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Qualified Immunity for Police Officers
The subject of Qualified Immunity as it pertains to policing generates more heat than light and is misunderstood by the general public as well as some police officers.
The most publicized court cases involving QI involve the federal statute. There are individual state statutes as well that involve QI.
Split-second decisions are inevitable in the law enforcement profession but reacting in a way that deprives people of their constitutionally approved rights is not.
There is no QI blanket immunity for police officers who violate a subject’s constitutional rights.
Law enforcement personnel are not the only group that qualified immunity applies to – qualified immunity is a defense that is available to all government officials. But what actually is qualified immunity? It is a judicially created doctrine that shields government officials from being held personally liable (for monetary damages under federal law) for constitutional violations. For law enforcement, qualified immunity is often granted in cases pertaining to Fourth Amendment violations such as search and seizure and due process violations. As established in Harlow v. Fitzgerald (457 U.S. 800, 818, 102 S.Ct. 2727 (1982)), under the doctrine of qualified immunity:
The Supreme Court and established precedence:
For a case to be dismissed on the basis of qualified immunity, courts utilize a two-part test: 1) Did the officer violate a constitutional right? And 2) Was that right clearly established at the time of the incident? If the answer to the first question is “yes,” but the answer to the second is “no,” the officer is granted qualified immunity. But that raises the question, what does it mean for a right to be clearly established? In District of Columbia v. Wesby (138 S.Ct. 577 2018)), the Supreme Court acknowledged it had “not yet decided what precedents, other than its own, would qualify as controlling authority for purposes of qualified immunity,” Scarry explains. Even so, several circuit courts not only look to Supreme Court precedent but also to cases from their own circuit and cases from other courts exhibiting what is considered to be a “consensus” view of clearly established rights.
The challenge for police officers:
Since the ruling in Pearson v. Callahan (129 S.Ct. 80 (2009)), courts have been enabled to skip straight to the second question in the two-part test without a detailed review of the facts of the case. This further complicates the question of qualified immunity for officers as the court often declines to expressly state whether an officer’s actions violated a constitutional right and in what way. This prevents the potentially violated right from ever becoming “clearly established” for the purposes of law enforcement officer decision-making.
Every incident involving a police officer and a subject has its own unique set of facts, and officer training must include an understanding of constitutional rights, even if the Supreme Court has “not yet decided what precedents other than its own, would qualify as controlling authority for purposes of qualified immunity.”
Published in Policing
The main way that the situation regarding qualified immunity is diminished is a simple one.
Yes this court-adjudicated method of establishing QI ends up not applying in many instances.
When citizens are badly mistreated, and the local PD is informed of the alleged infractions of civil rights, at the most what happens is the officer(s) will be suspended without pay until the case comes to court. If the court case proves the officer was at fault, the officer(s) will be let go.
Then that individual usually just applies for work at some other locale.
Meanwhile the tax payers foot the bill for whatever monetary settlement has been decided upon.
Some ten years ago, we saw a situation happen here in Lake County Calif wherein the police abused their powers but finally were made to pay the price in court.
Individual citizens who had been perversely affected by the local police acting brutally and egregiously outside of the law decided to sue the county. The cases were involving mistreatment of property belonging to individuals growing several, and I mean several, pot plants beyond what the med marijuana license allowed.
Swat vehicles, including the massive tank vehicles which damage roads, would be called in. Fences were bashed in, animals were then chased out of their pastures and yards, with some being outright killed. Those pot growers were then zip tied and arrested, with such contempt heaped on them that you would think that they were domestic terrorists designing bombs.
In the end, they won their cases and the amounts of the judgements came to over a million dollars. (This had to be divided up among 4 or 5 households.) To our tiny county of 95,000 people, this was a huge amount that most likely affected other needed programs.
Meanwhile not a single large or small scale meth lab ever was taken down. The DEA either flies flights over our area or allows our police departments to do so. So it is known how much acreage is used to grow pot, and where the meth labs are. Thermal imaging gives them the knowledge.
The large pot grows are usually ignored, at least on the local police level, as the cartels are not all fun and games for the police as the small time growers are.
So mistakes in judgement were made. The people who had been terrorized paid it. The citizens having to see their tax monies go off to the settlements paid it. But I imagine the officers who had been following their CO’s’ commands simply went off and worked elsewhere once the dust settled.
I’ve said before that the nation would benefit from a registry (available for background checks) of bad cops.
When do police departments fire their problem children? Do unions try to protect such children?
And do these cops even exist? Our entertainment gives us lots of dirty cops but I can’t help but think it’s a lot more about cutting corners or the misanthropy that comes from seeing so many irredeemable ‘thrones throughout a career than a contempt for obeying laws while dealing with lawbreakers. I’ve never been a cop and I’ve much enjoyed not being a cop.
A lot of professionals are protected from lawsuits by their organizations which absorb any costs (and pass them on to YOU, the consumer!) associated with them.
But do the organizations absorb so much of the cost that professionals never clean up their act?
Another thought: suing a cop isn’t going to get you much. As the joke goes, ‘I could have your job for this!”
“You wouldn’t like it.”
The first problem with the OP, coming in the second sentence, is that Qualified Immunity was not and never has been a federal statute. It was invented by the Supreme Court out of nothing, full stop.
From what I read of state statutes, more of them – especially recently – seem to be about EXCLUDING their own agencies from QI, rather than allowing it, or expanding it, or even defining it. Unfortunately, for example when Colorado abolished QI, they set a rather absurd limit: $25k, as I recall. Which probably still doesn’t matter since they’re probably indemnified and still pay nothing personally anyway, leaving the burden to the taxpayers.
On the other hand, I can’t have a lot of sympathy for the taxpayers either. They elect/hire the people – Governors, Legislatures, Mayors, City Councils… – who hire the police chiefs, who hire the cops… So if the taxpayers get tired of paying for their employees’ misconduct, they can elect/hire better employees. And/or require them to carry “malpractice insurance,” or something. As well as making sure bad cops are criminally prosecuted, as a deterrent that costs them less in the long run.
Another problem is that local… “discipline,” I guess, for lack of a better term… seems to usually be about “policy violations” not actual crimes. Of course, nobody can go to prison for “policy violations” and often when a cop “resigns” or “retires” the “policy violations” procedures just stop. Which is one reason bad cops can float from agency to agency.
From what I see, cops are more likely to actually get in big trouble, and actually face criminal punishment not just “policy violations,” from beating or killing a spouse or “domestic partner,” than from unlawfully beating or killing citizens “under color of law.” Misconduct against the people they are supposed to “protect and serve” isn’t taken nearly seriously enough.
Meanwhile, various studies claim that the rate of domestic violence between police officers and their spouses or “domestic partners” is 80% or higher. (How likely is it that it’s somehow OVER-reported?)
And they definitely seem more likely to get in trouble by stealing from the evidence room, for example, than from unlawfully beating or killing citizens “under color of law.” They seem much more concerned with themselves than with their ultimate employers.
A big part of the problem overall is that police really seem to take the job lightly, in many ways. To a cop, “you’re under arrest” is just 3 words that might result in some paperwork. No big deal for them, just another day on the job. And they don’t have to think about or care about the consequences; some DA or judge will – if the citizen is lucky! – clean up the cop’s mess. Perhaps MONTHS or even YEARS later, ultimately. But a false arrest can be devastating to someone’s life, their family, their job… To the cop it’s just 3 words they say, often – it seems – simply to get their way, to satisfy their ego.
Obviously, the point is not to get just the cop’s salary – although really what should happen is prison for the cop, but good luck getting a local DA to prosecute, they’re on the same side – but to make it cost the department/city enough to make an impression, and hopefully bring some change.
I sometimes think our entertainment actually gives us a higher-than-reality portion of good cops. Especially when it comes to supposedly “good” cops who let the bad cops get away with it. Which in reality would mean the “good” cops are actually bad too.
When you see these actual cases, such as on YouTube, those aren’t actors. Those are actual bad cops. And with only one exception I’ve ever seen, ALL the cops in those cases are bad cops, since they don’t stop the worst perpetrators and usually actually assist them.
The one exception I’ve seen is the lady cop who saw her superior threatening to kill a handcuffed suspect, and pulled him back. He turned and grabbed HER by the throat. The other cops standing around did nothing. SHE wound up leaving, because those other not-really-good cops turned on HER.
Back in Colorado, though, there was ONE case I’ve encountered where one or two cops actually got prosecuted and received some kind of prison term, for NOT stopping a bad cop. That kind of thing needs to happen a lot more often.
Oh, and the cult of “officer safety” really needs to disappear. Cops are expected to accept risk as part of their job, it’s part of what they get paid for. If there’s a choice of an innocent person not going home after a police encounter, or a cop not going home after an encounter, it needs to be the cop not going home.
Cops going home alive at the end of every day, is not the top priority. Last I checked, being a cop still isn’t among the top 25 hazardous occupations. (It’s not a “profession” until they start treating it like one and behave accordingly.)
Wow a 4-video response.
An interesting comment from you, but not as interesting as this comment from you:
Advocating killing cops, your words not mine tells me all I need to know about you.
I like the idea of a registry for the nation’s bad cops. Those who actually have been found in a court of law to have violated somebody’s rights. Right now, so many of us know of bad cops who simply transferred away from one police department to another.
Each day there must be tens of thousands of citizen/police interactions. Most of them are routine and of course in some of them the police are actual life savers. It would be great to know that the bad cops are pushed out of the system entirely so that the regular “just doing my duty” sort are not resented.
Advocacy? Not really. It’s just recognizing self-defense against unlawful deadly force. Maybe if bad cops went to prison for it, there’d be less reason. But that very rarely happens.
In general, it can be the same for cops as anyone else. “Don’t start nothin’, won’t be nothin’.”
It’s also like, for example, car theft or burglary. If someone steals your car, and they’re later caught, you don’t get to go down to the jail and shoot them. But if you shoot them WHILE they’re stealing your car, that’s a different thing. And recognized as such in the law. Some states specifically recognize the validity including when dealing with police. Such that, for example, “resisting arrest” when the arrest is unlawful, is not a crime.
Even a threat of arrest carries an implied threat of deadly force because we know what they’re willing to do to enforce their ego: escalate, escalate, escalate. So an unlawful threat of arrest is an unlawful threat of deadly force, and self-defense should arise as soon as that threat comes.
Don’t want to risk losing your life? Don’t claim authority you don’t have, etc.
The simplest possible formulation is likely “With great power comes great responsibility.” We have a lot of police these days who seem to only want the power, not the responsibility. Sorry, no deal.
And here’s an example, where the cop (deputy) continues to claim he was shooting at her when the evidence clearly shows he wasn’t. She states it as a fact, not like “I thought he was shooting at me.” Lucky for her, she only got her ass whooped.
The Brady List, for example, already exists. But as you might expect, the problems come from implementation. If departments refuse to provide information, they suffer no consequences. If other departments don’t CHECK the list, they also suffer no consequences. And, as mentioned earlier, if bad cops “resign” or “retire,” often the investigations just stop. (And, again, these “investigations” are usually just for “policy violations” to start with, which is… weak cheese, or something.)
I think there’s likely already a serious problem where there are enough bad cops that the good ones – if there are any – end up leaving, or even being pushed out. And it doesn’t need to be a LOT of bad cops in a place for that to happen.
I saved this comment someone made on YouTube a while back.
You sure flushed the cranks out of the weeds, Doug.
And, referring back to my earlier post https://ricochet.com/1821058/do-cops-ever-learn/
If those are “good cops,” why didn’t any of those “good cops” do anything when the one threatened to violently attack a citizen already in custody? They should have arrested him, but they didn’t even SAY anything. Except maybe actually to encourage him!
And, to be clear, it doesn’t necessarily require some kind of big “bloodbath” to get things better. I’d like to think that police are smart enough to know that they better start behaving better, when they start to see some actual consequences.
The problem up to now is that consequences have been few and far between, for many years. Cops literally get away with murder.
For that matter, ANY kind of “bloodbath” AT ALL could be avoided, if bad cops started actually being punished for misconduct. One big point of a “justice system” is to relieve the citizenry of the need to deal with justice themselves. If the people have confidence that The System will deal with things properly, then they don’t feel a need to deal with it directly.
So if anyone is to blame, aside from the cops themselves, it’s the prosecutors etc, who won’t deal with police misconduct appropriately and seriously.
What, you’re against lawful self-defense against unlawful deadly force? You sound like my sister, as kids we used to razz her because she said she could never hurt a dog, even if it was viciously attacking her.
Oh, and…
Can you cite where he advocated killing cops? Because I didn’t see it.
If anything, I “advocated” killing violent criminals, at the time of their crime. Especially if the “Justice System” refuses to deal with them. And cops absolutely can be criminals. And, the “Justice System” mostly refuses to deal with them.
Here are excerpts from depositions of a couple cops who unlawfully arrested a woman for public recording. Both had been on the job for 20 years or more, and I think the guy was a lieutenant or something for recent years.
Are cops really that stupid? Or do they pretend to be stupid, to make it easier to claim QI?
Now, if cops actually had consequences under the Justice System for things like this, that’s one thing. But as far as I’m concerned, when they don’t suffer consequences, and they’ve made a threat of deadly force, I’d be okay if someone dropped them on the spot. At least THEY would never do it again.
Or, heck, I’ll be generous. Just make them paraplegics, so they can never be cops again and threaten anyone else.
Wow, do they ever “serve and protect” us!
Man suing police who arrested him for not displaying handicap placard
Violation of 18 USC 242, Deprivation of Rights Under Color of Law, carries a 1-year prison sentence even with no bodily injury. Up to 10 years with bodily injury. It seems pretty likely to me that a lot of cops would clean up their acts if they faced that as a real possibility for misconduct.
But for some version of “qualified immunity” for government officials and employees, every government official or employee (police officer, judge, license officer, permit issuer, clerk, etc.) would live and work at risk that any person dissatisfied with any decision or action by that official or officer could at any time bring a personal lawsuit with potential personal liability every time that person had some reason to be dissatisfied with the outcome of that government official or employee’s actions. That would make recruiting and employees officials and employees very difficult.
Who would agree to become a police officer if that potential officer would be subject to personal liability to every person who was dissatisfied with the person’s interaction with the officer upon receiving a speeding ticket?
Like any large group of people, police officers no doubt include “good” members and “bad” members.
But at least in theory, some version of “qualified immunity” seems like an essential part of ensuring a supply of people willing to be government officials and employees.
Then make it actual statutes, by legislatures with accountability to their citizens, not just something whomped together by courts out of nothing, and with the consequences that have been observed in the meantime.
Also, when it comes to police, it’s not just about traffic tickets etc. Especially considering that criminal liability is almost never imposed. If the most justice someone can obtain is money, then making it impossible to obtain that money, is not justice at all. And the meter reader, or the city clerk downtown, or any other minor functionary someone might be upset with, has little opportunity to beat you up, lock you up, or even kill you, without consequences. So even if “qualified immunity” can be seen as generally okay for other types of government workers, that doesn’t mean it’s also appropriate for police. Especially when they’re not getting consequences any other way.
For that matter, I can see an argument for barring qualified immunity for police (and similar positions) by federal law, perhaps even Constitutional amendment, so that states don’t get clever.
Yesterday afternoon I was sitting on a park bench and started to eat a shawarma that I had just bought at a kiosk across the street from my hotel. I hadn’t got far when a policewoman on bicycle pulled up to the guy sitting on the bench to my left, and said something about a passport. I couldn’t hear or understand anything else she said as she spoke softly and not in my language. But I did notice right away that she was young, pretty, and petite, with lips that could have been slightly pouty if she had been so inclined. But two other cops were just a few seconds behind her. They were relatively young guys, but bigger and brawnier, though not quite as big and brawny as their person of interest, a bullet-headed guy of about 50, dressed in casual clothes and sandals.
For a moment I wondered if this was some kind of roving checkpoint and they would move on to me next. I made sure my passport was handy, but they paid zero attention to me. (Despite being warned about time-consuming checkpoints, I haven’t run into single one since crossing the border. The day before I stopped at a stop sign in the middle of nowhere on a rural 4-lane highway where a soldier-looking guy in camo was slouching against a pole in the middle, watching vehicles that stopped. But he didn’t approach me. I pointed down the road to ask if it was ok for me to proceed, and he gave a slight, ambiguous nod, so I pedaled on.)
The attention of all three bicycle police was on this guy. He seemed to be taking it all in good humor, but the police were all business. They seemed to be checking some databases, and the sweet-looking young woman seemed especially determined that they not miss anything that needed checking.
This was all drawing the attention of pedestrian passers-by, but they all kept moving.
I wondered if the police were looking for draft-evaders or deserters, but the streets and sidewalks are full of men of all ages, so there must have been something about this guy that was not obvious to me. Then I wondered if someone had reported him as a suspicious character, as part of an effort to catch any Russian spies or saboteurs. It’s a big problem in both directions in this war.
Whatever the case, they finally printed off some kind of report on a hand-held printer and had him sign it. The police still paid no attention to me, and took off. Their person of interest came and stood almost in front of me for a minute, looking at nothing in particular as far as I could tell, and then walked away.
By now my shawarma was almost finished. It served me for both lunch and dinner.
It was interesting to watch the police behavior. At one point toward the end the one officer switched off his body cam. The young woman had the looks and demeanor that would be perfect for the current sensibilities of TV or movies. She was maybe a little too short to be ideal, but camera angles can deal with that.
OK, but we have already seen in some specific instances what happens when police are prosecuted for reasons the police don’t believe is improper conduct – the police stop policing (why take the risk associated with interacting with a person). The criminals take over and the whole town suffers.
Civil personal enforcement will be worse. There will be lawyers who take full advantage of the potential to “nail” a cop and drag any police officer through a drawn out lawsuit that is likely to bankrupt the officer regardless of the case outcome. Just as you think so many police officers are evildoers waiting for an excuse, there are many lawyers eager to use the system to abuse people by filing lawsuit after lawsuit after lawsuit.
I don’t doubt that there are problem cops. But wide open personal liability potential for individual police officers will punish a large number of police officers for the sins of a few.
Is that really a challenge for them or for those who they clearly abused?
There should be a one bite at the apple rule.
Perhaps require the state to admit it was a right and thereafter would be regarded as clearly established. Or, if any defendant in state X defends on the ground that the right was not clearly established, none can ever do it again. Any subsequent defendant must be required to demonstrate that it was not a right at all or was not violated.
Which, again, is an excellent reason for problems to be dealt with by other authorities. But when those other authorities refuse to do so, what is the answer? To a large extent, people will accept things as long as they seem more or less fair. But for things to be seen as fair, bad cops need to face serious consequences, not just “suspended with pay” – i.e., a paid vacation – or “investigated” but allowed to “resign” or “retire” which ends the whole thing, and they get hired again in the next city…
There might be some justification for a “one bite at the apple” type of approach, but one consequence of that should be that any such allowance excludes any further employment in law enforcement. Forever.
I think it’s simpler than that. Anyone who takes an oath to the Constitution, should be presumed to understand it fully. As with the military and the UCMJ, for example. If they’ve neglected to do whatever study is necessary to actually understand it, don’t take the oath, and don’t be a cop. If “Ignorance of the law is no excuse” applies to ANYONE, it should be cops. Instead, that seems to be one of their major claims to avoid responsibility, while denying that same excuse to every citizen they encounter.
Why are you picking now as the time to turn against Donald Trump?
I think your outline of why we do have qualified immunity is a good one.
But there absolutely needs to be legal caveats that preclude an actual perp from killing people and then shielding him or herself from any liability due to their actions.
I am thinking of Fauci as I type this. A half million died in hospitals due to protocols he set up regarding COVID. Trump dumped a huge amount of needed HCQ into the Brazilian health agencies, as the DARPA/pHarma tool Fauci deliberately saw to it that it could not be used here.
I forget if it was 500K doses or 5 million, but that US ban on a proven remedy not only flew in the face of common sense, it flew in the facts that Fauci himself wrote about in a 2005 published study on the efficacy of HCQ against all corona viruses.
Trump could not override Fauci as once the National Emergency label was assigned to COVID, on Mar 13th 2020, then DARPA & FEMA began ruling the country.
One difference is that Fauci didn’t go out and beat, shoot or otherwise murder innocent people in person. Cops do. Which doesn’t mean that Fauci should get off scot-free, but could mean that killer cops deserve even worse than Fauci.