Let's Say Buh-Bye To 'Qualified Immunity'!

Then let's work on those contracts that say they can't be fired for kicking your ass.

With police brutality against Black Americans on everyone's mind, the powers that be are finally taking a moment to look at all of the different ways our system allows cops to brutalize people with impunity. And one of the things standing in the way of justice is a little thing called "qualified immunity."

Everyone from protesters to Ice Cube to the NFL is talking about qualified immunity right now. And as a former civil rights lawyer, I couldn't be happier to see people finally giving a fuck about the horrific way this doctrine works in our federal court system. For decades, qualified immunity has made it nearly impossible for people who have been brutalized by police to win their civil rights lawsuits.

It is well past time to throw this pro-authoritarian doctrine in the trash where it belongs.

So WTF is qualified immunity, anyway?

Qualified immunity is a legal doctrine the Supreme Court created to make it harder to hold government employees accountable for violating the Constitution.

The Civil Rights Act of 1871 (frequently called "Section 1983" for its place in US Code) gives people the right to sue government officers when their constitutional rights are violated. It was called the "Ku Klux Klan Act" when it was enacted because a big part of its purpose was to stop Klan violence against black people in the South during Reconstruction. It has been amended a few times, but it's still the main law civil rights plaintiffs use to sue government officers for violations of their federal constitutional rights.

Notably, the words "qualified immunity" appear nowhere in the Civil Rights Act. Qualified immunity is a doctrine entirely invented by the judiciary to protect cops and other government officials from lawsuits. The Court worried that government officials who were constantly terrified of lawsuits would be less effective and efficient.

As the court explained in  Harlow v. Fitzgerald  , the 1982 case that set the current qualified immunity standard,

it cannot be disputed seriously that claims frequently run against the innocent, as well as the guilty — at a cost not only to the defendant officials, but to society as a whole. These social costs include the expenses of litigation, the diversion of official energy from pressing public issues, and the deterrence of able citizens from acceptance of public office. Finally, there is the danger that fear of being sued will "dampen the ardor of all but the most resolute, or the most irresponsible public officials, in the unflinching discharge of their duties."

Because of these concerns, the Court held that "government officials performing discretionary functions, generally are shielded from liability for civil damages insofar as their conduct does not violate clearly established statutory or constitutional rights of which a reasonable person would have known."

So what does that mean in practice? In a case involving a claim of qualified immunity, there are two questions courts have to answer: Was a constitutional right violated? Was that right "clearly established" at the time? If the answers to both questions are yes, the case can continue.

In practice, it's really hard for a plaintiff to beat back a claim of qualified immunity — especially against the police.

Since Harlow was decided, SCOTUS has made it harder and harder for victims of excessive force to win their cases — or even take their cases to trial. Even in the most outrageous situations, where constitutional rights have clearly been trampled upon, courts are required to dismiss civil rights cases unless there's a law or another case whose facts match theirs to the letter.

As a recent Reuters Special Report titled "For cops who kill, special Supreme Court protection" found:

Even as the proliferation of police body cameras and bystander cellphone video has turned a national spotlight on extreme police tactics, qualified immunity, under the careful stewardship of the Supreme Court, is making it easier for officers to kill or injure civilians with impunity.

The fact that SCOTUS steps in far more frequently to rule in favor of police officers than plaintiffs in excessive force cases has even been pointed out by one member of the Court. In a 2017 dissent, joined by RBG, Justice Sonia Sotomayor pointed out SCOTUS's "disturbing trend" of favoring police over civil rights plaintiffs. Sotomayor noted that the Court has "not hesitated to summarily reverse courts for wrongly denying officers the protection of qualified immunity in cases involving the use of force" while at the same time "rarely interven[ing] where courts wrongly afford officers the benefit of qualified immunity in these same cases."

Reuters took a look at recent Supreme Court jurisprudence and found:

Over the past 15 years, the high court took up 12 appeals of qualified immunity decisions from police, but only three from plaintiffs, even though plaintiffs asked the court to review nearly as many cases as police did. The court's acceptance rate for police appeals seeking immunity was three times its average acceptance rate for all appeals. For plaintiffs' appeals, the acceptance rate was slightly below the court's average.

In the cases it accepts, the court nearly always decides in favor of police. The high court has also put its thumb on the scale by repeatedly tweaking the process. It has allowed police to request immunity before all evidence has been presented. And if police are denied immunity, they can appeal immediately – an option unavailable to most other litigants, who typically must wait until after a final judgment to appeal.

(For more info on qualified immunity and the cases behind it, I recommend checking out this article Ian Millhiser wrote for Vox and that excellent Reuters report .)

The future of qualified immunity

Congress has the authority to end qualified immunity — either entirely or for cases involving police officers. And there are a couple of bills already in Congress that would do just that.

The Justice in Policing Act , introduced Monday by congressional Dems, would reform policing in a bunch of ways, including eliminating qualified immunity for law enforcement. Erstwhile Republican and potential Libertarian Party candidate for president Justin Amash has also introduced the Ending Qualified Immunity Act in the House. (While the Democratic proposal only eliminates qualified immunity for law enforcement, Amash's bill would eliminate qualified immunity for all government officials.)

Meanwhile, the Supreme Court has eight different qualified immunity cases pending that it could decide to hear next term — and Justices Sotomayor and Ginsberg are not the only justices who have expressed problems with the Court's qualified immunity standards. On the other side of the aisle, uber-conservative Clarence Thomas has also criticized the doctrine in recent years. If SCOTUS decides to grant cert in one of these cases, it's anybody's bet what happens next to qualified immunity.

A civil lawsuit can never bring someone back, but at least it can help bring some vindication to people who have been wronged.

The United States criminal justice system was founded on systemic and institutional racism. Getting rid of qualified immunity for police officers would be a step towards justice.

[ Vox / Reuters / Fourth Circuit ]

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