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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."
Discussion (36)
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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.
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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.”
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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.
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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.
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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.)
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