, the [Civilian Complaint Review Board] looked into about 3,000 allegations of misuse of force [in the New York Police Department]," wrote Eric Urmansky last summer. "It was able to substantiate 73 of those allegations. The biggest punishment? Nine officers who lost vacation days."

In other words, people whose rights are violated by police can't always count on the criminal courts or even police departments to reprimand their employees; civil suits are often the only avenue to justice. Yet thanks to qualified immunity, those individuals often find that road blocked off, too.

The legal doctrine, manufactured by the Supreme Court, protects government officials from federal civil rights lawsuits if the official's specific behavior was not "clearly established" as a rights violation in a precedent handed down by the U.S. Supreme Court or by another court within the same circuit. In other words, for a plaintiff to sue a police officer in federal court, a prior plaintiff must've already sued over the exact same violation and won. Any plaintiff who sues after being harmed in a remotely unique way risks being told that the officer who harmed them could not have been expected to know they were violating the Constitution.

In granting qualified immunity, federal judges must agree that someone's rights were indeed violated, while in the same breath making it legally impossible for them to sue the violator. Convincing a judge to deny qualified immunity simply allows the plaintiff to press forward with their lawsuit.

Consider a decision delivered by the U.S. Court of Appeals for the 9th Circuit, which granted qualified immunity to two cops in Fresno, California, after the men allegedly stole $225,000 while executing a search warrant. In theory, the officers should know stealing is wrong, the court noted, but without a court precedent on the books expressly saying so, they couldn't be expected to know. The men were never charged in criminal court, and the victim was legally barred from suing.

Consider a more recent case. Two plainclothes officers in Cleveland, Ohio, assaulted and arrested a man who happened to be standing outside his own house. They then turned around and charged him with assault, booking him in jail for several days, although those charges were eventually dropped. The cops never faced any criminal repercussions themselves—for the bogus charges or the beating—and the victim, Shase Howse, had no way of suing. The Supreme Court last month declined to hear his case.

There are many such stories—those who survive malicious or negligent encounters with state actors with almost no hope of criminal accountability and a remote hope for justice in the civil sphere. There was the 10-year-old who needed orthopedic surgery after Coffee County, Georgia, Deputy Sheriff Matthew Vickers shot him while aiming at the boy's non-threatening dog, leaving the family to bear those medical costs themselves. (The Supreme Court also refused to hear that case.) There was the man who sustained a lasting eye injury after an officer allegedly kneed him 20 to 30 times after he'd been subdued. There was the 15-year-old boy shot on his way to school, the surrendered suspect who cops sicced their police canine on, the man whose car was ruined during a bogus drug search.

Chauvin might seem like an example unbefitting of this discussion—the City of Minneapolis settled with Floyd's family for a reported $27 million. Had the case not been filmed and highly publicized, as in the above examples, that might not have happened.

"Incredibly, had the city not chosen to settle the lawsuit, Derek Chauvin would have had a very plausible chance of getting the suit thrown out on qualified immunity grounds—even after being convicted of murder," says Clark Neily, vice president for criminal justice at the Cato Institute. "There is no preexisting case in the Eighth Circuit under which it was 'clearly established' that pinning a suspect under one's knee for nearly ten minutes until they lose consciousness and their heart stops beating violates the Fourth Amendment."

The video footage here was the game-changer—something that victims aren't always afforded. It's also something that government officials may take issue with. In 2014, officers in Denver, Colorado, attempted to force a bystander to delete a film he took of them beating a suspect during an arrest. Though a federal court ruled those cops violated the First Amendment in doing so, it gave them qualified immunity.

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  1. The Chauvin Verdict Is a Reminder That We Still Need To Abolish Qualified Immunity

    While I’m too lazy to google them, I believe that Reason has specifically said that QI keeps cops from “being held accountable”. The Chauvin Verdict reminds us that statement is fundamentally untrue.

    To help more people abused by police get justice, the U.S. must reform qualified immunity,

    Reform, yes. 100%. Abolish or eliminate? That will probably never happen, because qualified immunity is rooted in a reasonable idea.

    While Minneapolis has compensated the Floyd family

    I’m guessing that the city of minneapolis has far greater wealth and resources than Chauvin does. Sure, it would be nice to personally sting Chauvin for a few tens of thousands in damages, but I’m not sure what that would have accomplished for the Floyd family.

    1. While I’m too lazy to google them, I believe that Reason has specifically said that QI keeps cops from “being held accountable”. The Chauvin Verdict reminds us that statement is fundamentally untrue.

      A couple points…

      1. QI is for civil lawsuits , not criminal immunity.
      2. The victim has no ability to initiate criminal proceedings — that is up to the discretion of prosecutors and grand juries (with prosecutors getting to put their thumb on the scale during secret grand jury proceedings)
      3. That discretion also keeps police from being criminally responsible.
      4. The Chauvin trial/verdict is the exception that proves the rule. The reason the whole country is talking abou tthis is because it’s so rare for cops to criminally prosecuted for thier conduct on the clock. (For example, Amger Guyger the other high profile prosecution of a police office was off-duty at the time which is why she was charged in that case)

      I think the way the article is written is confusing, but no, nothing that was written contradicts the fact that it is nearly impossible to hold bad officers accountable — either criminally or civilly.

      1. DR(P) is correct. You cannot eliminate QI completely. Police and other state officials should be able to lawfully carry out their duties without facing ruin over honest mistakes. We ask police to operate outside societal norms… Using force when needed to enforce our laws.

        Defining that line will be extremely difficult. Right now it is obscene, with courts saying police who steal a quarter million dollars during a search enjoy immunity. That is just obsurd.

        But having them fight a personal lawsuit every single time some Karen gets offended that an officer wrote her a ticket is absurd as well.

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      2. 1. QI is for civil lawsuits , not criminal immunity.

        Nothing in my post suggested it wasn’t.

        2. The victim has no ability to initiate criminal proceedings — that is up to the discretion of prosecutors and grand juries (with prosecutors getting to put their thumb on the scale during secret grand jury proceedings)

        That is correct. But that goes for all cases of murder (to stick to the current example). If my neighbor shoots me in the head and kills me, the question of my ability to sue the attacker doesn’t really come into play. Why we think the victims’ ability to sue the officer in every case of criminal malfeasance is the answer to justice, I know not.

        3. That discretion also keeps police from being criminally responsible.

        We have no disagreement here.

        4. The Chauvin trial/verdict is the exception that proves the rule.

        This we also agree on.

        I think what bugs me about most of the QI reporting is it takes something everyone agrees on but tries to apply it to the entire doctrine, regardless of the circumstances:

        That Qualified Immunity, as it has been interpreted by the courts, has created a bizarre situation where the courts are somehow able to claim that in cases where it seems obvious human rights violations have occurred, that there is (bizarrely) no established caselaw showing victim didn’t have a right to not have x-horrible-thing happen.

        You’re not going to get rid of qualified immunity because at its core, it has a perfectly noble purpose:

        It keeps bitchy, litigious mom from tying up teacher X in direct lawsuits where there is no established caselaw showing that making little Timmy clean erasers instead of getting recess last Tuesday, was a violation of Timmy’s human rights. So teacher X is protected by qualified immunity. (However, Timmy’s mom is perfectly within her rights to sue the school district.)

        Where QI seems to have gone off the rails is that if officers x,y and z steal a bunch of inventory from a storeowner while investigating a criminal complaint, the courts seem to bizarrely rule that there is no established caselaw indicating that officers stealing you blind is a violation of your rights.

        I do understand that verdicts are often misinterpreted by the general public because judges tend to rule “on the narrowest grounds possible” which creates confusion for us lay people– especially journalists.

        It is precisely BECAUSE I would like to see qualified reformed that wish the reporting were more accurate and… yes, stuck to more narrow grounds than “abolish qualified immunity” (or Defund The Police)

        You’re not going to win anything with the ‘abolish’ argument, especially when you can’t (or won’t) acknowledge why QI exists in the first place.

        1. I am also not sure how they got to the notion that it has to be a constitutional rights violation in order for them to be civilly reliable.

          You and I can be sued for simply causing harm.

          I would say that theft is clearly not covered under their job duties. That should be the test.

          1. I am also not sure how they got to the notion that it has to be a constitutional rights violation in order for them to be civilly reliable.

            My guess is that public servants who have a high degree for the possibility of sensitive contact with the public could effectively be bankrupted by agitated members of said public.

            Rightly or wrongly, someone recognized that if government agents (any agent– teachers, mail carriers, police, the clerk at the DMV) could be sued by the tens of thousands of members of the public they regularly contact– especially where public compliance to said agent is not entirely voluntary– that the effectiveness of that agency could be reduced to zero.

            There’s the anarchist part of me that says, “Cool, bring it on” but the practical/realism side of me says that teachers (to name just one class of agent who benefits from qualified immunity) should not have to be looking over their shoulders for lawsuits for just doing their jobs. That’s the job of the agency itself.

            If agencies did a better job of holding their individual agents accountable for egregious behavior– not just when there’s a clear “violation of civil rights”– then we might not be having this discussion.

            I’m not against a major reform of how courts interpret QI. Having said that, in cases where there has been substantial harm done, I still don’t see why anyone would sue the teacher who makes $42,000 a year and is four payments behind on their BMW, as opposed to suing the agency.

            And… as we’ve seen from the so-called Qualified Immunity “reforms” put in place by three states, none of those agents will likely ever see the inside of a courtroom, let alone pay a single dime if the court finds in the plaintiff’s favor.

            1. I don’t think abolishing QI would mean officials would be liable for doing their jobs. Immunity for doing your job is already baked into the law. What QI does is raise the bar specifically for suits against officials by saying that, even if you can establish that the official was not doing their job, they’re still immune if there is no exact precedent for their behavior.

      3. nearly possible, huh?

  2. Chauvin had 22 complaints filed against him”
    show me a cop who doesn’t have complaints, I don’t know Chauvin but complaints proves nothing.

    QI needs to change

    1. But that isn’t a qualified immunity problem. That is an incompetent management dealing with overprotective unions problem.

  3. Seems this need to happen at the state level, not so much the federal level. Once again, Binion misses the boat. No surprise there.

    It seems to me that states have considerable constitutional latitude in their police powers. That goes both ways; haven’t Colorado, Connecticut, and New Mexico already severely limited QI as a defense? They have.

    A SCoTUS ruling would be nice, but it is not really needed. The states can limit QI themselves.

    1. A SCoTUS ruling would be nice, but it is not really needed. The states can limit QI themselves.

      Maybe, but the fact remains that activist judges created the QI regime. Rather than force all 50 states and the Federal government to have to pass laws to undo legislation that the courts created it would be better to have SCOTUS just reverse the idiotic decision.

      The problem is that QI in theory is necessary in some form. It’s just that it’s been taken to an obscene level by judicial fiat.

    2. That goes both ways; haven’t Colorado, Connecticut, and New Mexico already severely limited QI as a defense? They have

      Colorado– kind of- although we’ll have to wait and see if there is a single lawsuit filed where QI would take affect but is nullified by the law, New York (murky), New Mexico– almost not at all.

  4. Well that’s what I got out of this, the guy is in prison and qualified immunity is the problem

    1. Immunity is a defensive provision (for cops and other Government Almighty thugs and goons only… NO immunity provided for normal-level peons!).

      Victim is dead… Poor, poor, pitiful abusive cop might be going to jail… Boo Hoo!

      How is a DEFENSIVE provisions for cops (and buddy-oes) only, responsible for cops being in jail? Logic much? Maybe go and see if Google Translate has a Right-Wing-Nut-Job-to-Reality-Logic translate function? Try it, and THEN try to communicate with normal people?

      1. C’mon. QI has nothing to do with criminal prosecution of police or teachers or social workers or public health nurses. It has to do with civil liability. Do you really think that the Public Health Nurse who gave a childhood vaccination to a child who then died from anaphylaxis should be forced to hire her own attorney to defend herself from the lawsuit the parents will eventually be coaxed into filing, courtesy of the very well protected litigation industry ? Same for teachers, same for cops. A police officer can do everything exactly right according to law and Department policy and still have a horrible outcome. The officer should NOT be forced to pay for his or her own defense (not least of all because it would rapidly become extremely difficult to recruit police, teachers and social workers. It doesn’t seem like equal treatment to remove the protections of QI from police officers, but not other public servants who are required to carry out difficult and highly emotional chores that negatively affect the public.

  5. All in favor of junking unconstitutional Warren Court abominations like qualified immunity.

    Can we also get rid of Miranda? It’s an unconstitutional Warren Court abomination too.

    1. Are any cases impacted by this anymore? I would wager that 90% of the population can recite it by heart due to depictions in popular media. I should think it would be rather difficult to raise an objection that someone was not aware of their rights in this environment.

      1. I think you forget; Miranda created out of whole cloth the requirement for the warning. It might be a good idea but it ain’t in the Constitution.

        So some blatantly unconstitutional decisions should be left alone then I guess. Not an attack on you per se. But I note that few here agree with me. Most libertarians it seems don’t really have a fealty to the Constitution.

  6. Complete personal liability for doing your job. Excellent method to defund the police through massive resignations. Saves on their pensions too.

    1. If the cops who see it as their duties to serve as judges, juries, and on-the-spot executioners for crimes like passing a counterfeit bill, resign from their jobs… I say good riddance! Don’t let the doors hit your asses on the way out!

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  7. I disagree with the article. Given the nature of their jobs, the police deserve a judicial presumption in close cases. And given the nature of our legal system, letting every claim of abuse go to trial and jury will open those floodgates and create chaos not only in the judicial system but in the law enforcement realm as well.

    1. QI is not for close cases, it is for cases where an appeals court has not said that the cops specific actions were a civil rights violation. Thus if a cop finds a new way to abuse someone they get QI, and the next one, and the next one until a court rules that what they did was bad. Cops in CA got QI for stealing money. Cops have gotten QI for having their dogs attack subdued suspects. Cops got QI for forcing prisoners to sleep in their own sewage.

  8. As long as cops can start personally suing shitbags they encounter regularly, for all the injuries, illness, diaease, stress, and mental anguish they are exposed to

    1. They can. There is nothing preventing anyone from suing anyone else, unless the person you are suing is a government official who is on the clock.

  9. Yes, qualified immunity should be abolished, but not just for law enforcement officers, but all public officials, including elected representatives speaking from the legislative floor. No longer should officials hide behind closed executive sessions, executive privilege, or even personnel issues shielding the public from knowing of the misuse of power.

    1. Yeah, I tend to go pretty far on this one. And police tend to get a large portion of the focus for qualified immunity, but the immunities in general granted to government actors are concerning.

      It’s always going to be at least a little hard to control this in a reasonable way. I think in most cases simply trying government officials under the same expectations of the citizenry is entirely reasonable. I’m sure there’s edgecases where this becomes questionable, particularly police do pose a challenge since they tend to end up in more unusual situations than the average citizen. I think as return to that baseline though is probably the best.

      1. Don’t forget social workers, particularly child protective services agents are very vulnerable to lawsuits filed by angry parents who hadn’t checked on their kids for weeks, but suddenly get very protective when the welfare checks are threatened. Public Health Nurses, Teachers, OSHA Inspectors and the list goes on. There are lots of jobs that require the employee to take action that will unfailingly draw the ire of citizens. If those employees are not protected from civil liability lawsuits nobody in his or her right mind would accept such a job.

  10. The Chauvin Verdict Is a Reminder That We Still Need To Abolish Socialism If you want a cop, you pay for him/her. Leave me out of the equation.

    1. Having the government pay for police is not a part of any real definition of socialism. Only the fake definition where Rs claim anything they don’t like is socialism.

      1. Since those promoting the idea of defunding the police are neo marxist assholes, I presume I can call them socialists and you can fuck the hell right off leftie bitch.

    2. There are some functions of government, like roads, border integrity, military, public safety that are paid for by taxes and are considered essential to the functioning of a nation and which would not work very well if individual citizens were forced to organize and pay for them (interstate highways, airports, GPS networks, etc.etc.) That is not socialism in any sane definition.

  11. “The Chauvin Verdict Is a Reminder That We Still Need To Abolish Qualified Immunity”

    Yes, and institute civil asset forfeiture against police and prosecutors, especially against their much loved defined benefit pensions. Beyond somewhat shifting the burdens of proof and time onto the state, its goons, and their unions to remedy part of the imbalance of power between the state and unions against an individual victim; it would provide both a deterrent and poetic justice.

  12. The Minneapolis intersection of 38th Street and Chicago Ave., where just under a year ago George Floyd had gasped his last breath under the knees of a while police officer, was transformed Tuesday night into a scene of celebration and community relief.
    Some set off firecrackers, others danced, jumped and sang in unison. Those who gathered at what is now known as George Floyd Square were rejoicing in the guilty verdict of former Minneapolis police officer Derek Chauvin.
    Hours earlier, Chauvin had been convicted of all charges in connection to the death of Floyd: second-degree unintentional murder, third-degree murder and second-degree manslaughter.
    https://worldabcnews.com/in-minneapolis-a-burden-lifts-as-chauvin-verdict-brings-relief-jubilation-to-a-tense-city/

  13. I think that I fundamentally do not understand why, that as a Libertarian, I should think that police should not get the benefit of the doubt and have, like body armor, QI in-place to protect their reactions to rapidly changing, and sometimes violent events? Of-course, unless they are deemed to be un-privileged to retain it due to their own criminal activity? There are many instances, (maybe do we really know?), where QI fails a citizen, but what percentage more does it save lives, protect law-abiding citizens? This article did not help my confusion, sorry Billy!

    1. If you and I have a legal dispute, the judge/jury will weigh the merits of our arguments and decides who gets what. If there is a government official on one side, then QI says that they cannot be punished for anything that wasn’t explicitly forbidden in a previous court case. So to give a hypothetical example, if you pour gas onto my lawn and light it on fire, I can sue you for the damage. I cannot sue a cop for that, since there is no court case claiming that cops shouldn’t use gasoline to light someone’s grass on fire.

      As a libertarian, you should be asking why you have less rights than a member of the government. QI does not protect citizens at all.

      1. That’s a strawman and you know it. QI wouldn’t cover that cop because burning your lawn, devoid of any additional context, wouldn’t be legal in the first place and police would be expected to know otherwise.

        A more realistic example is this article Binion keeps shilling about police who “stole” $250,000. He’s a broken record and never reads these comments because he’s been debunked every single time he posts his own fake news. In that case, the police officers served a valid warrant to take possession of contraband from illegal gambling operations. The plaintiffs then sued for a 4A violation because they believe the officers pocketed some of the evidence for themselves. Now that’s a very real possibility and Binion refuses to be a good journalist and follow up on the outcome of the story (I believe the case itself is still pending), but the issue is whether or not the officers could have known that they were violating 4A by stealing evidence, again assuming they stole evidence.

        There is a very important nuance here. QI wouldn’t cover theft as police are expected to know they can’t steal evidence, but how would the officers be expected to know that they ALSO violated 4A in doing so? There’s no way they would know that and so QI covers them on that basis alone. It wouldn’t stop them from being punished for theft, but it would cover them from a 4A suit.

        The other problem with that fake story is that the 4A suit makes no sense. If a police officer steals evidence, they did so as an individual. The actual collection of evidence by the state was legal and valid and did not violate 4A. The correct remedy would be the police returning the evidence to the state. Saying that your rights were violated by the state in this context makes zero sense.

  14. Qualified immunity was a smart thing for SCOTUS to invent; it saves the government a lot of frivolous costs.

    Why frivolous? Well, what are courts for? They’re for preventing vigilantism, vengeance, blood feuds and the like.

    In a country full of people who would film their own child being murdered by cops and then send the snuff film for the local news station to show everyone, what exactly would a court be preventing by ruling against such cops?

  15. I disagree with the content of the post. Given the essence of their work, police officers are entitled to a presumption of innocence in close cases. And, given the nature of our legal system, allowing any evidence of wrongdoing to be heard by a jury would open the floodgates, causing havoc not just in the justice system but also in law enforcement.
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  16. Abolishing qualified immunity is a kneejerk response. Everyone is a felon unwittingly and we have too many laws, yet police officers are supposed to know every single possible interpretation of the law before issues are even discovered by the courts? That’s the whole reason they created this protection in the first place.

    Funny how we say there’s a double standard for police with the law, yet the only double standard in sight is one proposed by “reformers.”

  17. I simply don’t understand how so many see an end to qualified immunity for police (but oddly, not for any other public offices) as some sort of panacea for police/public relations.

    The logic apparently is something like this: There are cases where police act criminally and get away without criminal prosecution, often because of some presumption of innocence on the part of the cops. Because of this, the civil courts should provide a means for those harmed by police actions to not only get compensation. but act to punish bad cops.

    Well, CT, NYC, NM, and CO have revoked such protections so perhaps we can see the result of an actual experiment. But, until then, we are limited to considering the following: Qualified immunity, of course, has no effect on the criminal prosecution of police. That some likely guilty cops avoid criminal prosecution is a function of unavoidable presumptions of innocence for cops to some extent (it is not an injustice for a cop to shoot a suspect coming toward them in a dark alley during a chaotic scene who later turns out to be unarmed to be given significantly more leeway than someone shooting a rival gang member in an ambush). One might also consider that in our system, LOTS of likely guilty people walk as a matter of course.

    Political and institutional protection is also an issue, usually as a result of strong police unions in alliance with municipal powers. Perhaps these problems should be addressed before we try to use the power of civil courts that may or may not be appropriate.

    There is then the argument that QI keeps the injured party from getting just compensation for their harm suffered. This does not appear to be the case because even when there can be no lawsuit launched against a particular cop, compensation, often lavish in extent is often forthcoming from a government for who paying such money is politically expedient.

    So what do the proponents then imagine will happen when QI s eliminated. I imagine we will soon find out in the places it has been ended. But I would presume a couple of things. First, if cops are made to provide their own coverage, because of the nature of insurance, liability will be spread to all cops. Like some of the proposed gun laws, those most affected will be the law-abiding cops, not only having to pay for the acts of the occasional bad cops but also for the defense of innumerable lawsuits launched by jailhouse lawyers who would like nothing more than to make those who arrested them miserable. Of course, the legal system may act to squash such use of the system. Ha, fat chance.

    So, given that premiums could be a significant percentage of a typical cop’s pay, I would imagine the insurance would be provided by the city (or the union, paid by the city). Then you are right back to where you began.

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