Qualified Immunity Shields Police Misconduct, Undermines Trust: Paper

If a law enforcement officer accidentally shoots your child while meaning to shoot your dog, steals money from you while executing a search warrant, or tases you for refusing to sign a speeding ticket, it’s unlikely you’ll be successful suing them in court.

Due to qualified immunity.

Qualified immunity, which has been increasingly discussed in the wake of calls for police reform, is a legal doctrine that shields government officials from being held personally liable for constitutional violations so long as they did not violate “clearly established” law.

In the case of qualified immunity, “clearly established” law means there is precedent from a previous case that favors the plaintiff and has nearly identical facts to the case in question.

Alexander J. Lindvall, the assistant city attorney in Mesa, Ariz., argues qualified immunity has gotten out of hand due to plaintiffs being required to establish favorable case precedent to win their case even if the defendant has obviously committed a constitutional violation.

“Qualified immunity is broken,” he wrote in an article published in George Mason Law Review. “In its current form, this doctrine shields officials who fabricate evidence, torture detainees, shoot kids and dogs, and steal property while executing search warrants.”

Lindvall argued that police officers “who blatantly exceed the bounds of the Constitution” should not be shielded by the qualified immunity protection, “even if the plaintiff cannot point to analogous precedent.”

“By recognizing more ‘obvious’ constitutional violations, the courts will ensure that reckless and incompetent officers are held accountable, thereby increasing the public’s trust in the justice system and ensuring that constitutional rights are meaningfully enforced,” he wrote.

As of now, officers are only “on notice” that an action is unconstitutional if a court has previously decided that it is.

“No precedent = no clearly established law = no liability,” Lindvall wrote.

Qualified Immunity in Practice

Lindvall points to multiple cases where this standard has resulted in officers getting away with obvious constitutional violations.

In Corbitt v. Vickers, the Eleventh Circuit ruled that intentionally firing at a dog, who is clearly not posing a threat, and accidentally shooting a child nearby, did not violate the Fourth Amendment, because the defendant was unable to establish precedent from a previous case with identical circumstances.

In Jessop v. City of Fresno, three police officers were found to not have violated the Fourth Amendment after stealing $225,000 worth of property while executing a search warrant and lying on official paperwork so they could take the money for themselves.

The officers argued they didn’t know this violated the Constitution and therefore could not be held liable.

The Ninth Circuit agreed, because the officers did not have “clear notice” the theft violated the Fourth Amendment, which protects against unreasonable searches and seizures, and therefore qualified immunity applied even though the court found the officers’ actions were “deeply disturbing” and “morally wrong.”

In Mattos v. Agarano, a police officer got off using qualified immunity after tasing a pregnant woman three times for refusing to sign a speeding ticket.

The woman accepted the ticket, but refused to sign, because she insisted she was not speeding and did not want to sign as an admittance of guilt.

When the officer pulled out his taser after she refused to sign, the woman told him she was pregnant and less than 60 days from having her baby. He then tased her in the thigh, arm and neck as the woman screamed in pain.

Although the court found the officer violated the Fourth Amendment for using excessive force, the officer was awarded qualified immunity, because there were no “existing precedents” at the time of the case so an officer would have understood that tasing someone in this case would have constituted excessive force.

Lindvall states these cases are just a few of many that suggest the courts’ idea of a police officer is someone “unfit to do his job” and who does not understand what would be considered wrong under the law.

“Plaintiffs and police officers both deserve better,” he wrote.

“Plaintiffs deserve better because the primary purpose of federal courts is to enforce the Constitution and to ensure that the Bill of Rights affords actual, substantial rights, rather than hollow guarantees.

“And police officers deserve better because the courts should not assume that your everyday ‘reasonable police officer’ is a clumsy, trigger-happy liability magnet. By refusing to recognize obviously unconstitutional police behavior, the courts allow “bad” cops to remain on the streets — which can often have dire consequences.”

“Obvious” Constitutional Violations

 Asa sort of middle-ground proposal between people advocating to abolish qualified immunity for law enforcement officers and those wanting to keep it in place, Lindvall argues for courts to recognize and take appropriate action when officials commit “obvious” constitutional violations, whether or not there is established precedent in the case.

Lindvall argues letting bad cops off the hook for their conduct undermines the public’s trust in the police and the criminal justice system.

“Section 1983 says that state officials who violate the Constitution ‘shall be liable’ to their victims. It does not say that they ‘shall be liable, so long as someone else was found to have violated the Constitution in a similar way in the past,’” Lindvall wrote.

“By requiring §1983 plaintiffs to meet such an ‘exacting’ qualified immunity standard, the Supreme Court has largely hollowed out the protections afforded in the Bill of Rights and has abdicated its most important function: enforcing the Constitution.”

The question then arises over how to decide what is “obviously” unconstitutional.

Lindvall offers a simple answer: using the same method the courts use to determine all close issues, namely through their “judicial experience, common sense and established legal principles.”

He writes it is not difficult to recognize basic constitutional violations and therefore there should not have to be a previous identical case in order for qualified immunity to not apply.

Lindvall gives the example of the Fourth Amendment, which in part states officers must have probable cause to arrest someone. If an officer chooses to arrest someone without probable cause, they have violated the Constitution and should be held responsible whether or not there is precedent ruling in the plaintiff’s favor.

“The courts, of course, are often tasked with deciding cases that fall in the ‘hazy border’ between constitutional and unconstitutional,” Lindvall wrote.

“But occasionally they’re given a case that is beyond the pale, where the officer’s unlawful conduct is black-and-white. In such cases, the courts should not hesitate to call a spade a spade and withhold immunity from ‘the plainly incompetent’ officers who are often haled into court.”

 A Response to Counterarguments

Many people opposed to changing the rules regarding qualified immunity or to ending it altogether argue that by doing so law enforcement officers will either not want to work or will be too scared to use force when necessary.

Lindvall argues this argument fails for two reasons:

First, individual officers are almost never held responsible for the monetary costs of lawsuits.

Lindvall pointed to a leading study that found in §1983 suits (civil rights suits), individual officers paid only 0.02 percent of damages awarded to plaintiffs, contributed to less than one percent of settlements and paid zero dollar in punitive damages.

The median contribution for officers who did personally contribute to §1983 suits was only $2,250.

Lindvall argues officers are unlikely to be scared of civil liability when they are more than likely to not pay anything if they are sued.

Second, choosing to value immunity over accountability is the wrong choice.

Lindvall asserts that people fear officers will be distracted or hesitant to do their jobs.

He states officers who are amid a dangerous situation and have a split-second decision of whether to draw their gun or not, are not going to stop to think whether they will be afforded qualified immunity if they are sued.

In addition, officers should be at least a little hesitant to pull the trigger of a gun and due to qualified immunity officers may think they can “shoot first and think later.”

As far as general situations go, it’s unreasonable to believe an officer would not do their job if they might be denied qualified immunity.

If an officer is hesitant to respond to a call, because they believe they will violate someone’s Constitutional rights and be sued, then in that case they probably should not go, Lindvall argued.

As far as people who argue police departments should handle these cases through their internal disciplinary structures, Lindvall responds these procedures tend to be unfair toward police and do not often change police behavior.

Police feel the process turns into a witch hunt in which their superiors try to use them as an example and complainants feel as if they are going up against a “blue wall” of police officers.

“Police officers, from time to time, engage in blatantly unconstitutional behavior. They steal. They torture. They fabricate evidence. They arrest people who haven’t broken any laws. They shoot kids. And so on. But the courts too often refuse to hold these incompetent officers accountable,” Lindvall wrote.

“The time has come for the courts to recognize obvious constitutional violations and revamp the broken doctrine of qualified immunity.”

Download the full paper here.

Blake Diaz is a TCR Justice Reporting intern.