Reuters Report Shows How The Supreme Court Has Turned Qualified Immunity Lawsuits Into A Rigged Game

from the making-a-malfunctioning-system-even-worse dept

Reuters has published an in-depth report on qualified immunity, the Supreme Court-created legal doctrine that allows law enforcement officers to avoid being held responsible for rights violations, so long as they've taken care to violate rights in a way courts haven't previously directly addressed.

The problem originates with the Supreme Court, which established this new quasi-right in a 1967 decision stating that police officers could be granted immunity for rights violations if they acted in "good faith." But it really didn't start going off the rails until 15 years later. In 1982, the Supreme Court expanded this protection, adding the "clearly established law" prong that has derailed countless civil rights lawsuits in the following forty years.

It's this prong that makes it incredibly difficult for plaintiffs to prevail. Without a case exactly on point, the rights violations are overlooked as not being "clearly established." And since courts are under no longer under any obligation to reach that far in their rulings, very few rights violations become "clearly established," allowing cops to violate rights with near impunity and force citizens to fund their defense in the resulting lawsuits.

It's this Supreme Court-encouraged stasis that Fifth Circuit Appeals Court judge Don Williett called out in a stinging dissent.

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.

What was already problematic was made even worse by the Supreme Court a little over a decade ago. Its ruling narrowed qualified immunity discussions to this single point, allowing court after court to avoid making any findings about the underlying rights violations.

The Supreme Court in 2009 raised the bar even higher for plaintiffs to overcome qualified immunity. In Pearson v. Callahan, it gave judges the option to simply ignore the question of whether a cop used excessive force and instead focus solely on whether the conduct was clearly established as unlawful.

In the decade since then, the Reuters analysis found, appeals courts have increasingly ignored the question of excessive force. In such cases, when the court declines to establish whether police used excessive force in violation of the Fourth Amendment, it avoids setting a clearly established precedent for future cases, even for the most egregious acts of police violence. In effect, the same conduct can repeatedly go unpunished.

That's the Catch-22 Judge Willett described. Since the discussion of the rights violation is limited to whether or not a court has declared that particular rights violation unlawful, courts look only for precedent on point, rather than establish any new precedent of their own. If courts do decide to establish precedent, or determine a previous case not exactly on point addresses the violations in the case in front of them, they're likely to see their decisions overturned by the Supreme Court.

Qualified immunity is the Supreme Court's baby. Understandably, it's done all it can to protect it. It has admonished courts for interpreting precedent too broadly. And it has shown a clear preference for giving officers stripped of immunity a chance to win it back.

Over the past 15 years, the high court took up 12 appeals of qualified immunity decisions from police, but only three from plaintiffs, even though plaintiffs asked the court to review nearly as many cases as police did. The court’s acceptance rate for police appeals seeking immunity was three times its average acceptance rate for all appeals. For plaintiffs’ appeals, the acceptance rate was slightly below the court’s average.

Nearly every decision has favored law enforcement officers. Given the way the system is set up, this outcome is unsurprising.

The high court has also put its thumb on the scale by repeatedly tweaking the process. It has allowed police to request immunity before all evidence has been presented. And if police are denied immunity, they can appeal immediately – an option unavailable to most other litigants, who typically must wait until after a final judgment to appeal.

This has resulted in appeals courts finding in favor of officers 57% over the last two years. This contrasts with cases heard prior to the Supreme Court's 2009 decision. Before that decision, the situation was nearly reversed, with courts finding in favor of plaintiffs 56% of the time.

Much of the point swing since 2009 can be directly attributed to the Supreme Court's "clearly established" focus. As the percentage of wins for plaintiffs has dropped from 57% to 43%, the percentage of cases where the question of excessive force has been ignored completely has grown to consume much of that 14 point difference.

This is based on the reporters' examination of 529 appellate cases published between 2005 and 2019. It also includes every qualified immunity case the Supreme Court chose to rule on or ignore.

If there's any good news, it's this: the Supreme Court may be reconsidering its continuous expansion of this self-created legal doctrine.

The high court has indicated it is aware of the mounting criticism of its treatment of qualified immunity. After letting multiple appeals backed by the doctrine’s critics pile up, the justices are scheduled to discuss privately as soon as May 15 which, if any, of 11 such cases they could hear later this year.

Justice Sonia Sotomayor, one of the court’s most liberal members, and Clarence Thomas, its most conservative, have in recent opinions sharply criticized qualified immunity and the court’s role in expanding it.

Unfortunately, no one's really sure what the best approach to fixing qualified immunity might be. There's zero chance the court will decide to eliminate it completely or severely limit its reach. But it could at least reestablish the examination of excessive force issues it has encouraged courts to ignore, allowing more violations to be clearly established. This would result in more plaintiffs seeing restitution and, hopefully, fewer police officers engaging in rights violations since the courts will no longer be quite as stacked in their favor. Whatever the case, the public isn't being served by this judicial doctrine, which has done nothing to limit deployments of excessive force or encourage officers to exercise restraint in questionable situations.

Filed Under: civil liberties, police, qualified immunity, supreme court


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  • icon
    That One Guy (profile), 13 May 2020 @ 12:33pm

    Back to the days of nobility and peasantry

    All animals are equal. Some animals however are more equal than others.

    When police are granted immunity from their actions under a doctrine that would rarely if ever be accepted as valid for a member of the public it's pretty clear that the courts consider police to be not just a separate class of people but a superior class, one for whom the rules, if they apply at all, are markedly different.

    Qualified immunity is a legal abomination that should never have been allowed in the first place and one that has only gotten worse thanks to corrupt and/or cowardly judges, and while it would be nice if it was killed immediately since that's not likely to happen thanks to the aforementioned corruption/cowardice I suppose the best that can be hoped for is for it to be trimmed back down, with the ideal being that eventually it will be killed for good.

    reply to this | link to this | view in chronology ]

    • icon
      Carlie Coats (profile), 13 May 2020 @ 1:52pm

      Re: Back to the days of nobility and peasantry

      And "a separate class of people but a superior class, one for whom the rules, if they apply at all, are markedly different" is exactly what Article I, Section 9, Clause 8 of the United States Constitution forbids:

      No Title of Nobility shall be granted by the United States...

      reply to this | link to this | view in chronology ]

      • identicon
        Anonymous Coward, 13 May 2020 @ 2:45pm

        Re: Re: Back to the days of nobility and peasantry

        That's a toothless, loop hole-ridden, clause that is a non issue in modern society.

        reply to this | link to this | view in chronology ]

        • identicon
          Anonymous Coward, 13 May 2020 @ 3:07pm

          Re: Re: Re: Back to the days of nobility and peasantry

          And yet one could impeach Donald using it.

          reply to this | link to this | view in chronology ]

          • identicon
            Anonymous Coward, 14 May 2020 @ 5:54am

            Re: Back to the days of nobility and peasantry

            Donald is a sitting duck.

            reply to this | link to this | view in chronology ]

            • identicon
              AnonOps, 14 May 2020 @ 6:30am

              Re: Re: Back to the days of nobility and peasantry

              There is only the rich and the poor who protect the rich.

              One set of law for the poors of society and another set of laws for the rich.

              When will people wake up to the fact that the police are sitting above the law in almost each and every aspect of society.

              This system is by design to set the police on the people and protect them above the law.

              When SCOTUS rules Donald Covid-19 King maybe then there will be a half-hearted uprising.

              Now we even have doctors folded into the enforcement state that are claiming everyone stay home and stay 6-ft apart like an open air prison.

              Next it will be virus papers please while they pick us off one by one.

              reply to this | link to this | view in chronology ]

  • identicon
    Anonymous Coward, 13 May 2020 @ 1:45pm

    Even worse, it's establishing still further a Police State and that the Constitution is now not for everyone, as intended, but only for the few, provided their pockets are deep enough or they have a judge as a friend! I mean lets face it, what other "Democratic" country can 'justice' be bought as easily as in the USA?

    reply to this | link to this | view in chronology ]

  • identicon
    Anonymous Coward, 13 May 2020 @ 2:23pm

    "Even worse, it's establishing still further a Police State and that the Constitution is now not for everyone, as intended, but only for the few, provided their pockets are deep enough or they have a judge as a friend! I mean lets face it, what other "Democratic" country can 'justice' be bought as easily as in the USA?"

    Citation needed - useless strawman above.

    reply to this | link to this | view in chronology ]

    • identicon
      Anonymous Coward, 13 May 2020 @ 2:53pm

      Re:

      I'm not sure whether to mark this a funny or not. If you can't see how the justice system HEAVILY favors the rich and connected you are either one of them or completely ignorant.

      reply to this | link to this | view in chronology ]

    • identicon
      Anonymous Coward, 13 May 2020 @ 7:15pm

      Re:

      Wherher or not i agree that the previous statement might be questionable, where the hell is the strawman?

      reply to this | link to this | view in chronology ]

    • icon
      Scary Devil Monastery (profile), 14 May 2020 @ 3:08am

      Re:

      "Citation needed - useless strawman above."

      Not really. The very concept of "qualified immunity" does place a LEO above and beyond reach of legal redress by the citizenry.
      Potentiated by the fact that as DA's are often completely beholden to the goodwill of the police it takes a LOT for actual criminal sanctions to be appplied to unlawful conduct perpetrated by a police officer.

      It doesn't really need more citation than "look at the last five years" by now.

      reply to this | link to this | view in chronology ]

  • identicon
    Anonymous Coward, 13 May 2020 @ 2:48pm

    The Supreme Court doesn't have many controversies to decide lately. The law is pretty settled just not enforced well.

    reply to this | link to this | view in chronology ]

    • identicon
      Anonymous Coward, 13 May 2020 @ 3:11pm

      Re:

      "The Supreme Court doesn't have many controversies to decide lately. The law is pretty settled just not enforced well."

      Really now - why just today the SCOTUS was discussing whether Donald is above the law. I was unaware it was not controversial, oh well.

      reply to this | link to this | view in chronology ]

  • icon
    K`Tetch (profile), 13 May 2020 @ 3:09pm

    Legislating from the bench

    I'm unaware of any statute that gives this qualified immunity any existence.

    So it's a simple case - it needs to be strictly enshrined in legislation, or it needs to go away.

    Having something that is the sole creation and opinion of a few judges is not something that can stand.

    reply to this | link to this | view in chronology ]

    • identicon
      Anonymous Coward, 13 May 2020 @ 3:17pm

      Re: Legislating from the bench

      "So it's a simple case - it needs to be strictly enshrined in legislation, or it needs to go away. Having something that is the sole creation and opinion of a few judges is not something that can stand."

      Marbury v. Madison

      reply to this | link to this | view in chronology ]

      • icon
        K`Tetch (profile), 13 May 2020 @ 4:04pm

        Re: Re: Legislating from the bench

        MArbury v madison shows that the courts can review laws to see if they are in accord with the constitution.

        In other words, it's checking to see if new laws by the legislature are written in accordance with the constitution.

        Qualified immunity isn't a law by the legislature, it's entirely a court creation, with no statutory backing. MvM doesn't apply because it's not judicial review of legislation.
        Would you like me to rephrase the concept slightly different a few more times, so you can maybe understand that MvM doesn't come close to applying here?

        reply to this | link to this | view in chronology ]

        • identicon
          Anonymous Coward, 13 May 2020 @ 5:24pm

          Re: Re: Re: Legislating from the bench

          What the other AC is trying to say is that judicial review, as put forth in Marbury vs. Madison, is "the sole creation and opinion of a few judges" since it was not strictly enshrined in legislation, and therefore, according to your comment, "is not something that can stand."

          reply to this | link to this | view in chronology ]

        • identicon
          Anonymous Coward, 13 May 2020 @ 7:19pm

          Re: Re: Re: Legislating from the bench

          There is really assloads of case law, and case law is perfectly reasonable per se.

          Bad rulings and case law, however, are entirely questionable. Unfortunately, when the top power of any branch makes bad decisions and precedent, it is rather difficult to change.

          reply to this | link to this | view in chronology ]

          • identicon
            Anonymous Coward, 14 May 2020 @ 7:46am

            Re: Re: Re: Re: Legislating from the bench

            Are you saying Marbury v. Madison was a bad decision?

            reply to this | link to this | view in chronology ]

            • identicon
              TFG, 14 May 2020 @ 8:26am

              Re: Re: Re: Re: Re: Legislating from the bench

              No, I'm pretty sure he's saying that bad decisions are bad decisions. In context, I would call the decisions that established and expanded Qualified Immunity bad decisions.

              reply to this | link to this | view in chronology ]

        • identicon
          AnonyOps, 14 May 2020 @ 6:35am

          Re: Re: Re: Legislating from the bench

          A set of people in black robes called judges who rule by judicial fiat is normal fiat by design.

          reply to this | link to this | view in chronology ]

  • This comment has been flagged by the community. Click here to show it
    identicon
    Anonymous Coward, 13 May 2020 @ 4:47pm

    Seriously, nobody gives a fuck about this website. Nobody cares about you, and nobody cares about these stupid stories.

    reply to this | link to this | view in chronology ]

    • identicon
      Anonymous Coward, 13 May 2020 @ 5:03pm

      Re:

      lol! Let me guess... You're a cop who likes getting away with breaking the law you're supposed to be enforcing. You can't handle anyone questioning your "authority" and, as long as you have your gun at your side, you're one badass hombre (read: abused child, playground bully and all-around douchebag).

      Did I win?

      reply to this | link to this | view in chronology ]

      • icon
        That One Guy (profile), 13 May 2020 @ 5:19pm

        Re: Re:

        Nah, they're just a joke of a person who likes to throw tantrums that the site they have a hate/love relationship is more popular than they ever could be, the fact that they posted on an article semi-related to cops is a coincidence.

        reply to this | link to this | view in chronology ]

    • identicon
      Anonymous Coward, 13 May 2020 @ 5:55pm

      Re:

      How's that John Steele defense fund coming along, antidirt?

      reply to this | link to this | view in chronology ]

    • identicon
      TFG, 13 May 2020 @ 6:04pm

      Re:

      This Nobody sounds like a stand-up person. I'd love to meet them, someday.

      reply to this | link to this | view in chronology ]

    • icon
      Stephen T. Stone (profile), 14 May 2020 @ 4:35am

      And yet, you came back.

      reply to this | link to this | view in chronology ]

  • icon
    Upstream (profile), 13 May 2020 @ 5:39pm

    Qualified Immunity and the Supreme Court

    Unfortunately I think that the grossly excessive application of qualified immunity will not be taken seriously by the Supremes until one of their grandchildren (or great-grandchildren?) is injured, killed, or otherwise violated by an out-of-control cop using excessive force, or some similarly close-to-home tragedy occurs. Sometimes it takes some up-close and personal experience with these kinds of horrors for the proper perspective and appropriate outrage to manifest. Of course, the odds of this ever happening are about as close to zero as you can get. Which means we will almost certainly be stuck with the abomination of QI forever.

    reply to this | link to this | view in chronology ]

    • icon
      Anonymous Anonymous Coward (profile), 13 May 2020 @ 7:19pm

      You mean government circle jerk..

      Or when Congress gets around to addressing the situation.

      Oh wait...Congressional members are bought and paid for by their contributors, rather than their constituents, and won't address critical issues until that changes. A change that SCOTUS denied in Citizens United. Round and around.

      Things will continue status quo, until the citizens (aka voters) come to the realization that they should not vote the party lines, or for incumbents, or for anyone who is 'politically connected'. When that happens, expect a whole lot of 'voter fraud' cases to come out of nowhere.

      Don't expect anything good, anytime soon.

      reply to this | link to this | view in chronology ]

      • icon
        Thad (profile), 14 May 2020 @ 8:14am

        Re: You mean government circle jerk..

        While I agree that there are serious problems with money in politics, I think you're mistaken in blaming them for this particular problem.

        The reason Congress doesn't want to tackle qualified immunity isn't financial, it's cultural. "Law and order" is a popular platform. Running as the candidate who's going to restrict the police is a great way to lose most races.

        You think the majority of voters don't want police to violate people's civil rights? Oh you sweet summer child. I live in the county that elected Joe Arpaio to six terms.

        As for just voting against incumbents across the board, that's a childish and silly recommendation. I'm frustrated with the retention rate too, but just because someone is running against an incumbent doesn't mean they deserve to be elected. There are a lot of considerations that should go into deciding who to vote for; "are they the incumbent?" might be one of them, but it sure as hell shouldn't be the only one.

        reply to this | link to this | view in chronology ]

        • icon
          Anonymous Anonymous Coward (profile), 15 May 2020 @ 9:38am

          Re: Re: You mean government circle jerk..

          Then it needs to be framed differently. Instead of wording it as restrictions on police, they need to frame it as voting against 'court made law'.

          The other part, that should get past the 'law and order good, anti law and order bad' feelings is the part where qualified immunity creates a class above. One that doesn't need to know the law, like the rest of us do, nor pay attention to the constitution, like the lawmakers should.

          While I feel for you and your fellow constituents who did not vote for Joe Arpaio, I think that phenomenon might be a local thing, otherwise we would have a lot of Joe Apaio types around, and we don't. Yes, there are some, but not many.

          reply to this | link to this | view in chronology ]

  • identicon
    Glenn, 13 May 2020 @ 8:38pm

    "Your ignorance of the law (as in, what you don't know) is no defense. Our ignorance of the law (as in, what we choose to ignore) is all the defense we need to violate your rights in any way we choose."

    reply to this | link to this | view in chronology ]

    • icon
      Scary Devil Monastery (profile), 14 May 2020 @ 7:00am

      Re:

      "Your ignorance of the law (as in, what you don't know) is no defense. Our ignorance of the law (as in, what we choose to ignore) is all the defense we need to violate your rights in any way we choose."

      It's good to be the King in a feudal nation.

      Oh, wait, this was the US, you say?

      reply to this | link to this | view in chronology ]

  • identicon
    Bruce C., 14 May 2020 @ 6:24am

    one thing that could be done...

    Is to make explicit that the understanding of "clearly established" doesn't merely encompass established precedent directly on point, but also includes "objectively unreasonable" behavior based on established constitutional rights, departmental procedures and training, and other factors showing that officers behavior wasn't acceptable.

    reply to this | link to this | view in chronology ]

    • identicon
      AnonyOps, 14 May 2020 @ 6:39am

      Re: one thing that could be done...

      The SCOTUS defines clearly established as 'Whatever SCOTUS decides it says," haven't you been paying attention? It's rule by judicial fiat.

      reply to this | link to this | view in chronology ]

  • This comment has been flagged by the community. Click here to show it
    identicon
    Anonymous Coward, 14 May 2020 @ 4:24pm

    Seriously, nobody gives a fuck about this website. Nobody cares about you, and nobody cares about these stupid stories.

    reply to this | link to this | view in chronology ]

    • icon
      Toom1275 (profile), 14 May 2020 @ 7:01pm

      Re:

      Ah, classic projection.

      reply to this | link to this | view in chronology ]

    • identicon
      TFG, 14 May 2020 @ 9:59pm

      Re:

      Excellent to hear that Odysseus is such a big fan.

      reply to this | link to this | view in chronology ]

    • icon
      Scary Devil Monastery (profile), 15 May 2020 @ 3:47am

      Re:

      "Seriously, nobody gives a fuck about this website."

      ...he said, dutifully, having made sure to make his presence and attention known for the umpteenth time in a row...

      Seriously, Bobmail, even your whiny "Butbutbut PiRaTeS" and shameless victim blaming at least made you look a little more mature than the argument a five year old might use in a tantrum.

      reply to this | link to this | view in chronology ]

  • identicon
    Anonymous Coward, 15 May 2020 @ 10:57am

    The theoretical premise of Qualified Immunity is sound. If you aren't sure what the best way to proceed is in a time sensitive and unpredictable situation then you shouldn't be held criminally liable for making a best-guess decision that happened to be wrong. The fundamental aspect of this though is you have to be making your best effort to comply with the law. So there's no way the supremes are going to strike out QI totally. This only runs into problems when ignorance of the correct action becomes so routine and outrageous that it can only be deliberate, which is class gross negligence, and that's how it ought to be handled. Any police officer who isn't familiar with basic constitutional rights, use of force rules, or the idea that stealing or destroying people's property is generally wrong is inexcusably derelict in his duty. Messing up on the finer points from time to time is one thing and its reasonable to give people the benefit of the doubt in those times, but there's a bridge of unreasonableness that most definitely crossed before you get to shooting random creatures/people, destroying their homes, and stealing their possessions.

    reply to this | link to this | view in chronology ]

    • icon
      Upstream (profile), 15 May 2020 @ 1:15pm

      Re:

      Exactly right.

      QI is for legitimate "Oops!" situations. Also, you don't want people who get arrested with appropriate reasonable suspicion, but who are later found to be not guilty, to be able to sue the police for false arrest, screaming "I was proved innocent, therefore you falsely arrested me!" I know, I know, not guilty ≠ innocent, but that is what they would scream.

      IANAL, but it seems to me that QI is also supposed to only apply things that happen during lawful performance of police duties, and the things we are talking about (ie shooting random creatures/people, destroying their homes, and stealing their possessions) do not qualify as legitimate "Oops!" situations, nor are they in any way part of lawful performance of duties.

      The problem is that courts everywhere have been doing legal backflips to make QI cover absolutely anything and everything. And then there is the absurdity of "There is no exact precedent clearly establishing that this cop's bad behavior is, in fact, bad, and this court will explicitly not set such a precedent, therefore this decision is essentially an affirmation that said bad behavior is perfectly acceptable now and in the future." These are the things that need to stop.

      reply to this | link to this | view in chronology ]


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