Everybody hates the cops these days, and everybody wants to do away with qualified immunity. I think the currently proposed cures are worse than the disease.
Let me begin by acknowledging that there is an issue with qualified immunity. You may have been led to believe that it is virtually absolute immunity for cops, but (at least in theory) it’s not — hence the word “qualified.” The doctrine in theory allows law enforcement to be liable only when they have violated “clearly established statutory or constitutional rights of which a reasonable person would have known.” Harlow v. Fitzgerald, 457 U.S. 800, 818 (1982). It thus “provides ample protection to all but the plainly incompetent or those who knowingly violated the law.” Malley v. Briggs, 475 U.S. 335, 341 (1986).
The problem we have is that courts have interpreted the concept of a “clearly established right” to mean that there is a case on point in the relevant jurisdiction that found liability to absurd levels of specificity. To me the absurd levels of specificity are the issue. If a cop beats someone excessively, some court will come along and say “well, sure, there is precedent saying you can be held liable for excessive force, but in that case the cops beat the suspect with flashlights. This cop beat the suspect excessively with a baton, so that’s totally different and there’s no way he could have known that was unlawful!” I made up that example, but the real life examples are almost as silly:
In one case the Supreme Court is deciding whether to hear, Nashville police officers released their dog on Alexander Baxter, a burglary suspect, who had surrendered and was sitting with his hands raised. A prior decision in the 6th Circuit had held that officers violated the Fourth Amendment when they released a police dog on a suspect who had surrendered by lying down. But the appeals court ruled that this precedent did not “clearly establish” that it was unconstitutional to release a police dog on a surrendering suspect sitting with his arms raised.
The hairsplitting regularly reaches absurd levels. In another case pending before the Supreme Court, the 8th Circuit granted qualified immunity to an officer who wrapped a small woman in a bear hug and then slammed her to the ground, breaking her collarbone and knocking her unconscious. Although earlier cases had made clear that an officer cannot use force against a nonviolent person simply because they are walking away, the appeals court concluded that the law was not clearly established because in none of those cases did a “deputy … use a takedown maneuver to arrest a suspect who ignored the deputy’s instruction to ‘get back here’ and continued to walk away from the officer.”
I had hoped that the Supreme Court might clean up its own mess, but you know that first case that the author says the justices of the Supreme Court were considering taking up? They declined to do so — just as they declined to take up every other qualified immunity case that was pending.
So yes: there is a problem and it demands a legislative solution. I don’t know, at this precise moment, how I would draw up legislation that would fix the problem. I’d have to think about that. But I don’t think this — language from Senator Mike Braun’s “Reforming Qualified Immunity Act” — is the answer:
(b)(1) Except as provided in paragraph (2), it shall not be a defense to any action brought under this section [i.e., under Section 1983] that, at the time of the deprivation—
(A) the defendant was acting in good faith;
(B) the defendant believed, reasonably or otherwise, that his or her conduct was lawful;
(C) the rights, privileges, or immunities secured by the Constitution and laws were not clearly established; or
(D) the state of the law was such that the defendant could not reasonably have been expected to know whether his or her conduct was lawful.
There is also a safe harbor provision:
If the defendant could show that, at the time they were alleged to have violated someone’s rights, (1) their challenged conduct was specifically authorized by a federal or state statute, or federal regulation, (2) no court had held that this statute or regulation was unconstitutional, and (3) they had a reasonable, good-faith belief that their actions were lawful.
If the defendant could show that, at the time they were alleged to have violated someone’s rights, (1) their challenged conduct was specifically authorized by then-applicable judicial precedent, and (2) they had a reasonable, good-faith belief that their actions were lawful.
What is the goal of reforming qualified immunity? Presumably it is to reform police abuse and change behavior. But if someone acting in good faith cannot reasonably know what they were doing was illegal, how are you going to change their behavior?
Robert VerBruggen at National Review explains the problem well:
Another part of the bill basically gives cops a safe harbor if what they did was explicitly authorized by a law or court decision. Even so, however, the text quoted above outright states that cops can be held liable even if they did not know and could not have been expected to know that they were violating the Constitution — which is to say that courts can make up the law as they go along and apply it retroactively.
Those are VerBruggen’s original italics.
You hear a lot of horror stories, but going too far the other way could create horror stories going in the other direction. Let’s say the local jurisdiction says a judge is considered retired the moment he conveys his resignation to the presiding judge. An old judge decides he’s had enough, and composes an email to the presiding judge. Five seconds after he hits send, there is a knock on his door. The police want a warrant signed to search the house of a murder suspect they have dead to rights. The judge decides not to tell them he just resigned and signs the warrant. The cops search the suspect’s house and find the murder weapon. They also find the murder suspect, who yells “fuck the police” and shoots at them. A cop along for the search fires back and severely wounds the defendant.
Now it comes to light that the judge was actually retired when he signed the warrant. The murder weapon was critical evidence and it is suppressed. (It probably wouldn’t be under good faith exceptions analogous to the good faith exceptions that this legislation is designed to abolish, but pretend we legislatively did away with those too, in the criminal law context as well as the civil.) Now the defendant wants to sue the police who violated his rights because they entered his house without a legal excuse. They respond that they acted in good faith. Too bad! That they were reasonable. Too bad! That there’s nothing they could have done; no way they could have known there was a problem.
What really needs to happen (and I say this as someone who has been the target of frivolous litigation) is wider litigation reform — an anti-SLAPP type of remedy applicable to all cases and not just First Amendment cases. Plaintiffs need to be able to show that they have a real and solid basis for bringing their claim, not just wild allegations that anyone could put down on paper. Then, perhaps we could come up with language that requires courts to analyze clearly established rights at a higher level of generality — one that is a little less absurd than what we’ve seen in some cases.
But allowing lawsuits against cops who acted reasonably and in good faith is not a good idea. And it will lead to all kinds of unintended consequences.
Slow down, let the current wave of hostility to law enforcement pass, and come back when everyone is not so angry. And then write something that does not gut protections for officers acting reasonably and in good faith.
In the current environment, society will already have a hard enough time getting quality people to apply to be a police officer. “Reform” like this will make that problem far worse.