Immunity is a shield from legal action and comes in many forms. For example, husband-wife immunity prevents one spouse from suing the other for personal injury. Parental immunity keeps children from suing their parents. Testimonial immunity means that compelled statements will not be used against someone in a prosecution.
Lately there is much talk about immunity as it applies to police officers, especially in cases of police shootings. The type of immunity applied to police officers is known as qualified immunity, a doctrine founded upon the age-old concept of sovereign immunity.
Sovereign immunity means that people and corporations cannot sue the government without its permission. For a long time, the government did not grant any permission and enjoyed absolute immunity. But in modern times, most lawsuits against government officials are governed by qualified immunity.
Absolute Immunity vs. Qualified Immunity
Absolute immunity is applied to public officials performing special government functions, such as a judge presiding over a trial. The U.S. Supreme Court adopted absolute immunity for judges in the 1871 case of Bradley v. Fisher.
It is essential in all courts that the judges who are appointed to administer the law should be permitted to administer it under the protection of the law, independently and freely, without favor and without fear. This provision of the law is not for the protection or benefit of a malicious or corrupt judge, but for the benefit of the public, whose interest in is that the judges should be at liberty to exercise their functions with independence, and without fear of consequences.”80 U.S. 335 (emphasis omitted).
The policy behind the Court’s decision is one that protects judges from lawsuits brought by every person who may feel wronged by a judicial decision. Instead, the Court felt the public could protect against malicious or corrupt judges through the political process (e.g., impeachment). The same logic was applied later in a case involving immunity for prosecutors. See Yaselli v. Goff, 275 U.S. 503 (1927).
But not all government officials (such as police) are politically accountable. So what do we do to protect a citizen wronged by someone who cannot be voted out of office or impeached, while at the same time allowing government to conduct its affairs?
Qualified immunity has been the courts’ response. Under this doctrine, a public official is immune from liability except if he or she violates a clearly established constitutional or statutory right.
[Qualified immunity is] an attempt to balance competing values: not only the importance of a damages remedy to protect the rights of citizens, but also the need to protect officials who are required to exercise discretion and the related public interest in encouraging the vigorous exercise of official authority.Harlow v. Fitzgerald, 457 U.S. 800, 802 (1982) (citing Scheuer v. Rhodes, 416 U.S. 232 (1974)).
Police may use force (even deadly force), make arrests, search people and places, and interrogate suspects, as long as they don’t violate clearly established rights. Once they violate clearly established rights, they can be sued.
The difficulty is drawing the line between giving police breathing room to work and penalizing them for their mistakes. Not all police mistakes involve a shooting. For example, police may believe a lying witness only to have him recant later. Should the person arrested based on a lie be able to sue the police? The courts say no because they do not want every police decision subjected to Monday morning quarterbacking.
But while that standard may work fine in a run of the mill case, problems arise when police use deadly force in a situation where, in hindsight, it was unnecessary. Many are not willing to accept the excuse of split-second decision-making when unarmed are killed at the hands of police.
Lawsuits Against Police
Federal law allows people to sue federal and state government officials for violations of their constitutional rights. The rights at issue in cases of police misconduct are usually found in the Fourth Amendment (right to be free from unreasonable search and seizure), the Fifth Amendment (right against self-incrimination, right to due process), the Sixth Amendment (right to counsel) and the Fourteenth Amendment (right to due process and equal protection of the law).
When the Fourteenth Amendment was ratified, it gave Congress the power to pass laws such as the Civil Rights Acts. The Act of 1871 is still alive today and serves as the basis for many lawsuits against police. It reads:
Every person who, under color of [state law], subjects any citizen of the United States or other person within the jurisdiction thereof 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.42 U.S.C. 1983.
Laws like this one do not contain a built-in immunity defense. Seeing a need, the Supreme Court created one. It established a two-step test for qualified immunity claims: (1) Was a constitutional right violated? and (2) Was the right clearly established at the time of officer’s alleged misconduct? If the answer to either question is no, the lawsuit is dead.
In cases of shootings or excessive force allegations, a right is clearly established if no reasonable officer could believe the act was lawful. In other words, the issue must be beyond debate because of some legal precedent or other law. All people have a right against excessive force. But what is excessive force in a given situation? It can be a hard question, and what seems “beyond debate” to many casual observers (e.g., Officer Derek Chauvin’s actions in the death of George Floyd) is often not so for the courts.
The Law of Police Shootings & Deadly Force
In the 1985 case of Tennessee v. Garner, the U.S. Supreme Court held that the Fourth Amendment prohibits police from using deadly force against a fleeing suspect unless (A) it is necessary to prevent the escape of a fleeing felon and (B) the officer has probable cause to believe that the felon poses a significant threat of violence to the officer or the community. However, it went on to say that:
Where the officer has probable cause to believe that the suspect poses a threat of serious physical harm, either to the officer or to others, it is not constitutionally unreasonable to prevent escape by using deadly force. Thus, if the suspect threatens the officer with a weapon or there is probable cause to believe that he has committed a crime involving the infliction or threatened infliction of serious physical harm, deadly force may be used if necessary to prevent escape, and if, where feasible, some warning has been given.
The Garner standard allows for deadly force on a person who is merely reasonably believed to be a threat or to have committed a crime involving the infliction or threat of serious physical harm at some point. Police are not limited to situations involving actual or imminent future threat. It’s all up to the officer to decide. An early Virginia case echos this standard:
Officers, within reasonable limits, are the judges of the force necessary to enable them to make arrests, to prevent escapes, and to deliver prisoners where they are required by law or by warrant to deliver them. When acting in good faith, the courts will afford them the utmost protection, and they will recognize the fact that emergencies arise when they are not expected to exercise that cool and deliberate judgment which courts and juries exercise afterwards upon investigations in court.Hendricks v. Commonwealth, 163 Va. 1102, 1109 (Va. 1935)
Over time, different situations have been before the courts with varying facts. Sometimes qualified immunity has been granted, others not. In the close cases, the fate of the lawsuit against the officer depends upon a particular court’s tendency to err on one side or the other. Unsurprisingly, courts often favor the officer in cases some casual observers would not consider close.
In 2018, the Supreme Court decided Kisela v. Hughes, a case where Officer Kisela and two others responded to a report that a woman was engaging in erratic behavior with a knife. When they arrived, they saw Amy Hughes holding a large kitchen knife in what appeared to be a confrontation with another woman. The women were six feet apart and Hughes had the knife by her side. Hughes committed no crime and was nowhere near the officers. Despite multiple commands to drop the knife, Hughes did not do so and instead took several steps toward the other woman. The two other officers felt deadly force unnecessary. But Officer Kisela fired four shots through the chain link fence, seriously injuring Hughes.
Hughes sued Kisela under 42 U. S. C. § 1983, alleging that Kisela had used excessive force in violation of the Fourth Amendment. Without determining whether a constitutional violation even occurred, the Court granted qualified immunity because it could not say that any clearly established law prohibited the officer’s actions. For every case cited supporting one position, there was another case supporting another position. Because that did not put the issue beyond all debate, the officer is entitled to immunity.
This is but one case in a long line of cases where many feel the Court bent over backwards to rule in favor of the police. In her dissent, Justice Sotomayor remarked that “[s]uch a one-sided approach to qualified immunity transforms the doctrine into an absolute shield for law enforcement officers, gutting the deterrent effect of the Fourth Amendment.”
The reality is that the Supreme Court simply will not Monday morning quarterback so-called split-second decision making by police unless it appears that the misconduct is so flagrant that no one could possibly find it reasonable. That’s a very high standard, and probably not one appropriate for a government official who otherwise cannot be held accountable by the public.
However, the Fourth Circuit Court of Appeals (which includes Virginia and is known as a conservative circuit) recently decided a case where it signaled that a change may be in order. The Court summarized the facts in Estate of Jones v. City of Martinsburg as follows:
In 2013, Wayne Jones, a black man experiencing homelessness, was stopped by law enforcement in Martinsburg, West Virginia for walking alongside, rather than on, the sidewalk. By the end of this encounter, Jones would be dead. Armed only with a knife tucked into his sleeve, he was tased four times, hit in the brachial plexus, kicked, and placed in a choke hold. In his final moments, he lay on the ground between a stone wall and a wall of five police officers, who collectively fired 22 bullets. Jones’s Estate sued under 42 U.S.C. § 1983, bringing a Fourth Amendment claim against the officers.
The officers’ defense was based on the fact that Jones went for his knife late in the encounter after being chased and tackled. The disturbing thing is that even if true, he had already been subdued by several officers and was a non-threat at the moment before he was shot. This is something that simply never should have happened. The stop of a homeless man for failing to use the sidewalk and its escalation to the point where 22 rounds are fired for no apparent reason is not something most Americans are willing to tolerate.
The Fourth Circuit took it one step further:
Although we recognize that our police officers are often asked to make split- second decisions, we expect them to do so with respect for the dignity and worth of black lives. Before the ink dried on this opinion, the FBI opened an investigation into yet another death of a black man at the hands of police, this time George Floyd in Minneapolis. This has to stop. To award qualified immunity at the summary judgment stage in this case would signal absolute immunity for fear-based use of deadly force, which we cannot accept.
While I would usually take issue with a court opining on politically volatile social issues in a judicial opinion, it is refreshing to see the fallback of split-second decision-making come under scrutiny. Often these split-second decisions would not have to be made but for senseless police-initiated encounters based upon obscure laws and ordinances used as pretexts. One Virginia example that comes to mind is the law against dangling objects from rearview mirrors that may be used to justify a police stop. Fewer petty infractions on the books will mean fewer police-citizen encounters.
The Future of Qualified Immunity
What lies ahead for the doctrine of qualified immunity is unclear. Suffice it to say, whatever your politics, fewer people should be injured or killed as a result of encounters with those sworn to protect and serve. There is much to be said for the position that qualified immunity not only denies justice to victims whose rights have been violated, but also exacerbates our crisis of confidence in law enforcement.
The policy underlying immunity doctrines is generally sound. Just as the judge should not be sued every time she makes an incorrect ruling, the police officer should not be sued every time he makes an arrest on what in hindsight was less than probable cause. But the legal test for its application is deeply flawed and prone to abuse.
The states have the power to make laws limiting deadly force to those situations of actual or imminent threat, but many have failed to do so. Nine states, including Virginia, have no law at all on police use of deadly force. Of the 41 states that do, 13 do not follow the standard put forth in Garner and provide officers with more latitude. States should enact stricter and clearer laws to prevent the qualified immunity doctrine from leading courts to err on the side of the officer.
It should be the elected legislatures, not the unelected courts, that decide what is clearly established law. If every aspect of one’s life can be regulated somehow, as it is now, there is no reason police forces that wield immense power over the citizenry should not be subject to stricter oversight.
If each state clearly and decisively established what is and what is not excessive force in the police context, at least in the most extreme circumstances, we would not have to rely on appellate courts straining themselves in conducting hindsight analyses. Furthermore, officers would know exactly what the law is before they pull the trigger. And once they are on notice of their clear limitations, qualified immunity will no longer stand in the way of citizens recovering damages in appropriate cases.