Qualified Immunity Protects Incompetence, Negligence and Malice

On March 27, 2019, a SWAT team no-knock raided a house not listed on their search warrant breaking the windows, shattering glass on sleeping children, and breaking down the front door to assault a woman getting out of the shower. After initially arriving at the wrong house and realizing they were at the wrong house the SWAT commander led his team to another wrong house that did not even remotely match the description of the house on the search warrant other than being a house. Despite acting with extreme negligence that would get a delivery driver fired the 5th circuit appeals court eventually granted the commander qualified immunity on the specious basis that it is not “clearly established” that Lieutenant Lewis had to make sure his SWAT team stormed the right house and because he took “some steps” to review details about the house before he drove over. This isn’t an isolated incident.

As I’ve documented in Freedom of the Press vs. Qualified Immunity, courts not only grant public officials, mainly LEOs, qualified immunity from being sued by their victims when they violate their rights from sheer incompetence but also when they violate their rights out of negligence (e.g. aforementioned case) and when they do so intentionally and maliciously. This special legal privilege not only shields public officials from civil suits when they use excessive force from a “snap judgment” but also premeditated decisions to violate the clearly established constitutional rights of their victims including first amendment rights to free speech and press. But under qualified immunity, constitutional rights are not clearly established unless there are published opinions on prior cases within the circuit denying qualified immunity to public officials under the exact same set of circumstances. Circuits with higher populations and higher publishing rates will have more established case law to deny qualified immunity than circuits with lower populations and lower publishing rates which makes the victim’s probability of successfully suing a public official contingent not on the merits of their case but on the location where their rights were violated. Furthermore, even published opinions from prior cases can be ambiguous and no help to victims even if the case involved similar circumstances. Victims not only start with their odds of success contingent on the location where their rights were violated but also with litigation process rigged in favor of public officials who are not only represented with taxpayer or union money but also get to file multiple interim appeals called interlocutory appeals at any time including before victims are allowed to make their full case before the court. A recent Institute for Justice report found, through algorithmic review of several thousand prior cases decided between 2010 and 2020, that officials made 96% of their appeals for qualified immunity before plaintiffs even get a chance to make their full case before the court or jury. Officials can also use interlocutory appeals to immediately appeal any denial of qualified immunity and present their case to different judges. Officials win in 54% of interlocutory appeals and only lose 26% of them with 16% resulting in no decision and only 4% the granting and denial of qualified immunity for different claims in the case. When officials win in district court the odds are even more lopsided: their victims only win the final judgment in 8% of cases. Even when victims win in district court and get to trial only 1.3% of post-trial judgments are decided in their favor. The review found that officials are more likely to successfully appeal for qualified immunity after violating a plaintiff's 1A rights than after using excessive force in a supposed “snap judgment” against a plaintiff. 59% of first amendment violations that officials appeal for qualified immunity are premeditated retaliation and nearly half are employment related wherein supervisors retaliate against subordinates for protected speech.