Qualified Immunity Reform

One of the systemic problems with police accountability on the legal end of things is the doctrine of qualified immunity, as fleshed out in the 1982 Harlow case and the 2001 Saucier case. But you don’t need to read those cases to understand the basic idea. In short, officers can violate your rights without personal consequences if those rights weren’t “clearly established” at the time they violated them. The play in the joints of “clearly established” allows officers to get away with outrageous conduct with consequences that boil down to “don’t do that again in the future.” And courts often construe the “clearly established“ doctrine so narrowly that unless *the exact same facts* come up in a subsequent case, the wrongdoing was not sufficiently clear to the officer beforehand and they are granted immunity.

I’ve made a list of cases just within the last year or so, with brief descriptions from the wonderful Short Circuit newsletter, so you can see the doctrine at work:

• Allegation: Suspect wanders into yard where six children are playing. Coffee County, Ga. police order everyone to ground, press guns against the children’s backs. One officer shoots twice at nonthreatening dog. He misses but does hit a 10-year-old, who was lying face down an arm’s length from the officer. Excessive force? Eleventh Circuit (over a dissent): Qualified immunity. No prior cases telling officers not to unintentionally shoot innocent bystanders. (Nor does this decision establish such a precedent.) Full case.
• Fresno, Calif. police seize cash pursuant to a search warrant, give property owners an inventory sheet stating they seized $50k. Allegation: The cops actually seized $276k, stole the difference. Ninth Circuit: It isn’t clearly established that cops can’t steal things they’ve seized with a search warrant, so they get qualified immunity. Full case.
• Attala County, Miss. police find incoherent, mentally infirm man eating chicken in middle of highway. Per “local unwritten custom of ousting those perceived as vagrants from the jurisdiction,” officer takes the man to the county line and drops him off along the highway at dusk. A motorist strikes and kills the man. Fifth Circuit (July 2019): Everybody knows police can’t do that. The man’s family can sue the officer. Fifth Circuit (same panel, Feb. 2020): Original opinion withdrawn. The officer gets qualified immunity. Full case.
• Allegation: After Huron County, Mich. officer arrests extremely drunken woman for DUI, he takes her to jail and has her walk up stairs with her hands cuffed behind her back while he waits at the top of the stairs. Gravity + ethanol = head trauma. District court: This is just like another case, where a court held that police can’t leave a drunk person cuffed in a holding cell where they might injure themselves. Sixth Circuit: That (out-of-circuit) case was about holding cells. This case is about stairs. Qualified immunity. Full case.
• Allegation: Marion County, Fla. officer orders bystanders (a former EMT and a nurse) to stop giving CPR to 14-year-old boy who had just attempted suicide by hanging, even though they detect signs of life. Without examining the teen, the officer radios that there is no rush. When paramedics arrive, the officer stops them. Eventually, they reach the boy, detect a faint pulse, and resume CPR. The boy dies a week later. Can the boy’s mother sue the officer? District court: Yes. Eleventh Circuit: Maybe not. Back to the district court to reconsider, under a different standard, whether the officer was on notice that this kind of conduct violated clearly established law. Full case.
• If a police officer questioned you and then left to investigate a building, you might think you were free to drive away. If that police officer then followed you on the highway for 19 miles, you might turn on your hazards and pull over. And if you feared for your life because you’re black and the officer knows you have a concealed weapons permit, you might put your hands outside the driver’s side window. Eighth Circuit: While that behavior is entirely consistent with wanting to avoid being shot, it’s also “unusual and may be indicative of guilty conduct.” Qualified immunity for the officer, who ordered plaintiff out of his car at gunpoint. Concurrence: Sounds like a Fourth Amendment violation but not a clearly established one. So, yeah, qualified immunity. Full case.
• Battle Creek, Mich. officer, responding to reports of an armed man at a drive-thru liquor store, finds a teenage boy armed with a black BB gun. In a two-second flurry, the boy discards the gun and the officer shoots the boy. The precise sequence of events is disputed. Sixth Circuit: Because everything happened so quickly, the officer gets qualified immunity. Dissent: “It should go without saying that reasonable police officers do not shoot disarmed young boys with upraised hands.” Full case.
• Inmate at Lubbock, Tex. prison alleges he was forced to stay naked for several days in a cell in which every surface was covered with human excrement. He could neither eat nor drink for fear of contamination, and rather than fixing the problem, prison officials merely laughed at him. Fifth Circuit: Qualified immunity. The law clearly established that prisoners couldn’t be kept in cells teeming with human waste for months on end, but it hadn’t yet covered a stay of only six days. It’s clearly established going forward, though. Full case.

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Again, these cases are only from the last year that I’ve read. There are 100s and 100s of cases like this.

So what can you do? For one, consider donating to the Institute for Justice. They write the aforementioned newsletter chronicling these cases, and advocate for reform. More information here.

Another avenue is voicing your support to your Congressperson to vote for Justin Amash’s (yes, the fierce R/Ind Trump critic) bill to end qualified immunity. I haven’t seen any bill text yet, so I can’t comment deeply on the substance, but the NYT describes the effort here.

Qualified immunity is just one piece of the puzzle for reform, but I think it’s an important one. When a police officer blatantly violates the rights of someone, and the other officers see them back to work with validation from a court, it’s a clear signal that bad actions don’t have bad consequences once you put a badge on. We should change that.

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PS: for those interested in more examples, I have some additional qualified immunity cases below. Again, these are all issued within the last year or so.

Allegation: Clovis and Sanger, Calif. police bungle their responses to domestic violence reports by woman against her boyfriend (himself a Clovis police officer). Boyfriend retaliates against the woman with more physical and sexual assaults. Woman sues the officers, claiming that they made things worse by, for example, disparaging her to her abusive boyfriend and announcing that the boyfriend and his father (also a cop) were “good people.” Ninth Circuit: These actions may have emboldened the abuser — leaving the woman worse off — so the woman’s due process rights may have been violated. But qualified immunity means she’s out of luck.

http://cdn.ca9.uscourts.gov/datastore/opinions/2019/12/04/17-17492.pdf?mkt_tok=eyJpIjoiTVRkbVpUTTFOVEZsT1RNNSIsInQiOiJHY0hSUU0rM2k2QStcL3hFRmg4Y09uUk9ham5MT09wU2lBTGQ3Z2hmS0prNWJEanhvS1ZKTFFSQ2Rmc0NaSFFUc2hIeWsrRkRieGswXC91UzFTbnlcL2d0a2JlUVNiY3Z0cUNrNDhkYWhCR3owdUJXeEUxbDhBSktBQk1ZTGhkTGFqTCJ9

New York man is sentenced to three years in prison on a state marijuana charge, to run concurrently with a yet-to-be-determined federal sentence on gun charges (which ends up being 10 years). Thanks to the vagaries of New York sentencing law, this confuses the hell out of everyone, and the prisoner ends up being detained in state prison for four additional months after serving his federal sentence, before things are finally straightened out. A due process violation? Second Circuit: Yes. When prison officials suspect an error like this, they need to inform the prisoner, the sentencing judge, and the lawyers. But that wasn’t clearly established, so qualified immunity.

https://ij.org/wp-content/uploads/2019/11/18-1011_opn.pdf?mkt_tok=eyJpIjoiWWprMU56WTFOMlF5WW1FNCIsInQiOiI4ZnYyTk1jVVJjMXRlTjRtbG5oMnBzQnVJc1h1dWVBYjl2UURcLzEyenVaR2l2S0RJVmdhSlkzM25rSFJuS1VUWkNkaVFTMVo5c1hIajVCcENXVFl2cU9pNWh2TWtPTWFNYWNmR2ZaYkpwakpHVkpINDVsRWYxRjloRmF4N3FJRVEifQ%3D%3D

Allegation: Woman gets a restraining order against her abusive husband. With police escort, he returns to their Cheyenne, Wyo. home to pick up some of his things. Afraid, the woman steps behind the officer, brushing the officer as she moves. The officer yanks her arm, hits her, arrests her, gets her charged with a felony he knows to be bogus, and gives false testimony against her. (She’s acquitted after spending several months in jail.) Excessive force? Illegal detention? Malicious prosecution? The Tenth Circuit says no. Qualified immunity.

https://www.ca10.uscourts.gov/opinions/19/19-8004.pdf?mkt_tok=eyJpIjoiWldWaU1EVmhZbVkzTmpWaCIsInQiOiJ4UTBxZTJDN0swNkVkSFpERUxxR21ESExUR3hcL25RXC9QUGE3aTNuXC8xNitjZW10TjdpaEMxWWR6cWRVR2dCXC9WZHY3bFFiMUQrNkg1WDNnTkMwUytNVlllSjFycCtcL3JXcFhMQjFYd2p1Nk9CaE43M2s2M3BjVUtsNTA0cnlONUtYIn0%3D

Allegation: NYPD officer yanks compliant, unthreatening quinquagenarian arrestee out of her cell, tells her “don’t make me hurt you.” Frightened, she declines to tell the officer that he put on her handcuffs too tightly, which ultimately results in permanent, debilitating nerve damage. (All charges against the arrestee are later dropped.) Excessive force? Second Circuit: Yes, but qualified immunity. It was not clearly established that an arrestee who shows clear signs of distress but does not verbally inform an officer that handcuffs are too tight is being excessively forced. (Henceforth, it is clearly established, however.)

https://ij.org/wp-content/uploads/2019/10/18-1378_opn.pdf?mkt_tok=eyJpIjoiT1RKalpqQmhNbVpqTnpjdyIsInQiOiJld3pmMFdPMmV4eEdyZGkrSzlVckliNnZ5b1ZqanVYdFAxQ0h2bWhnZDdoKzVIXC81ejVYeCtTbW5XTGlxTVRRelBkXC9zbk9VMG55NHZVNGZYc0FoM0RVeFNmYUlUM2JhMkxiM3lrK21uaVVid1QreUlqRXZMVHBnMWRsbGk5ZjRNIn0%3D

State game wardens cite man for fishing without a license at Adair County, Okla. pond. The wardens then learn he has an arrest warrant. The man flees. A warden tackles him into the pond and shoots him dead after a brief struggle. Tenth Circuit: Qualified immunity.

https://www.ca10.uscourts.gov/opinions/17/17-7069.pdf?mkt_tok=eyJpIjoiWWpOa056RmlOV0U1TkdaaCIsInQiOiJQZU4yeUExVTl2Wm03WjV2ZkZ1eXZ1anUzWTVIMGUwa2FreHhJd3cxXC9VMnhIU2w2WlVCR0w4SEowNFd1T2VuWnBQdmhlM2ZhMnJudnVOSTZCYnkzVjJqNTcweGdoK3FSSEdHNG1EZlVNUUFcL0dhemJHeW02RmlkS21Kem55ZFdoIn0%3D

Man and woman are horsing around at a pool; a bystander interprets this as domestic violence and calls police. When the woman (rather belligerently) attempts to tell the cops what happened, a Wymore, Neb. officer throws her to the ground, fracturing her collarbone. Eighth Circuit (en banc): When a 5-foot-tall woman wearing only a bathing suit is neither fleeing, nor resisting arrest, nor ignoring commands, it is clearly established that — just kidding! Qualified immunity. A dissent: Can we at least find a constitutional violation so the bone-breaking will be prohibited next time?

https://ecf.ca8.uscourts.gov/opndir/19/08/172181P.pdf?mkt_tok=eyJpIjoiWm1Zek1XVmxOMk5oTXpkbSIsInQiOiJaM0o1Skp6QVAyUVBIQkdVVStraWFJTnpKbURXMmxpUkNUbjJNQmkyZTBzTUozYnZBWnd6bGRwUFdCcVFLdStjRENjanhlWDV4bTYxa2grYXAyd28wcDF3cDZjRFloUUZuUUxobUQ3UlhUbEQ1aVVZTVpGOURZbklHNzZlRzUweiJ9

Fifth Circuit (2015): No qualified immunity for Lafayette, La. officer who set dog on (allegedly) compliant suspect and shot the suspect at point-blank range, killing him. Jury: The officer used unconstitutionally excessive force but is entitled to qualified immunity. Fifth Circuit (2019): No reason to disturb the jury’s verdict.

http://www.ca5.uscourts.gov/opinions/pub/18/18-30362-CV0.pdf?mkt_tok=eyJpIjoiT1RreU9EUTFaak13T1dJNCIsInQiOiJ0UkJXUTgzQWh0a0pJTjMrTWJGOVo5azZybktMS1BCNmo0b1BcL2huZjJGTEVnQWM2SzhJd1JUUzVIY3RFeHVyZTFwSFwvYkg2b0JOWUQzMTRmczhLbjRlZGthZFBSKzNua0FzNGwzNSt4Y0VpK1Q1QUVUaFwvam5cL3dPWTdYTGQxK1UifQ%3D%3D

Douglas County, Neb. officer catches boyfriend and girlfriend with marijuana, separates them, asks the girlfriend — for nearly an hour — what she is willing to do to keep her boyfriend out of jail. (She does some things. The officer goes to jail.) Can the girlfriend sue the sheriff, who didn’t have a sex abuse policy or do any training for his deputies? The Eighth Circuit says no. Previous instances of deputy misconduct included “trading cigarettes for a detainee’s display of her breasts; licking a minor stepdaughter’s nipples during horseplay; asking ‘deeply personal and inappropriate questions’ to members of the public; engaging in verbal sexual harassment; having consensual sexual contact at the office; and abusing work hours to conduct personal business or ask women out on a date. While this behavior is troubling, it is not enough to put a supervising official on notice that a deputy might use his position and authority to separate a woman from her boyfriend at the park and coerce her to engage in sexual contact with him.”

https://ecf.ca8.uscourts.gov/opndir/20/03/182809P.pdf