Tag Archives: qualified immunity

Unpacking Immunity

The defiance shown by so many police officers to vaccine mandates absolutely astonishes me, as I’ve previously posted. These are, after all, people whose job it is to enforce “mandates” over the “personal choices” of citizens whose disagreement with those mandates is irrelevant.

But then I read a very informative column by Radley Balko in The Washington Post and connected some (admittedly non-intuitive) dots.

The column was about qualified immunity–the judge-made doctrine that continues to exempt police officers from the consequences of unconstitutional behaviors, and essentially allows them to choose which laws they will follow and which they will ignore. I have previously explained that doctrine, and why so many lawyers argue that its effects have been pernicious. Balko goes beyond the widespread criticism of the way qualified immunity currently works; he explains its ugly origins.

I, for one, was unaware of those origins.

Balko begins by reminding us that qualified immunity isn’t in the Constitution or in the U.S. Code. “It is judge-made law. It is judicial activism, by any definition of the term.” The doctrine was first announced in Pierson v. Ray, a case arising out of participation by a group of Episcopal priests–three of whom were Black–in the effort to desegregate public accommodations in the South.

Waiting on a bus just outside of Jackson, Miss., 15 of the priests, three of whom were Black, entered a segregated cafe. Two police officers ordered them to leave. When they refused, the officers arrested them under a vague Mississippi law permitting police to arrest any group of people who threatens a “breach of the peace.” The clergymen were convicted and sentenced to four months in jail. On appeal, their arrests were deemed illegal and their convictions were overturned. They subsequently sued under Section 1983.

Section 1983 is the federal statute allowing citizens to sue the government for damages when agents of that government, acting in their official capacities, violate their rights.

This was the precise sort of constitutional violation that Section 1983 was passed to address. Local state authorities had refused to recognize the 14th Amendment rights of Black priests to be treated equally. And yet they lost.

The U.S. Court of Appeals for the Fifth Circuit ruled that by merely participating in the Freedom Rides, the clergymen had knowingly placed themselves in harm’s way, and therefore were ineligible for damages. The court also ruled that though the arrests and law were subsequently determined to be unconstitutional, the police could not have known that at the time, and therefore couldn’t be held liable.

In 1967, the Supreme Court upheld the decision, and in 1982, in the case of Harlow v. Fitzgerald, the Court made the doctrine even worse. As I explained in my former post on the subject, the Court in Harlow ignored precedents that had required an examination of the “subjective good faith” of the officer being sued. Instead, 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.”

In other words, since Harlow, courts have 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 Balko (accurately) characterized the current situation,

Collectively, they’ve created a through-the-looking-glass realm of jurisprudence that not only excuses police violations of constitutional rights, not only grants a police an exception to the axiom that “ignorance of the law is no excuse,” but actually incentivizes law enforcement to remain oblivious to the rights of the people they serve.

Which brings me back to the chutzpah of the police who are refusing vaccination.

When you are working in an environment that shelters you from the consequences when you break the rules, an environment that allows you to decide for yourself which laws you will follow and which ones you will ignore, the result is development of an entitlement mentality. When you are insulated–immunized–from the consequences that ordinary citizens face when they ignore laws of general application, why wouldn’t you get cocky? Why wouldn’t you consider yourself immune from the rules that the “little people” must follow?

Qualified immunity explains a lot more than the evisceration of Section 1983.

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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.

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