Qualified Immunity Is Burning a Hole in the Constitution


But proving that Officer Aikala had violated the Constitution was not enough — the officer was protected by something called qualified immunity, a legal defense officers use to block suits alleging all manner of misconduct, so long as they have not violated “clearly established law.” To overcome Aikala’s qualified immunity defense, Mattos’ lawyer would have to find a Supreme Court opinion, or an opinion from this same court of appeals, holding that tasing an innocent person under highly similar circumstances was unconstitutional. No prior decision from that court of appeals or the Supreme Court had ever addressed the use of a taser in “dart mode” — where the Taser shoots out darts with electrical currents that attach to a person — the setting Aikala had used against Jayzel. And, at the time, that court of appeals had never issued an opinion finding that an officer’s decision to use a taser violated the Fourth Amendment.

Because no prior court opinion had similar facts, the appeals court judges dismissed Jayzel’s excessive-force claim, even though they believed Aikala’s decision to tase a potential domestic violence victim went “far beyond the pale” and violated the Fourth Amendment.

Welcome to the upside-down world of qualified immunity.

Last month, our screens were filled with videos of Tyre Nichols being beaten to death on a Memphis street — and of the officers who killed him laughing and joking afterward, with no apparent concern that their body cameras recorded the attack and no urgency about getting Nichols medical care. Once again, horrifying images of a Black man killed by police are prompting impassioned pleas for more accountability and justice when officers violate the law. Qualified immunity is squarely in the sights of many legislators and advocates.

The concept entered public consciousness almost three years ago, following the murder of George Floyd. In the summer of 2020, the House passed the George Floyd Justice in Policing Act, which would have abolished qualified immunity, among other important reforms. But Republican Sen. Tim Scott called ending qualified immunity a “poison pill” in negotiations, and calls to end qualified immunity were matched in intensity by those who opposed such reforms. In August 2020, Indiana congressman Jim Banks introduced a bill to preserve qualified immunity, threatening that eliminating the defense was simply “another way of saying abolish the police” because, without qualified immunity, “criminals would … open endless frivolous lawsuits against the officers who put them behind bars” and officers would be “forced to quit, because they couldn’t afford to serve any longer.”

Efforts to pass the George Floyd Justice in Policing Act failed after more than a year; qualified immunity was, apparently, a key sticking point. During that same period of time, more than half the states introduced laws that would effectively end qualified immunity, but most met the same fate after union leaders and government officials raised similar concerns in opposition to the legislation.

Jim Banks’ predictions about the horrors that would occur if we did away with qualified immunity are nothing new. For decades, defenders of qualified immunity have claimed that the defense is necessary to prevent courthouses from filling with frivolous lawsuits that would bankrupt well-meaning police officers for split-second mistakes, discourage people ever from agreeing to become police officers and push society into a lawless chaos.

I have spent much of my academic career empirically examining these and other justifications for qualified immunity doctrine and have found each to be overblown and, sometimes, just plain false. It’s past time to get the facts straight about what qualified immunity is, what it does and what would happen if it were eliminated.

The Supreme Court created qualified immunity out of thin air in 1967, just six years after the Court first recognized that people could sue police officers and other government officials for violating their constitutional rights. In that first qualified immunity case, Pierson v. Ray, the Court held that the officers were entitled to a “good faith” immunity in civil rights cases. Chief Justice Earl Warren, writing for the majority, explained that this immunity from suit was necessary because, otherwise, officers could be held liable when they mistakenly believed the law authorized an arrest. As Chief Justice Warren explained, “A policeman’s lot is not so unhappy that he must choose between being charged with dereliction of duty if he does not arrest when he has probable cause and being mulcted in damages if he does.”

Although a “good faith” defense was the impetus for qualified immunity, today, officers are entitled to qualified immunity even if they act in bad faith, so long as there is no prior court decision with nearly identical facts. For more than five decades, the Supreme Court has repeatedly strengthened qualified immunity’s protections, describing each additional layer of defense in increasingly terrified tones as necessary to protect officers from the unyielding power of civil rights lawsuits.

The first — and arguably most seismic — shift to qualified immunity came in 1982 in a case called Harlow v. Fitzgerald. In Harlow, the Court concluded that officers’ entitlement to qualified immunity should not depend on whether they acted in good faith. In order to prove good faith, officers would have to be deposed — questioned under oath — about their state of mind at the time they violated the Constitution, and a case would go to a jury if an officer’s good faith was in dispute. Justice Powell, who wrote the majority opinion in Harlow, reasoned that requiring officers to participate in discovery and trial in an “insubstantial case” was a burden to the officer, who would need to spend time defending himself instead of doing his job. And the Court feared that this type of distraction would harm not only the officer but also “society as a whole” by discouraging “able citizens from acceptance of public office” and “dampen[ing] the ardor of all but the most resolute, or the most irresponsible [public officials], in the unflinching discharge of their duties.” So, to protect officers from having to participate in discovery and trial in “insubstantial cases,” the Court held in Harlow that an officer’s intentions do not matter to the qualified immunity analysis. Instead, officers are entitled to qualified immunity so long as they do not violate what the Court called “clearly established law.”

The Supreme Court’s decision in Harlow did not explain what it meant by “clearly established law.” But the Court’s decisions over the next 40 years have created a standard that seems virtually impossible to meet. The Court has repeatedly instructed that except in extraordinary circumstances the law can only be “clearly established” by a prior court decision. And the Court has emphasized that the prior court decision cannot simply set out a constitutional principle in general terms. It is not enough, for example, to find a case that says it is unconstitutional to use force against a person who is not resisting arrest. Instead, the prior court decision must include facts that are so similar to the facts in the present case that every reasonable officer would know that what he was doing was wrong. In recent years, the Supreme Court has repeatedly reversed lower courts that have denied officers qualified immunity, chastising those courts for not appreciating the importance of qualified immunity to “society as a whole” and arguing that they “misunderstood the ‘clearly established’ analysis” because they “failed to identify a case where an officer acting under similar circumstances as [the defendant] was held to have violated the Fourth Amendment.”

Lower courts appear to have since gotten the message, repeatedly citing the Supreme Court’s instruction that clearly established law should not be defined “at a high level of generality” when assessing whether officers are entitled to qualified immunity. Courts have granted officers qualified immunity even when they have engaged in egregious behavior — not because what the officers did was acceptable, but because there wasn’t a prior case in which that precise conduct had been held unconstitutional. The hairsplitting can be extreme. In Baxter v. Bracey, an appeals court granted qualified immunity to officers who released their police dog on a burglary suspect who was sitting down with his hands up. Although a prior court decision had held that it was unconstitutional to release a police dog on a suspect who was lying down, the court in Alexander Baxter’s case granted qualified immunity to the officers because, it held, the prior decision did not clearly establish the unconstitutionality of the officers’ decision to release a police dog on a person who was seated with his hands in the air.

In Kelsay v. Ernst, an appeals court held that an officer who slammed a nonviolent, nonthreatening woman to the ground — breaking her collarbone and knocking her unconscious — was entitled to qualified immunity. Prior cases had held that “where a nonviolent misdemeanant poses no threat to officers and is not actively resisting arrest or attempting to flee, an officer may not employ force just because the suspect is interfering with police or behaving disrespectfully.” But, the court held, the officer was entitled to qualified immunity because this precedent did not clearly establish that “a deputy was forbidden to use a takedown maneuver to arrest a suspect who ignored the deputy’s instruction to ‘get back here’ and continued to walk away from the officer.”

In Jessop v. City of Fresno, police officers stole $225,000 in cash and rare coins when executing a warrant. Prior cases had held that it was unconstitutional for officers to steal, but those cases were factually distinct — involving the theft of different types of property under different circumstances. According to the appeals court, the officers “ought to have recognized” that it was wrong to steal the coins and cash, but “they did not have clear notice that it violated the Fourth Amendment” because prior court decisions “did not put the constitutional question beyond debate.”

This could also have been the fate of a lawsuit brought on behalf of George Floyd’s family. Qualified immunity never threatened Floyd’s family’s ability to recover money for his murder at the hands of Minneapolis police in May 2020. They settled their case with the City of Minneapolis for $27 million before qualified immunity ever could be raised. This is likely because the city anticipated the blowback that would come from arguing that the case against Derek Chauvin should be dismissed because Floyd’s family could not point to a prior case with nearly identical facts. But if George Floyd’s case had not received the press scrutiny it did and had not inspired the same degree of public attention and rage, a lawyer for the city of Minneapolis could well have argued that qualified immunity shielded Chauvin from liability. Officers have killed people in Alabama, Florida, Georgia, Illinois, Missouri, New Hampshire, Oklahoma and Texas in just the way Chauvin killed Floyd — with a knee on their back or neck — but have had their civil rights lawsuits dismissed on qualified immunity grounds.

In a 2009 decision, the Supreme Court made it even more difficult for plaintiffs to find “clearly established law” by holding that lower courts could grant qualified immunity without first ruling on the constitutionality of a defendant’s behavior. So, the Supreme Court has instructed lower courts to grant defendants qualified immunity unless the plaintiff can find a prior case in which an officer violated the Constitution under nearly identical circumstances, and has also instructed lower courts that they do not need to issue these types of constitutional rulings.

For a plaintiff’s civil rights attorney trying to defeat a qualified immunity motion, the challenges of finding “clearly established law” are almost too many to count. Think about all the stars that would have had to align for Jayzel Mattos to be able to defeat Officer Aikala’s qualified immunity motion.

First, another officer would previously have had to tase someone in “dart mode” under circumstances similar to Mattos’s case. Then the person who was tased would have had to file a lawsuit — which is hardly certain. Next, that prior lawsuit would have had to result in a court opinion explaining that the officer’s use of the Taser in dart mode was unconstitutional. Importantly, it would not be enough if the plaintiff in the prior case won some money in a settlement; if the case was settled before the judge issued an opinion ruling that the officer’s use of the Taser in dart mode was unconstitutional, then that case could not clearly establish the law for Mattos’s case.

Even if there was a prior court opinion finding that the use of a Taser in dart mode under similar circumstances was unconstitutional, then Mattos’s lawyer would have had to find it. Scott Michelman — the legal director of the Washington, D.C., branch of the ACLU and a lecturer at Harvard Law School, who has argued before the Supreme Court and seven courts of appeals and has authored a legal casebook dedicated to civil rights litigation — has spent upwards of a week researching court decisions in order to find “clearly established law” to defeat a single qualified immunity motion.

To make matters worse, the Supreme Court allows defendants to immediately appeal any qualified immunity denial. Federal courts usually operate under what is called a final judgment rule — meaning that a decision by a trial court cannot be appealed until the case is over. So, if one side gets a ruling it does not like — requiring discovery of information they would prefer to keep secret, or denying a motion to dismiss — the parties usually have to wait to appeal that decision until one side or the other wins.

But qualified immunity is different. Because, as the Supreme Court has said, qualified immunity is meant to protect officers from the burdens of discovery and trial, an officer who is denied qualified immunity can immediately appeal that decision. What this means in practice is that officers can call time-out in the middle of a case, adding months or years to the case.

Defenders of qualified immunity have not been able to summon a reason why officers who violate the Constitution should be protected from liability simply because a court has not previously ruled nearly identical conduct to be unconstitutional. Instead, the strongest defenses of qualified immunity have been predictions that the world would be worse off without it. But claims about the need for qualified immunity are unsupported by the facts on the ground.

Although the Supreme Court and defenders of qualified immunity are quick to say that the doctrine protects officers from bankruptcy, settlements and judgments against officers are almost always paid by their employers or by insurers. I studied police misconduct settlements and judgments in 81 jurisdictions across the country, over a six-year period, and found that officers paid just 0.02 percent of the more than $735 million that plaintiffs received. Officers in only two of the jurisdictions were required to contribute anything to settlements and judgments entered against them; their average payment was $4,194, their median payment was $2,250 and no officer paid more than $25,000. Officers do not need qualified immunity to protect them from bankruptcy when they are sued; local governments almost always pick up the tab.

The Supreme Court has said that qualified immunity “gives government officials breathing room to make reasonable but mistaken judgments about open legal questions.” The International Association of Chiefs of Police has argued that qualified immunity “allows police officers to respond to incidents without pause” and “make split-second decisions” and that, without qualified immunity, officers would not be shielded from liability when taking “good faith actions.” But qualified immunity is not necessary to shield officers from liability when they make reasonable mistakes; the Fourth Amendment, as interpreted by the Supreme Court, already shields officers from responsibility in these types of cases. Courts have held that officers can mistakenly search or arrest someone without adequate cause, or use force against someone who was not posing a threat; so long as their mistakes were reasonable, they have not violated the Constitution.

The Supreme Court has also repeatedly described qualified immunity as necessary to protect officers from the burdens and distractions of defending themselves in “insubstantial” cases. But there are plenty of other ways that weak cases are weeded out of court. People without strong evidence to support their claims will have a harder time finding a lawyer to represent them, a harder time filing a lawsuit with facts that set out a plausible claim and a harder time proving a constitutional violation. When the Supreme Court passionately describes the importance of qualified immunity doctrine to officers and “society as a whole,” it ignores all of the other protections already in place to shield officers from “insubstantial” cases.

The Supreme Court has asserted that “the driving force” behind qualified immunity is to spare government officials the burdens of participating in litigation. But qualified immunity may actually increase litigation costs and delays. Defendants raised qualified immunity in more than 37 percent of the almost 1,200 cases I studied — sometimes multiple times during the case and on appeal. Each time qualified immunity is raised, it must be researched, briefed and argued by the parties and decided by the judge. And deciding whether officers are entitled to qualified immunity is no small feat. One court of appeals judge remarked that “wading through the doctrine of qualified immunity is one of the most morally and conceptually challenging tasks federal appellate court judges routinely face.”

The time and effort necessary to resolve qualified immunity motions could still advance the goals of the doctrine if it effectively protected officers from discovery and trial. But in my study, just 8.6 percent of defendants’ qualified immunity motions led to the dismissal of the plaintiffs’ cases. In the remaining 91.4 percent of motions, parties and courts dedicated time and money to research, brief, argue and decide defendants’ entitlement to qualified immunity without avoiding the costs of discovery and trial.

The Supreme Court has also explained that the protections of qualified immunity are necessary so that officers are not held liable unless they have notice of the unconstitutionality of their conduct. The Court has written that factually similar cases are necessary to “clearly establish” the law because “it is sometimes difficult for an officer to determine how the relevant legal doctrine … will apply to the factual situation the officer confronts,” and that “precedent involving similar facts can … provide an officer notice that a specific use of force is unlawful.” But upon studying hundreds of policies, trainings and other materials used by California law enforcement officers, I found that they are not actually being educated about the facts and holdings of the court decisions that could clearly establish the law for qualified immunity purposes. Instead, officers are taught general legal principles — for example, the Supreme Court’s instruction in a case called Graham v. Connor that officers can use force if it is “objectively reasonable under the circumstances.” Then officers are trained to apply that general standard in the innumerable situations that might come their way.

Even if officers learned about the cases that clearly establish the law for qualified immunity purposes, there is no reason to believe that they could remember the facts and holdings of those cases and then recall those facts and holdings during high-speed, high-stress interactions. As one federal judge wrote, “It strains credulity to believe that a reasonable officer, as he is approaching a suspect to arrest, is thinking to himself: ‘Are the facts here anything like the facts in York v. City of Las Cruces?’”

Less than 4 percent of the almost 1,200 police misconduct cases I examined were dismissed because of qualified immunity. This finding makes it seem as if qualified immunity is not so bad after all. But because there are so many other ways for weaker cases to get dismissed, qualified immunity ends up leading to the dismissal of cases with compelling claims of unconstitutional policing that have managed to overcome all these other barriers. Although the Supreme Court has described qualified immunity as a tool to weed out “insubstantial” cases, it actually does its work on the most substantial cases that cannot be kicked out of court any other way.

And even when a case is not dismissed on qualified immunity grounds, the doctrine can make winning harder. Although the officers who tased Mattos were granted qualified immunity, this did not actually end Mattos’ case. Her attorney, Eric Seitz, had included state law claims for battery and assault against Officer Aikala in Mattos’ complaint, for which qualified immunity did not apply.

Five and a half years after Mattos filed her case, her state law claims settled for $40,000. Seitz split the award with Mattos. He estimated that he spent at least $40,000 out of his own pocket, including trips from Hawaii to the mainland for the court of appeals arguments, and about $200,000 worth of his time. Seitz told the Maui News that the case had been worth bringing, even though it resulted in a significant financial loss to him, because the court of appeals issued a ruling that the officer’s Taser use was unconstitutional — a ruling that has been used in later cases to defeat qualified immunity. “We do [these cases] because they’re important to do,” he said. But our system cannot be working correctly if plaintiffs’ attorneys must bankroll years-long efforts just to clarify the scope of constitutional rights.

At his State of the Union, President Joe Biden called on Congress to pass comprehensive police reform. “When police officers or departments violate the public trust they must be held accountable,” Biden said, and received a standing ovation from both sides of the aisle. President Biden received another standing ovation when he said, “Let’s commit ourselves to make the words of Tyre’s mother come true: ‘Something good must come from this.’” Yet Indiana congressman Jim Banks reintroduced his bill to preserve qualified immunity on January 10, the day Tyre Nichols died, and Republican Sen. Tim Scott has called resurrecting the George Floyd Justice in Policing Act “a nonstarter.” Instead of qualified immunity reform, Sen. Scott has said that he is focusing on increasing police funding and training. On Twitter, Scott wrote: “The question we have to ask ourselves is, do we care more about tribalism, posturing, and preserving the status quo? Or do we care about actually doing our jobs and restoring faith in our nation? Put me down for the latter.”

You can put me down for the latter, too. But it is those opposed to qualified immunity reform who are succumbing to tribalism, posturing, and preserving the status quo. To be clear, ending qualified immunity would not usher in a golden age of police accountability; there are many other shields that protect officers and local governments from being held responsible when they violate the Constitution. Yet it is an important start. If something good is to come from this latest tragedy, we cannot be distracted by overblown and false claims by qualified immunity’s defenders. If our lawmakers are going to “rise to this moment,” as President Biden has asked them to, a key first step is to focus on facts, not fearmongering.

From SHIELDED, by Joanna Schwartz, published by Viking, an imprint of Penguin Publishing Group, a division of Penguin Random House, LLC. Copyright © 2023 by Joanna Schwartz.

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