The recent death of George Floyd and the shooting of Jacob Blake, as well as other apparent incidents of police misconduct, have sparked a nationwide debate about police reform. One of the more esoteric issues is that of “qualified immunity” of police officers from lawsuit. What is qualified immunity and what, if anything, should we do about it? Is there any room for bipartisan agreement on the issue? Let me explain.
Qualified immunity is a legal doctrine that allows police officers and other governmental officials to avoid civil legal liability if their actions were in good faith. It does not prevent police officers from getting sued. In America, with few exceptions, almost anyone can file a lawsuit against anyone else. But when someone does file a lawsuit against police officers, the officers can raise the defense of “qualified immunity” to prevent a money judgment from entering against them and, in many cases, to avoid having to stand trial.
In federal cases, qualified immunity is a judge-made doctrine largely stemming from twentieth century U.S. Supreme Court cases. Some states, like Connecticut, have recently codified their qualified immunity doctrine for purposes of lawsuits arising under state law. In either case, the main purpose of the doctrine is to protect law enforcement officers from liability when they have made difficult decisions about arrests or searches and have at least a good faith belief that their actions have conformed to existing court decisions in similar situations. Courts and legislators have recognized that most police officers are not lawyers but, nonetheless, are regularly called upon to interpret and follow court decisions while on dangerous assignments. In many cases, officers have to make split second judgments in which someone’s life, including their own, is on the line. A limitation on liability through the qualified immunity rule is not unlike what many doctors or other professionals have when they follow the standard of care but there is a bad outcome. The qualified immunity doctrine is also important in the recruitment and retention of competent law enforcement officers.
Jamison v. McClendon
A recent federal case out of the Southern District of Mississippi has brought to light some of the shortcomings of the doctrine. In Jamison v. McClendon, 2020 WL 4497723 (S.D. Miss. Aug. 4, 2020), a white police officer, Nick McClendon, stopped a black driver, Clarence Jamison, driving a Mercedes convertible because his temporary license tag was allegedly folded over. Jamison was driving home to South Carolina from a vacation in Arizona. McClendon detained Jamison for approximately one hour and fifty minutes, repeatedly asked him for consent to search his car, lied to him that he believed that there was a large stash of cocaine in the car, and then, when Jamison consented to a search, did several thousand dollars of damage to the car’s seats and convertible top in searching for drugs. Nothing was found.
When Jamison sued McClendon under the federal civil rights laws and McClendon filed a motion raising a qualified immunity defense, United States District Judge Carleton Reeves wrote a long, powerful critique of the qualified immunity doctrine. Judge Reeves explained that, under the current state of the law, an officer can succeed on a qualified immunity defense unless his or her actions violate “clearly established” law, as interpreted by the courts. Judge Reeves reluctantly acknowledged that “[t]his Court is required to apply the law as stated by the Supreme Court. Under that law, the officer who transformed a short traffic stop into an almost two-hour, life-altering ordeal is entitled to qualified immunity. The officer’s motion seeking as much is therefore granted.”
Judge Reeves concluded: “Viewing the facts in the light most favorable to Jamison, the question in this case is whether it was clearly established that an officer who has made five sequential requests for consent to search a car, lied, promised leniency, and placed his arm inside of a person’s car during a traffic stop while awaiting background check results has violated the Fourth Amendment. It is not.” The Fourth Amendment protects Americans from unreasonable search and seizure. But, Judge Reeves found that there were no appellate cases clearly holding that what Officer McClendon had done was illegal. Therefore, Officer McClendon was entitled to qualified immunity and the court had to dismiss the claims against him for violation of Jamieson’s civil rights. (For technical reasons, however, Jamieson will still be able to go to trial to attempt to recover for the damage to his car.)
In the course of the opinion, however, Judge Reeves commented: “[L]et us not be fooled by legal jargon. Immunity is not exoneration. And the harm in this case to one man sheds light on the harm done to the nation by this manufactured doctrine.” Judge Reeves added that “a review of our qualified immunity precedent makes clear that the Court has dispensed with any pretense of balancing competing values. Our courts have shielded a police officer who shot a child while the officer was attempting to shoot the family dog; prison guards who forced a prisoner to sleep in cells ‘covered in feces’ for days; police officers who stole over $225,000 worth of property; a deputy who body-slammed a woman after she simply ‘ignored [the deputy’s] command and walked away’; an officer who seriously burned a woman after detonating a ‘flashbang’ device in the bedroom where she was sleeping; an officer who deployed a dog against a suspect who ‘claim[ed] that he surrendered by raising his hands in the air’; and an officer who shot an unarmed woman eight times after she threw a knife and glass at a police dog that was attacking her brother.”
Bipartisan Middle Ground?
Supreme Court Justices across the ideological spectrum–including Justices Kennedy, Scalia, Thomas, and Sotomayer–have criticized the application of the qualified immunity doctrine. The question then arises: is it possible to retain qualified immunity when it clearly makes sense but to limit the doctrine when it merely provides cover for abuses like that in Jamison v. McClendon?
On the one hand, it seems hard to fault a police officer when he or she follows existing law and yet turns out to be wrong. For example, what if an officer executes a search based on a judicially-approved search warrant and a different judge later determines (as can happen in our judicial system) that the warrant did not contain a sufficient statement of probable cause or was invalid for some other reason? Should an officer become liable if he or she makes an arrest for a violation of a criminal statute that a court later determines was unconstitutional? In these cases, eliminating the defense of qualified immunity would seem to punish an officer who acted in good faith compliance with existing law.
On the other hand, the application of qualified immunity in cases of claimed excessive force in making an arrest, such as the Floyd and Blake cases, is often troublesome. Again, the officer will not have qualified immunity if the law is “clearly established” that what he did was illegal. Of course, the law is clearly established that it is unconstitutional to use excessive force. So you might think that officers will not have qualified immunity in excessive force cases. But, as it stands now, courts must assess the qualified immunity defense by looking not just at the general constitutional rule that it is illegal to use excessive force but rather at the specific facts of the case. In other words, the question trial judges have to answer is whether there are excessive force cases decided by appellate courts in which they found very similar police conduct to be illegal. Only if this factual similarity exists will the officer lose qualified immunity and become subject to a money judgment. Judge Reeves struggled with this rule in the Jamison case because no two cases are exactly the same, particularly when they involve violent police-citizen encounters. What the officers may have done illegally in the George Floyd case does not necessarily “clearly establish” that what happened in the Jacob Blake case was illegal. One can debate endlessly whether two cases are similar or different. For this reason, qualified immunity may be very difficult to deny in excessive force cases that are dependent on unique facts. That difficulty can lead to unjust results, as it may have in the Jamieson case.
The main point here is that there seem to be some valid applications of qualified immunity and some invalid ones. Those calling for the complete elimination of qualified immunity for police officers go too far, especially when the officer acts in accordance with a judge’s orders or existing law. Yet there may be a species of cases, perhaps those involving claims of excessive force, in which qualified immunity does not make sense. Even in these cases, the officer would not be liable unless the person suing the officer convinced a jury that the officer had actually violated the law. We must also consider the fact that there are other remedies for police misconduct such as the exclusionary rule (which prevents the government from using evidence at trial that the police obtain in violation of a suspect’s rights), administrative discipline and, ultimately, criminal charges against the officer.
There is much room for debate and fine-tuning. Some of this debate will take place in courtrooms and among judges and Justices. Some of this debate can take place in legislatures. Here, as with so many other issues, there is a need for civil, bipartisan discussion to accomplish reform in view of contemporary events while still accommodating competing governmental and societal interests. I hope the readers of Divided We Fall will continue the conversation.
If you enjoyed this article, you can read more by Carl Schuman here.