The tragic death of George Floyd will hopefully bring reforms that help ease racial tensions and move us toward greater equality in society.  One legal doctrine that allows police officers to avoid liability for acts of brutality and excessive force is the doctrine of qualified immunity that should be revisited in light of recent events.

What is the doctrine of Qualified Immunity?  

Qualified Immunity is a legal doctrine established in 1982 with the Supreme Court case Harlow v. Fitzgerald, 457 U.S. 800 (1982), to balance constitutional rights and reasonable officer actions by allowing officers to rely on the present state of law at the time of their actions.  This means the officer would not be found in violation of someone’s constitutional rights for following a law that was legal at the time and later ruled unconstitutional. Over time, this has developed in a way that protects an officer’s action above others’ constitutional rights so long as the specific type of violation in question is not “clearly established” as unconstitutional.  The Supreme Court has not defined exactly what “clearly established” means, although it has provided some limited guidance that it is more than a generic statement in the Bill of Rights but does not have to be a precedent with the exact same factual situation.

In practice, if a situation has not been specifically ruled unconstitutional by case precedent, courts tend to find there is qualified immunity.  Compounding this issue is that those lower courts tend to stop at that point and not actually rule that the conduct in question is unconstitutional, thus continuing to leave that lack of precedent.  Reuters analyzed 252 opinions from Federal Courts of Appeals issued between 2015 and 2019, and found that courts rule in favor of police in 57% of qualified immunity cases. Even in the rare instance where they do rule the conduct is unconstitutional, they still find qualified immunity due to the lack of precedent.  As Fifth Circuit Judge Don Willett in Zadeh v. Robinson,. 902 F.3d 483, 498 (5^thCir. 2018),described in his concurring opinion, this leaves officers free to violate constitutional rights “no matter how palpably unreasonable – as long as they were the first to behave badly.”

Pending Review

The recent killing of George Floyd on May 25^this unfortunately part of a larger problem that qualified immunity, due to the way it has developed in jurisprudence, has barred from liability.

Among those are thirteen cases which have been pending Supreme Court review but which the Justices have now grouped together to decide whether these cases will be heard.  The grouping of these cases together shows that the Supreme Court may soon take action to more clearly define and limit the scope of qualified immunity.

These thirteen cases are Baxter V. Bracey, Brennan V. Dawson, Zadeh V. Robinson, Corbitt V. Vickers, Kelsay V. Ernst, West V. Winfield, Jessop V. City of Fresno, Mason V. Faul, Cooper v. Flaig, Anderson v. City of Minneapolis, Clarkston V. White, Hunter V. Cole, and Davis V. Ermold. The Cato Institute article linked below provides a summary of each of these cases.  Although they range in scope from invasions of privacy to severe physical beatings and damage, suffice it to say that they are all unreasonable violations of established constitutional rights.  The issue in the courts has been about the meaning and application of “clearly established” in exceptions to those constitutional rights.  There are exceptions in the law to constitutional rights to allow officers to do their jobs in extenuating circumstances that justify a specifically limited breach of those rights.

Looking specifically at the petition in Brennan V. Dawson, wherein Mr. Brennan’s house was circled by police for an extended period of time as they knocked on windows and covered his camera with security tape, Mr. Brennan’s attorneys outline how officers’ arguments in these cases have been based on attempts to extend previously granted exceptions to constitutional rights as a way to justify their actions after the fact.  In this situation, the Jardines case established that an officer can knock on a door and wait for an answer, and then leave, just like any other person. The Officers in the Brennan case used this to say that since precedent does not say they cannot circle someone house and knock repeatedly, they should not be held responsible for violating Mr. Brennan’s constitutional rights. The attorneys for Mr. Brennan were very clear that this is too low of a standard for our police officers. Qualified immunity has allowed them to stretch the ways in which they can violate rights, when what it is supposed to do is protect officers who reasonably relied on the law as it existed at the time of their actions.

The other main prong of the argument in Brennanis that the Justices and institutions from all parts of the political spectrum, from Justices Thomas, Breyer, Sotomayor, and Kennedy, and from the Cato Institute, to Reason Foundation, the ACLU, and the NAACP, have all raised these concerns about the scope of qualified immunity and how it has allowed officers to act with impunity.

Although the Supreme Court has declined to hear the Kelsay, Jessop, andClarkstoncases, the other ten are still up for consideration, as a potential means to fix this hole in Supreme Court jurisprudence.

Resources and Further Reading

The Supreme Court Has a Chance To End Qualified Immunity and Prevent Cases Like George Floyd’s.  C.J. Ciaramella. Reason.com.

 

 

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