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Qualified Immunity Is a Disgrace, No Matter Where You Live

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Whether police officers are granted qualified immunity—the legal doctrine that makes it considerably more difficult to sue civil servants who violate your rights—largely depends on where the offense occurred, and thus where it’s litigated in court, according to a recent Reuters investigation.

But even in the courts that try to hold public servants to a higher standard, officers routinely receive qualified immunity for conduct that shocks the conscience.

The doctrine, conjured into existence by the Supreme Court rather than by legislation, requires plaintiffs to show that misconduct was “clearly established” as verboten in a court precedent prior to the alleged offense. Courts have applied a strict interpretation of that standard in which civil servants cannot be sued unless courts have expressly condemned a near-identical situation. Without such notice, the thinking goes, public employees couldn’t know their bad behavior was unlawful, as if they studying case-law texts before going to work.

The high court’s decision, which came in Harlow v. Fitzgerald (1982), directly cut against the Civil Rights Act of 1871, the law that expressly permits the American public to sue civil servants who acted unconstitutionally. In theory, the ruling was supposed to shield state actors from groundless lawsuits. But as a practical matter, it has taken away the rights of many to bring civil suits against public officials who have flagrantly trampled on their rights.

Judges in the Fifth Circuit—which covers Mississippi, Texas, and Louisiana—”are more likely to prioritize police power over citizens’ rights and liberties,” Reuters reports. That deference to the state doesn’t stop at the police. The Fifth Circuit Court of Appeals recently granted qualified immunity to a group of prison guards who forced a naked inmate, Trent Taylor, to stay in two squalid cells, one with “massive amounts of human feces” and the other with raw sewage overflowing on the floor. Though the judges on that panel acknowledged that Taylor’s Eighth Amendment rights had been violated, they granted the group qualified immunity on the basis that the precise amount of time the inmate spent in those cells—six days—had not been spelled out in pre-existing case law.

“Though the law was clear that prisoners couldn’t be housed in cells teeming with human waste for months on end, we hadn’t previously held that a time period so short violated the Constitution,” wrote Circuit Judge Jerry E. Smith. “That dooms Taylor’s claim.”

Alternatively, the Ninth Circuit, which covers California, Washington state, Alaska, Arizona, Hawaii, Idaho, Montana, Nevada, and Oregon, “has set a higher bar for police,” granting qualified immunity in 42 percent of excessive force complaints. But even that appeals court has awarded qualified immunity in some head-scratching cases.

In 2019, for instance, the Ninth Circuit gave qualified immunity to Los Angeles police officer Michael Gutierrez who, without warning, shot a 15-year-old boy as he was preparing to make his way to school. The teen’s friend was holding a plastic Airsoft gun replica. “Under the circumstances, a rational finder of fact could find that Gutierrez’s use of deadly force shocked the conscience and was unconstitutional under the Fourteenth Amendment,” the Ninth Circuit wrote. But that wasn’t enough. “Because no analogous case existed at the time of the shooting, we hold that the district court erred in denying Gutierrez qualified immunity for this claim.”

The same federal court also granted two cops from Fresno, California, qualified immunity after the pair allegedly stole $225,000 while executing a search warrant. The decision followed a similar trajectory: Though the judges agreed the officers’ conduct was unquestionably bankrupt, that didn’t matter in the context of qualified immunity, leaving the victims little recourse in seeking recompense for their lost assets. “The panel held that although the City Officers ought to have recognized that the alleged theft was morally wrong,” they wrote, “they did not have clear notice that it violated the Fourth Amendment.”

The latter case was not an excessive force complaint, and thus wouldn’t have influenced Reuters investigation. It’s a good reminder that misbehavior in law enforcement involves more than excessive force. And it’s an unpleasant confirmation that civil servants are granted qualified immunity in even the most baffling circumstances, no matter what the offense or location.

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About The Author

Billy Binion

Founded in 1968, Reason is the magazine of free minds and free markets. We produce hard-hitting independent journalism on civil liberties, politics, technology, culture, policy, and commerce. Reason exists outside of the left/right echo chamber. Our goal is to deliver fresh, unbiased information and insights to our readers, viewers, and listeners every day. Visit

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