It's Time to Get Rid of Qualified Immunity | Opinion

On July 10, 2014, Michael Vickers, a deputy sheriff in Coffee County, Georgia, fired two shots. The first missed its target. The second also missed its target—and hit an unarmed 10-year-old boy instead.

The sheriff and a few other officers were in pursuit of a fleeing suspect just before the shooting. To escape the police, the suspect ran onto Amy Corbitt's property, where six children including her own were playing, two of them under the age of three. The children found themselves caught up in the frenzied scene, allegedly ordered to lay face-down in the grass with loaded guns pressed into their backs.

All complied with the officers' orders—including the suspect. It wasn't him who deputy sheriff Vickers shot. It was Amy Corbitt's dog, Bruce, who by eyewitness accounts posed no threat to the group. The sheriff's deputy shot him anyway, missed, and then shot again. The second bullet dug its way into the back of Corbitt's son's right knee, who was lying 18 inches from Vickers.

The boy survived, but bullet fragments remained lodged in his body long after the shooting. He required the medical intervention of an orthopedic surgeon and his mother had to finance homeschooling; the event left him too traumatized to interact with others socially.

It gets worse: The family was barred from suing for damages, thanks to a law that shields officers from civil damages. It's called qualified immunity, and it's a legal doctrine that makes it bewilderingly difficult to bring lawsuits against government officials accused of misconduct.

Corbitt subsequently filed suit seeking compensatory damages related to ongoing treatment. In evaluating her claims, the U.S. Court of Appeals for the 11th Circuit stated the obvious: "We do not doubt Vickers could have acted more carefully," wrote Circuit Judge Robert Lanier Anderson III. "The firing of a deadly weapon at a dog located close enough to a prone child that the child is struck by a trained officer's errant shot hardly qualifies as conduct we wish to see repeated."

But if you thought that meant Corbitt had a case, you would be wrong. Because neither the Supreme Court nor the 11th Circuit had ruled on a scenario with nearly identical facts, the panel said Corbitt had no right to argue her suit before a jury.

Such is the case with qualified immunity, the perverted principle conjured out of nothing into something by the U.S. Supreme Court, first in Pierson v. Ray (1967) and then in Harlow v. Fitzgerald (1982). The doctrine allows state actors to violate your constitutional rights with impunity if the precise way in which they misbehave has not been "clearly established"—or, in other words, outlined with razor-like exactitude—in a previous court ruling.

Harlow was supposed to protect government officials from a cascade of breathless lawsuits. It has instead shielded them from meritorious ones—even in instances where the Average Joe would arguably face criminal charges.

Consider the two cops in Fresno, California, who allegedly stole $225,000 while executing a search warrant. "The City Officers ought to have recognized that the alleged theft was morally wrong," wrote a panel for the U.S. Court of Appeals for the 9th Circuit. But because there was no precedent on the books that explicitly deemed stealing in such a manner unconstitutional, the officers "did not have clear notice that it violated the Fourth Amendment." They were granted qualified immunity, and their victims thus had no right to sue.

It's an unnervingly low standard at which to hold government officials. Richly ironic is that reasonableness is core to the qualified immunity doctrine: Would a reasonable official know their conduct violated the Constitution?

To find our answer, we're told to dredge up that mirror-like court ruling. Two problems come to mind: That assumes civil servants are combing through case law before starting their shifts. I'd venture they're not. It also assumes those civil servants cannot deduce it is morally transgressive to steal hundreds of thousands of dollars. Put plainly, we are to assume they are stupid. That's unreasonable.

Indeed, under our current system, judges often rob a victim of the privilege to sue while simultaneously agreeing that their rights were infringed on. Take the case of Richland Police Department Officer Nick McClendon, who subjected a man named Clarence Jamison to a bogus, hours-long drug search after pulling him over and lying to obtain consent. Officer McClendon found no contraband yet managed to ravage Jamison's vehicle to the tune of $4,000.

McClendon breached the man's constitutional rights, said Judge Carlton W. Reeves of the U.S. District Court for the Southern District of Mississippi. But in a fiery opinion, he begrudgingly handed the cop qualified immunity, as Jamison was unable to pinpoint relevant case law.

qualified immunity
A protester holds his hands out in front of a police line during a protest against police brutality and racial injustice on September 5, 2020 in Portland, Oregon. Portland has seen nightly protests for the past 100 days following the death of George Floyd in police custody. Nathan Howard/Getty Images

If the data are any indication, qualified immunity proponents are a dying breed, heavily represented among police unions and less so among the general population. 66 percent of the public opposes the doctrine, according to a Pew poll released last July, not long after the killing of George Floyd galvanized a conversation around police accountability.

But supporters have legitimate concerns worth addressing. Perhaps most common is the notion that, without qualified immunity, officers will find themselves in financial ruin. That's not the case: Cities indemnify their employees against such harms. Between 2006-2011, individual police officers paid a whopping 0.02 percent of the $730 million in judgments handed down against them.

Another frequent objection: Vacuous lawsuits would deluge the courts. It's a well-intentioned but misguided critique. That's because every victim would be required to convince a judge that his or her constitutional rights were violated before commencing a jury trial. Abolishing qualified immunity only removes the second prong, in which plaintiffs are sent on a wild goose chase searching for a matching court decision that doesn't exist.

Like most discussions on the national stage, the debate around qualified immunity is spit-roasted in partisanship, with Republican politicians hesitant to make waves. But reforming the doctrine should be a conservative hill to die on. It was legislated into existence by the Supreme Court in direct contradiction of U.S. law—a flagrant example of judicial activism. And it gives rogue government officials the green light to trample on the little guy, something that should bother any limited government advocate. Lost on many is that the doctrine applies not just to cops but to all state actors, including, say, a corrupt college administrator who rolls right over a student's free speech rights.

Such obvious abuses should animate everyone—the progressive, the liberal, the libertarian, and, yes, the conservative. To demonstrate the absurdity inherent in qualified immunity, let's probe a case where a court didn't grant it. In 2013, a man was accosted by police for walking on the street, not the sidewalk. That confrontation ended with a cadre of cops beating him to a pulp and shooting him almost two dozen times.

The lower court awarded the group qualified immunity. The appeals court overturned.

"Seven years later," wrote Judge Henry F. Floyd of the U.S. Court of Appeals for the 4th Circuit, "we are asked to decide whether it was clearly established that five officers could not shoot a man 22 times as he lay motionless on the ground." The standard really is that granular.

Officers who commit such violent acts rarely face criminal prosecution. Civil court, then, is the last remaining avenue for victims to hold the state accountable. Up against qualified immunity, they often lose before they begin.

Dissenters may cite the triple-guilty verdict in the trial of Derek Chauvin, the former cop now convicted of murdering Floyd; that Chauvin was convicted is proof the criminal justice system is working to hold bad apple cops accountable. But Chauvin is very much the exception. And even so, a court could very plausibly grant qualified immunity to someone guilty of murder if the way in which they killed their victim was not "clearly established" in previous case law.

Others may worry that abolishing qualified immunity will drive cops out of the profession in droves. But this, too, is easily dismissible. Connecticut and Colorado passed state laws curtailing the doctrine last year, and they have seen no such exodus.

Maybe a better question is, which state actors will be inspired to go elsewhere? If we're talking about the ones who steal, shoot without provocation, and kill those in their community absent just cause, then I'm glad they might be forced to reexamine their choices—and you should be, too.

Billy Binion is an Assistant Editor at Reason magazine.

The views in this article are the writer's own.