Held to a Lower Standard
It’s 1871, race tensions remain high, particularly in the south during reconstruction. The recently formed Ku Klux Klan began terrorizing freed slaves and their allies through assassination and intimidation. Klan groups spread to such an extent that president Grant signed multiple Enforcement Acts to provide new federal powers to target the Klan and eventually bring about its demise.
The Third Enforcement Act of 1871 remains relevant for today (Section 1983), as it explicitly provides legal redress against anyone who deprives another person of their rights. In other words, if your rights are deprived of you, you can sue whomever deprived you of those rights — including government officials.
This interpretation was held up in Supreme Court cases such as Monroe v. Pape in 1961, where Chicago police made a family of 8 “stand naked in the living room” while they “ransacked every room” to look for evidence, and arrested and detained the father for a murder investigation, all without a warrant. While the city of Chicago was not held liable, the officers themselves were.
This precedent provided some incentive to limit police abuse. Even if police were not held criminally for such actions, individuals could file claims against officers and receive compensation.
Unfortunately, it didn’t take long after Monroe v. Pape for the Supreme Court to effectively reverse its decision in two steps.
The first step came in the 1967 Pierson v. Ray case, which introduced the concept of “qualified immunity.” In this case, a group of clergymen— both blacks and whites — peacefully sat at a segregated bus station in Mississippi. The police claimed (contrary to eyewitness testimony) that their actions had incited an angry mob and thus they were arrested for breaching the peace. The clergymen sued under Section 1983, but the court found the police to be immune because the unconstitutional arrests were made under good faith.
The second step began in 1968, during LBJ’s presidency, when Ernest Fitzgerald testified before Congress regarding a $2.3 billion cost overrun and technical difficulties related to a Lockheed contract. Under the subsequent Nixon administration, Fitzgerald was fired during departmental reorganization. He sued Nixon claiming that he was fired as retaliation for whistle-blowing. The suit led to counter suits by Nixon and his aides who claimed absolute immunity — which grants immunity from lawsuits — eventually leading to the Harlow v. Fitzgerald decision which codified qualified immunity into law.
Qualified Immunity — Good Luck Suing the Police!
Qualified immunity is a “good faith immunity,” meaning the public official is protected as long as the official does not violate rights “with malicious intent” or “clearly established statutory or constitutional rights of which a reasonable person would have known.”
On the face of it, this sounds reasonable. Two criteria must be met for an official to have qualified immunity: they weren’t trying to violate anyone’s rights and they violated some obscure right that no one could possibly be aware of. However, the application has been anything but reasonable.
Any legal protection granted to a citizen will be minimized. Any legal protection granted to the government will be maximized.
The main difficulty has been the interpretation of the “clearly established” fork of the test, which has come to mean that the case in question must exactly match a previous case in all relevant respects.
Take for example, a case coming out of the 5th Circuit where a Texas prison guard pepper-sprayed an unarmed inmate who was in his cell. The guard was sued by the inmate under the 8th Amendment for cruel and unusual punishment (he claims he was threatened because the inmate — who was locked behind bars — threw a wad of toilet paper at him). In the dissent, Judge Costa writes:
Despite recognizing that an unprovoked assault violates the Constitution, the majority grants the guard immunity because we have not decided a similar case involving pepper spray.
That’s right — they hadn’t seen a case with pepper spray before. So the guard is granted immunity.
If you think that’s one isolated case, read the list of cases with qualified immunity implications compiled by Patrick Jiamco and Anya Bidwell that may be heard by the Supreme Court just in 2020, which include egregious abuses where police kill children, hold children in solitary confinement, steal $225,000, and much more. Imagine the absurdity of the defenses arguments to uphold qualified immunity in these cases: we haven’t decided a case involving $225,000, only $215,000; or we haven’t decided a case involving a 10-year old being killed, just a 12-year old; or we haven’t decided a case where a man was suffocated by a cop’s knee, just by being placed into a choke hold.
Qualified immunity has been expanded over the years providing a broader and broader defense of police and government officials, preventing them from being held liable for their actions.
Police like to say they are held to a higher standard, but legal protections emanating from qualified immunity paint a different picture.
Consider the reasoning behind many of these qualified immunity cases. The “established law” standard requires adherence to laws and statutes that “a reasonable person would have known.” What is actually being said about officials when cases are dismissed on these grounds? That we can’t expect officers to know that they shouldn’t pepper spray defenseless inmates? It’s not reasonable that they know they shouldn’t steal, kill, sic dogs on or taze unarmed people?
Clearly, these behaviors would bring criminal charges to private individuals, let alone open them to damages. Yet, qualified immunity is used to shield police officers on this ground.
As Justice Sotomayor wrote in her dissent to Kisela v. Hughes (which was decided on grounds of qualified immunity):
Such a one-sided approach to qualified immunity transforms the doctrine into an absolute shield for law enforcement officers…The majority today exacerbates that troubling asymmetry… It tells officers that they can shoot first and think later, and it tells the public that palpably unreasonable conduct will go unpunished.