Three Supreme Court opinions on qualified immunity protect unqualified police officers

The Supreme Court fashioned the doctrine of qualified immunity over time, but three recent court decisions protect unqualified police officers.

Qualified Immunity

A police officer pulls a gun and fires at a person. The facts are disputed. What process is available to hold the officer accountable? Excessive force is a legal and Constitutional violation. “Accountability of police” has been one of the great cries of thousands of demonstrators in streets all over America. Yet, the United States Supreme Court produced in its current term two cases that extended police protection – even if they are sued by victims or heirs claiming excessive force, brutality or death. The court also voted to not take a case that would have shown the weakness of their qualified immunity doctrine, which was invented to reduce constitutional protections.

Death in a garage

On Aug. 12, 2016, a 911 operator received a call from the ex-wife of Dominic Rollice. She informed the operator that Rollice was in her garage, intoxicated and was refusing to leave. Rollice did not live there but he kept his tools in the garage, she explained. When officers arrived, there was some discussion with Rollice, but he retreated to the back of the garage, picked up a hammer and was shot dead by two officers.

The facts of what occurred that day could have been revealed to a jury with cross examination, rules of evidence, final argument and judges’ instructions explaining the law of 42 U.S.C.1983 – which creates the civil process for determining whether Rollice’s Fourth Amendment right to be free from excessive force was violated. Who should decide the facts of that day, apply the legal term “excessive force,” and decide if there should be damages and how much they should be? Why would a court create a rule that would take such a case away from a jury, put the question to a judge, allow the dismissal of a claim created by the Constitution and a court procedure established by Congress? The deference to a jury should be particularly compelling in a case where the best plaintiff’s witness, Mr. Rollice, was shot dead by the defendants.

Justice Thomas dissents

Justice Clarence Thomas is usually a reliable vote for the prosecution in criminal cases. A graduate of Holy Cross College and Yale Law School, he has served on the Supreme Court for 31 years. On July 2, 2021, he filed a statement attacking the qualified immunity doctrine. In that case, the court had denied Certiorari, which allowed the dismissal of a case claiming First Amendment violations of students by campus police. The officers kicked students off campus violating their free speech rights under the First Amendment. There was no question the students’ rights were violated.

In Thomas’s statement he made these points: Qualified immunity “stands on shaky grounds,” and executive officers who violate federal law are immune from money damages brought under Rev. Stat. 1979, 42 U.S.C. Section 1983, unless their conduct violates a “clearly established statutory or constitutional right of which a reasonable person would have known.” The test is not in Section 1983 and may have little basis in history. It covers a wide range of functions of very different executive officials. It may be that a police officer would get more protection than a University official. Finally, and most importantly, the court should reconsider the one-size-fits-all test or the judicial doctrine of qualified immunity more generally.

The infirmities of the Court created test

First, an officer’s ignorance of the defendant’s rights could result in immunity and a dismissal of the case if a reasonable person would not have known the victim had rights. However, a well trained and qualified officer knows the rights applicable to any person.

Second, when a court determines that allegations of excessive force in the complaint are well pleaded but decides there is qualified immunity, the case is taken away from a jury and dismissed, leaving aggrieved victims with no remedy.

Third, the Supreme Court keeps refining the test to allow more and more dismissals by insisting that there must be a prior case exactly on point for officers to be denied qualified immunity. In the case of the shooting of Dominic Rollice, the 10th Circuit cited several cases that found officers did not have qualified immunity. The Supreme Court distinguished each case. This test demanding legal precision makes it difficult to overcome qualified immunity claims.

Fourth, the court went further in the Rollice case and held, “We have repeatedly told courts not to define clearly established law at too high a level of Generality. It is not enough that a rule be suggested by then-existing precedent: the rule’s contours must be so well defined that it is clear to a reasonable officer that his conduct was unlawful in the situation he confronted.”

Fifth, Justice Thomas is right for many reasons. It is an important purpose of the courts to protect citizens from police violence and supply a forum for claims of legal and Constitutional violations they suffered.

What is excessive force?

“Two in the chest and one in the head. If you have to shoot, that is where you should aim.” Those are the chilling instructions given by many instructors to police trainees. There is also the human dynamic when an officer fires his weapon the second, third, or fourth officer fires instinctively. In San Francisco a man holding a knife walked sideways not at the officers, one officer fired and others fired. The man had no chance of survival. Facts like these should help to define the legal test for qualified immunity. Should there be qualified immunity?

Where is the responsibility for excessive force?

Having been a Federal Prosecutor for five years and a defense lawyer for many years, I believe that most police departments employ officers who intend to do the right thing. Many are trained to de-escalate confrontations with drunk or mentally ill persons. The public wants protection and they look to the police to provide it. However, there are always a few untrained novices with a gun or an officer with mental difficulties that should not be armed on the street. There are officers within any police department that know those officers are unqualified and dangerous. The administration of the police department has overall responsibility for taking steps to be sure armed officers on the street are ready for situations like a drunken man retreating to the back of a garage where he keeps his tools.

Reform

In any case where officers shoot and kill or inflict grave injury, a jury should be allowed to decide the case. Juries can be trusted to arrive at the right result under the law. Reverence for life in common law and the Rule of Law demand it.