Police Immunity

The other evening I was having an adult beverage with a friend after work and we were discussing the state of the world and what we did in a previous life to deserve the year 2020. We wore masks the entire time unless we were actively drinking.….so about 20% percent of the time.  We talked about the pandemic. 

Stay at home orders. Unemployment. Masks. Politics. Protests. We talked about damn near everything. We had time and were thirsty.

Eventually, we got around to discussing the police. We discussed the protests going on around the country and charges of excessive force. We discussed some specific cases and what, if any, criminal charges were being brought against the police.

During the course of our conversation, my buddy said "Well, even if criminal charges aren’t brought they can still sue the pants off of the police department and get a ton of money."

I replied "That's technically possible, but very unlikely."

My buddy answered with "Why the hell not?"

And BOOM……just like that another article was born!

I told my friend that the police officers enjoy a little something called "qualified immunity."

The legal doctrine of qualified immunity for police officers first came about around 40 years ago. The doctrine was expanded by the Supreme Court based on in its interpretation of a post-Civil War statute. That statute served to enforce the U.S. Constitution’s 14th Amendment. 

As a refresher, the 14th Amendment gave equal protection under law for all Americans regardless of race. The key part of this, which was later codified into U.S. law (known as Section 1983) gave individuals the right to sue state and local government officers for violations of their constitutional rights. However, it is not as easy as it sounds.

In 1982, the Supreme Court created a very high bar that must be satisfied in order to sue public officials, including the police. The Court reasoned that these individuals should not be penalized for conduct that was objectively reasonable and that constant litigation would interfere with their ability to do their job. 

In a series of cases, the Supreme Court established that qualified immunity is "an immunity from suit rather than a mere defense to liability." In other words, police officers have the legal right to a dismissal of civil suits seeking monetary damages arising from their official conduct unless the plaintiff can show that materially similar conduct has been found to be unconstitutional by a prior court. This is very hard to accomplish.

Based on a line of Supreme Court decisions, qualified immunity extends to an officer’s unconstitutional/unlawful conduct if it does not "violate clearly established statutory or constitutional rights of which a reasonable person would have been aware." The court further clarified this broad immunity by stating that it should protect "all but the plainly incompetent or those who knowingly violate the law."

In the real world, a plaintiff must show that the officer’s conduct was virtually identical to the facts of a previous Supreme Court or U.S. Court of Appeals decisions finding a constitutional violation. Any variation from the facts of the previous case can render a constitutional right claim "not clearly established." If this happens the officer faces no civil liability.  

In Pearson v. Callahan (2009) the Supreme Court heard a case involving a drug related arrest stemming from a warrantless search. In a unanimous decision the court stated that a lower court evaluating a claim for qualified immunity was required to address two questions: (i) whether "the facts alleged show the officer’s conduct violated a constitution rights; and (ii) whether the law clearly established that the officer’s conduct was unlawful in the circumstances of the case."

While this two-step analysis was once the standard, in the Pearson case the Supreme Court held that the judges could exercise their discretion in determining which of the two prongs should be addressed first. As a result, most courts now look to the "clearly established" portion of the analysis without having to decide if the facts of the case show a violation of the plaintiff’s constitution right. 

This can be awfully difficult to accomplish. In fact, Justice Sotomayor and Justice Thomas have expressed concern with the current doctrine of qualified immunity. In fact, in his dissent of the Court’s decision denying certiorari on eight cases dealing with qualified immunity stated "it appears that our analysis no longer grounded in the common-law backdrop against which Congress enacted the 1871 Act."

In addition, in a 2018 dissent Justice Sotomayor worried that the Court’s past cases addressing qualified immunity had created an "absolute shield for law enforcement officer."

At the end of the day, the take away is that while there appears to be some concern among the Court regarding qualified immunity, the bar preventing most civil cases against the police will remain in place until the Supreme Court or Congress decides to modify the existing doctrine. 

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