Supreme Court should make it easier to sue cops who violate our civil rights

Posted Jun 07, 2020

By Sarah Ricks

Supreme Court Justice Sonia Sotomayor warned that the doctrine of qualified immunity Court, “sends an alarming signal to law enforcement officers and the public. It tells officers that they can shoot first and think later, and it tells the public that palpably unreasonable conduct will go unpunished.” (illustration)

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It’s time for the Supreme Court to make it easier to sue police by limiting the defense of “qualified immunity.”

When a police officer violates a person’s constitutional rights, you’d think a court necessarily would hold that police officer responsible for paying civil damages. You’d be wrong. Instead, police are protected by a legal rule called “qualified immunity.”

The idea that animates qualified immunity makes sense. It’s rooted in fairness to civil rights defendants. Briefly, police are responsible for violating a person’s constitutional rights only if the officers should have realized their conduct violated specific civil rights or constitutional law. And constitutional law is not static but evolves.

However, the sensible idea that police need not predict what future constitutional laws will be written has morphed into nearly absolute immunity. The legal rule protects "all but the plainly incompetent or those who knowingly violate the law,” the court ruled in Malley v. Briggs, 1986.

Supreme Court justices and non-profits across the ideological spectrum have sounded alarms about the trajectory of qualified immunity law. Justice Sonia Sotomayor warned that the Supreme Court “sends an alarming signal to law enforcement officers and the public. It tells officers that they can shoot first and think later, and it tells the public that palpably unreasonable conduct will go unpunished.” Justice Clarence Thomas also criticized qualified immunity as a freewheeling policy choice unmoored from its origins.

Even advocacy groups such as the libertarian Cato Institute and liberal groups such as the NAACP have asked the Supreme Court to reevaluate qualified immunity. In fact, a “cross-Ideological” group argued the Supreme Court should curtail qualified immunity because it “enables public officials who violate federal law to sidestep their legal obligations to the victims of their misconduct,” thereby “corrod[ing] the public’s trust in those officials — law enforcement in particular . . . .”

This month, the U.S. Supreme Court may decide to hear any of many petitions seeking its intervention to amend qualified immunity. The Supreme Court should grant review and rein in the doctrine. In one of the cases the Supreme Court might hear, a federal judge opined that “qualified immunity smacks of unqualified impunity, letting public officials duck consequences for bad behavior . . . as long as they were the first to behave badly.”

Qualified immunity undermines constitutional protections and public confidence in law enforcement, for several reasons:

  • Courts require constitutional claims to be factually identical to an earlier case to overcome qualified immunity. In one of the cases the Supreme Court might hear, a federal judge broadly critiqued qualified immunity: “Merely proving a constitutional deprivation doesn’t cut it; plaintiffs must cite functionally identical precedent that places the legal question ‘beyond debate’ to ‘every’ reasonable officer. . . This current ‘yes harm, no foul’ imbalance leaves victims violated but not vindicated.”
  • To overcome qualified immunity, a person must show police violated clearly established constitutional law. A federal appeals court can prevent its decisions from establishing constitutional rights by labeling them “not precedent,” meaning the decisions do not bind future courts. Federal appellate courts dispose of nearly 90% of their cases in opinions that are “not precedent.”
  • Courts skip difficult constitutional questions to instead reject claims as alleging rights that are not “clearly established.” If a constitutional right is not “clearly established,” yet the court ducks the opportunity to define it, the right remains perpetually undefined. Lack of clarity in constitutional rights makes it harder to vindicate rights - and harder for conscientious police to know how to behave.
  • Courts require constitutional rights to be defined too fact-specifically. To give police fair warning that their conduct violates the right, the U.S. Supreme Court requires constitutional rights to be defined specifically. But some courts make it hard to hold police responsible for violating constitutional rights because they define rights so fact-specifically that police can claim they had no warning that the right existed.

For example, the Fourth Amendment prohibits police from using unreasonable force. A court could define that more specifically to say that the Fourth Amendment prohibits police from Tasering a nonviolent person who poses no threat. But if the court defines the right too fact-specifically, the officer is more likely to be immune.

So, an officer is more likely to be immune if the court narrowly defines the Fourth Amendment right as prohibiting police from “tack[ing] and us[ing] a taser in ‘drive stun’ mode on an individual he is attempting to arrest because she refuses to allow officers to enter her home to ensure the safety of the home’s occupants from a perpetrator of domestic violence who the officer has reason to believe is inside.”

As a lawyer who represented Philadelphia police for seven years, I appreciate that the vast majority of police conscientiously attempt to comply with constitutional requirements. I hope the U.S. Supreme Court moves soon to rein in the pernicious doctrine of qualified immunity.

Sarah E. Ricks is Distinguished Clinical Professor at Rutgers Law School and the author of Current Issues in Constitutional Litigation (3d Ed. forthcoming 2020).

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