Qualified Immunity: No Reasonable or Legal Justification
I have found no reasonable or legal justification for Qualified Immunity (QI).
What is QI?
“QI protects a government official from lawsuits alleging that the official violated a plaintiff’s rights, only allowing suits where officials violated a clearly established statutory or constitutional right. When determining whether or not a right was clearly established, the courts consider whether a hypothetical reasonable official would have known that the defendant’s conduct violated the plaintiff’s rights,” (Cornell Law School).
In theory, this sounds reasonable. The expectation is that all clearly established rights will be known to, and protected by public officials. Any action that violates those clearly established rights would make the official liable in civil court. QI, then, should protect the public official in instances when a right is not clearly established. That is where the first major issue arises. What does, "clearly established," mean?
Throughout the history of QI, "clearly established," has evolved to the point of near unattainability, effectively eliminating the civil courts as a venue for plaintiffs to get redress for even gross violations. David French, from National Review, put it this way, "As the doctrine developed, to prove that a right is clearly established, the plaintiff generally had to find and cite a remarkably similar case, with nearly identical facts, decided by a court of controlling jurisdiction."
The was the case for Andrew Scott. Police, acting on a tip from neighbors, showed up to Mr. Scott's residence in the middle of the night, without a search warrant. They did not have their emergency lights active, they did not identify themselves as police officers, and they were at the wrong residence, having misunderstood the neighbor's tip. They pounded loudly on Mr. Scott's door and Mr. Scott came to the door armed, as most reasonable people would when disturbed in the middle of the night not expecting anyone. The police shot and killed Mr. Scott. Because there was not another, similar case adjudicated by the courts, Mr. Scott's family was unable to sue the officer who shot Mr. Scott. The officer was never charged, the family could not sue the officer, and justice was denied to the Scott family. See details of the Andrew Scott case here and here.
A remarkably similar case is currently working its way through the justice system. In the case of Ms. Breonna Taylor, police again executed a raid where they allegedly knocked loudly on the wrong door in the middle of the night and failed to announce themselves as law enforcement. Kenneth Walker, Ms. Taylor's boyfriend, was woken by the disturbance and responded by grabbing his firearm. When the officers made entry, Mr. Walker defended himself and Ms. Taylor from what he thought were criminal intruders. The officers responded by firing 20 rounds into the apartment, eight of which struck and killed Ms. Taylor. Ms. Taylor's case has not been fully adjudicated, and a current FBI investigation is still underway, but the precedent set in Mr. Scott's case does not bode well for justice on the part of Ms. Taylor. Read more about Ms. Taylor's case here.
The biggest issue facing QI, is that it flies in the face of existing statutory law.
"Every person who, under color of any statute, ordinance, regulation, custom, or usage, of any State or Territory or the District of Columbia, subjects, or causes to be subjected, any citizen of the United States or other person within the jurisdiction thereof to the deprivation of any rights, privileges, or immunities secured by the Constitution and laws, shall be liable to the party injured in an action at law, suit in equity, or other proper proceeding for redress, except that in any action brought against a judicial officer for an act or omission taken in such officer’s judicial capacity, injunctive relief shall not be granted unless a declaratory decree was violated or declaratory relief was unavailable. For the purposes of this section, any Act of Congress applicable exclusively to the District of Columbia shall be considered to be a statute of the District of Columbia," (42 US Code Section 1983).
Compounding the issue is that QI is not codified in US law, but rather was created by the judiciary. It came out of the 1982 case, Harlow v. Fitzgerald (more on the history and evolution of QI throughout judicial history can be found here).
In recent years, QI has come under increasing scrutiny. In 2018, Fifth Circuit judge Don Willett had this to say about QI:
"To some observers, qualified immunity smacks of unqualified impunity, letting public officials duck consequences for bad behavior — no matter how palpably unreasonable — as long as they were the first to behave badly. Merely proving a constitutional deprivation doesn’t cut it; plaintiffs must cite functionally identical precedent that places the legal question “beyond debate” to “every” reasonable officer. Put differently, it’s immaterial that someone acts unconstitutionally if no prior case held such misconduct unlawful."
Some lawmakers have taken a serious interest in abolishing the practice. Representative Justin Amash (L-MI), along with 17 co-sponsors, have penned legislation that would end QI. The legislation has been submitted under H.R. 7085 and was submitted to the Judiciary Committee on June 4th, 2020. Even before this legislation starts working through the process, it seems apparent that the Judiciary has overreached in creating QI out of whole cloth, even in defiance of existing, dually passed and signed legislation to the contrary.
At minimum, the case for QI appears to be in opposition of the 14th Amendment which states that the States may not, "deny to any person within its jurisdiction the equal protection of the laws." By providing immunity to some citizens, acting in the capacity of public officials, that is being denied to the rest of the citizens, it would appear as though there is an unequal application of the law.
We will be following the attempts to undo QI as they work through both the Judiciary and Legislative processes and provide substantive updates in the future.
