High court needs to address ‘qualified immunity’

BASED on an erroneous report of a “domestic assault,” police officers came to rescue Melanie Kelsay from the man who supposedly was attacking her at a community swimming pool in Wymore, Nebraska. Then one of them actually assaulted her, lifting the 130-pound woman off the ground in a bear hug and throwing her to the ground, breaking her collarbone and knocking her unconscious, because she disobeyed his command to “get back here.”

Last year, the 8th U.S. Court of Appeals ruled that the assault did not violate Kelsay’s “clearly established” Fourth Amendment rights, meaning she could not sue the sheriff ’s deputy who had injured her. Kelsay’s appeal of that decision is one of 13 cases involving “qualified immunity” that the U.S. Supreme Court is currently considering for review, giving the justices ample opportunity to revisit a misbegotten doctrine that shields police officers from liability for egregious misconduct.

Qualified immunity, which the court invented in 1982, is supposed to protect government officials from the chilling effect of frivolous lawsuits under a statute that allows people to seek damages for violations of their constitutional rights. But in practice, the doctrine often means that victims cannot pursue their claims unless they locate a precedent that closely matches the facts of their case.

In a recent analysis of 252 excessive-force cases decided by federal appeals courts from 2015 through 2019, Reuters found that most of the lawsuits were blocked by qualified immunity. It also found that the share of cases decided in favor of police has risen during the past decade and a half, from 44 percent in 2005-07 to 57 percent in 2017-19.

After 2009, when the Supreme Court said judges could grant police qualified immunity without deciding whether their actions were unconstitutional, that shortcut became more common, making it even harder for victims of police abuse to find apposite precedents. As 5th Circuit Judge Don Willett has observed, “important constitutional questions go unanswered precisely because those questions are yet unanswered.”

Hard as it may be to believe, those questions include whether police in Idaho violated the Constitution when they wrecked a woman’s home with tear gas grenades after she gave them permission to “get inside” so they could arrest her boyfriend (who was not actually there). While musing that getting inside could be construed to include firing toxic, destructive projectiles into the house, the 9th Circuit last year declined to decide whether that would be “reasonable” under the Fourth Amendment.

That ruling, which the Supreme Court also has been asked to review, not only left the plaintiff without recourse; it gave other police officers license to do the same thing, since the 9th

Circuit approved qualified immunity without resolving the constitutional issue. So did the 6th Circuit in a 2018 case involving a Nashville officer who sicced a police dog on a suspect who said he had already surrendered and was sitting on the ground with his hands up.

Further fodder for the Supreme Court’s potential reconsideration of qualified immunity: The Fresno cops who allegedly stole cash and property worth more than $225,000 while executing a search warrant. Although the officers should have understood that theft was “morally wrong,” the 9th Circuit ruled last year, “they did not have clear notice that it violated the Fourth Amendment.”

Qualified immunity, by contrast, definitely gives police clear notice. It tells them they can get away with violating people’s rights as long as they find new ways todoit.

Jacob Sullum is a senior editor at Reason magazine. Follow him on Twitter: @Jacobsullum.