Qualified Immunity part 1
By
John C Abercrombie
Today is day 8 of 28 and involves an extremely baffling problem that we attempt to make sense of everytime we see a police officer allowed to act badly with absolutely no consequences. Yes, we tackle the concept of Qualified Immunity
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As we undertake to understand one of the most misunderstood factors in the law we must realize the difficulty of doing so. We will look at the law and an interpretation that makes it almost laughable. Rulings that have essentially neutered an important aspect that had meaning and was established to remedy a much needed problem with the law. We see a law designed to remedy a racial problem turned on its head and touted as being race neutral and therefore ineffective. Don’t worry if this seems confusing and full of conflict as we will attempt to unravel this knotty problem.
Americans were empowered to challenge police misconduct in 1871 by the passage of a law allowing lawsuits against state and local authorities who refused to protect Black Americans from racial terror or lynchings and other acts of violence by groups like the Ku Klux Klan. In many cases people were of dual membership, meaning that often individual police officers were also members or psychologically aligned with these groups’ intent on depriving people of their constitutional rights and protections.
The water was muddled in 1967 when the United States Supreme Court limited that right by announcing a legal doctrine called Qualified Immunity. It appears on the face to protect government employees from frivolous lawsuits, it essentially rendered the law completely useless and without meaning. As we look deeper, you will see why qualified immunity leaves us baffled and frustrated with the operation of the law. What started as a law to protect the rights of a significant portion of citizens turned into an absolute shield against accountability for police offers accused of using excessive force and little or no practical logic.
Qualified Immunity rather than allowing for legal redress of breaches of constitutional rights limits and even eliminates remedies for victims of police violence and or misconduct.
The concept of Qualified Immunity has developed into an absolute shield of police misconduct rather than a way for people in need of redress from seeking or rather receiving anything close to it. Reuters investigation has determined that qualified immunity has developed making it much easier for officers to kill, injure civilians and deprive them of their constitutional rights.
The doctrine provides that a police officer cannot be put on trial for unlawful conduct, including the use of excessive or deadly force, unless the person suing proves that:
the evidence shows that the conduct was unlawful; and
- the officers should have known they were violating “clearly established” law, because a prior court case had already deemed similar police actions to be illegal.
- Even if a person can demonstrate that the police officer acted unlawfully, the officer will not be liable unless both prongs have been satisfied. The second requirement provides an especially powerful shield for officers because courts often require a nearly identical case to use as “clearly established” precedent.
For example, in 2014, Nashville police officers released a police dog on a suspect after he had surrendered and was sitting with his hands raised. The man sued for compensation for his injuries. To satisfy the “clearly established law” requirement, he relied on a decision holding that officers had violated a person’s rights when they released a police dog on a man who had surrendered by lying down. While the facts of the Nashville case were nearly identical to the relied-on precedent, the court held that this precedent did not “clearly establish” that it was unconstitutional to release a police dog on a suspect who had surrendered by sitting with his arms raised. As a result, the officers were granted immunity, which prevented the injured man from being compensated.
It is this head scratching logic that has so many people completely frustrated at the law. It is illogical for most people how this can be fair in any manner. Will this come down to the level where the people have to be identical twins in matching clothes and ever aspect identical? While this is farfetched, so is the current state of the law.
In another case, a court granted qualified immunity to an officer who in 2014 used a “takedown maneuver” against a small woman, slamming her to the ground, breaking her collarbone, and knocking her unconscious. The court noted that although past cases were similar, there was no precise set of facts where a “deputy use[d] a takedown maneuver to arrest a suspect who ignored the deputy’s instruction ‘to get back here.’” When the woman sued to hold the officer accountable for his use of excessive force, the court granted the officer qualified immunity, and the badly injured woman was left without a remedy.
Judges often ignore the question of whether an officer acted unlawfully, therefore the court avoids setting precedent for future cases. This is a massive catch 22 that results in civilians being injured, killed and rights outrightly ignored and able to thumb their noses at logic.
The problem only grows as fewer courts are producing precedent. Important constitutional questions go unanswered because no one has the guts to step up with a logical conclusion. Without clearly established law there is no liability for the police officer and therefore yet another person is denied redress.
Qualified immunity has come to mean that even when officers act illegally and maliciously and cause serious harm, courts refuse to repair the injury, instead allowing officers to get away with misconduct.
We got here because following the American Civil many Whites engaged in terroristic actions lynching over 2,000 Blacks in an effort to maintain White Supremacy. This included all of the brutality that is discussed with such actions. Thousands of recently emancipated Blacks were menaced, lynched, and subjected to indiscriminate violence by White police officers and White mobs.
To help vindicate the rights of African American victims of racial terrorism, Congress passed the Civil Rights Act of 1871 (also known as the Ku Klux Klan Act), which was codified as 42 U.S.C. § 1983. This law provides a private right of action for individuals whose constitutional rights have been violated by police officers or other state or local officials. This law was passed to remedy a racial problem that manifested itself in America. It was never a race neutral law.
In the 80 years between Reconstruction and the civil rights movement, § 1983 was a critical mechanism for Black people—so often presumed guilty and dangerous—to remedy constitutional violations by law enforcement.
In the Supreme Court case of Monroe v. Pape in 1961, a Black family successfully sued White Chicago police officers who broke into their house without a warrant, rounded them up, made them stand naked in the living room, and looted their home. As the Court explained when holding the officers responsible, the purpose of the Civil Rights Act was to “give a remedy to parties deprived of constitutional rights, privileges, and immunities by an official’s abuse of his position.”
In 1967, at the end of the civil rights movement, the Supreme Court began to retreat from this civil rights remedy by announcing the legal doctrine called qualified immunity. The doctrine has served as the basis for denying a remedy to victims of violent and even deadly police misconduct. This effectively created a category of injury without repair.
In Kisela v. Hughes, an Arizona police officer shot a mentally impaired woman four times as she stood “stationary” in her driveway holding a kitchen knife at her side. The record revealed that the seriously injured woman was “composed and content” and speaking with her roommate from a distance when the officer opened fire. In granting immunity, the Supreme Court held in 2018 that the officer had not violated “clearly established law.”
In dissent, Justice Sonia Sotomayor, joined by Justice Ruth Bader Ginsburg, wrote that the “one sided approach to qualified immunity transforms the doctrine into an absolute shield for law enforcement officers . . . It tells officers that they can shoot first and think later . . . and it tells the public that palpably unreasonable conduct will go unpunished.”
The “shoot first” approach to policing disproportionately harms Black people, who are killed by police in the U.S. at more than three times the rate of White people.1 Black people are also stopped and frisked without cause at significantly higher rates.2 Section 1983, promulgated to protect Black people and to provide a remedy for racial violence and injustice, remains as needed as ever but has been largely nullified by qualified immunity.
There are solutions not only to this horrific problem but others. The way out is not to hide the problem, to hide the discussion or avoid discussion. It is time to act like mature adults, face the facts and take the responsibility to identify and remedy these inequities. Let’s face reality!
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How Cops Get Away With Murder: Qualified Immunity (LegalEagle’s Law Review)
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Book
Above the Law: How “Qualified Immunity” Protects Violent Police
Earn Kindle Points when you buy books. Redeem for Kindle book credit. Learn more.
• A police officer kills a twelve-year-old boy. It’s caught on video. The officer gets off.
• A police officer strangles a man selling cigarettes. It’s caught on video. The officer gets off.
• A police officer shoots a man in his car. It’s live-streamed. The officer gets off.
It happens over and over again. The culprit here, alongside the cops, is Qualified Immunity (QI), a legal principle which Reuters describes as “a nearly failsafe tool to let police brutality go unpunished and deny victims their constitutional rights.”
Originally intended to protect cops from being sued over good faith mistakes, courts have interpreted QI so broadly that police are shielded from accountability in all but the rarest of circumstances. Only when the exact same abusive behavior was already deemed unconstitutional by a court in the exact same jurisdiction can victims succeed in a prosecution.
Above the Law recounts 12 cases in which justice was denied because of QI. The stories are accompanied by infographics, timelines, and contextualizing background to create a concise and compelling indictment of an outrageously unjust legal principle that must be changed.
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The controversy behind qualified immunity
The doctrine of qualified immunity, whereby police officers are protected from civil lawsuits in certain cases, has come under question. Would eliminating qualified immunity improve relations between police and the greater community? Senior contributor Ted Koppel talks with law experts, and with citizens who have become mired in lawsuits for years owing to police actions that they say violated their Constitutional rights.
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Book
The Affirmative Defense of Qualified Immunity for Law Enforcement: Volume 1
THIS CASEBOOK contains a selection of U. S. Court of Appeals decisions that analyze and discuss issues raised when law enforcement officers assert the affirmative defense of qualified immunity. Volume 1 of the casebook covers the District of Columbia Circuit and the First through the Fifth Circuit Court of Appeals. * * * Qualified immunity is a doctrine aimed at providing government officials (including police officers) a modicum of protection from civil damages liability for actions taken under color of state law. See Harlow v. Fitzgerald, 457 U.S. 800, 818, 102 S.Ct. 2727, 73 L.Ed.2d 396 (1982); McKenney v. Mangino, 873 F.3d 75, 80 (1st Cir. 2017), cert. denied, ___ U.S. ___, 138 S.Ct. 1311, 200 L.Ed.2d 475 (2018). This p.10 protection attaches “to all but the plainly incompetent or those who knowingly violate the law.” Malley v. Briggs, 475 U.S. 335, 341, 106 S.Ct. 1092, 89 L.Ed.2d 271 (1986). Thus, a government official may invoke the defense of qualified immunity when his actions, though causing injury, did “not violate clearly established statutory or constitutional rights of which a reasonable person would have known.” Conlogue v. Hamilton, 906 F.3d 150, 154 (1st Cir. 2018) (quoting Harlow, 457 U.S. at 818, 102 S.Ct. 2727). The qualified immunity analysis has two facets: “[t]he court must determine whether the defendant violated the plaintiff’s constitutional rights” and then must determine “whether the allegedly abridged right was ‘clearly established’ at the time of the defendant’s claimed misconduct.” Id. at 155 (quoting McKenney, 873 F.3d at 81). [ . . . ] [The question whether the allegedly abridged right is clearly established] has two facets. First, the plaintiff must “identify either ‘controlling authority’ or a ‘consensus of cases of persuasive authority’ sufficient to send a clear signal to a reasonable official that certain conduct falls short of the constitutional norm.” Alfano v. Lynch, 847 F.3d 71, 75 (1st Cir. 2017) (quoting Wilson v. Layne, 526 U.S. 603, 617, 119 S.Ct. 1692, 143 L.Ed.2d 818 (1999) ). Second, the plaintiff must demonstrate that “an objectively reasonable official in the defendant’s position would have known that his conduct violated that rule of law.” Id. This latter step is designed to achieve a prophylactic purpose: it affords “some breathing room for a police officer even if he has made a mistake (albeit a reasonable one) about the lawfulness of his conduct.” Conlogue, 906 F.3d at 155. Taken together, these steps normally require that, to defeat a police officer’s qualified immunity defense, a plaintiff must “identify a case where an officer acting under similar circumstances was held to have violated the Fourth Amendment.” City of Escondido v. Emmons, ___ U.S. ___, 139 S.Ct. 500, 504, 202 L.Ed.2d 455 (2019) (per curiam) (quoting District of Columbia v. Wesby, ___ U.S. ___, 138 S.Ct. 577, 590, 199 L.Ed.2d 453 (2018) ); see Anderson v. Creighton, 483 U.S. 635, 639-40, 107 S.Ct. 3034, 97 L.Ed.2d 523 (1987). Although such a case need not arise on identical facts, it must be sufficiently analogous to make pellucid to an objectively reasonable officer the unlawfulness of his actions. See City of Escondido, 139 S.Ct. at 504; Ashcroft v. al-Kidd, 563 U.S. 731, 741, 131 S.Ct. 2074, 179 L.Ed.2d 1149 (2011). Gray v. Cummings, 917 F. 3d 1 (1st Cir. 2019)
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We are often intrigued by the law but allow our lack of information combined with where to find information to deter us from undertaking a very worthwhile endeavor. No longer. Start your search here.
Law Books for Beginners
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Qualified Immunity In America: An Overview & Conversation [POLICYbrief]
Created by the Supreme Court in 1967, the legal doctrine of qualified immunity shields government officials from being sued even if they violate someone’s constitutional rights, as long as they are not violating what the Court calls “clearly established law.”
Proponents of qualified immunity argue that it is necessary for police officers to perform their job without the fear of being sued. Critics say that qualified immunity offers too much protection for the police and lessens their accountability.
Two experts on qualified immunity, UCLA Law Professor Joanna Schwartz and Fairfax County Police Auditor Richard Schott, discuss its pros and cons in the fourth episode of our POLICYbrief series on criminal justice.
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Book
The Affirmative Defense of Qualified Immunity for Law Enforcement: Volume 2
The Supreme Court has long recognized the private and social costs of dragging government officials into civil litigation. See Harlow, 457 U.S. at 816, 102 S.Ct. 2727 (discussing liability and litigation costs, but also the “distraction of officials from their governmental duties, inhibition of discretionary action, and deterrence of able people from public service”). To strike a balance between addressing constitutional injuries committed by state actors and limiting the costs of section 1983 suits, it has held that the common-law doctrine of “qualified immunity” applies in most cases against executive officials, including the police. Id. at 807, 102 S.Ct. 2727.
As the Court recently put it, “officers are entitled to qualified immunity under § 1983 unless (1) they violated a federal statutory or constitutional right, and (2) the unlawfulness of their conduct was clearly established at the time.” District of Columbia v. Wesby, ___ U.S. ___, 138 S. Ct. 577, 589, 199 L.Ed.2d 453 (2018) (quotation marks omitted); see also Pearson v. Callahan, 555 U.S. 223, 129 S.Ct. 808, 172 L.Ed.2d 565 (2009). Qualified immunity is meant to protect “all but the plainly incompetent or those who knowingly violate the law.” Mullenix v. Luna, 577 U.S. 7, 8, 136 S.Ct. 305, 193 L.Ed.2d 255 (2015). It is essential to evaluate the public official’s conduct at the correct level of granularity. See id.; Anderson v. Creighton, 483 U.S. 635, 640, 107 S.Ct. 3034, 97 L.Ed.2d 523 (1987). The unlawfulness of challenged conduct is “clearly established” for this purpose only if it is “dictated by controlling authority or a robust consensus of cases of persuasive authority,” such that it would be “clear to a reasonable officer that his conduct was unlawful in the situation he confronted.” Wesby, 138 S. Ct. at 589-90 (quotation marks omitted).
Once a government official invokes qualified immunity in a section 1983 suit, the burden shifts to the plaintiff to defeat the defense by showing (1) that a trier of fact could conclude that the officer violated a federal right, and (2) that the unlawfulness of the conduct was clearly established at the time the officer acted. Id. at 589. If the plaintiff cannot do so, the motion for summary judgment must be granted. See Thompson v. Cope, 900 F.3d 414, 420 (7th Cir. 2018). This reflects the fact that the entitlement that qualified immunity protects is, in the first instance, “an immunity from suit rather than a mere defense to liability.” Mitchell v. Forsyth, 472 U.S. 511, 526, 105 S.Ct. 2806, 86 L.Ed.2d 411 (1985). Defendants are authorized to, and often do, invoke qualified immunity in a summary-judgment motion.
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Constitutional Law Books
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Qualified immunity, explained
Eliminating qualified immunity is on the list of demands from protesters and activists asking for reforms to how police are held accountable for violating the constitutional rights of civilians in the United States.
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Book
Audible sample
Slavery by Another Name: The Re-Enslavement of Black Americans from the Civil War to World War II
Pulitzer Prize, General Nonfiction, 2009
In this groundbreaking historical expose, Douglas A. Blackmon brings to light one of the most shameful chapters in American history: an Age of Neoslavery that thrived from the aftermath of the Civil War through the dawn of World War II.
Using a vast record of original documents and personal narratives, Douglas A. Blackmon unearths the lost stories of slaves and their descendants who journeyed into freedom after the Emancipation Proclamation and then back into the shadow of involuntary servitude shortly thereafter.
By turns moving, sobering, and shocking, this unprecedented account reveals the stories of those who fought unsuccessfully against the re-emergence of human labor trafficking, the companies that profited most from neoslavery, and the insidious legacy of racism that reverberates today.
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Race and the Law
Don’t keep yourself in the dark when there is a way out
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The Reveal | Qualified Immunity, Police Impunity Ep. 73
Police procedure and accountability have been a topic of conversation for years, but recent incidents have put it in the national spotlight.
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The following book is a great addition to the above and can be used to answer and further your search for ancestors that can bring pride to you. We come from strong roots, discover and take pride!
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Trace, document, record, and write your family’s history with this easy-to-read, step-by-step authoritative guide.
Finally, here is the fun, easy-to-use guide that African Americans have been waiting for since Alex Haley published Roots more than twenty-five years ago. Written by the leading African American professional genealogist in the United States who teaches and lectures widely, Black Roots highlights some of the special problems, solutions, and sources unique to African Americans. Based on solid genealogical principles and designed for those who have little or no experience researching their family’s past, but valuable to any genealogist, this book explains everything you need to get started, including: where to search close to home, where to write for records, how to make the best use of libraries and the Internet, and how to organize research, analyze historical documents, and write the family history.
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-a list of the traps even experienced researchers often fall into that hamper their research
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Many of us do not understand qualified immunity. Even less understand the interpretations that seem counter to the reason people were allowed to sue for excessive force and loss of constitutional rights at the hands of law enforcement. We see it time and time again and there appears to be no part of this law that is fair or working to resolve a long-standing problem. I like so many others are constantly trying to determine why people are afraid of solving an obvious problem. Are there solutions? Yes. Is one of the solutions to avoid talking about it and working to come up with an equitable solution? NO! The time to resolve festering problems is now.