Disqualifying qualified immunity

How this made-up judicial doctrine protects buffoonery, brutality, and everything in between.

Have you ever heard of qualified immunity? No, it isn’t what happens when you replace your second Moderna shot with a tequila shot.

Simply put, qualified immunity protects public officials from civil liability while performing their job. Considering how litigious we have become as a society, where you can file 63 frivolous lawsuits because you lost one election, qualified immunity might seem to make sense.

Unfortunately, qualified immunity is increasingly protecting buffoonery, brutality, and everything in between.

For example, Michael Vickers didn’t just screw the pooch; he tried to shoot it, too. While trying to “subdue” a dog during an arrest, Vickers, a Georgia county deputy sheriff, twice misfired and, instead, struck a 10-year-old boy nearby. The courts dismissed the lawsuit against Vickers and sent him on his merry way. (Hopefully, to the firing range for some practice.)

The genesis of qualified immunity can be traced to the Pierson v. Ray decision of 1967. The circumstances surrounding this landmark case — 15 priests, on their way to the Mississippi Freedom Rides, walk into a coffee shop — sounds less like a crime and more like a setup to a bad joke.

An appellate judge agreed that something was funny when police officers arrested this pious brigade and dismissed the case. One of the priests, Reverend Robert Pierson, sued the officers but eventually lost in the Supreme Court. The majority decision stated that the officers should be shielded “from liability for acting under a statute that he reasonably believed to be valid but that was later held unconstitutional.”

“Look, son — I don’t make the law,” said the officer. “I just enforce what I reasonably believe to be valid.”

Yikes.

The fun thing about this legal doctrine: It’s totally made up. Try and find qualified immunity in the Constitution. Go ahead. I’ll wait here.

Welcome back. Other than a bunch of words that are routinely ignored by lawmakers, you likely found that the Constitution says absolutely nothing about qualified immunity. This makes sense considering that the Framers just finished fighting a war against an occupying force who needed to be held accountable for their crimes. Turns out, there wasn’t much of a “Redcoat Lives Matter” movement back then.

So how is qualified immunity awarded? The plaintiff filing suit against the public official must prove that a clearly established constitutional right was violated. To do so, they must cite a prior court decision that 1) establishes that the defendant’s conduct was unconstitutional and 2) contains sufficiently similar facts.

Seems easy enough, right? (“But it isn’t,” said Morgan Freeman’s omniscient narrative voice.)

Here’s the rub: To determine if a right is “clearly established,” the lower courts became overly particular on what constitutes “sufficiently similar facts.” This became the legal equivalent of those “spot the difference” puzzles, where two pictures are juxtaposed and your task is to find the variance. The slightest difference — say, an officer beats a man using a croquet mallet but the prior case involves a badminton racket instead — may result in case dismissal and a get-out-of-civil-liability card for the defendant.

For perspective, the lawsuit filed by George Floyd’s family cited two similar cases involving handcuffed detainees, Jerome Harrell and Nichola Gilbert, both of whom died while restrained by police in a prone position. However, neither case involved a neck restraint, like the one used on Floyd, causing legal analysts to speculate that this was enough to dismiss the civil case against Derek Chauvin.

The Chauvin case resulted in a $27 million settlement, so immunity became moot. Also moot: that whole “we need it because expensive lawsuits” argument.

Ridding our system of qualified immunity can be as easy, though. The court system that pulled this magical rabbit out of its hat can easily throw that hat directly into a wood chipper. (No rabbits were harmed in the writing of that sentence.)

Interestingly, this issue could potentially unite ideologically opposed sides of the Supreme Court. Justices Clarence Thomas and Sonia Sotomayor — respectively, the right and left flanks of the Supreme Court — both signaled their distaste for qualified immunity. This is a rare celestial event to behold: According to court data, Thomas and Sotomayor agree the least out of any other pair of justices and, as of this writing, have concurred only once without any other justices joining in their dissent. (There was another time when, after a few rounds of Heinkiens, they agreed that Gorsuch could totally take Kavanaugh in an Indian leg wrestling match, but they weren’t technically on the clock for that one.)

Rather than pretending that this emperor of a judicial doctrine is fully clothed, it’s high time that we admit the naked truth about how preposterous qualified immunity truly is. And if sincerity and nudity aren’t your things, then definitely skip that tequila shot.