Your Donation Will Be Doubled. Support Today!

The Appeal Podcast: Qualified Immunity, A Roadblock to Reform

With Appeal contributors Amir H. Ali and Emily Clark of the MacArthur Justice Center

Flickr/Thomas Hawk (CC BY-NC 2.0)

Efforts to hold police accountable for violating civil rights often come up against a legal roadblock known as “qualified immunity.” Invented by the Supreme Court in 1967 and widely expanded in 1982, qualified immunity helps public officials avoid liability for misconduct and even flagrant constitutional violations. In the Supreme Court’s own words, it protects “all but the plainly incompetent or those who knowingly violate the law.” Joining us today to discuss this barrier to reform are Appeal contributors Amir H. Ali and Emily Clark from the MacArthur Justice Center.

The Appeal is available on iTunes and LibSyn RSS. You can also check us out on Twitter.


Adam Johnson: Hi, welcome to The Appeal. I’m your host Adam Johnson. This is a podcast on criminal justice reform, abolition and everything in between. Remember, you can always follow us on The Appeal magazine’s main Facebook and Twitter page and as always you can rate and subscribe to us on iTunes.

In the broader effort to hold police accountable, most typified in the Black Lives Matter movement, one somewhat obscure legal conceit has in a largely unnoticed way contributed to our current regime of unaccountability. That conceit: what’s called qualified immunity. Invented out of whole cloth by the Supreme Court in 1967 and widely expanded in 1982, qualified immunity exemptions make holding law enforcement accountable for abusing people’s rights that much more difficult. Joining us today to discuss this roadblock to reform is Appeal contributors Amir Ali and Emily Clark from the MacArthur Justice Center.

[Begin Clip]

Emily Clark: Qualified immunity gives public officials essentially a pass on following the law and courts hold those people to a lower standard that quite literally allows them to violate Americans’ constitutional rights with impunity.

Amir Ali: What we’re trying to do here is point out that there is this other lever that is supposed to hold public officials accountable, but because of this decision that the Supreme Court has made and this policy making that’s going on in courts that lever is frustrated as well.

[End Clip]

Adam: Amir and Emily thank you so much for coming on the podcast.

Emily Clark: Thanks for having us.

Amir Ali: Our pleasure.

Adam: So you all wrote — y’all as we say in Texas — y’all wrote a rather thorough explanation about what qualified immunity is. When people hear qualified immunity, it sounds like the lamest John Grisham novel ever, but it’s actually really important. Can we get a sort of overview about what qualified immunity is and why it matters?

Emily Clark: A basic expectation Americans have it that people have to follow the law, right? So you-

Adam: Theoretically.

Emily Clark: Theoretically, right. So all of us are, we’re required to follow the law and respect other people’s legal rights. And if you don’t, and if you violate someone else’s legal rights, that person can bring a lawsuit to hold you accountable for your actions. And assuming that they prove that you did in fact infringe on their rights, you’ll be liable for any injuries that you caused. And now qualified immunity gives public officials — and as it plays out that most often means police officers and prison guards — so qualified immunity gives public officials essentially a pass on following the law and courts hold those people to a lower standard that quite literally allows them to violate Americans’ constitutional rights with impunity.

Amir Ali: Yeah, so that, that’s exactly right. So, and I think the comparison between ordinary citizens and law enforcement is a good one. So let me give a concrete illustration. So Adam, let’s assume that you don’t like how this interview goes. You know, we’ve given you crappy material for the podcast and you decide to beat me up afterwards or maybe you just negligently stick your foot out as I’m walking out the door, sending me down the stairs.

Adam: I like this scenario. I have the upper body strength of an 11 year old. So.

Amir Ali: I don’t know you, I don’t know you. So.

Adam: Okay.

Amir Ali: So, you know, the law of torts says that I can sue you for that. And when I sue you, we will show up in court, you know, we’ll argue our cases and the question for the court will be the question that courts are supposed to ask. You know, did Adam violate Amir’s legal right to be free from assaults or free from the negligence of sticking his foot out? And if I prove that you violated my legal rights, you’ll be accountable for your actions and you’ll have to pay for the injuries you caused. Well Congress tried to do the same thing when it comes to public officials. They tried to make sure that the people in this country can hold their public officials, including police officers and prison guards or you name it, accountable for their actions. And so way back in 1871 as part of an Act sometimes referred to as the Ku Klux Klan Act, Congress gave people the right to sue state officials when those state officials violate their legal rights. So, you know, when a police officer searches and arrests someone based on their race or uses pepper spray and a night stick on someone because they’re at a protest against police violence or you name it, that person is supposed to be able to bring an action and hold that officer, and through the officer, the police department and the government accountable. And that’s how it’s supposed to work. And the same question is supposed to be asked when that person comes into court, did this officer violate this American citizen or person’s legal rights? That’s the way it was supposed to work. But you know, as we explain in our article, and this is really what qualified immunity is all about, the Supreme Court created this defense for public officials out of whole cloth. And in recent years it has really ratcheted up the defense. And I can talk in more detail about exactly how it plays out, but the basic is that the courts are no longer asking just the question of whether officers have violated Americans’ legal rights. And instead they’re asking this very specific question about whether another officer in the past happened to have violated this person’s legal rights in the same way.

Adam: Right? So for those listening, they would say, well, I hear all the time about the NYPD or the LAPD being sued for violating people’s rights. What is that and how is that different from qualified immunity?

Amir Ali: So there are a number of lawsuits when these sorts of things happen against officers and what qualified immunity is is a particular defense that the NYPD officer or the LAPD officer can raise when they get in court. And this is how the defense works. Let me give an example and it is an example that’s all too common in this country. Person of color subject to police brutality brings a lawsuit for the violation of his civil rights, his right to be free from excessive force by public officials. And they get into court and the public official probably will argue, you know, I didn’t do this or I didn’t violate your rights. But what qualified immunity gives that officer is the ability to say, ‘and even if I did violate his civil rights, there was no prior case exactly like this where somebody else violated a person’s right in this same way.’ They’re literally saying, you know, ‘no one else shot someone the way I shot this person and so I should be afforded immunity for what happened here because there was no case that happens to look a lot like this case.’

Adam: Let’s talk about that because this is I think, the rub. This is really one of those things where the kind of legal sleight of hand is really important. You talk about how in 1982 there’s this case Harlow versus Fitzgerald, which the requirement for qualified immunity, which had been around for 15 or so years from good faith, which is an officer saying they violated your rights, but they are operating in good faith. Like they sort of bumbled and messed up and then the standard switch to what you say is a clearly established right, which requires, and you’re explainer does a good job noting this, which requires precedent and you can’t and the courts, from what I understand, cannot create new precedent, so as you write this quote unquote “freezes constitutional law.” So someone, to do kind of ad absurdum here, someone’s suing someone in 2420 will have to reference case law if this never changes from 1965? Is that true? Is that, maybe that’s a bit goofy, but is that really what we’re talking about here in terms of this impossible standard to meet where you really have to meet this incredibly esoteric criteria for it to be germaine?

Amir Ali: I don’t want to say that it’s an impossible standard to meet, but what I do want to say is that it is certainly responsible for a lot of great injustices that we see where victims of police misconduct and other government misconduct come into court and have their cases dismissed. They’re kicked out of court. Not because their rights weren’t violated, but because, and it’s not just about precedent, and I realize this could be a little bit of a nuanced distinction, now courts all the time when they’re determining whether someone’s rights were violated, they resort to precedent and and say, ‘okay, well how would this apply in these circumstances and does that mean that this person had a constitutional right that was violated?’ Here it’s, it’s not just precedent, they’re saying ‘we’re going to look at the facts of prior cases and see whether we just happened to have a case that arose in that same context.’ So, you know, quite literally if you have a police shooting and a civil rights lawsuit that follows against the officers and the theory is, you know, this officer shot someone in the back and there was no threat to the officer or anybody else, the police officer can get off scot free simply because he shows that there’s no case out there where a police officer shot someone in a similar way. Not because, you know, it was okay to shoot this person, but because there’s no case out there that happened in a similar way. And let me give you a real example. This is a case, the ACLU actually filed a petition with the Supreme Court in the case I’m about to describe just in April of this year. It was a case where an individual who was pursued by police officers surrendered and he puts his hands up in the air and makes clear that he’s surrendered and the police officer’s nonetheless decide to stick a dog on the person who’s injured. And just to give you a sense of the force and how hard it can be in courts to establish that qualified immunity shouldn’t be granted to an officer, what a court, the Federal Court of Appeals said was, ‘you know, we have this prior circumstance in which it turns out that police officers also sicced the dog on someone, but in that case, when they sicced the dog on the suspect who had surrendered, he was laying on the floor. In this case, his hands were in the air, doesn’t seem similar enough to us.’ And they grant qualified immunity to the officers who did basically the same thing. And I just give that example to show you how courts are really rolling with this defense in an aggressive way. Now, you know, we think that decision was wrong and should have come out the other way, but it gives you a sense of kind of what’s happening in the courts and the degree to which officers really aren’t held accountable for pretty outrageous conduct.

Adam: This seems like it sort of relies on a tautology. In y’alls explainer you quote the Fifth Circuit Judge Don Willett, who said that victims of abuse quote “must produce precedent even as fewer courts are producing precedent. Important constitutional questions go unanswered precisely because those questions are yet unanswered. Courts then rely on that judicial silence to conclude there’s no equivalent case on the books. No precedent = no clearly established law = no liability.” Explain the logic behind this and how frustrating this is for lawyers and I would imagine also judges who maybe would argue their hands are somewhat tied here.

Emily Clark: So, well I think Judge Willett hit on an extremely important problem. And let me see if I can just clarify it. Like Amir explained earlier, if I sue an officer for violating my rights, in order to beat qualified immunity, I have to produce a clearly established case. So the case that’s in the same specific context and involving the same conduct or the court found that that conduct was a constitutional violation and the court can dismiss my case on the basis that it doesn’t think any prior case is similar enough. But here’s the problem: the court can dismiss my case on this basis without even considering whether the officer’s behavior was a constitutional violation. And so that just means that even if someone else in the future sues an officer for the exact same behavior and exactly the same circumstances, they still are not going to be able to point to a clearly established case because these courts are taking the shortcut. They’re not saying that this behavior is a constitutional violation. And so not only has the Supreme Court in creating the standard at this incredibly high threshold by requiring you to find a case involving nearly identical facts, but by allowing courts to skip considering whether a constitutional violation has even occurred, the Supreme Court has caused this sort of vicious cycle in which these cases that you need to rely on are unlikely to even exist in the first place.

Adam: Right.

Emily Clark: So I would argue, you know, it’s not just that judges are frustrated on not being able to find cases on point that there are judges that aren’t even making those cases that you need.

Adam: So this seems, I think the average layperson listening to this would say this is absurd. I assume people in this profession see it as being absurd. Obviously there are institutional forces that want to protect law enforcement who sort of don’t care if it’s absurd. You write that there was a quote “growing consensus around qualified immunity that it has to be reformed.” I know you may not have polls in front of you, but maybe you do. What is the sort of legal consensus amongst maybe, for lack of a better term, unconflicted parties kind of maybe academics or more neutral observers?

Emily Clark: Totally. So I mean I guess if you just look at the people who were involved in writing, amicus, the friend of the court briefs or people who are writing articles. I mean it’s not everyday that you have social justice organizations like the MacArthur Justice Center and the ACLU, the NAACP Legal Defense Fund joining forces with gun rights and free market advocates. You know, but that’s what’s happening here. There are a large coalition of groups across the political spectrum who started to advocate against qualified immunity and they’ve made their views known that this doctrine is really problematic.

Amir Ali: And I’ll just add, I think you actually hit the nail on the head, Adam, when you kind of referred to this as being just a policy preference towards protecting law enforcement. And that’s exactly what courts are effectively doing here. We don’t usually think of courts as policy makers, but the origins of this doctrine and the application of this qualified immunity defense is really nothing more than a policy decision that law enforcement officers and government officials should be immunized for their conduct and it’s directly contrary to what the actual policy maker — Congress — said should happen in these circumstances.

Adam: Let’s talk about, for lack of a better term, the moral hazard here. When you talk to anyone who deals in prison reform, who deals in prisoner abuse, lack of healthcare, sexual assault in prisons, they’ll tell you the number one worst thing that happened was the 1996 Prison Litigation Reform Act, which was done kind of during the peak of the tort reform panic. This seems like it’s a similar vein where it sort of makes it hard to sue, if this did not exist, if we sort of did meaningful reform here and made police responsible for their actions, how do you think this would affect the broader issue of police abuse?

Amir Ali: This is one of many potential levers to hold police accountable. So one could imagine a society, and this happens in other countries, where police are held accountable by other public officials, right? But here we see in the news every day that those systems are failing right? Police or law enforcement or whether it’s prison guards are not being criminally indicted or held liable through that system by other public officials. They’re either not being charged, not being indicted by the grand jury as we’ve seen or not being convicted at trial. And so this is a lever that is supposed to put in the hands of the victim of these sorts of abuses, the ability to hold the person who violated their rights accountable. And when you have the absence of the kind of what I’ll call the criminal side of the criminal justice system, working to hold these folks accountable, this lever, the ability to hold them accountable through filing a civil rights lawsuit, it becomes all the more important. And no one could ever write enough articles on how important it is to have the other side of the system work. But what we’re trying to do here is point out that there is this other lever that is supposed to hold public officials accountable, but because of this decision that the Supreme Court has made and this policy making that’s going on in courts, that lever is frustrated as well.

Adam: What is the current status of reform? Is this something that’s going to have to be — forgive my layman disposition here — is this something that’s going to have to be addressed by the Supreme Court themselves or is there some sort of legislative mechanism that Congress could do in addition to these kind of broad public service things? What are reformers doing to try to fix this?

Emily Clark: So Congress could make legislation that could change qualified immunity, although we know they probably will not. That probably is not going to be how change happens. This is, you know, it’s a mess created by the Supreme Court and it should be something that they address to fix what they’ve done. And I think it’s important to note that several Supreme Court justices have actually started to recognize that the doctrine is problematic, um, from both sides of the spectrum. So Justice Sotomayor has recognized the serious accountability issues we’ve talked about in several of her opinions. And on the other end of the spectrum Justice Clarence Thomas has criticized qualified immunity as having no legal basis and indicated that he would be willing to revisit it. And that, I guess the question is really just whether justices in the middle will acknowledge that and until they discard the doctrine they’re effectively playing policymaker every time that they apply it.

Adam: Is there a case that’s currently moving its way through the courts that we can look out for or is that not something that’s on the radar?

Amir Ali: So, there’ve been a couple of cases filed on this recently. There is a pending petition before the US Supreme Court that was filed in April asking the court to revisit the doctorate in qualified immunity that was filed by the ACLU. And I think we’ll see a lot more cases, particularly in light of the justices signaling that they’re starting to recognize that this is a real problem.

Adam: Thank you so much. That was extremely informative. It’s very underrated in how crucial this is, so I really appreciate you demystifying and breaking this down for us.

Amir Ali: It’s our pleasure.

Emily Clark: Thanks very much.

Adam: Thank you to our guests Amir and Emily. This has been The Appeal podcast. Remember, you can always follow us on Facebook and Twitter at The Appeal magazine’s main Facebook and Twitter page. The show is produced by Florence Barrau-Adams. Production assistant is Trendel Lightburn. Executive producer is Cassi Feldman. I’m your host Adam Johnson. Thank you so much. We’ll see you next week.