Originally posted on Quora July 3, 2020
Qualified immunity, as it is currently practiced, means (paraphrased) that a court thinks the government official being sued couldn’t have known that their actions violated someone’s constitutional rights, where “couldn’t have known” means “there isn’t a matching case precedent in the Supreme Court or Circuit”.
Unfortunately, in many of these cases, the bar for “clearly established constitutional rights” is high and often focuses on what seem to be weirdly specific details of the action. Sometimes, the action is so beyond the pale that the facts of the case have never occurred in that particular combination in precedent before, which means that the right isn’t “clearly established”. In a vicious cycle, the courts might decide that “This time, there wasn’t a clearly established right” — without, y’know, clearly establishing that a right was violated — and the next time something similar happens the courts will then say “Well, last time, there wasn’t a clearly established right …”
Lawyers from across the ideological spectrum have been taking on the most egregious examples they can and bringing them to the Supreme Court. They frequently involve police misconduct and excessive force, although qualified immunity also applies to other government officials. Certioriari petitions before the Supreme Court in 2020 included:
- Jessop v City of Fresno: While the police are executing a search warrant in your home and come across your rare coin collection and other property valued over $225,000, do you have a constitutional right for the police, er, not to steal it? Well, according to the court, although “virtually every human society teaches that theft generally is morally wrong," and that the “allegation of any theft by police officers is deeply disturbing,” it was not “obvious” that the theft was unconstitutional under the Fourth or Fourteenth Amendment. There was no precedent for such an egregious action. The officers have qualified immunity.
- West v Caldwell: The police are looking for your ex. No one’s home except for your dog, but they say you’ll be charged with harboring a fugitive if you don’t cooperate, so you hand over the keys and give them consent to enter. Instead, the police bombard your unoccupied house with tear gas grenades for hours, destroying most of your belongings, poisoning the rest, and rendering you homeless for the next few months. Unfortunately, no prior case specifically references a situation in which someone’s consent to search was turned into destroying their home. Whether it is a violation of your Fourth Amendment rights is moot; qualified immunity is granted.
- Corbitt v Vickers: Six young children are playing in the yard when a fleeing suspect runs in, pursued by several police officers who get everyone on the ground at gunpoint; the suspect and all the children comply. Your pet dog is nearby, not threatening anyone. One police officer, a foot and a half away from your 10-year-old son, decides to kill your dog. He fires once and your dog runs under the house. He fires again, another miss, but the bullet hits your son in the knee. Unfortunately, there was “[n]o case capable of clearly establishing … that a temporarily seized person suffers a violation of his Fourth Amendment rights when an officer shoots at a dog—or any other object—and accidentally hits the person.”
- Kelsay v Ernst: A 5′ woman was walking away from an officer who ordered her to stop, so he bear-hugged her and threw her to the ground, knocking her unconscious and breaking her collarbone. Was this excessive? You have the Fourth Amendment right to not be subject to unreasonable force, “where a nonviolent misdemeanant poses no threat to officers and is not actively resisting arrest or attempting to flee”… But none of the previous cases establishing Kelsay’s right not to be body slammed were sufficiently specific. One case involved a taser, not a body slam. Another involved the victim trying to walk past instead of away from the officer, or simply waving their arms while remaining stationary. These were considered to be too different from Kelsay’s case, so qualified immunity was granted.
- Baxter v Bracey: The police let their dog attack a suspect who was surrendering sitting down with his hands raised. In the precedent case, the police let their dog attack a suspect who was surrendering lying down. Totally different. Qualified immunity granted.
And these are just the ones that I know about because the Supreme Court declined to hear them this year.