When a police officer deprives a person of their constitutional rights, the wrong can be righted a couple of ways. First, the officer can be disciplined or even prosecuted. Second, the victim can sue.
Neither remedy works as well as it should, but there’s one reason lawsuits are especially difficult for victims to win. While the law holds officers “liable to the party injured,” since the late 1960s courts have shielded police from accountability. The doctrine known as “qualified immunity” protects officers even if the court acknowledges police violated the rights of the victim.
How does it work? Basically, courts will only hold an officer personally liable if the plaintiff can refer to a prior case in the same jurisdiction with the same basic facts. The logic here is that unless a specific activity has been previously ruled unconstitutional, police officers can’t be expected to know any better. The violation must be “clearly established” by existing case law.
So, officers can be immune from civil action after:
- tackling an unarmed woman, knocking her unconscious, and breaking her collarbone for disobeying his command to “get back here”;
- pursuing a criminal suspect onto an unrelated woman’s backyard, ordering her six children to the ground, twice firing at (and missing) her nonthreatening dog while hitting one of the children in the knee, causing extensive damage and trauma;
- twice tasing an unarmed but unruly hospitalized pneumonia patient, knocking him to the ground, straddling and restraining him, and killing him in the struggle;
- shooting (without warning) a fifteen-year-old boy who was playing with an orange-tipped, plastic Airsoft gun. The court agreed the action “shocked the conscience and was unconstitutional” but granted immunity anyway.
There are hundreds of cases like these. Reuters recently conducted an in-depth study of them. Because the courts depend on prior cases with nearly exact circumstances to rule in favor of plaintiffs, a degree of novelty is the only thing an officer needs to escape responsibility. Since 2017, courts have granted qualified immunity to police officers 57 percent of the time.
“This rule has sharply narrowed the situations in which police can be held liable—even for truly heinous rights violations—and it creates a disincentive to bringing cases in the first place,” said US Congressman Justin Amash of Michigan, introducing a bill this week to end qualified immunity.
Amash pointed out an additional problem. By only hearing cases that match prior cases, courts effectively stop any further development of precedent. “[T]he case law gets frozen,” as one attorney put it, making the courts even less helpful in righting such wrongs.
Thankfully, there has been a coalition building against qualified immunity, and both conservative and progressives are calling for its end. Supreme Court Justices Sonia Sotomayor and Clarence Thomas both oppose it, and the high court is reviewing the doctrine even now.
As C.J. Ciaramella of Reason said, “Ending qualified immunity wouldn’t end police brutality, but it would put departments and individual officers on notice that they can no longer brazenly harm and kill people without consequences.”