Qualified immunity and Neil Gorsuch

An opinion which raises concern particularly among liberals weighing President Donald J. Trump's first U.S. Supreme Court nomination is Wilson v. City of Lafayette, 510 Fed.Appx. 775 (10th Cir. 2013). The unpublished decision upholds a police officer's qualified immunity from civil lawsuit. Judge and now nominee Neil Gorsuch, in ruling against the survivors of a person police tasered and killed, came down on the wrong side.

The problem in Wilson, though, is more with the doctrine than the judge. Qualified immunity is an abomination, an aberration from the otherwise clearheaded and fair interpretation of law that federal courts should provide to litigants. It is a doctrine that through a half-century of judicial turns of the screw has relentlessly leached an institutional court bias in favor of government defendants against individual plaintiffs otherwise attempting to vindicate constitutional rights. It is a mode of keeping facts which logically should be presented to, away from juries.

An unpublished decision by the 4th U.S. Circuit Court of Appeals delivered last week shows the doctrine at its worst. In Maney v. Garrison, 14-7791 (4th Cir., March 9, 2017), the appellate panel determined that a police officer who allowed a police dog to bite off a portion of a homeless man's scalp during a "Terry stop" is entitled to immunity. This doctrine is so warped it leads courts, otherwise so solicitous as to resist second guessing police officers' decisions from the so called comfort of chambers, to nonetheless cowardly disassociate themselves from the gratuitous horror government sometimes inflicts on its citizens.

The disappointment with judges like Gorsuch, who may have otherwise followed their role in applying the doctrine within reason, is that such judges should acknowledge the doctrine's problems, narrowly interpret it and, where possible, speak up. If they are so fortunate to be confirmed to the high court - which albeit has passively encouraged broader interpretation of the doctrine through a recent series of per curiam decisions - they should squarely address and fix the problem.

Prospects are not good, but not impossible. In at least one not entirely unrelated legal area, Gorsuch has called for a judicial revisit of another largely court created doctrine. Under the Chevron doctrine, courts broadly defer to executive agency interpretations of administrative rules so long as those interpretations are not unreasonable. The doctrine is - particularly when the Obama administration was promulgating administrative rules - a conservative bête noire. This includes Gorsuch who, in Gutierrez v. Lynch (10th Cir. 2016), wrote it permitted "executive bureaucracies to swallow huge amounts of core judicial and legislative power and concentrate federal power in a way that seems more than a little difficult to square with the Constitution of the framers' design."

"Maybe the time has come," he added, "to face the behemoth."

Similar sentiment should apply to qualified immunity. It is an issue of government overreach on which liberal and conservatives should find common ground. That terrestrial search begins with a thumbnail sketch of the interesting history leading to qualified immunity.

In 1871, after taking testimony regarding organized violence against citizens in the post bellum South, the 42nd Congress passed the Ku Klux Klan Act. The statute, largely the product of a bloody civil war, is remarkable not least because it set this country apart from others in its early commitment to providing a remedy for governmental violations of federally protected individual rights, including the then recently enacted 13th, 14th and 15th Amendments. Rather than merely passing limited, targeted relief, Congress decreed in broad strokes that all "persons" would have a damage remedy against those who suffered injury at the hands of those acting "under color of law."

Regardless of whether the country was generally ready for such a revolutionary elaboration of this country's core principles, federal courts clearly were not. They interpreted rights under both the three Civil War Amendments and under the enabling statute so narrowly that, for over nine decades, not least, during the Jim Crow era, the statute was rendered essentially a dead letter. Brown v. Board of Education (1954) was a key exception. Although not mentioned in the opinion, it was the 1871 Act's enabling statute - now known as 42 U.S.C. Section 1983 - which permitted victims of school desegregation to challenge "separate but equal."

In Monroe v. Pape (1961), the Supreme Court ultimately breathed new life into the statute, reinterpreting prior, narrow interpretations of what constituted "under color of law," and interpreting the statute's broad, clear language to provide persons with what amounted to a constitutional tort remedy modeled after common tort law.

But this resurrection created a new problem for, in particular, the Supreme Court's conservatives. After nine decades under which there was no effective federal remedy, new litigants were ready and willing to address in courts the by now calcified culture of abuse indulged under the previous legal regime. For once, the hypertrophic metaphors of those who reflexively oppose tort remedies - such as that there had been an "explosion" or that "the flood gates have been opened" - was empirically grounded. No wonder as the high waters had been dammed for nearly a century.

Rather than let this tide of new filings abate at its own speed, the Supreme Court, starting with Pierson v. Ray, 386 U.S. 547 (1967), essentially rewrote the statute by adding immunity doctrines. The court dubiously rationalized that, even though Congress never mentioned the subject in any of the statute's extensive legislative history, it is something legislators must have meant to include because similar doctrines existed in some state jurisdictions in 1871 when the legislation passed. Since then, successive iterations, interpretations, and modifications have transported the doctrine even farther from anything resembling a passing effort to faithfully interpret the underlying statute, much less the statute's legislative history.

In Wilson, for example, an officer who joined a foot pursuit of someone suspected of cultivating marijuana, ended it by shooting taser darts, at least one into the man's head, resulting in a fatal cardiac arrythmia. The three-judge panel, including Gorsuch, upheld the district court's grant of summary judgment to the defendant officer.

A plaintiff's now "heavy" two-part burden under the qualified immunity doctrine is to show "both that (1) the defendant violated a constitutional right, and (2) the infringed right at issue was clearly established at the time of the allegedly unlawful activity such that a reasonable law enforcement officer would have known that his or her challenged conduct was illegal." Gorsuch, writing for the majority, concluded that the victim's survivors failed to meet the second prong.

"Maybe," he conceded, "the force [the officer] used was excessive relative to the threat it turned out he faced." But it was not a clear enough showing, given the high court's instruction to protect from civil liability for damages all officers except "the plainly incompetent or those who knowingly violate the law." The dissent correctly countered, "heavy burden" aside, triable issues of fact still should have been resolved in plaintiff's favor, and the matter submitted to a jury.

In interpreting whether the officer had violated the underlying constitutional right to be free from an unreasonable seizure, Gorsuch also wrongly concluded that conflicting evidence regarding whether the officer intentionally aimed his taser at the man's head should not be considered or submitted to the jury. He reasoned such evidence, because it implies an inquiry into the subjective motivations of the officer, departs from Fourth Amendment doctrine that only whether his use of force is objectively unreasonable is subject to review.

It may be a colorable argument for an attorney or a judge steeped in court-created doctrine. For a layperson, though, it's ridiculous. Obviously, whether an officer intentionally aimed at the victim's head is pertinent to determining whether the officer's force was reasonable or whether he "knowingly violated the law." The underlying doctrines have become so distorted in favor of police that otherwise intellectually distinguished judges reach awkward, logically indefensible conclusions disassociated not just from commonsense, but from the terror, violence and injury caused by the legally blanketed police abuse.

In Maney, for example, the 4th Circuit let off the hook an officer who released his police dog into a homeless encampment. The dog tracked and attacked, rather than a suspect who allegedly fled into the area, another man frightened and hiding from the intrusion, and unaware of the police presence. Even after the officer realized the man was not the suspect, the officer continued in - depending upon one's perspective, merely following a defensible police procedure or an act of gothic cruelty - letting the dog maul the man while the officer ordered him to show his hands. Even this, two of the three judges reviewing the matter determined, was something qualified immunity excused.

Whereas modern law enforcement has evolved in a direction of increased pay, training and professionalism, federal immunity law harkens back to policy decisions judges made to protect otherwise unindemnified "constables" from their "blunders." Not surprisingly, by protecting all but the "plainly incompetent," peace officer standards regarding what actually takes place in the field remain stubbornly low. Modern recording technology, for example, has recently brought to public light, not least, a series of essentially indefensible police shootings in Ferguson, Minneapolis-St. Paul, Chicago and Charleston. Arguably, some of those shootings are more accurately labeled "assassinations."

The next questionable shooting captured on camera will predictably result in still greater public unrest. An officer will again implausibly claim that, under the circumstances, he misunderstood the victim's constitutional rights. Further distrust will be strewn into a divide between police and public regarding who the law actually protects. Even most officers, who otherwise conduct themselves to modern professional standards and who rely upon the respect and cooperation of the communities they protect, will have their jobs further and needlessly complicated by the clash of these conflicting trends. When, though, will federal judges in ruling on such qualified immunity issues, such as Judge Gorsuch, make the connection?