Will Supreme Court rectify qualified immunity errors?
The table around which the Supreme Court justices gather for conferences might groan Friday beneath the weight of cert petitions — requests for the court to accept 11 cases arising from lower court decisions involving plaintiffs seeking redress for violations of their civil rights. In 10 of the cases — in all but one, the government defendants were in law enforcement — the civil rights claims were dismissed because courts granted the defendants qualified immunity. In one case the courts denied immunity.
The Supreme Court’s consideration of this avalanche of petitions suggests that the court is reconsidering its mistake in creating qualified immunity. This doctrine has essentially nullified accountability for law enforcement and other government officers even in cases where violations of constitutional rights are indisputable. Friday’s
FROM THE RIGHT
cases include:
A police officer, eager to administer an alcohol breath test to a man on misdemeanor probation, parked his patrol car in front of the man’s house with its siren roaring for over an hour, covered the house’s security camera with tape and repeatedly circled the house, knocking on windows. A lower court held that this warrantless invasion violated the Fourth Amendment but granted the rogue officer immunity from civil liability because no “clearly established law” forbade his behavior.
A court granted immunity to officers who stole $225,000 in cash and rare coins while executing a search warrant because this behavior was not covered by any previous decision, involving virtually identical facts and circumstances, within that court’s circuit. Because of trivial factual distinctions from earlier cases, a court granted immunity to a deputy sheriff who, while repeatedly attempting to shoot a pet dog that posed no threat, shot a 10-year-old child lying on the ground. For similar reasons a court granted immunity to officers who used tasers — nine times, and fatally — on an unarmed man having an acute mental-health episode.
The Supreme Court’s conference table might splinter beneath the weight of public records of hundreds of comparably appalling episodes that raise questions of qualified immunity. Since 1982, this doctrine has become a major impediment to the protection of constitutional rights because of three inappropriate words.
In the 1871 Ku Klux Klan Act, Congress said that government officials who violate a citizen’s constitutional rights “shall be liable to the party injured.” In 1967, however, the court began subverting Congress’s clear intent by diluting the right to civil remedies. In 1982 the court almost nullified the right by holding that the official’s conduct must be measured against — here are the three words — “clearly established law.”
This was in no meaningful sense an “interpretation” of the 1871 statute. In effect, law is “clearly established” only regarding single instances, hence it is hardly law. Trivial factual distinctions between indisputably unconstitutional behavior in case A and such behavior in a prior case B in the same circuit can mean the official in case A has immunity even though the violation of a plaintiff ’s rights is clear.
In its last 30 cases, the Supreme Court, applying its “clearly established law” doctrine, has denied immunity only twice.
Friday, the court can serve civil rights and law enforcement by deciding to rethink the mistakes it made regarding qualified immunity.