Appeals Court Judge: Supreme Court Needs To Unfuck The Public By Rolling Back The Qualified Immunity Doctrine

from the louder-for-the-cops-in-back dept

It’s not often you see a sitting judge condemn years of case law, especially when some of it is case law he likely helped convert into circuit precedent. But with everyone’s eyes currently on brutal cops and the system that has encouraged lawless behavior by law enforcement, very few people are sitting on the sidelines of the ongoing discussion. The killing of George Floyd by a police officer has resulted in demonstrations around the country, giving very few politicians, judges, and police representatives an opportunity to remain silent.

Perhaps the spiciest current take on qualified immunity — the Supreme Court-created legal doctrine that allows lots of cops to escape civil rights litigation — belongs to Judge Don Willett, who dissented from Fifth Circuit Appeals Court opinion with this devastating indictment of this extra right.

To some observers, qualified immunity smacks of unqualified impunity, letting public officials duck consequences for bad behavior—no matter how palpably unreasonable—as long as they were the first to behave badly.


Section 1983 meets Catch-22. Plaintiffs must produce precedent even as fewer courts are producing precedent. Important constitutional questions go unanswered precisely because those questions are yet unanswered. Courts then rely on that judicial silence to conclude there’s no equivalent case on the books. No precedent = no clearly established law = no liability. An Escherian Stairwell. Heads defendants win, tails plaintiffs lose.

This take, published by the Washington Post, features Fourth Circuit Appeals Court judge James A. Wynn Jr. calling out the system he helped perpetrate. Starting with George Floyd’s death, Wynn calls qualified immunity a “subversion” of the Civil Rights Act of 1871, which Congress erected to provide plaintiffs with an avenue to seek justice for rights violations committed by state officers. (h/t

Qualified immunity has made seeking justice nearly impossible. That’s just the opening of his op-ed. From there, Wynn goes after the Supreme Court for continuously raising the bar plaintiffs must meet to establish a rights violation. (And even if they do establish one, it only helps plaintiffs who follow in their exact footsteps. It does nothing for them since it was not “clearly established” before this ruling.)

When the Supreme Court decided lower courts only needed to look at whether something was “clearly established,” it eliminated any examination of the Constitutionality of the act itself, allowing officers to walk away from rights violations because no other officer prior to them had violated rights in this exact way. Dismissals proceed determinations, eliminating the determinations needed to hold more cops accountable.

In effect, those who allege that police officers have used excessive force are trapped in a never-ending self-fulfilling prophecy: They cannot sue officers who harm them because the harmful conduct has never been “clearly established” as a constitutional violation in a factually similar case. But because so many cases are dismissed without addressing whether the challenged conduct was in fact a constitutional violation, it is rarely “clearly established” that there was a violation.

The Civil Rights Act was supposed to be a deterrent. And perhaps it was for a while. But the Supreme Court’s decision to conjure up a new legal protection for police officers neutered established law, turning courts into enablers of police misconduct. But SCOTUS makes the rules and the lower courts are obliged to follow them, even if the new rules invert Congressional intent.

Wynn doesn’t like it, but he’s in no position to do much about it, unfortunately. But he can point out that the Supreme Court’s qualified immunity construct screws the public the courts are supposed to protect from abuse perpetrated by other branches of the government. With QI, the courts are failing the public.

In my work as a judge, I follow the decisions of the Supreme Court because judges apply the law as it is, not as they believe it should be. The Framers embodied that concept by carefully and thoughtfully drafting each of the Constitution’s 7,600 words with the intention and expectation that the judiciary — the branch constitutionally entrusted and obligated to interpret the Constitution — would give effect to each and every one. We, as judges, must uphold that obligation. When we fail to do so, our communities bear the consequences.

Public statements like these may eventually move the Supreme Court to examine its qualified immunity case law and the decisions that have led to streamlined rejections of civil rights complaints. But for now, the nation’s top court still seems uninterested in reexamining its legal theory, much less the dozens of cases appealing immunity rulings piling up at its doorstep. At some point, it will be too much to ignore. But for now, it’s business as usual for the court that gave cops implicit permission to violate rights as long as they come up with creative ways to abuse the people they’re supposed to be serving.

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Comments on “Appeals Court Judge: Supreme Court Needs To Unfuck The Public By Rolling Back The Qualified Immunity Doctrine”

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Anonymous Coward says:

As officers of the court, attorneys are also "state actors" if they violate the rights of individuals, and if they do it by running afoul of the Bar Association’s rules, they are considered to be acting beyond the scope of their legal practice, and can be sued under 42 USC 1983.

Like let’s say a lawyer with a large internet following repeatedly sticks his or her nose into cases that are not really his or her business, for the purpose of chilling someone’s litigation rights, they could be sued, and if they say hired a hacker to defame the opposing party, could be sued for that as well.

It seems some lawyers think libel is the only tort one can commit online. That mistake can prove financially fatal.

This comment has been deemed insightful by the community.
Anonymous Coward says:

I think too many judges, this one included missed the fact it was only ever expected to apply to reasonable behavior and while that term is loose, it clearly should have negated many of the defenses police have used over the years.

Is it reasonable for an unarmed man to be beaten? Is it reasonable to shoot a chained up dog? Is it reasonable that a mans items should be stolen while he is booked? The answer is no, and QI should never have applied to circumstances such as these. Judges repeatedly let police officers get away with it and this created a culture of police activity that we see today.

Anonymous Coward says:

Re: Re:

Is it reasonable for (insert headline of the day)?

Was thinking about this the other day – they knew who Rayshard Brooks was and they had his vehicle. Not like he could go out and drunk drive, he would have to steal a vehicle. Anyway, why not just wait for him at his house. He will show up sooner or later.
It’s the fact that he did not obey? Contempt of cop is a death sentence if you are non white I guess.

All the rationalizations, hand waving and pleas … do not address the fact that they did not have to kill him. Seems to be their only response – shoot first ask for immunity later.

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That One Guy (profile) says:

Re: Re:

A very good point. The Supreme Court may have pulled qualified immunity as a concept from their collective asses but it is and continues to be the judges in lower courts that have turned it from a problematic idea into a straight up disastrous one by acting as though police are comprised of nothing but the dumbest people in the US and therefore can’t be expected to understand even basic concepts unless it’s been spelled out in exacting detail. Then add in a refusal to provide those ‘instructions’ for future police and an already bad idea goes from worse to terrible.

The Supreme Court may have started the fire but it’s been the judges below them that have been constantly adding more fuel to it and ensuring that it grows ever larger and more destructive.

Koby (profile) says:


Ordinarily, I’m tempted to say that the legislative branch should get to decide, but not this time. The Supreme Court created this problem without the legislative branch; it ought to undo it without the legislative branch as well. If the legislature does move to eliminate Qualified Immunity, then who can say that the supreme court won’t invent some other new obstacle for those who seek redress in court?

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Bruce C. says:

Established law...

I think one possible way out of this for SCOTUS is that the Bill of Rights and constitution are clearly established law that can and should be understood by all police officers and police departments. And departments are the ones responsible for training officers with concrete examples. If the training is inadequate, the department is liable for a rights violation. If an officer violates training, they are liable for such a violation.

There will still be some borderline cases where there could be a credible "good faith" argument to be made that a violation didn’t occur, or that the violation wasn’t well understood, but that should be limited to trial phase rather than summary judgment or motions to dismiss.

Coyne Tibbets (profile) says:

Mandatory award sharing

It is going to take an act of Congress — SCOTUS is not going to overrule this on its own.

The problem is, one award for a true accident, and a cop is financially ruined. I don’t care about bad apples being ruined — they asked for it — but it seems a shame to crush a good apple to applesauce because of something non culpable.

The revision I suggest is mandatory award sharing. Officers should have to pay somewhere beteen 1% and 5% of any award. For a $1 million award, that amounts to $10,000 to $50,000 (no insurance/union contribution allowed). I.e., hurts like hell, but doesn’t ruin.

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Rekrul says:

Re: Mandatory award sharing

Well, maybe the "good apples" should stop turning a blind eye to the bad apples.

Cops that cover for the bad apples or who refuse to turn in bad apples are not good apples.

The problem is that the culture of the police prioritizes loyalty to other cops over anything else. Snitching on a bad cop is worse in their eyes than shooting a five year old because he peed on you.

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That One Guy (profile) says:

Re: Can't drive without insurance, or be a cop without it either

One other possible fix I’ve seen brought up is insurance, where a cop is required to have, and pays for, insurance that will cover most of the penalties, but much like other forms of insurance if you keep using it the cost keeps going up, until eventually it either becomes too high to afford or the insurance company pulls it entirely, at which point they lose the job.

Other ideas I’ve seen tossed around is to take the money from the pension of the guilty cop, and/or reduce the penalty but make it personal so that it actually hits the guilty party and therefore provides some real incentive not to engage in similar behavior.

Rekrul says:

I think qualified immunity should be applied equally to average citizens. "Well, yes my client did end the life of that man, but he did it by forcing a cattle prod down his throat and there’s no precedent that shoving a cattle prod down someone’s throat until they die is a crime. Therefore no crime has been committed."

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That One Guy (profile) says:

Re: 'No one ever robbed a bank while wearing a GREEN clown mask'

Agreed, it either should be applied equally or not at all, either the public gets to enjoy the protection of QI, which would very quickly show everyone just what a horrible and absurd idea it is, or no-one, including the cops, should get it.

This comment has been deemed insightful by the community.
Anonymous Coward says:

Why not QU fir all?

"Yes your honor, my client slaughtered 5 people, but he did it with a Katana, while dancing a Jig, and singing oldtime show tunes, wearing a furry bear suit, with a Donald Trump mask"

"Your honor, I’m sure there is no case that matches the unique nature of this incident, so my client had no idea that this would not be legal"

"Your Honor, If the Jig don’ t fit, you must acquit…"

That One Guy (profile) says:

Re: Why not QU fir all?

"Yes your honor, there was in fact a similar killing spree before, but as noted in our defense the previous case involved a longsword rather than a katana, and as has been made clear in previous cases involving QI and the police otherwise small details like that are vital, as without a previous ruling how was my client to know that what they did was wrong?"

bobob says:

The judges do have some discretion if they decide they want to make use of it. The meaning of "clearly established" leaves room for some discretion since the opinion of how similar one thing is to another is going to differ from person to person. It also depends on whether you are looking for similarities or differences. If you look for similarities, then you would more likely to find a case which you could say is an example that clearly establishes the violation, than if you’re looking for differences to ensure someone receives the benefit of qualified immunity.

If judges decided there were examples which were "close enough" to the case at hand (which is up to the judge to determine), more cases would end up back at the supreme court. If the supreme court decided to do the same as they have done, those denials would stand. Their alternative would be to overturn the decision or to actually re-examine the qualified immunity doctrine.

I’m not a lawyer, but I’ve read enough supreme court opinions to know that both the majority and dissenting opinions can be well argued by bending the language to fit the opinion. That’s what lawyers are paid to do and practically all judges are lawyers. "clealy established" in this case means how clear it was to the judge.

Ashigaru Spearman (profile) says:

Judges should refuse to participate

"because judges apply the law as it is, not as they believe it should be"

Judges should refuse to participate in the Supreme Court’s shoddy legislation from the bench. If the Supreme Court wants to implement Qualified Immunity, then let THEM do it. There is absolutely no consequence for lower court judges and justices to refuse to recognize QA. Yes, the cops can appeal to the SC and get the case to go in their favor, but again, let them implement the bad law they want.

T’were I a judge, I would simply ignore QI as a matter of law and let the cops go to all the effort to appeal. If enough of the legal profession did that, perhaps it would force the SC to deal with it.

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