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Deceptively Tragic: Qualified Immunity in Police Suits

Minneapolis Police Squad Car
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Deceptively Tragic: Qualified Immunity in Police Suits


It is all too commonplace to read of police-civilian encounters ending in what is reported as “tragedy.” In May of this year, 15-year-old Jordan Edwards was shot and killed when a Balch Springs, Texas police officer fired a rifle into the window of the car in which Edwards was a passenger, as the car tried to drive away from a high school party. The police chief, disavowing the officer’s actions, called it a “horrific tragedy.” In July, Australian citizen Justine Damond was shot and killed by a Minneapolis police officer when she approached the officer’s car, unarmed, to report an assault. The then-chief of police, ousted in the aftermath of the killing, called Damond’s death “clearly tragic,” and the governor of Minnesota echoed the sentiment. Examples are, unfortunately, too numerous to enumerate.

The language of tragedy makes sense coming from these sorts of elected and appointed public servants who work with and regularly communicate with the communities in which these events occur. The same is not true of another set of government actors: judges— especially those who hear the court cases that arise in the aftermath of those events. From those actors, we expect not intuitive channeling of the community’s emotional responses to events, but rather analytical dispassion and objectivity. The depth of this sentiment is evidenced by the controversy sparked in 2009, when then-President Obama was preparing to make his first Supreme Court appointment and publicly discussed what he thought were core attributes of a justice. His selection of “empathy” sparked outrage from the right and discomfort from at least some of the left. Calling balls and strikes — Chief Justice Robert’s famous description of the job of a judge — requires no emotion.

And so, it is striking when judicial opinions speak in an emotional register. After reading through a year’s worth of decisions in civil rights suits against law enforcement, I was struck by something of a pattern. Courts frequently went beyond recounting the bare facts of police-civilian encounters that ended in injury or death of the civilian to describe the encounter as “tragic.” More strikingly, this occurred disproportionately in cases where the civil suit was dismissed on the ground that the defendant officer enjoyed “qualified immunity” from suit for whatever constitutional injuries might have been inflicted.

The ability to sue police officers when they violate the rights of civilians is often thought to be an important vehicle for keeping law enforcement in check. The fact that courts frequently depart from their usual judicial register to emote about law’s inability to hold these officers accountable is striking — and disingenuous.

Here’s why qualified immunity has this effect on the power of constitutional litigation. Ordinarily, as any first year law student learns, if one person behaves negligently toward another person and causes them harm, the harmed person can sue for damages. Thanks to a Reconstruction Era federal statute known as “Section 1983” (short for 42 U.S.C. § 1983), roughly the same is supposedly true for public officials. Section 1983 creates a right of action for any individual whose constitutional rights were violated by a state or local official — including police — to sue the violator for damages. Federal officers can also, at least sometimes, be sued for violations of constitutional rights, including in instances where they violate the Fourth Amendment.

That is, except in cases of qualified immunity, which shields public officials — police among them — from lawsuits, even if a plaintiff’s rights have been violated. Exceptions are made only in cases where that plaintiff can establish that it would have been clear to every reasonable official that the offending conduct was unconstitutional in the moment it was committed. The stated justification for the blanket application of qualified immunity in civil rights suits is nakedly policy-driven: Officials frequently come in contact with the public and make decisions touching on individuals’ constitutional rights, many such decisions are discretionary or split-second, and the Court fears that public servants might be deterred from action or from service all together if their decisions could be infinitely second-guessed in litigation.

Fair enough, one might think: Police shouldn’t be at risk of a legal “gotcha” when they do their best. But over time qualified immunity has snowballed. Today, the Supreme Court insists that a plaintiff’s suit against a government officials must be dismissed even if officials violated a long-established general rule, such as “police can’t use excessive force,” so long as courts haven’t already applied that general rule in a case with facts similar to those in the new plaintiff’s case.

Consider the example of Treneshia Dukes of Clayton County, Georgia, who was severely burned when police, searching for marijuana in her home at 5 AM, entered by throwing a powerful explosive device into her bedroom. Noting the minimal gain to law enforcement in “deploying a dangerous device into a dark room” to stop mere marijuana possession, as well as the fact that the departmental policy and training barred the conduct of the officer, the Eleventh Circuit found a violation of the Fourth Amendment. But while plenty of cases had held that police may not use unreasonable force in executing a search warrant, the Eleventh Circuit had never told police that throwing this type of device into an occupied bedroom is excessive — who’da thunk ?— so Dukes’s suit was dismissed.

In theory this exacting standard applies equally to every type of constitutional suit against a government official, but it has special bite with suits alleging that police have violated the Fourth Amendment. That is because the law governing whether a particular search, arrest, or use of force violates the Fourth Amendment requires a highly context-dependent assessment of the particular facts that might have been known to officers at the time of the encounter, and the particular qualities and conduct of the civilian involved. Change the facts slightly, and the Fourth Amendment analysis can come out differently. This often leads courts to say that police couldn’t have known that the conduct in which they engaged violated the constitution. Hence, qualified immunity is a particularly effective barrier to police accountability through civil rights litigation.

Which brings us to tragedy. In at least forty decisions in the last year, courts described as “tragic” or “tragedies” the events giving rise to civil rights suits in which qualified immunity was raised as a defense. In only five of those decisions were the plaintiff’s claims permitted to go forward. In all others, the “tragedy” was held to be without civil legal recourse because of the doctrine of qualified immunity. Frequently these were not mere passing references to “tragic” facts, but extended stand-alone editorializing. For example, when the Supreme Court dismissed the claims of post-9/11 detainees who alleged that officials conspired to violate their rights, Justice Kennedy wrote for the Court, “If the facts alleged in the complaint are true, then what happened to respondents in the days following September 11 was tragic. Nothing in this opinion should be read to condone the treatment to which they contend they were subjected.” Rather, the question was simply “whether a reasonable officer in petitioners’ position would have known the alleged conduct was an unlawful conspiracy.”

If courts are using the language of “tragedy” simply to signify that injury or death at the hands of government officials is terribly sad, it is relatively unobjectionable in what it communicates. In that case, the nomenclature of tragedy serves as shorthand for the truism that the law does not protect all interests or remedy all harms.

But the judicial inclination toward the language of tragedy in this context has a different and more pernicious interpretation as well. The passage from Justice Kennedy’s opinion, and passages like it from lower courts, carry a tone of inevitability, like Oedipus’s fated downfall; it suggests courts are faced with no “good” options, like Abraham’s impossible choice between his son and his God. On this account, courts invoke tragedy to explain, implicitly, that their hands are tied in the choice they must make between the legal “question before the court” and the plaintiff’s request for legal accountability. Moreover, this suggests, whatever misfortune is suffered by the losing plaintiff, equivalent misfortune would necessarily be caused by the opposite result.

But nothing could be farther from the truth. Qualified immunity, and the impact it had in those dozens of dismissed claims, is a judicial invention through and through. The particular balance it has struck — a balance that puts a firm thumb on the scale for police against plaintiffs’ interest in recompense — has been judicially chosen. To be sure, the merits of that choice are open to debate — a debate that scholars are increasingly pushing, and one which Justice Clarence Thomas, no civil rights softie, recently suggested receptivity. But the language of tragedy pretermits instead of engaging that debate, and implicitly declares an equivalence in the magnitude of the competing interests at stake.

The extent to which qualified immunity defangs constitutional litigation as a tool of police oversight is lamentable. But even more regrettable is a deliberate judicial deflection of responsibility for that result. At minimum, the courts’ seemingly strategic invocation of tragedy to cover their own tracks in qualified immunity doctrine indicates that, to twist a phrase, even sad facts will continue to make bad law.


The views and opinions expressed in this article are mine and do not necessarily reflect the views of the Fair Punishment Project.

Alameda County arraignments head back to Oakland

Alameda County arraignments head back to Oakland


Just ten weeks after Alameda County officials moved all in-custody arraignments to a new courthouse in Dublin, California, the controversial experiment came to an end. Court officials announced this week that arraignments would move back to an Oakland courthouse on September 25.

The initial move to Dublin’s East County Hall of Justice sparked outrage from public defenders and Oakland Mayor Libby Schaaf. Alameda County Public Defender Brendon Woods told In Justice Today that the move 30 miles outside of Oakland was a “nightmare.”

The inconvenient location made it difficult, if not impossible, for many family members of Woods’ clients to attend arraignments, because of both the time the trip took and the additional cost. The layout of the new courthouse also made public defenders’ work challenging, with few private spaces for lawyers to counsel their clients.

Court officials didn’t specify why they chose to move arraignments back to Oakland, according to the East Bay Times.

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Allegations of police corruption in Chicago present a big opportunity for Kim Foxx

Who is she accountable to?

Chicago residents protesting a police shooting.
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Allegations of police corruption in Chicago present a big opportunity for Kim Foxx

Who is she accountable to?


Four years after former Chicago Sgt. Ronald Watts pleaded guilty to stealing from an undercover officer, 15 people whose cases were linked to the crooked cop are banding together to fight their convictions. The group recently filed a court petition alleging that Watts played dirty when working on their cases, and that their convictions should be overturned. During a news conference last week, the petitioners’ attorney also said Watts’ known history of corruption calls into question the integrity of all the cases he previously worked on.

Petitioner Lionel White Jr. claims he was convicted after Watts planted drugs on body. He says he was framed a few months after his father filed a complaint against Watts for similar abuses of power. The 14 other petitioners made similar allegations about Watts, who patrolled a public housing complex for years and was reportedly notorious for corruption, according to the Chicago Tribune. In addition to stealing money from a federal informant posing as a drug courier in 2012 — a crime for which he spent 18 months in prison — Watts was known for taking money from drug dealers in exchange for “protecting them.”

The petitioners’ attorney, Joshua Tepfer, argues that this systemic corruption cannot be ignored. “There’s no way to separate the wheat from the chaff,” he said during last week’s news conference. “This is a credibility contest. Who do we believe, the police officers, or these citizens?” Tepfer also noted that people who have spoken out against Watts in the past have been retaliated against.

The 15 petitioners are not the first to challenge their cases due to Watts’ misconduct. At least five other people arrested by Watts and his team of officers have had their convictions tossed out, including White’s fatherTwo of the convictions were overturned this year, at the urging of Cook County State’s Attorney Kim Foxx, whose first term as the county’s top prosecutor began in December. But with so many cases at stake, the latest petition gives Foxx an opportunity to make a big statement about police corruption in a city where shady police dealings are the norm. It also presents an opportunity for the newcomer to show who she is accountable to: the police or the communities they have historically abused.

From the Guardian’s investigation of police black site Homan Square to local reporting on Laquan McDonald and other victims of police violence, there is no shortage of stories about systemic police abuse and misconduct in Chicago. Nevertheless, egregious police behavior has largely been swept under the rug by the city’s top brass, including Foxx’s predecessor, Anita Alvarez. Not only did Alvarez wait more than a year to charge McDonald’s shooter — a decision made when the city was court ordered to release video of the shooting — but she failed to charge officers responsible for the deaths of 68 people. She undercharged the officer who fatally shot Rekia Boyd, and prosecuted a woman who filed a complaint against officers for sexual harassment. But her actions were also par for the course. As Black Lives Matter activists and journalists have repeatedly pointed out — most recently in response to the Jason Stockley’s acquittal in St. Louis — cops are rarely charged for extrajudicial killings. When officers are prosecuted, they are rarely convicted.

It is the exception, not the rule, when prosecutors choose to hold officers accountable.

As a state’s attorney candidate, Foxx, who previously served as an assistant attorney under Alvarez, promised change. She was highly critical of Alvarez’ handling of the McDonald case, and acknowledged the conflict of interest that exists when prosecutors have to police the police. “To fix that system, and to begin to build public trust in it, we must acknowledge the fact that the Cook County state’s attorney’s office relies heavily on police officers as witnesses and critical sources of information for most of the cases it prosecutes,” she wrote during her candidacy.

As State’s Attorney, Foxx was also committed to reforming the office’s Conviction Integrity Unit early on. In December, she said that the unit had been “compromised” and hired a law professor to design a better system — a move she described as a “top priority.” In May, she tapped a long-time trial lawyer to lead the unit, applauding his “sound judgment, exemplary reputation, and thoughtful and thorough approach.” Since the start of Foxx’s leadership, the office has overturned at least five convictions, including the two cases linked to Watts. Having run on a progressive platform that emphasized officer accountability, overturning 15 convictions could send an even clearer message that corruption — when identified — will not be tolerated.

But it is also a pivotal opportunity for Foxx to make a statement regarding who she is bound to serve: law enforcement or the people who got her elected.

Foxx belongs to a growing group of district and state attorneys elected because they are critical of outdated tough-on-crime policies that have, historically, led to the over-criminalization of Black and Latinx communities. Those communities saw Foxx as a potential game-changer. They launched a massive grassroots campaign, steered by Black Lives Matter activists and Assata’s Daughters, that aimed not only to elect her, but also to oust Alvarez, who had targeted them and protected cops at their expense.

The more Foxx does to right past wrongs within the law enforcement community — even if that could sully her relationship with the police she collaborates with —indicates that she feels obligated to fulfill her pledge to the people who put her in office. It says that prosecuting officers and acknowledging their abuses of power should be the rule, not the exception.

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