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.