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Daily Journal
     July 2, 2020      #87-184 KDJ

Dennis Marek: Does qualified immunity wrongly

By Dennis Marek

With the recent death of George Floyd, there has been grief and rage throughout not only the U.S., but the world. Along with the videos of police abuse has come the recognition of a legal ruling by our Supreme Court in 1967 that became known as the Qualified Immunity Doctrine.

This ruling is supposed to protect governmental officials from liability for civil damages so long as their conduct does not violate “clearly established statutory or constitutional rights of which a reasonable person would have known.” In other words, a victim of abuse cannot sue the official unless that type of conduct has been deemed a violation of rights previously.

The Supreme Court first created the qualified immunity doctrine with its decision in Pierson v. Ray. That case involved 15 white and black clergymen arrested for using a segregated facility at an interstate bus terminal in Jackson, Mississippi for a rally. The 15 were charged with violating a Mississippi state law prohibiting congregating in public places that might lead to a breach of the peace.

The state dropped the criminal charges, and the clergymen then sued the arresting officers for false arrest and imprisonment as a civil action against the police. One of the officers raised the defense that he was immune from civil liability. The case went all the way to the U.S. Supreme Court on the issue of a supposed immunity from civil liability. The court ruled that while the officer did not have absolute immunity from civil damages, it did make a remarkable second opinion. The opinion stated that a police officer is protected by a qualified immunity, because a “policeman’s lot is not so unhappy that he must choose between being charged with dereliction of duty if he does not arrest when he has probable cause, and being mulcted in damages if he does.”

For those, like me, who have never heard the word mulcted, it means to take money from someone by deceit or by a fine.

The first mention of the “clearly established” language for a standard for the alleged conduct was set forth by that court in 1982 in a case entitled Harlow v. Fitzgerald. That language was even more clearly defined by the U.S. Supreme Court in a case, Pearson v. Callahan, in 2009. The idea was to balance two important interests, protection from harassment and liability for officials performing their duties, and the need to hold them accountable for unreasonable performance of those duties. This, however, does not relate to a criminal action as has been brought in the Floyd case, only civil misconduct.

For a plaintiff to pursue his case for a violation of his civil rights, he must show that his constitutional rights were “clearly established.” This gives the defendant, say a police officer, the right to raise the defense that in spite of a terrible act that might have been committed, if there was no precedence in the law outlawing that officer’s specific conduct, the case will be dismissed.

Trying to define that immunity, courts have long struggled. In a case, Kisela v. Hughes, the plaintiff sued police officers for being shot four times. When the officers arrived, she was hacking at a tree with a kitchen knife. When told to drop the knife, she refused and was shot. The district court granted judgment for the police, applying qualified immunity. On appeal, the appellate court reversed, finding that the act of shooting her was a constitutional violation clearly based on “analogous precedent.”

The case went to the Supreme Court where it reversed the appellate court and affirmed the original decision of the district court. The Supreme Court found that there was clear immunity, in that there was no prior case law denying the officers’ immunity and therefore, the plaintiff had no law to overcome the officers’ immunity.

There were dissents filed in that case by Justices Sotomayor and Ginsburg condemning the majority for sending “an alarming signal to law enforcement officers and the public…that the officers can shoot first and think later.” They also stated that in our history of law there was never a requirement to have been a previous finding that a particular action deserved no immunity. Yet, here the court, in simple words, was saying that since there was no prior case where shooting someone who wouldn’t throw down her knife waiving the officer’s immunity, the officer had no way of knowing this act was so horrendous that immunity would be unavailable to him!

Under the present ruling, lower courts are to look to precedence to find that what the officer did in crossing the line had been previously held to eliminate any civil immunity. Case after case has been dismissed because the victim’s allegations had not been cited in a prior case with facts holding that the act exceeded granting immunity to the officer.

Even more unsettling was the recent news that the Supreme Court will not hear an appeal on this same subject in next year’s court calendar. That case is even more heinous. In that case, a black Tennessee man had failed to appear for a DUI warrant. The police came to his house with a canine patrol. They searched the house with the dog and found him in the attic where the dog attacked the man, biting him. Worse than that, after they had him in custody, the dog remained unleashed and bit the man in the leg and buttocks several times while his hands were in the air. Not a murder like Mr. Floyd, yet a rather uncalled for and wrongful action by trained police. Maybe the first bite, but more when he is restrained?

It would appear that if no favorable rulings are made in cases for the plaintiff, police actions having not been previously cited as outside this protection in that case are permitted. Thus the victim loses automatically. Some of the cases around the nation are so pitiful and abusive that perhaps this recent series of murders by police officers may bring a reform by a body other than the court system.

There is already a bill being presented by representatives from Michigan and Massachusetts entitled Ending Qualified Immunity Act. The Supreme Court’s newest refusal to review several cases pending on appeal may have been the reason for the need of legislation to reverse this abusive ruling. Then again, will the Senate refuse to pass anything that the House passes? Such a state we are in.

Dennis Marek can be contacted through the Daily Journal at editors@daily-journal.com or through his personal email at dmarek@amb-ltd.com

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