Nathaniel Rubin, 1L
It’s time for an overhaul of qualified immunity in America. Police misconduct, particularly relating to their use of force with communities of color, has been at the forefront of the national conversation for almost a decade. Society has been outraged by police officers avoiding the consequences for their actions, leading to a widespread societal perception that police the police are above the law.
So, are police officers above the law?
In American civil law, they might as well be, thanks to qualified immunity—the doctrine of qualified immunity grants broad immunity against suit to government officials acting in a discretionary capacity. The United States Supreme Court in Harlow v. Fitzgerald held that the defendant officials’ offending conduct must violate clearly established statutory or constitutional rights beyond debate and that a hypothetical reasonable official would have known the defendant’s conduct violated those rights.
This conferred immunity throws out the vast majority of lawsuits against law enforcement at the early procedural stages. Cases of potential constitutional violations are procedurally dismissed when there is no clearly established precedent particularized to the facts of the case. This creates a near insurmountable paradoxical dilemma. Any novel case involving a potential constitutional violation will be summarily dismissed on the grounds of qualified immunity, preventing the establishment of new precedent by ensuring novel cases are never brought to trial. But how could this be? Federal law is based on established Supreme precedent, and qualified immunity summarily dismisses any cases vague enough to establish new precedent!
Hope and Taylor
Fear not, Justice Stevens asserted in Hope v. Pelzer that “for purposes of qualified immunity, officials can still be on notice that their conduct violates established law even in novel factual circumstances.” Therefore, in novel situations, if the law at the time gave officials fair warning their actions are unconstitutional, they can be brought to trial.
Consider the facts of Taylor v. Riojas, a 2020 per curiam decision by the Supreme Court. Trent Taylor was an inmate in Texas subjected to six full days of nude confinement in prison cells covered in fecal matter, and many of those days in the frigid cold. Taylor sued the prison officials who housed him in these unconstitutional conditions, and the District Court for the Northern District of Texas granted summary judgment, which the fifth circuit upheld in part. The fifth circuit properly held that these conditions were a blatant eighth amendment violation but couldn’t find clearly established law that “prisoners couldn’t be held in cells teeming with human waste” for “only six days.” The court concluded that the officials responsible did not have fair warning these acts were unconstitutional. This compelled the Supreme Court to grant cert to Taylor, vacate the Fifth Circuit’s judgment and remand the case to trial. One of the officers placing Taylor in the feces covered cell remarked that Taylor was “going to have a long weekend.” Another one of the officers reportedly said he hoped Taylor would ‘F***ing freeze. The Supreme Court asserted that any reasonable officer should have realized that these circumstances were cruel and unusual.
Taylorstands out because the Fifth Circuit clearly recognized that prison officials violated the constitution, yet the court was still unwilling to revoke these officials’ qualified immunity. This is not an isolated incident. There are many other examples of blatant constitutional violations where appellate courts were reluctant to remove immunity. Regardless of their ideological leanings, circuit appellate courts are bound by the Supreme Court’s narrow interpretation of what constitutes “clearly established.” Situations that might be obvious to even the most conservative courts as a constitutional rights violation might not meet that narrow bar.
Since the standard for overcoming qualified immunity is so high that circuit courts do not feel comfortable doing so in cases with blatant constitutional violations, it is time to overhaul the qualified immunity doctrine. Justices established governmental immunity to prevent the government from being bogged down with excessive litigation. Still, with the epidemic of police misconduct in our nation, the interests of justice outweigh the interests of economic efficiency. The Supreme Court’s interpretation of qualified immunity has effectively granted absolute immunity to government officials. The standard of “clearly established beyond debate” is yet another paradoxical quandary−asking a group of jurists who argue for a living to establish something beyond debate is a comically impossible standard.
The Supreme Court’s interpretation of qualified immunity has had a tremendously negative impact on public policy related to policing. The requirements to overcome governmental immunity are so strict as to make government officials immune from liability as a default. Short of doing away with qualified immunity entirely, it should be relaxed to the point that circuit courts are comfortable allowing cases with clear constitutional violations to go forward. Ideally, government officials should be judged by the standard of a reasonable person in their shoes until such a time that they can demonstrate they are worthy of such broad immunity.