First, if George Floyd’s family does decide to bring a civil rights
claim against Chauvin and the other officers on the scene, it is
entirely possible that the officers would be able to invoke qualified
immunity, depending on whether there’s a prior case in the Eighth
Circuit with similar facts (i.e., an officer kneeling on
a non‐resisting suspect’s neck for a long period of time while the
suspect says he can’t breathe). Even if Chauvin is convicted of
murder,
that’s no guarantee that he wouldn’t be entitled to immunity in a civil
suit. Whether a prosecutor can prove the elements of murder beyond
a reasonable doubt is simply a different legal question than whether
prior case law would make the violation of George Floyd’s rights
“clearly established,” under modern qualified immunity doctrine.
Second, the senseless violence committed by Derek Chauvin and the
stunning indifference of the other officers standing nearby are the
product of our
culture of near‐zero accountability for law enforcement.
While that culture has many complex causes, one of the most significant
is qualified immunity. Section 1983 was supposed to be
the
primary means of holding accountable government agents who violate our
constitutional rights. Qualified immunity has severely undermined the
deterrent effect of that statute, and thereby contributed to an
environment where police simply do not expect to be held to account when
they commit misconduct.
Qualified immunity has worked so well because police
officers, maybe more than anyone else in society, must make difficult
split‐second decisions on the job, and a lot. They do it constantly.
Whether to arrest someone, whether to conduct a search, whether to use
force against a suspect. Sometimes, actions they sincerely and
reasonably believe are legal are found later by courts to be
unconstitutional.
Here, Carlson regurgitates what is probably the most commonly invoked
defense of qualified immunity: that it is necessary to protect the
discretion of police officers to make split‐second decisions. And, no
surprise, it is profoundly mistaken. This was the very first issue
I addressed in my previous post on “
The Most Common Defenses of Qualified Immunity, and Why They’re Wrong,”
but the short answer is that our substantive standards for determining
what actions do and do not violate the Fourth Amendment
already
incorporate substantial deference to on‐the‐spot police
decision‐making. In other words, when police “sincerely and reasonably”
make a decision about whether to arrest someone or use force, they
almost certainly will not have broken the law in the first place.
Qualified immunity is therefore unnecessary to protect this discretion,
because the doctrine, by definition, only applies when a defendant
has committed a constitutional violation.
Moreover, as a I discussed above, qualified immunity has nothing to
do with whether an officer “sincerely and reasonably” believed their
actions to be lawful. It doesn’t turn on their state of mind at all. All
that matters is whether a court determines that the facts of prior
cases were sufficiently similar to hold that the law was “clearly
established.”
The
Reason article
by Billy Binion aptly notes that Carlson’s assertion here “can only be
explained by a lack of familiarity with qualified immunity case law,”
and provides numerous examples of the sort of egregious injustices this
doctrine regularly permits:
Take the cop who received qualified immunity after shooting a 10‐year‐old
while in pursuit of a suspect that had no relationship to the child.
The officer, sheriff’s deputy Matthew Vickers, was aiming at the boy’s
nonthreatening dog. There were also the cops who were granted qualified
immunity after assaulting and arresting a man for standing outside of his own house. And the prison guards who locked a naked inmate in a cell filled with raw sewage and “massive amounts” of human feces. And the cop who, without warning, shot a 15‐year‐old who was on his way to school. And the cops who received qualified immunity after siccing a police dog on a person who’d surrendered. It doesn’t take much thought to conclude that those courses of action were morally bankrupt.
Just so. Okay, back to Carlson’s defense of what‐he‐calls‐qualified‐immunity:
Sometimes the very laws [police officers] enforce are
struck down. That’s not their fault, obviously, but without qualified
immunity, police could be sued for that personally.
Only a tiny fraction of lawsuits against police involve claims that
the laws they’re enforcing are themselves unconstitutional. But Carlson
actually is correct that, without qualified immunity, police officers
could be held liable for enforcing unconstitutional statutes. Indeed,
that sort of application was probably the principal evil that Congress
had in mind when it enacted Section 1983 in 1871, as part of the
Ku Klux Klan Act.
Congress was well aware that southern states would continue passing
laws infringing on the constitutional rights of recently freed slaves,
and they wanted to deter state and local officials from carrying out
such laws. Executive officers—no less than legislators or judges—have an
independent obligation to enforce and respect constitutional
limitations.
Still, one can understand the seeming unfairness in holding
defendants personally liable when the only conduct alleged to be
unlawful was executing a statute they reasonably believed to be valid.
But, for that very reason, this is one of the two explicit safe harbors
included in Braun’s bill!
His proposal specifically states that a defendant will
not
be liable under Section 1983 when “the conduct alleged to be unlawful
was specifically authorized or required by a Federal statute or
regulation, or by a statute passed by the primary legislative body of
the State … in which the conduct was committed.” In other words, Carlson
is either entirely unaware of or willfully concealing the fact that
Braun
agrees with his own argument here, and has already incorporated it into his bill.
[Police officers] could be bankrupted, they could lose
their homes. That’s unfair. It would also end law enforcement. No one
would serve as a police officer.
This is another issue I already addressed in my
“common defenses” post, but I’ll repeat the main points here. First, it’s crucial to understand that even today, police officers are nearly always
indemnified
for any settlements or judgments against them in civil rights claims.
This means that their municipal employers, not the officers themselves,
actually end up paying. Joanna Schwartz, a UCLA law professor and
probably the foremost scholar of qualified immunity, demonstrated in
a 2014 article called
Police Indemnification
that, in her study period, “governments paid approximately 99.98% of
the dollars that plaintiffs recovered in lawsuits alleging civil rights
violations by law enforcement.” In other words, even when plaintiffs
do overcome qualified immunity, the individual police officers rarely pay a dime.
I have
written elsewhere about how this practice of near‐automatic indemnification is itself problematic, because it fails to provide for
individualized accountability for officers who violate people’s rights. A better practice, as my colleague Clark Neily
has also discussed,
would be to take some portion of the money that municipalities already
spend on civil rights judgments, and instead put that toward an
insurance allowance for individual officers. Nevertheless, as things
currently stand, officers are almost never required to pay anything
personally, and that won’t change if we eliminate qualified immunity.
The idea that police would be “bankrupted” or “lose their homes” is
reckless fear‐mongering.
Also, with regard to the idea that eliminating qualified immunity
would “end law enforcement,” I wonder whether Carlson is aware that he’s
made a testable prediction? After all, as I discussed
here,
Colorado recently enacted a civil rights law that effectively removes
the defense of qualified immunity for officers who violate people’s
rights under the state constitution. Will this “end law enforcement” in
Colorado? If Tucker Carlson or anyone who agrees with him would like to
make a bet on this question, I’ll give generous odds.
And that’s why the Supreme Court has upheld the principle
of qualified immunity for decades now, often unanimously, both sides
agreeing.
I will give Carlson this—he is absolutely right that the Supreme
Court has shown remarkable tenacity in sticking to one of the most
embarrassing, egregious mistakes in its history.
Section 1983 clearly says that any state actor who violates someone’s constitutional rights “shall be liable to the party injured,” and the
common‐law history
against which that statute was passed did not include any
across‐the‐board defenses for all public officials. The Supreme
Court’s invention of qualified immunity was a brazen act of judicial
policy‐making that effectively rewrote this statute, and it’s shameful
that the
Justices have repeatedly declined the opportunity to correct this error.
What is surprising, however, is why Tucker Carlson
approves of such blatant judicial activism in this case. After all, Carlson himself
recently bemoaned
how “courts increasingly have come to see themselves not as
interpreters of the law, their constitutional role, but as the country’s
main policy makers.” So, does he want the Supreme Court to faithfully
interpret the text and history of Section 1983, or to continue imposing
their own policy preferences?
But now, in order to placate the rioters, who he believes
have more moral authority than the police, Senator Mike Braun of
Indiana would like to gut qualified immunity, and make it easier for
cops to be sued personally for mistakes.
I already discussed above how Senator Braun’s bill does not wholly
abolish qualified immunity, but rather replaces the “clearly established
law” standard with two limited, principled safe‐harbors. I also
discussed how Section 1983 doesn’t make cops liable for “mistakes,” it
makes them liable for
constitutional violations—and the Fourth
Amendment itself is already incredibly deferential to police
decision‐making. An officer hasn’t violated the Fourth Amendment
because they made the “wrong” call with regard to an arrest or use of
force; they only violate the Fourth Amendment when they act
objectively unreasonable, under the circumstances known to them at the time.
But I do want to address this idea of “moral authority.” Setting
aside the nonsense about “placating rioters,” how does it affect the
moral authority of the law enforcement community when we hold police
officers to a lower standard of liability than any other profession? As
I’ve
discussed previously,
the proponents of qualified immunity are profoundly mistaken if they
think the doctrine is doing the law enforcement community any favors. If
you want to restore the moral authority of the police, you can’t let
police officers escape liability for egregious and immoral misconduct.
If you want people to respect officers as professionals, then the law
has to hold them to professional standards.
Qualified immunity, more than any other single rule or decision, has
eroded
the moral authority of the police, not protected it. And that is
exactly why the more thoughtful members of law enforcement—such as the
Law Enforcement Action Partnership and the
National Organization of Black Law Enforcement Executives—have explicitly called for the elimination of qualified immunity. As Major Neill Franklin (Ret.)
has explained:
“Accountability measures that show an agency is serious about
respecting the rights of all of its residents help the police as much as
they help the communities we serve. There’s no better way to restore
community trust. And we cannot do our jobs without trust.”
* * *
Carlson finishes his segment with a rant about Charles Koch that would make
Nancy MacLean blush, and then asks whether Senator Braun would be willing to defend the
absolute
immunity that members of Congress enjoy. This latter question is
interesting enough on its own, but Carlson obviously just intends it as a
“gotcha,” not as a serious point of discussion.
But the bottom line is that Tucker Carlson has done a profound
disservice to his viewers and to the country by further propagating
blatant misunderstandings of what qualified immunity actually is. It’s
honestly hard to say whether Carlson himself has been duped, or whether
he is willfully joining the disinformation campaign of the
law‐enforcement lobby. But either way, nobody should take what he’s
saying at face value. I remain interested to see whether any
self‐professed advocate of qualified immunity will defend the actual
doctrine."
