There Is Nothing ‘Conservative’ About Letting Police Violate Our Rights

“what about the onslaught of frivolous suits that would come down against the police? That also misses the mark, particularly when considering that it is not possible to simply enter a federal courthouse and file a lawsuit because you’re mad at the cops. Before suing a government actor, a plaintiff must satisfy two conditions: that the public servant affirmatively violated someone’s constitutional rights, and that the violation of the rights is clearly established in prior case law. Without qualified immunity, a would-be litigant would still need to prove to a federal judge that his constitutional rights were infringed on. Qualified immunity is only the second part—the part that sends a victim searching for a perfect court precedent where another victim experienced a near-identical sort of misconduct.

It’s for that reason that the doctrine gives license to some disturbing behavior—the sort that should concern anyone who positions himself as a defender of responsible governance. An example: “The City Officers ought to have recognized that the alleged theft was morally wrong,” but the police “did not have clear notice that it violated the Fourth Amendment.” This is a real quote from a real decision from a real federal court—the U.S. Court of Appeals for the 9th Circuit—awarding qualified immunity to two government actors who we apparently cannot trust to know that stealing during a search warrant is unconstitutional unless there is some obscure court precedent saying so. I’d posit that most of the public has more faith in police to do their jobs with integrity. I certainly do.”

Police Shot a Man Driving Away, Can’t Keep Their Stories Straight, Get Qualified Immunity Anyway

“Police violated the constitutional rights of an Alabama man when they repeatedly shot at his car, first as he inched forward in it nonthreateningly and then as he drove away, hitting him either five or six times and requiring that he receive emergency surgery, a federal court ruled last week.

The same panel found that the officers are entitled to qualified immunity and thus cannot be sued in connection with the incident. The legal doctrine allows state actors to violate your rights without fear of civil liability if the exact manner in which they misbehaved has not been declared unconstitutional in a preexisting court precedent. (A practical example: Two cops in Fresno, California, allegedly pocketed $225,000 while executing a search warrant, but the victims were not permitted to sue because no ruling on the books said that stealing under those precise circumstances is a violation of someone’s rights.)”

Over 24 Cops Raided the Wrong Address and Wrecked an Elderly Man’s Home. They All Got Qualified Immunity.

“The Court’s ruling is a crash course in the lopsided logic behind qualified immunity, which requires that the facts of any given case be reflected almost identically in a previous case should a victim of government abuse want the privilege of bringing their suit before a jury.”

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

“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.”

“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.”

Virginia Democrats Declined To End Qualified Immunity. Police Unions Are Alive and Well.

“The Virginia Senate last week passed a comprehensive police reform package that would prohibit the use of no-knock warrants and chokeholds in the majority of cases and make it easier for departments to decertify rogue cops. One thing was noticeably absent, though: a ban on qualified immunity.

Qualified immunity makes it exceedingly difficult to sue public officials when they violate your rights, as it requires that any alleged misconduct be outlined almost identically in a previous court precedent. The doctrine has come under fire from all sides of the political spectrum. In June, Rep. Justin Amash (L–Mich.), joined by Rep. Ayanna Pressley (D–Mass.) and several other Democratic members of Congress, introduced a bill in the U.S. House that would have abolished qualified immunity (though it has not received a vote and will likely die without one).”

“But Virginia Democrats’ decision to punt on the issue puts them more in line with moderates in the Republican Party—a testament to the power of the law enforcement lobby.”

“DeBoard might gain new perspective on that if she were to talk to the mother of the 10-year-old boy who was shot in Georgia by sheriff’s deputy Matthew Vickers, who received qualified immunity. Or the parents of the 15-year-old boy on his way to school who was shot in Los Angeles by Officer Michael Gutierrez, who received qualified immunity. Or the man who had a police canine sicced on him—after he had surrendered—by two cops who both received qualified immunity. Or the men who allegedly had $225,000 stolen from them by two officers, executing a search warrant, who both received qualified immunity.

The latter case epitomizes the mental contortions required by the legal doctrine. A unanimous panel for the U.S. Court of Appeals for the Ninth Circuit wrote that “although the City Officers ought to have recognized that the alleged theft was morally wrong, they did not have clear notice that it violated the Fourth Amendment.” In other words, officers need case law text to tell them stealing is bad.

Advocates like DeBoard present an apocalyptic vision of a world without qualified immunity, one in which officers go bankrupt from frivolous civil suits and leave the force in droves. That’s not a vision based in reality. For one, losing qualified immunity is not equivalent to losing a lawsuit. It simply provides someone with the right to bring such a suit in front of a jury—a right the American public is technically still guaranteed under federal law. And in the case that a public servant does lose a suit, the municipality nearly always foots the bill.”

No Qualified Immunity for Kentucky Cops Who Strip-Searched a 4-Year-Old and Threatened Mom

“Back in March of 2017, Curry was driving her kids to karate when she stopped to get them some muffins. She was in the café for just a few minutes. When she came out, two cops rebuked her for leaving the kids.

In Kentucky, it’s a crime to leave children under the age of eight in a car under circumstances that “manifest an extreme indifference” to human life and create a grave risk of death. But the cops didn’t say she’d done that. The kids all looked fine, and they the officers left without charging Curry with a crime. Nevertheless, they felt obligated to call the state’s child protection hotline, thus opening a neglect investigation which automatically required a visit to the Curry home to check on the kids.

When the caseworker arrived at the home, Holly refused to let her in without a warrant. The worker returned with a sheriff’s deputy, but still no warrant. When Holly insisted that they still couldn’t enter, they threatened to “come back and put your kids into foster care.” Holly begged for time to call her husband. They refused. Finally, crying and terrified, Holly let them in.

Labeling that decision “voluntary consent,” the authorities entered the home. Unsurprisingly, the house and kids all looked fine. Even so, the caseworker insisted on strip searching each kid, removing their underwear and examining their genitals for signs of abuse.

A few months later, the caseworker closed the investigation as “unsubstantiated,” saying that what Holly had done was a “one-time ‘oopsy-daisy.'” But she telephoned Curry later and said, “If we ever get a call against your family again, bad things will happen to you, and we’ll take your children.”

At that point, Curry had had enough. She turned around and filed suit against the caseworker and cop, claiming violation of her constitutional rights.

They, in turn, pressed hard for immunity. But in in a powerful ruling on August 19 in Curry v. Kentucky Cabinet for Health and Human Services, Judge Justin Walker said that it was clear the government used an improper threat to enter the home, lacked any evidence that might have justified a strip search, and violated the children’s rights to bodily integrity.”

” To enter a home without consent and examine stripped kids requires a warrant, genuine suspicion of abuse, or an actual emergency. Who knew? Apparently not the authorities in Kentucky, who have been defending the warrantless entry and strip ever since the Curry’s filed their lawsuit in 2018.”

Another Rogue Cop Just Got Qualified Immunity. The Judge Who Gave It to Him Isn’t Happy About It.

“A federal judge this week gave a blistering rebuke of qualified immunity, the legal doctrine that makes it difficult to sue police officers in federal court when they violate your civil rights.

“The Constitution says everyone is entitled to equal protection of the law—even at the hands of law enforcement,” wrote Judge Carlton W. Reeves of the U.S. District Court for the Southern District of Mississippi in a majority decision released yesterday. “Over the decades, however, judges have invented a legal doctrine to protect law enforcement officers from having to face any consequences for wrongdoing. The doctrine is called ‘qualified immunity.’ In real life it operates like absolute immunity.””

“to overcome qualified immunity, a plaintiff must show that the defendant’s misconduct had been “clearly established” by existing case law—the standard pulled out of thin air by the Supreme Court in Harlow v. Fitzgerald (1982). In practice, this criterion requires that plaintiffs show a public official’s misbehavior is prohibited almost verbatim by a previous ruling from the same federal circuit or from the Supreme Court. That requirement is nearly impossible to meet. “This Court is required to apply the law as stated by the Supreme Court,” Reeves writes. “Under that law, the officer who transformed a short traffic stop into an almost two-hour, life-altering ordeal is entitled to qualified immunity. The officer’s motion seeking as much is therefore granted.”

It is not unheard of for a federal judge to show disdain for his own ruling. They are required to enforce precedents established by the Supreme Court, even when doing so defies common sense. (Federal judges can also be seen decrying the mandatory minimum sentences they are required by Congress to impose on defendants who meet statutory criteria.)

A review of current qualified immunity decisions is instructive. The legal doctrine has protected two cops who allegedly stole $225,000 while executing a search warrant; a sheriff’s deputy who shot a 10-year-old boy while aiming at the child’s non-threatening dog; a prison guard who forced a naked inmate to sleep in cells filled with raw sewage and “massive amounts” of human feces; two cops who assaulted and arrested a man for the crime of standing outside of his own house; two officers who sicced a police dog on a surrendered suspect. That list is not exhaustive.”

“The Supreme Court has declined to hear a slew of qualified immunity cases and instead volleyed responsibility back to Congress. While such decisions should arguably be made by Congress, the Supreme Court created the very problem it now wants no part in solving.

“I do not envy the task before the Supreme Court. Overturning qualified immunity will undoubtedly impact our society,” Reeves writes. “Yet, the status quo is extraordinary and unsustainable. Just as the Supreme Court swept away the mistaken doctrine of ‘separate but equal,’ so too should it eliminate the doctrine of qualified immunity.””

Courts Grant Qualified Immunity to Cops in More Than Half of Cases When Invoked

“Reuters analyzed 252 federal appellate opinions from 2015 to 2019 where law enforcement defendants claimed qualified immunity. The courts ruled in the police’s favor in 57 percent of the cases.”

“Under the 50-year-old doctrine of qualified immunity, police and other government employees are shielded from lawsuits where the civil right they allegedly infringed hasn’t been “clearly established,” or where a reasonable officer wouldn’t have known about it.”

“On its face, qualified immunity is supposed to protect public officials from frivolous lawsuits related to their official job duties, but the confusing precedent has been construed so pedantically by some courts that plaintiffs must find precedents that match the exact circumstances of their case. Qualified immunity effectively short-circuits civil litigation against individual police officers, ensuring that the cases never make it to trial or settlement.”