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Qualified Immunity: An Unqualified Disaster?

photograph of police line with riot shields

Calls to end qualified immunity have been ongoing for years, but have intensified throughout the United States after the murder of George Floyd at the hands of then-officer Derek Chauvin of the Minneapolis Police Department. But what exactly is qualified immunity, and what is the case for eliminating it?
Qualified immunity is a doctrine inferred by the Supreme Court of the United States (SCOTUS) in light of the Third Enforcement Act of 1871. This was part of the bundle of constitutional amendments and federal law passed during the Reconstruction Era to codify and protect the rights of Black people in the southern United States. It allowed citizens to sue individuals acting as officials for any of the States when those officials violated the citizens’ constitutional rights. Prior to the Third Enforcement Act, government officials enjoyed nearly absolute immunity from civil suits for damages.  This meant state government officials acting in their official capacity couldn’t be sued at all for violating constitutional rights. The Third Enforcement Act changed that.
Eventually the SCOTUS invoked the history of government official’s civil immunity to create qualified immunity. In Pierson v. Ray (1967) the court ruled that a common law defense was available to government officials when acting in their official capacity, even when sued under 42 U.S. Code Sec. 1983 (the name under which the Third Enforcement Act now goes). So long as they were acting in good faith and on probable cause, an official was immune from civil liability even if their act did violate a constitutional right.
Numerous court cases have modified this statement of immunity, and provided rules for determining whether it applies in a given case. In Harlow v. Fitzgerald (1982) the SCOTUS reasoned that governmental officials (here, aides to the President) need their official actions to be immunized from liability in order to do their jobs effectively. A subsequent series of cases dealt with the fourth amendment and execution of search warrants by law enforcement officials. In Malley v Briggs (1986) the SCOTUS held that officers were only immune to liability from arrests made on faulty warrants if they had an objectively reasonable belief that there was probable cause for the warrant. The requirement of objective reasonability was upheld for warrantless searches in Anderson v. Creighton (1987). The test for whether an officer has qualified immunity in a given case was articulated in Saucier v. Katz (2001). There was a need for such a judicial test, reasoned the SCOTUS, because qualified immunity had to be determined before a trial could begin. Two facts had to be determined according to the Saucier test: (1) whether a constitutional right was violated and (2) whether the right in question was clearly established at the time of the conduct of the officer in question.
The second criterion has been the cause of much of the public anger concerning qualified immunity. For one it removes any consideration of the reasonability of an officer’s action, objective or subjective. Instead of probing whether that particular officer reasonably believed that their conduct was lawful, the test instead simply asks whether there was any extant, and clearly articulated, constitutional right violated by the officer’s conduct. The issue of whether there was a “clearly established right” has often been interpreted extremely narrowly by courts. Among the starkest manifestations of narrow judicial interpretation comes from Nashville, TN. Police officers sent a dog after Alexander Baxter after he had sat down on the ground and raised his hands in surrender. The dog bit Alexander. However, the officers were granted qualified immunity because the clearest previous judicial ruling on the matter only pertained to suspects who were lying down in surrender. This ruling was made by a Tennessee court and upheld by appeals courts in Tennessee and the federal court presiding in that area.
Should qualified immunity exist in the first place? And if so, how can it be pruned back from its current extent to make it acceptable? Qualified immunity is a form of affirmative defense: that is, a legal way of saying, “I admit I broke the law, but I shouldn’t be (fully) punished for it.” Self-defense is an affirmative defense against criminal prosecution for violent crimes. At trial, the defendant would assert that they did commit an illegal action (e.g., homicide) but that their illegal action was either justified, or should be excused. In general, the possibility of affirmative defenses is desirable. It should be possible to escape punishment, or receive reduced punishment, for illegal actions done under mitigating circumstances.
It is instructive to compare self-defense and qualified immunity. In their current forms, both contend that strictly illegal actions are justified — which is to say morally or pragmatically appropriate despite being illegal. We shouldn’t punish people for their justified actions, because punishing people for doing the right thing is perverse. So if someone killed or injured another person in self-defense, we think it would be wrong to punish them. Does this make sense in the case of government officials violating the rights of citizens? It might, if qualified immunity were a defense that had to be proven at trial. However, the issue of qualified immunity is settled by a summary judgment. It is determined before trial by a judge without the benefit of a full process of evidential discovery and the structured arguments of a trial held before a jury. Being a rule which was created by unelected judges and never tried by a jury of citizens, qualified immunity arguably lacks democratic legitimacy.
The pretrial nature of qualified immunity has been argued for on both practical and moral grounds. These grounds were clearly articulated by the SCOTUS in Harlow v. Fitzgerald. As a practical matter they argue that deciding qualified immunity before trial prevents frivolous litigation, saving massive amounts of time and money. From the moral point of view, they argue that it is unfair to hold government officials to the standards of statutes and judicial decisions which are either unclear or unknown to them. Setting aside the relevance of the practical considerations, the moral considerations are flimsy. After all, as a general rule, normal citizens are not allowed to invoke ignorance of the law to excuse their illegal conduct. Government officials are both better placed to know the relevant laws and have a clearer obligation to be familiar with them. It is their job to enforce, interpret, or enact them.
Numerous other objections assail qualified immunity, coming even from SCOTUS justices of diametrically opposed ideological orientations. It does not seem that the balance of reasons lies in favor of this doctrine. Government officials can invoke the same affirmative defenses as regular citizens at trial and submit them to a jury for consideration. Obliterating qualified immunity from the law will not render them unprotected from baseless lawsuits.

Under Discussion: Law and Order as Suppression and Oppression

photograph of police in riot gear in Portland

This piece is part of an Under Discussion series. To read more about this week’s topic and see more pieces from this series visit Under Discussion: Law and Order.

In the last four months, there have been protests every day in support of the Black Lives Matter movement. Despite an estimated 93% of these protests being peaceful, there have been continual calls for “law and order.” Trump tweeted as much and emphasized the need for it during his speech in response to recent protests in Kenosha, and now both he and presidential candidate Joe Biden have campaign ads promoting law and order.

When leaders focus on public safety during nationwide protests, this shifts the attention from the cause, motivation, and aim of the protests. For instance, consider a case in Kenosha, WI. Protests began after police shot Jacob Blake seven times in the back. Blake was an unarmed Black man returning to his family in his car. 17-year-old Kyle Rittenhouse travelled to Kenosha, allegedly to protect local businesses from the protesters and ended up killing two men.

But the Kenosha Sheriff, who was called to apologize for a racist rant in 2018, emphasized that the shootings would not have happened if Kenosha’s 7pm curfew had been respected. His words shifted attention from the shooter to the policies in place to ensure public safety. This spreads the blame for the murder of the protestors to include the victims as well as Rittenhouse, who had arrived from out of state with an AR-15-style rifle. (The ACLU is calling for the sheriff to be fired.)

When “law and order” is the story, the fact that “law” has never been meted out in any sort of even-handed fashion isn’t the story. When there have been months of Black Lives Matter protests, and the response is to call for “law and order,” this should give pause. The structure of law is saturated with practices that guarantee that its protections and penalties will not ensure the safety or dignity of Black members of our country. At every stage of its production and execution, “law and order” is something worth working to change.

Representatives making the law in Congress are disproportionately white. (Though the 116th congress is the most racially and ethnically diverse congress ever, it is only 22% non-white; 39.9% of people in the US are non-white according to the last census.) Further, voting for the representatives who make the law is easier, and designed to be easier, for white people. (After a 2013 Supreme Court decision struck down the Voting Rights Act, over half of the states have added policies that make it more difficult to vote, disproportionately affecting non-white voters. In the end, the system of law-making is bent towards white interests and white voices. And the justice system reflects this as well, both in the first contact it can make with individuals (the police), and the disparate consequences of this contact. Over-policing leads to the disproportionate arrests of Black and Latinx people living in the US. The use of forensic evidence that isn’t scientifically valid and biased for the prosecution, added to the practice of peremptory exemptions stack the deck against defendants in trials. When previously incarcerated people can’t vote, and incarcerated people are disproportionately Black due to these and other systemic problems, there are deep issues with the structure order of law.

But this summer, what are the protests around the country protesting? Not necessarily these legal institutions directly. Rather, the pattern of violence and brutality aimed at Black men and women by the police that has gone unchecked, that has only grown more and more blatantly obvious. The policies and practices of the police force have meant that the patterns of violence have continued. Ahmaud Arbery, George Floyd, Breonna Taylor, Elijah McClain, Jacob Blake, Daniel Prude, Mychael Johnson, Tony McDade and Wilbon Woodard are just some of the Black people murdered by police officers in 2020.

Appealing to “order” in the face of institutionalized oppression and a lack of indication that law or order will address the violence and lack of accountability is disingenuous, negligent, or hateful. The “order” that the leaders call for characterizes the protests as problematically “disorderly” instead of focusing on the cause for the protests disrupting the order. When paired with the value of “law,” these appeals ignore the failure of the legal system to serve rather than suppress members of our community.

This context might be different if the calls to law and order were redirected to law enforcement. The human rights violations during the protests brought the racism in the United states to the attention of the UN Human Rights Convention. Laws protecting the rights of journalists and medics were blatantly ignored, as police targeted them with the same tear gas and rubber bullets they assaulted other peaceful protesters with. Just in the time between May 26th and June 5th, Amnesty International documented 125 examples of police violence against protesters. The organization also found that the protesters’ human rights were repeatedly violated and documented acts of excessive force by police and law enforcement.

Ultimately, calls for “law and order” fail to acknowledge the grave injustices that got us here in the first place: the enforcers of law and order acting as tools of racism and violence. The response to the protests only highlights the need for the protests in the first place.

Qualified Immunity: An Unqualified Disaster?

photograph of police line with riot shields

Calls to end qualified immunity have been ongoing for years, but have intensified throughout the United States after the murder of George Floyd at the hands of then-officer Derek Chauvin of the Minneapolis Police Department. But what exactly is qualified immunity, and what is the case for eliminating it?

Qualified immunity is a doctrine inferred by the Supreme Court of the United States (SCOTUS) in light of the Third Enforcement Act of 1871. This was part of the bundle of constitutional amendments and federal law passed during the Reconstruction Era to codify and protect the rights of Black people in the southern United States. It allowed citizens to sue individuals acting as officials for any of the States when those officials violated the citizens’ constitutional rights. Prior to the Third Enforcement Act, government officials enjoyed nearly absolute immunity from civil suits for damages.  This meant state government officials acting in their official capacity couldn’t be sued at all for violating constitutional rights. The Third Enforcement Act changed that.

Eventually the SCOTUS invoked the history of government official’s civil immunity to create qualified immunity. In Pierson v. Ray (1967) the court ruled that a common law defense was available to government officials when acting in their official capacity, even when sued under 42 U.S. Code Sec. 1983 (the name under which the Third Enforcement Act now goes). So long as they were acting in good faith and on probable cause, an official was immune from civil liability even if their act did violate a constitutional right.

Numerous court cases have modified this statement of immunity, and provided rules for determining whether it applies in a given case. In Harlow v. Fitzgerald (1982) the SCOTUS reasoned that governmental officials (here, aides to the President) need their official actions to be immunized from liability in order to do their jobs effectively. A subsequent series of cases dealt with the fourth amendment and execution of search warrants by law enforcement officials. In Malley v Briggs (1986) the SCOTUS held that officers were only immune to liability from arrests made on faulty warrants if they had an objectively reasonable belief that there was probable cause for the warrant. The requirement of objective reasonability was upheld for warrantless searches in Anderson v. Creighton (1987). The test for whether an officer has qualified immunity in a given case was articulated in Saucier v. Katz (2001). There was a need for such a judicial test, reasoned the SCOTUS, because qualified immunity had to be determined before a trial could begin. Two facts had to be determined according to the Saucier test: (1) whether a constitutional right was violated and (2) whether the right in question was clearly established at the time of the conduct of the officer in question.

The second criterion has been the cause of much of the public anger concerning qualified immunity. For one it removes any consideration of the reasonability of an officer’s action, objective or subjective. Instead of probing whether that particular officer reasonably believed that their conduct was lawful, the test instead simply asks whether there was any extant, and clearly articulated, constitutional right violated by the officer’s conduct. The issue of whether there was a “clearly established right” has often been interpreted extremely narrowly by courts. Among the starkest manifestations of narrow judicial interpretation comes from Nashville, TN. Police officers sent a dog after Alexander Baxter after he had sat down on the ground and raised his hands in surrender. The dog bit Alexander. However, the officers were granted qualified immunity because the clearest previous judicial ruling on the matter only pertained to suspects who were lying down in surrender. This ruling was made by a Tennessee court and upheld by appeals courts in Tennessee and the federal court presiding in that area.

Should qualified immunity exist in the first place? And if so, how can it be pruned back from its current extent to make it acceptable? Qualified immunity is a form of affirmative defense: that is, a legal way of saying, “I admit I broke the law, but I shouldn’t be (fully) punished for it.” Self-defense is an affirmative defense against criminal prosecution for violent crimes. At trial, the defendant would assert that they did commit an illegal action (e.g., homicide) but that their illegal action was either justified, or should be excused. In general, the possibility of affirmative defenses is desirable. It should be possible to escape punishment, or receive reduced punishment, for illegal actions done under mitigating circumstances.

It is instructive to compare self-defense and qualified immunity. In their current forms, both contend that strictly illegal actions are justified — which is to say morally or pragmatically appropriate despite being illegal. We shouldn’t punish people for their justified actions, because punishing people for doing the right thing is perverse. So if someone killed or injured another person in self-defense, we think it would be wrong to punish them. Does this make sense in the case of government officials violating the rights of citizens? It might, if qualified immunity were a defense that had to be proven at trial. However, the issue of qualified immunity is settled by a summary judgment. It is determined before trial by a judge without the benefit of a full process of evidential discovery and the structured arguments of a trial held before a jury. Being a rule which was created by unelected judges and never tried by a jury of citizens, qualified immunity arguably lacks democratic legitimacy.

The pretrial nature of qualified immunity has been argued for on both practical and moral grounds. These grounds were clearly articulated by the SCOTUS in Harlow v. Fitzgerald. As a practical matter they argue that deciding qualified immunity before trial prevents frivolous litigation, saving massive amounts of time and money. From the moral point of view, they argue that it is unfair to hold government officials to the standards of statutes and judicial decisions which are either unclear or unknown to them. Setting aside the relevance of the practical considerations, the moral considerations are flimsy. After all, as a general rule, normal citizens are not allowed to invoke ignorance of the law to excuse their illegal conduct. Government officials are both better placed to know the relevant laws and have a clearer obligation to be familiar with them. It is their job to enforce, interpret, or enact them.

Numerous other objections assail qualified immunity, coming even from SCOTUS justices of diametrically opposed ideological orientations. It does not seem that the balance of reasons lies in favor of this doctrine. Government officials can invoke the same affirmative defenses as regular citizens at trial and submit them to a jury for consideration. Obliterating qualified immunity from the law will not render them unprotected from baseless lawsuits.

Should Felons Be Able to Vote?

Many Indiana residents went to the polls on Tuesday to exercise a key privilege and responsibility granted to those fortunate enough to live in a democracy: the right to vote. However, not everyone was able to go make their voices heard. Up until April 20th, there were four states where anyone convicted of a felony was permanently disenfranchised from voting, and six where some or most convicts are banned. However, the number of states with automatic bans has now dropped to three. Terry McAuliffe, Governor of Virginia, recently signed an order that restored voting rights to 200,000 ex-cons – not in time for Virginia’s primary, but for the general election in November.

Continue reading “Should Felons Be Able to Vote?”