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It’s time to dispose of Qualified Immunity

Racism in the police force? Sure.

All Police Officers are racist? Not hardly.

Police excessive force case? We have been doing them for years.

What we found is that there are issues that prevent real change from occurring when it comes to excessive force. The first is the court made law of “Qualified Immunity.

In 1982 the Court created the doctrine of “qualified immunity.” Qualified immunity protects government officials engaged in their “discretionary” duties from being sued. It does not protect them from liability alone; government officials, i.e. police officers, will not have to face a jury. The intent was to protect government officials from “frivolous” lawsuits. However, qualified Immunity has morphed over the years to an absolute immunity from lawsuits.

The key is not whether a government official, e.g. police officer, has to pay money in a lawsuit. The key to qualified immunity is that government officials are protected from facing a lawsuit for their actions.

Qualified immunity is a two part “test” that a judge applies to determine whether the officer(s) involved will even face a jury.

In Saucier v. Katz, 533 U.S. 194 (2001) the Supreme Court prescribed a two-part test that courts are to use to determine whether an officer has to face a jury.

  1. A court (not a jury) must look at whether the facts indicate that a constitutional right has been violated.
  2. Then the court (not a jury) determines whether that right was clearly established at the time of the alleged conduct.

There is an old saying: “Ignorance of the law is no excuse.” Under the doctrine of qualified immunity, ignorance of the law, at least to police officers, IS an excuse.

Justice Clarence Thomas, probably the Court’s most conservative justice, pointed out how qualified immunity has morphed into a guarantee that an Officer will not be held liable for actions that would land the rest of us in jail.

“we instead grant immunity to any officer whose conduct “does not violate clearly established statutory or constitutional rights of which a reasonable person would have known.”

Justice Sonia Sotomayor, probably the Court’s most liberal justice, also finds problems with the court made law of qualified immunity. In 2015 Justice Sotomayor stated that the court’s “one-sided approach to qualified immunity transforms the the doctrine into an absolute shield for law enforcement officers.”

When the most conservative members of the Court are joined with the most liberal members, the need for change is evident. Qualified Immunity has prevented far too many of our citizens from seeking redress in the courts for wrongs inflicted by the government on them.

As recently as 2019 Ninth Circuit Court of Appeals told us that “there was not clearly established law hold that officer violate the Fourth or Fourteenth Amendment when they steal property that is seized pursuant to a warrant. For that reason, the City Officers are entitle to qualified immunity.” Jessop v. City of Fresno.

In Jessop, the City Officers (police) executed a search warrant for illegal gambling activities. At the conclusion of their search, the “Officers” gave Jessop an inventory sheet stating that they had “seized” approximately $50,000.00 from the properties. Jessop contends that the “Officers” actually seized $151,380 in cash and another $125,000 in rare coins.

The Fourth and Fourteenth Amendment’s proscription against an unreasonable seizure was clearly at stake. The question the courts had before them was whether the prohibition of theft, during the execution of a warrant was clearly established.

Apparently there is no case on record that says it is illegal for “Officers” to steal property when they search and seize based upon a warrant. Under the qualified immunity reasoning, the officers did not know the it was illegal to steal. Yes, that is the ruling.

Jessop cannot even go to court to prove his case. The officers could not reasonably know that it was a violation of an established constitutional right for them to steal.

Cases abound where police officers are given a pass under qualified immunity. Police have been given a license to steal, to beat, shoot and kill. Recent events show that some police officers liberally exploit the protection they receive under qualified immunity.

When Clarence Thomas and Sonia Sotomayor agree that there is a problem, it’s time to reexamine the doctrine of qualified immunity.

While there are still ten other cases seeking to change qualified immunity pending before the Supreme Court, the Jessop case will not be heard.

Maybe the issues of excessive force that is the root of some of the latest civil unrest, can be traced to the invulnerable nature of the police for their actions under qualified immunity.

In an upcoming post we will visit the issues of police unions, the blue line and the privacy of police personnel records as being potentially related to the civil unrest.

Does racism exist in the police force? Undoubtedly. But with the doctrine of qualified immunity, how will we ever change the racism that a few officers are getting away with. When they already have a license to steal, what’s to prevent the thought of invulnerability from keeping a racist officer from proceeding in his racist ways?