The qualified immunity dilemma

The national debate about the judicial doctrine of qualified immunity sparks controversy, discord between political and economic factions, and truly speaks to one of the great freedoms and civil protections afforded by the Constitution. Michael Brown, Tamir Rice and Eric Gardner, who all died at the hands of police officers five years ago, have become a necessary part of the dialogue regarding police misconduct. The continued expansion of the doctrine can only encourage law enforcement to shoot first and ask questions later, ultimately adding more names to a growing list of persons who should not be dead but for the promising shield from accountability, qualified immunity.

The doctrine of qualified immunity was created by the U.S. Supreme Court in Pierson v. Ray in 1967. It works to shield government officials from lawsuits when they violate an individual's constitutional rights, so long as the right was not clearly established at the time of the violative conduct. This includes incidents of police misconduct or violence, a burden which unquestionably has been born by the darker and poorer neighborhoods throughout America. Recent proponents of qualified immunity support the Supreme Court's expansion of the judicial doctrine to include any behavior that has not been specifically reviewed and necessarily decided by the Supreme Court. Support for this virtual absolute immunity of law enforcement officers from civil accountability comes at a time in our nation's history when there is a legitimate struggle for the protection of individual rights against unreasonable government intrusion.

The original intent of qualified immunity was argued to help establish a "good faith" defense to federal Section 1983 litigation that mirrored the defense of good faith which existed in common law. At common law, and before Section 1983 litigation was available as a remedy for violations of individual rights by government officials, government officials would routinely claim their actions were a part of their official government duties and thus would make them immune from civil lawsuits. In federal Section 1983 litigation, however, the common law defense of "good faith" was unavailable. After Section 1983 litigation became more prevalent in the civil rights era of the 1950s and 1960s, courts began to limit the liabilities of offending government officials through the creation of the judicial doctrine of qualified immunity. In Pierson, a group of clergymen on a prayer pilgrimage for racial integration were arrested for not leaving a segregated Jackson, Mississippi, bus terminal. Charges of disturbing the peace were later dropped on appeal, and the group filed a lawsuit for wrongful arrest. The Supreme Court ultimately decided it would be unfair to allow the offending officers to face civil liability when they acted in "good faith" to enforce a Mississippi statute that was later deemed unconstitutional.

To this day, courts continue to deny availability of suit because there was not a case that had been reviewed with substantially similar facts. In Brooks v. Seattle, et al., 599 F.3d 1018 (2010), qualified immunity was granted when two law enforcement officers applied a taser to a seven-month pregnant woman's arm, thigh and neck because she refused to sign a traffic citation. See Mattos v. Agarano, 661 F.3d 433 (9th Cir. 2011). Despite the obvious crudeness and violative nature of the defendant officers' actions, the court applied the judicial doctrine of qualified immunity because there were no circuit stun gun cases finding a Fourth Amendment violation.

Recent interpretations of the judicial doctrine will almost certainly continue to expand its shield to cover more kinds of police misconduct. Already, attorneys defending police in civil rights lawsuits use qualified immunity to justify abuses against people who committed no crimes but maybe were smoking outside an apartment on private property (allegedly violating a local smoking ordinance); sitting in a car with the ignition turned off (loitering); or asking too many questions of the officers (resisting arrest). These circumstances happen daily across America, and rarely are subject to review by the Supreme Court, making them prime candidates for the application of qualified immunity.

However, significant voices in political and judicial forums are presently calling for a reexamination of the judicial doctrine and its usefulness. Julian Castro, the former mayor of San Antonio now hoping to secure the 2020 Democratic presidential nominee, has made the reevaluation of qualified immunity a platform issue, arguing that it needs to be either severely limited or eliminated altogether. Supreme Court Justice Sonia Sotomayor has also focused criticism at the recent expansion of qualified immunity, arguing that recent decisions effectively treat the judicial doctrine as an absolute shield from all lawsuits. Even Supreme Court Justice Clarence Thomas, a noted conservative jurist, has argued that the modern interpretations of the doctrine have strayed significantly from its original intended purpose.

Solutions to the dilemma caused by qualified immunity are varied. Making de-escalation a mandatory part of a national use of force standard could prove helpful, as advocated by Castro. Validating long-standing state case law could help prevent the use of obscure state laws or ordinances to justify the application of qualified immunity. One thing should we should all be sure of is the further expansion of the doctrine of qualified immunity can only lead to law enforcement continuing to act without the consequence of legal accountability. 