By Dennis Hull ‘22

Qualified immunity is not found in any law, statute, or constitutional amendment. Rather, it is a judicial doctrine created by the Supreme Court in 1982 and embraced by judges over decades of lawsuits. When victims of police misconduct sue an officer in civil court, they must first show that the violation of their rights is “clearly established” – that some other judicial decision has previously shown those actions to be unconstitutional.

This doesn’t sound terrible on paper, but what it really means is that government officials (not just police) can only be held liable for violating rights if there is an existing legal precedent that shows their exact action is unconstitutional. So if someone sues a police officer for excessive force, but it’s a case where the conduct in question has never been reviewed by a court (so, most cases), the officer will usually avoid any civil liability under qualified immunity – even if he intentionally violated the law. Even if it is clear that the cop did violate your rights, he is immune from liability by default unless you can point to a previous judicial decision that explicitly stated the cop’s actions were unconstitutional.

One recent example involves officers who allegedly stole $225,000 from a home in Fresno, California, while executing a search warrant. The unanimous decision of the three-judge panel held that it was “not obvious” that theft by a cop constitutes a violation of someone’s Fourth Amendment right against unreasonable search and seizure, even while acknowledging that theft is morally wrong. Judge Smith wrote that the victims “did not have a clearly established Fourth or Fourteenth Amendment right to be free from the theft of property seized pursuant to a warrant.” Therefore, the officers couldn’t be held liable in court. The two men were never charged.

Or take another 2019 case, in which an officer shot a 10-year-old boy instead of hitting his real target – the non-threatening family dog. Police had tracked a suspect to a mobile home and stormed into the backyard, ordering the suspect and all of his six children onto the ground. The suspect was detained and complied with the officers, and was visibly unarmed. But here’s the problem – the family dog, a pit bull named Bruce, approached the scene. No one at the scene appeared to be threatened by his presence, but within 10 seconds, Deputy Sheriff Michael Vickers shot at the dog – twice. He missed, but one bullet did hit one of the children lying on the ground in the back of the knee. The child was only 18 inches from the officer when he was shot and had to be taken out of school after the shooting due to his injuries.

In this case, a police officer fired two shots into a group of children in an attempt to subdue an unaggressive dog. If a civilian did this, charges would be inevitable. But the Eleventh Circuit Court of Appeals ruled that the officer may not be sued in federal court under qualified immunity. Why? Because the court could not find a “materially similar case.”

How about a third case from last year, where an officer in Tennessee sicced a police dog on a suspect who was sitting on the ground with his hands up? This time, there was a previous court case that ruled that cops could not sic a dog on a suspect who was lying on the ground. But here’s the kicker – the Sixth Court of Appeals said that case did not apply under the “clearly established” rule because the suspect was SITTING on the ground with his hands raised, rather than LYING on the ground. The officer was protected from all lawsuits under qualified immunity.

Those are just a few recent examples of cops that clearly violated constitutional rights, but avoided any consequences in court due to lack of precedent. Since 2005, courts have increasingly applied qualified immunity to excessive force cases. Supreme Court Justice Sonia Sotomayor noted a “disturbing trend” of courts siding with police officers who use excessive force. In 2017, she wrote:

“We have not hesitated to summarily reverse courts for wrongly denying officers the protection of qualified immunity in cases involving the use of force...But we rarely intervene where courts wrongly afford officers the benefit of qualified immunity in these same cases.”

In other words, the Supreme Court regularly intervenes when officers are not given qualified immunity. But when officers are given qualified immunity in a case in which they should not have been protected, the Supreme Court hardly ever steps in. Case in point: this June, the Supreme Court declined to revisit qualified immunity in 7 different cases.

For the problem of qualified immunity, created by judges and applied by judges, we need a statutory solution. The Supreme Court has had nearly four decades to revise the doctrine, but declines to act at every opportunity. The “End Qualified Immunity Act,” written by the only Libertarian in Congress, Justin Amash, would eliminate claims of qualified immunity as a legal defense in civil rights suits against government officials. It has 66 cosponsors – all but one are Democrats – but hasn’t received a vote in the House. Another bill, introduced by Republican Senator Mike Braun, would only allow qualified immunity if the unlawful conduct in question was previously authorized by law, or if a court decided that the conduct was consistent with the Constitution and federal laws. This proposal reinstates the original purpose of the doctrine of qualified immunity – to protect the officers who actually deserve protection – but this bill has received zero cosponsors and little interest in Congress. And Donald Trump, while open to some police reform, draws the line at qualified immunity, saying it’s a “nonstarter” in negotiations.

Conservatives can support police officers and reject the radical agenda of Black Lives Matter while also promoting reasonable reforms like ending qualified immunity. Law and order is a noble goal – the police are vital to any free society and should be given the tools they need to do their job – but we should not give agents of the state the ability to intentionally violate constitutional rights without facing consequences.

Qualified immunity is essentially a get-out-of-jail-free card for bad cops. Ending the doctrine will protect our individual liberty and our civil rights under the Constitution, rather than protecting cops that knowingly violate those rights.

This article first appeared on The Future Conservative, a political blog run by Jack Fencl ’22 and Dennis Hull ’22. Check out https://www.futureconservative.com for more!