Skip to comments.Qualified Immunity is a Test for Conservatives
Posted on 07/08/2020 7:24:01 AM PDT by Kaslin
Former Minneapolis police officer Derek Chauvin faces murder and manslaughter charges for kneeling on George Floyd's neck until he stopped breathing. But even if Chauvin is convicted, Floyd's family may not be able to pursue claims under a federal statute that authorizes lawsuits against government officials who violate people's constitutional rights.
The uncertain prospects for the lawsuit Floyd's relatives plan to file underlines the unjust and irrational consequences of qualified immunity, a doctrine that shields police from liability for outrageous conduct when the rights they violated were not "clearly established" at the time. Congress should seize the opportunity created by Floyd's May 25 death and the nationwide protests it provoked to abolish that doctrine, which the Supreme Court unlawfully grafted onto the Civil Rights Act of 1871.
Was it "clearly established" on May 25 that kneeling on a prone, handcuffed arrestee's neck for nearly nine minutes violated his Fourth Amendment rights? The issue is surprisingly unsettled in the 8th Circuit, which includes Minnesota.
The U.S. Court of Appeals for the 8th Circuit blocked civil rights claims in two recent cases with broadly similar facts: handcuffed detainees who died after being restrained face down by several officers. Unlike those detainees, Floyd was not actively resisting at the time of his death, except to repeatedly complain that he could not breathe.
While that distinction could make a difference in the constitutional analysis, we can't be sure. Even if the 8th Circuit concluded that Chauvin's actions were unconstitutional, it could still decide the law on that point was not clear enough at the time of Floyd's arrest, meaning Chauvin would receive qualified immunity.
The 8th Circuit could even reach the latter conclusion without resolving the constitutional question, as courts have commonly done since 2009, when the Supreme Court began allowing that shortcut. To defeat qualified immunity in this case, says UCLA law professor Joanna Schwartz, a leading critic of the doctrine, Floyd's family "would have to find cases in which earlier defendants were found to have violated the law in precisely the same way."
This term, the Court had 13 opportunities to revisit qualified immunity, but it has not accepted any of those petitions and so far has rejected all but one. Those rejected cases included one that posed this question: "Does binding authority holding that a police officer violates the Fourth Amendment when he uses a police dog to apprehend a suspect who has surrendered by lying down on the ground 'clearly establish' that it is likewise unconstitutional to use a police dog on a suspect who has surrendered by sitting on the ground with his hands up?"
The U.S. Court of Appeals for the 6th Circuit thought not. Dissenting from his colleagues' refusal to review that decision, Justice Clarence Thomas reiterated his doubts about qualified immunity, saying, "There likely is no basis for the objective inquiry into clearly established law that our modern cases prescribe."
Given the Supreme Court's lack of interest in reconsidering qualified immunity, Congress has a responsibility to reassert its legislative powers by revoking this license for police abuse. Last week, Schwartz and more than 300 other law professors urged Congress to do so, noting that the doctrine gives cops not only "one free pass" but also a "continuing free pass" by allowing courts to block claims without ruling on their merits, thus ensuring "that no law becomes clearly established."
The Ending Qualified Immunity Act, which Rep. Justin Amash, L-Mich., introduced last month, so far has 64 cosponsors, all but one of whom are Democrats. The situation is similar in the Senate, where Mike Braun, R-Ind., recently unveiled the Reforming Qualified Immunity Act, which would narrow the doctrine and make municipalities liable for police misconduct.
This issue is a test for conservatives who defend the rule of law and the separation of powers. Both of those principles are undermined by a judicially invented loophole that allows government officials to escape accountability when they abuse their powers.
It is my understanding that though the officers that beat Rodney King were cleared of charges in a court of law, they lost a civil lawsuit. Or was it federal charges via double jeopardy. I forget which.
They were convicted under 18USC242, Deprivation of Civil Rights under False Color of Authority.
And qualified immunity is a doctrine which should be done away with in its entirety. Anyone depriving any American of their Civil Rights without due process should pay a very, very heavy price.
Convicted of violating King’s civil rights
Jacob Sullum is part of the libertarian sellout to the left, mostly based on their cowardice. Does he have any articles about not fighting the police? Is he going to be the police after cops quit en masse over removing qualified immunity?
I would prefer a federal law that resisting arrest anywhere everywhere is a felony and can be mitigated by a sap blow to the head rendering the resister incapacitated.
Resisting endanger the cops lives and is a violation of cop civil rights to a safe work place
everyone... lawmakers who back anti 2A laws too.
This is a true statement.
Without this type of immunity our society would probably grind to a halt. Would any government even allow motor vehicles to operate on public roads if it could be sued for damages every time someone was involved in a motor vehicle crash?
Is he going to be the police after cops quit en masse over removing qualified immunity?
Any cop who quits over this issue shouldnt be a cop in the first place.
Dont violate Civil Rights.
Why would cops quit en made? Its not that cops ever end up personally liable for those judgments. The municipality indemnifies then whether or not QI is a defense. It will just incentivize cities to hire cops less prone to gratuitous violence.
Qualified immunity is an extension of the English common law principle of “sovereign immunity” — which basically means a sovereign government cannot be sued without its consent.
I know what it is and where it came from.
Would any government even allow motor vehicles to operate on public roads if it could be sued for damages every time someone was involved in a motor vehicle crash?
Apples and Polar Bears.
In the case, it was a personal vendetta carried out while in uniform.
Those two had a history and Chauvin got his revenge. The people should get theirs.
Anyone who does any searches on YouTube will see hundreds of videos of Cops committing acts from just being assesto abuses of force-and all of these officers have kept their job because of QI. Any of these infractions would get most people fired from a regular job.
The broader context is that these cops are watching Soros-paid for DAs working with Dem mayors that don’t want to be seen as draconian, and politicians are often using cops as scapegoats now. I’m glad to talk about rational reforms after they get their streets under control.
Here's an interesting little tidbit from my own field of work where the issue of sovereign immunity has come into play ...
Remember all the controversy a few years about the numerous cases around the country where state governments sold long-term leases on toll roads to private companies -- where almost all of the investors who bought these leases were foreign interests? Do you even hear any clamoring about this anymore?
I haven't heard a peep about it in years -- and there's a reason for it: Most of these transactions have been colossal blunders for the investors. And a big reason for this is tied to a key ruling in a civil lawsuit some years ago -- where the private company operating the Indiana Toll Road lost a legal battle to claim sovereign immunity in their operation of the roadway. So the State of Indiana would have sovereign immunity if it operated the highway, but a private company would not.
Guess what ... No investor with half a brain would ever buy a toll road concession under these terms.
Sullum has already assumed that Chauvin will be convicted, even though there is evidence that the hold applied ins in line with department training. If the training includes this hold for “excited delirium” (I think that is the name), then Chauvin should retain immunity.
Immunity should be removed when the officer clearly exceeds the limits of the police rulebook.
Some argue that this is such a case, but we must be careful to understand that only some percentage of the evidence has been exposed, and nearly all of that is aimed at convicting Chauvin. Once the entirety of the evidence has been made public, then we can talk about removing immunity.
The reason why qualified immunity was instituted was to allow officers to use the tools given and taught to them by their departments without fear of reprisal. To remove immunity wholesale now means that no officer can use any tool or technique - even one taught by their department - without exposing themselves to ruin if someone, somewhere is offended by the act. Under that scenario, one would have to be insane to become a police officer.
Stripping qualified immunity is defunding the police by another name, IMO.
“Eliminate qualified immunity from police officers and you’d no longer have the police operating as a government agency or department.”
How ya figure?
The whole purpose of having the police operate as a government agency is to give it the legal protections of sovereign immunity. Take that away, and it will be a hell of a lot cheaper to hire private security firms that dont have union employees, dont have to pay public pensions, etc. The sovereign immunity protection for police officers is one of the things that prevents cities from doing this now.
Its not qualified immunity that prevents those cops from being fired; its the collective bargaining agreements between cities/states and police unions.
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