A Step Toward Accountability in Policing

Reformers are taking aim at the doctrine of ‘qualified immunity,’ which protects government officials from liability for violating the rights of citizens

By Scott Michelman and David Cole. Mr. Michelman is the legal director of ACLU of the District of Columbia, and Mr. Cole is the national legal director of the ACLU. Excerpts:

"Supreme Court Justices Clarence Thomas and Sonia Sotomayor don’t agree about much, but they have both questioned qualified immunity. The ACLU (where we work), the NAACP Legal Defense Fund and the libertarian Cato Institute and Institute for Justice are all working together to reform it."

"As an example of how strictly the doctrine of qualified immunity has been applied, consider the case of Alexander Baxter . . . in early 2014, Mr. Baxter was bitten by a police dog that was unleashed on him while he was sitting with his hands in the air, having surrendered to Nashville, Tenn., police. The bite was deep enough that he required emergency medical treatment. 

Claiming that he was the victim of excessive force, Mr. Baxter sought compensation in a suit against the two officers responsible for the attack. But a federal court of appeals ruled that even if the use of force was unconstitutional, the officers were immune, because in that court’s most similar legal precedent, police attacked a man who surrendered by lying down, not by sitting down with his hands up."

"qualified immunity makes unaccountability the norm and accountability the hard-won exception. Injunctions prohibiting future violations are unavailable, the Supreme Court has ruled, unless you can show that a particular violation is likely to happen to you personally in the future. And criminal prosecutions of police officers or any other government officials for constitutional violations are exceedingly rare. Few constitutional violations are crimes, and even for actions like police shootings that might violate both the Constitution and criminal laws, the standard for proving a crime is much more demanding than for civil liability. Many prosecutors are reluctant to press charges, in part because they regularly rely on police officers’ testimony to support their cases."

Our legal system holds criminal defendants, usually people untrained in the law, to the maxim that “ignorance of the law is no excuse.” Why do we tolerate a lower standard for government officials like police officers, who ostensibly receive training in the law and take an oath to uphold the Constitution?

The history of qualified immunity offers no principled answer. The Supreme Court created the doctrine in the 1967 case Pierson v. Ray, in which a group of clergymen were arrested for attempting to integrate a segregated coffee shop at a Mississippi bus terminal. They sued the arresting officers under a provision of the 1871 Ku Klux Klan Act that authorized lawsuits seeking compensation for constitutional violations. The Court held that the officers who arrested the clergymen should escape liability if they acted in good faith, thus introducing the rule that would become known as qualified immunity."

"in Pierson the Court reasoned that the law was enacted against a historical “background” protecting officials from claims for damages if they acted in good faith, and thus Congress must have meant to incorporate that defense without saying so."

"William Baude, a University of Chicago law professor and Federalist Society awardee, has shown, the historical common law recognized no such immunity. On the contrary, the “strict rule of personal official liability…was a fixture of the founding era.” Some of the nation’s most influential jurists, including Chief Justice John Marshall and Justice Oliver Wendell Holmes, Jr., rejected similar immunity rules. As Justice Thomas recently opined, “there likely is no basis” in historical practice for the rule. The Court just made it up."

"Police unions warn, and the Court itself has speculated, that if officers faced large judgments when they violate rights, few people would join police departments, and those that do would be overly deterred from exercising their authority. If police officers risk losing their homes if they search someone illegally, they might decide it’s better not to search at all.

But in fact, officers don’t pay such judgments personally. A comprehensive 2014 study by Joanna Schwartz of UCLA Law School showed that in more than 99% of cases, the government “indemnifies” the officer—that is, it pays the judgment itself, often through insurance policies. So immunity effectively allows governments, not individual officers, to escape liability for constitutional violations; and that in turn reduces their incentive to ensure respect for constitutional rights."

"nearly all the work in these cases is done by government lawyers, not the officers themselves. In any event, having to answer for constitutional violations isn’t a “distraction” but a fundamental feature of the rule of law."

"rather than ruling on a constitutional claim, the courts can simply conclude that the constitutional right in question wasn’t “clearly established” with enough specificity at the time of the violation and dismiss the claim. This leaves unclear what the Constitution demands for future cases and sets the stage for yet more grants of immunity in similar situations."