Tag Archives: constitutional violations

Qualified Immunity

Putting aside for the time being the unfortunately-labeled effort to “defund the police,” we should definitely consider other steps that might be taken to return a measure of accountability to the nation’s police departments.

We might begin by repealing–or at least significantly narrowing–the doctrine of Qualified Immunity.

A bit of background: The Ku Klux Klan Act of 1871 was a Reconstruction era-effort to address what one court termed the “reign of terror imposed by the Klan upon black citizens and their white sympathizers in the Southern States.” That law is now  known to practicing lawyers–especially civil rights lawyers– as Section 1983. It  gives citizens the right to sue state and local officials for depriving them of their constitutional rights, and to collect damages and legal fees if they prevail.

As Ruth Marcus recently wrote in a column for the Washington Post,  that’s great, except for the fact that the Supreme Court began to eviscerate the law more than 50 years ago with a doctrine dubbed “qualified immunity.” As the judge in one recent case has noted, it might just as well be called “absolute immunity.”

Nothing in the text of the 1871 statute provides for immunity — not a single word — but the court imported common-law protections in 1967 to shield officials operating in good faith.

Then, in 1982, it went further. To be held liable, it’s not enough to prove that a police officer violated someone’s constitutional rights; the right must be so “clearly established” that “every reasonable official would have understood that what he is doing violates that right.” There must be a case on point, except that how can there be a case on point if there wasn’t one already in existence. This is Catch-22 meets Section 1983.

Numerous justices across the ideological spectrum — Anthony M. Kennedy, Antonin Scalia, Clarence Thomas, Sonia Sotomayor — have criticized the doctrine. But the court has appeared unwilling to do anything about it. As its term concluded, the court refused to hear any of the eight cases offering it the opportunity to reconsider the doctrine.

 Lawsuits for damages are a crucial method for protecting everyone’s constitutional rights. Qualified immunity–protection against a damages verdict– is what lawyers call “an affirmative defense”–it can prevent the court from assessing damages even if the officer clearly committed unlawful acts.

A case from 1982, Harlow v. Fitzgerald established the modern application of the doctrine. Ignoring precedents that examined the “subjective good faith” of the officer being sued, the court adopted a new “objective” test. After Harlow, a plaintiff had to show that the defendant’s conduct “violate[d] clearly established statutory or constitutional rights of which a reasonable person would have known.” Ever since Harlow, the court has required plaintiffs to cite to an already existing judicial decision with substantially similar facts.

As a result, as one lawyer recently wrote, “the first person to litigate a specific harm is out of luck” since the “first time around, the right violated won’t be ‘clearly established.’” As a post on Lawfare explained,

A recent decision by the U.S. Court of Appeals for the Ninth Circuit illustrates this point. In that case, a SWAT team fired tear gas grenades into a plaintiff’s home, causing extensive damage. And while the divided three-judge panel assumed that the SWAT officers had in fact violated the plaintiff’s Fourth Amendment rights, it nonetheless granted qualified immunity to the officers because it determined that the precedents the plaintiff relied on did not clearly establish a violation “at the appropriate level of specificity.”

Justice Sonia Sotomayor has called qualified immunity a “one-sided approach” that “transforms the doctrine into an absolute shield for law enforcement officers.” Her criticism– in an opinion which Justice Ruth Bader Ginsburg joined– pointed out that the doctrine “sends an alarming signal to law enforcement officers and the public. It tells officers that they can shoot first and think later, and it tells the public that palpably unreasonable conduct will go unpunished.”

It is past time for this doctrine to be dramatically limited. It is bad law and worse policy, and it insulates reckless police from the consequences of obviously wrongful behavior.

A Bill Of Particulars

I find myself quoting Dana Milbank a lot these days. Milbank, a columnist for the Washington Post, is the kind of writer I appreciate; much like Gail Collins of the New York Times, he is both informative and witty.

In his column yesterday, however, Milbank did us all a service; given Pelosi’s decision to commence impeachment proceedings, he lays out what I would label “a bill of particulars.” Milbank’s list illustrates the truth of an observation from Lawfare: “Trump’s misconduct presents what the military calls a target-rich environment.”

I cannot improve upon it, so I am taking the liberty of quoting the entire list.

Milbank begins that list by asking an obvious question: what if the shoe was on the other foot? What if a Democratic President–Elizabeth Warren, for example–was accused of doing the things Trump has clearly done, and  the GOP has simply shrugged off?

● Defies congressional power of the purse by unilaterally raiding the Pentagon budget to finance her pet projects?

● Rejects the authority of congressional oversight, disregards subpoenas and refuses to furnish documents, including a whistleblower complaintabout the president deemed “urgent” by the intelligence community?

● Is found by an independent prosecutor appointed by her own administration to have engaged in 10 possible instances of obstruction of justice but is not charged because regulations prohibit such a move against a sitting president?

● Approves and reimburses secret payments, in violation of campaign-finance law, to a person threatening to put out damaging information about her?

● Fires an FBI director who refuses to call off a probe of one of her close associates?

● Rescinds the security clearance of a former CIA director critical of her, as well as the press credentials of journalists who criticize her administration?

● Persuades a foreign leader not to admit Republican members of Congress into his country?

● Grounds the jet used for official business by the congressional leader of the Republican Party?

● Repeatedly releases highly classified intelligence, some to a foreign enemy and some only to Democrats?

● Threatens to cut off highway funds and disaster aid to states and territories controlled by Republicans, and declares she has the “absolute” right to move criminals to jurisdictions governed by Republicans?

● Funnels millions of taxpayer dollars to her own businesses, pressures federal agencies and international organizations to do business with her personal enterprises, invites foreign governments to pay millions of dollars to her businesses, and rejects a law requiring her to provide Congress with her tax returns?

● Calls for a boycott of the parent company of a media outlet critical of her, threatens an antitrust action against the owner of another media outlet critical of her, says she can unilaterally order businesses to disinvest from a country and calls for federal punishment of individual businesses she doesn’t like?

● Circumvents the Constitution’s advice-and-consent provision by running the government with “acting” officials (unqualified but loyal to her) not confirmed by the Senate?

● Offers to pardon those who commit crimes enforcing her policies, questions the authority of certain judges because they are GOP appointees and pardons a political ally who ignored court orders?

● Without congressional approval, establishes a de facto network of internment camps, run under inhumane conditions, for a class of people she disdains?

● And, finally, asks and coerces foreign governments to sabotage her Republican opponents’ campaigns?

When you see the whole list–which Milbank suggests isn’t even complete, it is impossible to justify the enormity of what the GOP has enabled and protected. I can’t help wondering what Trump’s toadies in the House and Senate will tell their grandchildren when those children study the history of this  retrograde and destructive Presidency.

How will they respond to the inevitable questions? What did you do, grandpa/grandma, while that mentally-ill, racist ignoramus was dismantling our government, spitting on the rule of law, and violating the Constitution on a daily basis?