“Not everything that is faced can be changed,
but nothing can be changed that is not faced.”
It’s Time to Eliminate the Supreme Court’s Free Pass for Police Brutality
In a case handled by our firm, two law enforcement officers heard our client’s car backfire, mistakenly thought that the sound was a gunshot and proceeded to fire two guns full of bullets at the car from short range, one of which struck our client in the head. The plaintiff was unarmed and had broken no laws, but a federal judge dismissed our federal civil rights claim, under the U.S. Supreme Court’s qualified immunity doctrine, because there were no published cases that held that you cannot shoot a person just because his car is experiencing mechanical problems.
There is obviously a lot of momentum in the country right now to try to find some way to stop the killing of unarmed people (particularly people of color) by police. Of all the ideas being tossed around, one that definitely should be implemented is the abolition of the bizarre qualified immunity doctrine.
Created out of whole cloth by the Court and applied with increasing frequency over the past 15 years to excessive force cases against law enforcement officers, qualified immunity provides that, even if an officer’s conduct violated a person’s civil rights, the officer (and the agency for which he works) is not liable unless that violation was of “clearly established statutory or constitutional rights of which a reasonable person would have known.” Messerschmidt v. Millender (2012) 565 U.S. 535, 546 (emphasis added). As applied by the Court in recent years, this means that, at the time of the incident, there had to have been a published federal opinion, involving very similar facts, in which the court held that the conduct in question constituted a civil rights violation.
The Supreme Court has admitted that qualified immunity “protects all but the plainly incompetent or those who knowingly violate the law.” Messerschmidt 565 U.S. at 546. As this detailed Reuter report shows, qualified immunity has closed the courthouse doors to an awful lot of people who have been subjected to unnecessarily violent uses of force by police.
An underpinning of qualified immunity is the notion that police officers are pouring through the Federal Reporter, looking for applicable precedent, before going on duty and, in the moments before using deadly force, are gauging their reactions based on their knowledge of the case law. This is both an absurd assumption about how police officers conduct themselves and grossly unfair to victims. Did the officers involved in George Floyd’s death need to have read somewhere that kneeling on someone’s neck for nine minutes constitutes excessive force in order to know that? Or shouldn’t they have intuitively understood it, based on basic human decency? And why should the first officer to use excessive force under an unusual fact pattern get a free pass?
Even conservative stalwart Clarence Thomas has called for revisiting qualified immunity because the doctrine was simply invented by judges without any historical or statutory basis. That gives one some hope that the eight qualified immunity cases now pending before the Supreme Court may result in the elimination, or at least modification, of the doctrine. There is also at least one bill pending in Congress, inspired by the Floyd tragedy, that would eliminate qualified immunity. A large group of professional athletes has submitted a petition in support of that bill.
Law enforcement agencies, like other institutions, respond to financial risk. If victims of excessive force have no legal remedy for forcing police departments to fairly compensate them, then the motivation to try to reign in officers is undoubtedly going to be less. Political pressure can perhaps create some changes in how law enforcement agencies operate, but who knows how meaningful or lasting such changes would be. Only by writing real protections into the law can people be protected, for decades to come, against unreasonable use of force by police.
Update: June 16th, 2020
The Supreme Court declined to hear any of the eight qualified immunity cases that came before it this term. Justice Clarence Thomas wrote a dissent in one of them, but no one joined it.
Thomas dissented from the denial of review in Baxter v. Bracey, involving immunity for a Nashville police officer who unleashed a police dog on a suspect who was sitting on the ground with his hands in the air. Noting that federal civil rights laws “gave individuals a right to sue state officers for damages to remedy certain violations of their constitutional rights,” and that there “likely is no basis for the objective inquiry into clearly established law that our modern cases prescribe,” Thomas expressed “strong doubts” about the court’s current qualified immunity doctrine. Therefore, he would have granted Baxter’s petition for review.
The justices’ next conference is scheduled for Thursday, June 18.