Leonard Hitchcock pix

Leonard Hitchcock

One facet of the current concern about how to control police violence is the weakness of legal deterrence of such behavior. The average person who sues a policeman for acts of unnecessary violence is almost certain to lose in court. The phrase that keeps cropping up in this connection is “qualified immunity.” People generally understand that qualified immunity shields police from legal accountability, but how it does so is not often explained. That’s the topic of this column.

The basic, relevant documents are: the Fourth Amendment to the U.S, Constitution, and U.S. Code. §1983.

1. The Fourth Amendment says that people have a right “to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures.” A reasonable search and seizure is one for which a proper warrant has been issued, i.e. “upon probable cause, supported by oath or affirmation” and full information of “the place to be searched and the persons or things to be seized.”

2. Federal law §1983, states that any person, who “subjects or causes to be subjected” any citizen “to the deprivation of any rights, privileges, or immunities secured by the Constitution and laws, shall be liable to the party injured in an action at law, suit in equity, or other proper proceeding for redress.”

The Fourth Amendment only mentions “searches and seizures” and specifies the conditions under which those acts are reasonable. But the amendment is now taken to apply to the right to be free from many unreasonable forms of government interference. The question is: what constitutes “reasonable” forms of interference other than properly warranted searches and seizures?

Statute §1983 does not speak of an “unreasonable” deprivation of rights, but courts have assumed that that word is implied; hence, when a police officer is sued for a violation of §1983 because of alleged excessive violence prohibited by the Fourth Amendment, courts must come up with some account of when police violence is reasonable, and when it is not.

In the 1980s, the U.S. Supreme Court formulated a criterion for how to deal with such cases. The criterion is called “objective reasonableness” and involves taking into consideration what another officer present at the scene of the violence would have judged to be reasonable behavior under the circumstances faced by the accused officer. Factors that enter into that assessment are, one, the seriousness of the crime at issue; two, whether the suspect is actively resisting arrest or attempting to flee; and, three, most importantly, whether the suspect poses an immediate threat to the safety of the officer or others. Also to be taken into consideration is the fact that police officers are often forced to make split-second judgments about the use of force in tense, rapidly evolving circumstances.

Consider how a court might apply “objective reasonableness” to the recent case of Rayshard Brooks, killed by police in Atlanta. His crime was DUI; the police were in possession of his driver’s license and car keys; Mr. Brooks was initially cooperative but then resisted arrest and tried to flee on foot; he had no weapon and was not a threat to anyone’s safety. Was it “objectively reasonable” for an officer to shoot Mr. Brooks in the back while he ran? I leave that assessment up to you.

The Supreme Court, in later years, came up with another criterion for adjudicating such cases, viz. whether or not a police officer accused of unlawful violence should be granted “qualified immunity.”

The doctrine of qualified immunity, which is entirely the creation of the legal system, stems from the realization that various government officials who, as part of their jobs, interact with citizens in ways that harm or offend those citizens, might well find themselves constantly being sued for their actions to the point that they are unable to carry out their official duties. The president of the United States has what is called “absolute immunity,” i.e. there are no circumstances under which he can be prosecuted. “Qualified immunity” means that, in a particular case before a court, immunity from prosecution may be granted to the accused.

For members of the police force, qualified immunity provides an independent means of defense, even when there is a good possibility that an officer has, in fact, unreasonably infringed someone’s Fourth Amendment rights, as determined by the “objective reasonableness” standard. If qualified immunity is granted, the case against an officer is simply dismissed.

When is qualified immunity granted? There is a different “reasonableness” standard for doing so. If an officer’s conduct does not violate “clearly established” statutory or constitutional rights, such that a reasonable person would have been aware of the potential for violation of those rights at the time of the incident in question, the officer is eligible to be granted immunity. What does it mean for a right to be “clearly established?” Often it’s taken to mean that, at the time of the incident, a very similar case had already been adjudicated in which the court found an officer guilty of violating a citizen’s rights. Another common way of phrasing this standard is that if an officer has not had “fair notice” that his or her action would be unlawful, he or she would be eligible for qualified immunity.

How has qualified immunity worked out in practice? It is so often granted by SCOTUS that Justice Sonia Sotomayor has called it an “an absolute shield” for police. The Institute for Justice has argued that SCOTUS has interpreted the phrase “clearly established” in such a way that “government officials can only be held liable if a federal court of appeals or the U.S. Supreme Court has already held that someone violated the Constitution by engaging in precisely the same conduct under precisely the same circumstances.” Under that interpretation, it’s no surprise that immunity is usually granted.

It may well be true that there should be some judicial balancing of government officials’ right to do their jobs without legal harassment, and the right of the public to sue them. Nonetheless, it’s hard not to conclude that, with respect to police violence, things have gotten badly out of balance, largely through the court’s interpretation of the qualified immunity doctrine, and that consequently many people have lost not just their rights, but their lives.

Leonard Hitchcock of Pocatello is an alumnus of the University of Iowa and did graduate work at Claremont Graduate University and the University of California, San Diego. He taught philosophy in California and Arizona for 15 years. In 1985, after earning a library degree, he was hired by Idaho State University. He retired from ISU’s Oboler Library in 2006.