[ Police officers’ go-to defense against civil suits allows them
to violate the Constitution with impunity.]
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QUALIFIED IMMUNITY IS BURNING A HOLE IN THE CONSTITUTION  
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Joanna Schwartz
February 19, 2023
Politico
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_ Police officers’ go-to defense against civil suits allows them to
violate the Constitution with impunity. _

Demonstrators March Sunday June, 7, 2020 in the Hollywood area of Los
Angeles, during a protest over the death of George Floyd., AP
Photo/Marcio Jose Sanchez

 

In the late evening of Aug. 23, 2006, Jayzel Mattos asked her
14-year-old daughter, Cheynice, to call the police. As Cheynice told
the officer on the line, Jayzel and her husband, Troy, were arguing
and things were being thrown around. But when four police officers
responded to the home on the island of Maui, they offered little in
the way of help.

Troy and two of the officers began arguing. Jayzel asked the officers
and her husband to calm down so that they would not disturb her
sleeping children. Instead, one of the officers, Ryan Aikala, moved to
grab Troy. Jayzel, standing between Troy and Aikala, raised her hands
to keep the officer from smashing against her breasts. “Are you
touching an officer?” he said, and, without warning, tased Jayzel
in her hand and breast. She fell hard to the floor and lost
consciousness for a moment; when she came to, she saw her
four-year-old son crouched next to her, looking into her eyes.

Jayzel sued Aikala and several other officers for excessive force and
other misconduct, and both a trial court in Hawaii and the 9th Circuit
Court of Appeals concluded that Aikala had violated the Constitution.
The appeals court could not “identify any reasonableness in the
conclusion — whether made in a split-second or after careful
deliberation — that tasing the innocent wife of a large, drunk,
angry man when there is no threat that either spouse has a weapon, is
a prudent way to defuse a potentially, but not yet, dangerous
situation.” This was especially so, they explained, given that
children were present.

But proving that Officer Aikala had violated the Constitution was not
enough — the officer was protected by something called qualified
immunity, a legal defense officers use to block suits alleging all
manner of misconduct, so long as they have not violated “clearly
established law.” To overcome Aikala’s qualified immunity defense,
Mattos’ lawyer would have to find a Supreme Court opinion, or an
opinion from this same court of appeals, holding that tasing an
innocent person under highly similar circumstances was
unconstitutional. No prior decision from that court of appeals or the
Supreme Court had ever addressed the use of a taser in “dart mode”
— where the Taser shoots out darts with electrical currents that
attach to a person — the setting Aikala had used against Jayzel.
And, at the time, that court of appeals had never issued an opinion
finding that an officer’s decision to use a taser violated the
Fourth Amendment.

Because no prior court opinion had similar facts, the appeals court
judges dismissed Jayzel’s excessive-force claim, even though they
believed Aikala’s decision to tase a potential domestic violence
victim went “far beyond the pale” and violated the Fourth
Amendment.

Welcome to the upside-down world of qualified immunity.

LAST MONTH, OUR SCREENS were filled with videos of Tyre Nichols being
beaten to death on a Memphis street — and of the officers who killed
him laughing and joking afterward, with no apparent concern that their
body cameras recorded the attack and no urgency about getting Nichols
medical care. Once again, horrifying images of a Black man killed by
police are prompting impassioned pleas for more accountability and
justice when officers violate the law. Qualified immunity is squarely
in the sights of many legislators and advocates.

[The cover of the book "Shielded: How the Police Became
Untouchable," by Joanna Schwartz, features a black-and-white
photo of police officers holding riot shields.]

In this excerpt adapted from her book, "Shielded: How the Police
Became Untouchable," UCLA law professor Joanna Schwartz examines the
"upside-down world" of qualified immunity, a legal defense against
civil suits for police officers and other government officials. |
Viking

The concept entered public consciousness almost three years ago,
following the murder of George Floyd. In the summer of 2020, the House
passed the George Floyd Justice in Policing Act, which would have
abolished qualified immunity, among other important reforms. But
Republican Sen. Tim Scott called ending qualified immunity a “poison
pill” in negotiations, and calls to end qualified immunity were
matched in intensity by those who opposed such reforms. In August
2020, Indiana congressman Jim Banks introduced a bill to preserve
qualified immunity, threatening that eliminating the defense was
simply “another way of saying abolish the police” because, without
qualified immunity, “criminals would … open endless frivolous
lawsuits against the officers who put them behind bars” and officers
would be “forced to quit, because they couldn’t afford to serve
any longer.”

Efforts to pass the George Floyd Justice in Policing Act failed after
more than a year; qualified immunity was, apparently, a key sticking
point. During that same period of time, more than half the states
introduced laws that would effectively end qualified immunity, but
most met the same fate after union leaders and government officials
raised similar concerns in opposition to the legislation.

Jim Banks’ predictions about the horrors that would occur if we did
away with qualified immunity are nothing new. For decades, defenders
of qualified immunity have claimed that the defense is necessary to
prevent courthouses from filling with frivolous lawsuits that would
bankrupt well-meaning police officers for split-second mistakes,
discourage people ever from agreeing to become police officers and
push society into a lawless chaos.

I have spent much of my academic career empirically examining these
and other justifications for qualified immunity doctrine and have
found each to be overblown and, sometimes, just plain false. It’s
past time to get the facts straight about what qualified immunity is,
what it does and what would happen if it were eliminated.

THE SUPREME COURT CREATED qualified immunity out of thin air in 1967,
just six years after the Court first recognized that people could sue
police officers and other government officials for violating their
constitutional rights. In that first qualified immunity
case, _Pierson v. Ray_, the Court held that the officers were
entitled to a “good faith” immunity in civil rights cases. Chief
Justice Earl Warren, writing for the majority, explained that this
immunity from suit was necessary because, otherwise, officers could be
held liable when they mistakenly believed the law authorized an
arrest. As Chief Justice Warren explained, “A policeman’s lot is
not so unhappy that he must choose between being charged with
dereliction of duty if he does not arrest when he has probable cause
and being mulcted in damages if he does.”

Although a “good faith” defense was the impetus for qualified
immunity, today, officers are entitled to qualified immunity even if
they act in _bad faith_, so long as there is no prior court decision
with nearly identical facts. For more than five decades, the Supreme
Court has repeatedly strengthened qualified immunity’s protections,
describing each additional layer of defense in increasingly terrified
tones as necessary to protect officers from the unyielding power of
civil rights lawsuits.

The first — and arguably most seismic — shift to qualified
immunity came in 1982 in a case called _Harlow v. Fitzgerald_.
In _Harlow_, the Court concluded that officers’ entitlement to
qualified immunity should not depend on whether they acted in good
faith. In order to prove good faith, officers would have to be deposed
— questioned under oath — about their state of mind at the time
they violated the Constitution, and a case would go to a jury if an
officer’s good faith was in dispute. Justice Powell, who wrote the
majority opinion in _Harlow_, reasoned that requiring officers to
participate in discovery and trial in an “insubstantial case” was
a burden to the officer, who would need to spend time defending
himself instead of doing his job. And the Court feared that this type
of distraction would harm not only the officer but also “society as
a whole” by discouraging “able citizens from acceptance of public
office” and “dampen[ing] the ardor of all but the most resolute,
or the most irresponsible [public officials], in the unflinching
discharge of their duties.” So, to protect officers from having to
participate in discovery and trial in “insubstantial cases,” the
Court held in _Harlow _that an officer’s intentions do not matter
to the qualified immunity analysis. Instead, officers are entitled to
qualified immunity so long as they do not violate what the Court
called “clearly established law.”

The Supreme Court’s decision in _Harlow _did not explain what it
meant by “clearly established law.” But the Court’s decisions
over the next 40 years have created a standard that seems virtually
impossible to meet. The Court has repeatedly instructed that except in
extraordinary circumstances the law can only be “clearly
established” by a prior court decision. And the Court has emphasized
that the prior court decision cannot simply set out a constitutional
principle in general terms. It is not enough, for example, to find a
case that says it is unconstitutional to use force against a person
who is not resisting arrest. Instead, the prior court decision must
include facts that are so similar to the facts in the present case
that _every _reasonable officer would know that what he was doing
was wrong. In recent years, the Supreme Court has repeatedly reversed
lower courts that have denied officers qualified immunity, chastising
those courts for not appreciating the importance of qualified
immunity to “society as a whole” and arguing that they
“misunderstood the ‘clearly established’ analysis” because
they “failed to identify a case where an officer acting under
similar circumstances as [the defendant] was held to have violated the
Fourth Amendment.”

Lower courts appear to have since gotten the message, repeatedly
citing the Supreme Court’s instruction that clearly established law
should not be defined “at a high level of generality” when
assessing whether officers are entitled to qualified immunity.
Courts have granted officers qualified immunity even when they have
engaged in egregious behavior — not because what the officers did
was acceptable, but because there wasn’t a prior case in which that
precise conduct had been held unconstitutional. The hairsplitting can
be extreme. In _Baxter v. Bracey_, an appeals court granted
qualified immunity to officers who released their police dog on a
burglary suspect who was sitting down with his hands up. Although a
prior court decision had held that it was unconstitutional to release
a police dog on a suspect who was _lying down_, the court in
Alexander Baxter’s case granted qualified immunity to the officers
because, it held, the prior decision did not clearly establish the
unconstitutionality of the officers’ decision to release a police
dog on a person who was _seated_ with his hands in the air.

In _Kelsay v. Ernst_, an appeals court held that an officer who
slammed a nonviolent, nonthreatening woman to the ground — breaking
her collarbone and knocking her unconscious — was entitled to
qualified immunity. Prior cases had held that “where a nonviolent
misdemeanant poses no threat to officers and is not actively resisting
arrest or attempting to flee, an officer may not employ force just
because the suspect is interfering with police or behaving
disrespectfully.” But, the court held, the officer was entitled to
qualified immunity because this precedent did not clearly establish
that “a deputy was forbidden to 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.”

In _Jessop v. City of Fresno_, police officers stole $225,000 in cash
and rare coins when executing a warrant. Prior cases had held that it
was unconstitutional for officers to steal, but those cases were
factually distinct — involving the theft of different types of
property under different circumstances. According to the appeals
court, the officers “ought to have recognized” that it was wrong
to steal the coins and cash, but “they did not have clear notice
that it violated the Fourth Amendment” because prior court decisions
“did not put the constitutional question beyond debate.”

This could also have been the fate of a lawsuit brought on behalf of
George Floyd’s family. Qualified immunity never threatened
Floyd’s family’s ability to recover money for his murder at the
hands of Minneapolis police in May 2020. They settled their case with
the City of Minneapolis for $27 million before qualified immunity
ever could be raised. This is likely because the city anticipated the
blowback that would come from arguing that the case against Derek
Chauvin should be dismissed because Floyd’s family could not point
to a prior case with nearly identical facts. But if George Floyd’s
case had not received the press scrutiny it did and had not inspired
the same degree of public attention and rage, a lawyer for the city of
Minneapolis could well have argued that qualified immunity shielded
Chauvin from liability. Officers have killed people in Alabama,
Florida, Georgia, Illinois, Missouri, New Hampshire, Oklahoma and
Texas in just the way Chauvin killed Floyd — with a knee on their
back or neck — but have had their civil rights lawsuits dismissed on
qualified immunity grounds.

In a 2009 decision, the Supreme Court made it even more difficult for
plaintiffs to find “clearly established law” by holding that
lower courts could grant qualified immunity without first ruling on
the constitutionality of a defendant’s behavior. So, the Supreme
Court has instructed lower courts to grant defendants qualified
immunity unless the plaintiff can find a prior case in which an
officer violated the Constitution under nearly identical
circumstances, and has also instructed lower courts that they do not
need to issue these types of constitutional rulings.

For a plaintiff’s civil rights attorney trying to defeat a
qualified immunity motion, the challenges of finding “clearly
established law” are almost too many to count. Think about all the
stars that would have had to align for Jayzel Mattos to be able to
defeat Officer Aikala’s qualified immunity motion.

First, another officer would previously have had to tase someone in
“dart mode” under circumstances similar to Mattos’s case. Then
the person who was tased would have had to file a lawsuit — which
is hardly certain. Next, that prior lawsuit would have had to result
in a court opinion explaining that the officer’s use of the Taser in
dart mode was unconstitutional. Importantly, it would not be enough if
the plaintiff in the prior case won some money in a settlement; if the
case was settled before the judge issued an opinion ruling that the
officer’s use of the Taser in dart mode was unconstitutional, then
that case could not clearly establish the law for Mattos’s case.

Even if there was a prior court opinion finding that the use of a
Taser in dart mode under similar circumstances was unconstitutional,
then Mattos’s lawyer would have had to find it. Scott Michelman —
the legal director of the Washington, D.C., branch of the ACLU and a
lecturer at Harvard Law School, who has argued before the Supreme
Court and seven courts of appeals and has authored a legal casebook
dedicated to civil rights litigation — has spent upwards of a week
researching court decisions in order to find “clearly established
law” to defeat a single qualified immunity motion.

To make matters worse, the Supreme Court allows defendants to
immediately appeal any qualified immunity denial. Federal courts
usually operate under what is called a final judgment rule —
meaning that a decision by a trial court cannot be appealed until the
case is over. So, if one side gets a ruling it does not like —
requiring discovery of information they would prefer to keep secret,
or denying a motion to dismiss — the parties usually have to wait to
appeal that decision until one side or the other wins.

But qualified immunity is different. Because, as the Supreme Court
has said, qualified immunity is meant to protect officers from the
burdens of discovery and trial, an officer who is denied qualified
immunity can immediately appeal that decision. What this means in
practice is that officers can call time-out in the middle of a case,
adding months or years to the case.

DEFENDERS OF QUALIFIED IMMUNITY have not been able to summon a reason
why officers who violate the Constitution should be protected from
liability simply because a court has not previously ruled nearly
identical conduct to be unconstitutional. Instead, the strongest
defenses of qualified immunity have been predictions that the world
would be worse off without it. But claims about the need for
qualified immunity are unsupported by the facts on the ground.

Although the Supreme Court and defenders of qualified immunity are
quick to say that the doctrine protects officers from bankruptcy,
settlements and judgments against officers are almost always paid by
their employers or by insurers. I studied police misconduct
settlements and judgments in 81 jurisdictions across the country, over
a six-year period, and found that officers paid just 0.02 percent of
the more than $735 million that plaintiffs received. Officers in only
two of the jurisdictions were required to contribute anything to
settlements and judgments entered against them; their average payment
was $4,194, their median payment was $2,250 and no officer paid more
than $25,000. Officers do not need qualified immunity to protect them
from bankruptcy when they are sued; local governments almost always
pick up the tab.

The Supreme Court has said that qualified immunity “gives
government officials breathing room to make reasonable but mistaken
judgments about open legal questions.” The International Association
of Chiefs of Police has argued that qualified immunity “allows
police officers to respond to incidents without pause” and “make
split-second decisions” and that, without qualified immunity,
officers would not be shielded from liability when taking “good
faith actions.” But qualified immunity is not necessary to shield
officers from liability when they make reasonable mistakes; the Fourth
Amendment, as interpreted by the Supreme Court, already shields
officers from responsibility in these types of cases. Courts have held
that officers can mistakenly search or arrest someone without adequate
cause, or use force against someone who was not posing a threat; so
long as their mistakes were reasonable, they have not violated the
Constitution.

The Supreme Court has also repeatedly described qualified immunity as
necessary to protect officers from the burdens and distractions of
defending themselves in “insubstantial” cases. But there are
plenty of other ways that weak cases are weeded out of court. People
without strong evidence to support their claims will have a harder
time finding a lawyer to represent them, a harder time filing a
lawsuit with facts that set out a plausible claim and a harder time
proving a constitutional violation. When the Supreme Court
passionately describes the importance of qualified immunity doctrine
to officers and “society as a whole,” it ignores all of the other
protections already in place to shield officers from
“insubstantial” cases.

The Supreme Court has asserted that “the driving force” behind
qualified immunity is to spare government officials the burdens of
participating in litigation. But qualified immunity may actually
increase litigation costs and delays. Defendants raised qualified
immunity in more than 37 percent of the almost 1,200 cases I studied
— sometimes multiple times during the case and on appeal. Each time
qualified immunity is raised, it must be researched, briefed and
argued by the parties and decided by the judge. And deciding whether
officers are entitled to qualified immunity is no small feat. One
court of appeals judge remarked that “wading through the doctrine of
qualified immunity is one of the most morally and conceptually
challenging tasks federal appellate court judges routinely face.”

The time and effort necessary to resolve qualified immunity motions
could still advance the goals of the doctrine if it effectively
protected officers from discovery and trial. But in my study, just
8.6 percent of defendants’ qualified immunity motions led to the
dismissal of the plaintiffs’ cases. In the remaining 91.4 percent of
motions, parties and courts dedicated time and money to research,
brief, argue and decide defendants’ entitlement to qualified
immunity without avoiding the costs of discovery and trial.

The Supreme Court has also explained that the protections of
qualified immunity are necessary so that officers are not held liable
unless they have notice of the unconstitutionality of their conduct.
The Court has written that factually similar cases are necessary to
“clearly establish” the law because “it is sometimes difficult
for an officer to determine how the relevant legal doctrine … will
apply to the factual situation the officer confronts,” and that
“precedent involving similar facts can … provide an officer notice
that a specific use of force is unlawful.” But upon studying
hundreds of policies, trainings and other materials used by California
law enforcement officers, I found that they are not actually being
educated about the facts and holdings of the court decisions that
could clearly establish the law for qualified immunity purposes.
Instead, officers are taught general legal principles — for example,
the Supreme Court’s instruction in a case called _Graham v.
Connor _that officers can use force if it is “objectively
reasonable under the circumstances.” Then officers are trained to
apply that general standard in the innumerable situations that might
come their way.

Even if officers learned about the cases that clearly establish the
law for qualified immunity purposes, there is no reason to believe
that they could remember the facts and holdings of those cases and
then recall those facts and holdings during high-speed, high-stress
interactions. As one federal judge wrote, “It strains credulity to
believe that a reasonable officer, as he is approaching a suspect to
arrest, is thinking to himself: ‘Are the facts here anything like
the facts in _York v. City of Las Cruces_?’”

Less than 4 percent of the almost 1,200 police misconduct cases I
examined were dismissed because of qualified immunity. This finding
makes it seem as if qualified immunity is not so bad after all. But
because there are so many other ways for weaker cases to get
dismissed, qualified immunity ends up leading to the dismissal of
cases with compelling claims of unconstitutional policing that have
managed to overcome all these other barriers. Although the Supreme
Court has described qualified immunity as a tool to weed out
“insubstantial” cases, it actually does its work on the most
substantial cases that cannot be kicked out of court any other way.

And even when a case is not dismissed on qualified immunity grounds,
the doctrine can make winning harder. Although the officers who tased
Mattos were granted qualified immunity, this did not actually end
Mattos’ case. Her attorney, Eric Seitz, had included state law
claims for battery and assault against Officer Aikala in Mattos’
complaint, for which qualified immunity did not apply.

Five and a half years after Mattos filed her case, her state law
claims settled for $40,000. Seitz split the award with Mattos. He
estimated that he spent at least $40,000 out of his own pocket,
including trips from Hawaii to the mainland for the court of appeals
arguments, and about $200,000 worth of his time. Seitz told the_ Maui
News _that the case had been worth bringing, even though it resulted
in a significant financial loss to him, because the court of appeals
issued a ruling that the officer’s Taser use was unconstitutional
— a ruling that has been used in later cases to defeat qualified
immunity. “We do [these cases] because they’re important to do,”
he said. But our system cannot be working correctly if plaintiffs’
attorneys must bankroll years-long efforts just to clarify the scope
of constitutional rights.

AT HIS STATE OF THE UNION, President Joe Biden called on Congress to
pass comprehensive police reform. “When police officers or
departments violate the public trust they must be held accountable,”
Biden said, and received a standing ovation from both sides of the
aisle. President Biden received another standing ovation when he said,
“Let’s commit ourselves to make the words of Tyre’s mother come
true: ‘Something good must come from this.’” Yet Indiana
congressman Jim Banks reintroduced his bill to preserve qualified
immunity on January 10, the day Tyre Nichols died, and Republican Sen.
Tim Scott has called resurrecting the George Floyd Justice in Policing
Act “a nonstarter.” Instead of qualified immunity reform, Sen.
Scott has said that he is focusing on increasing police funding and
training. On Twitter, Scott wrote: “The question we have to ask
ourselves is, do we care more about tribalism, posturing, and
preserving the status quo? Or do we care about actually doing our jobs
and restoring faith in our nation? Put me down for the latter.”

You can put me down for the latter, too. But it is those opposed to
qualified immunity reform who are succumbing to tribalism, posturing,
and preserving the status quo. To be clear, ending qualified immunity
would not usher in a golden age of police accountability; there are
many other shields that protect officers and local governments from
being held responsible when they violate the Constitution. Yet it is
an important start. If something good is to come from this latest
tragedy, we cannot be distracted by overblown and false claims by
qualified immunity’s defenders. If our lawmakers are going to
“rise to this moment,” as President Biden has asked them to, a key
first step is to focus on facts, not fearmongering.

_From __SHIELDED, by Joanna Schwartz_
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published by Viking, an imprint of Penguin Publishing Group, a
division of Penguin Random House, LLC. Copyright © 2023 by Joanna
Schwartz._

_Joanna Schwartz is a professor of law at UCLA, where she teaches
civil procedure and courses on police accountability and public
interest lawyering._

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