Qualified immunity has faced backlash in recent years following multiple widely publicized deaths of Black civilians at the hands of police. This legal doctrine has been used as a defense in cases ranging from the tazing of a disturbed man hospitalized with pneumonia who was resisting medical care to a truly bizarre case where a federal court granted qualified immunity to officers accused of stealing over $225,000 of “property seized pursuant to a warrant.”
Qualified immunity is an attempt to protect government employees (including police officers) from ambiguities in the law, but it begins to look more like a legal loophole as we dig into how it’s being applied. Under this doctrine, government officials “generally are shielded from liability for civil damages” for actions taken in the performance of their duties if a court decides that their alleged actions were not a violation of the plaintiff’s “clearly established statutory or constitutional rights of which a reasonable person would have known” at the time.
The key term here is “clearly established.” A court can rule that an act violated a constitutional right while simultaneously ruling that the right in question wasn’t “clearly established.” For a court to decide that a constitutional right was “clearly established,” they ask whether it would have been “clear to a reasonable officer that the conduct was unlawful in the situation he confronted.”
This doctrine looks like a legal loophole when we consider some examples of police actions that courts have ruled were not “clearly established” constitutional violations, and when we consider that courts can (and do) grant qualified immunity to police officers without deciding whether or not their actions were a constitutional violation. In other words, courts can decide that a police officer’s actions fall into a legal gray area — and so grant qualified immunity — without settling that gray area for future cases. This makes it possible to grant qualified immunity to officers under the same circumstances in the future.
Police Theft and Qualified Immunity
An example of both problems is a case in which officers were granted qualified immunity against the allegation that they stole over $225,000 in property “seized pursuant to a warrant.”
In this case, the court declared that “there was no clearly established law holding that officers violate the Fourth or Fourteenth Amendment when they steal property seized pursuant to a warrant.” Reading that ruling alongside the Fourteenth Amendment — which requires that no state shall “deprive any person of life, liberty, or property, without due process of law” — reveals a glaring example of how the “clearly established” standard is being abused.
This case is also an instance of a court granting qualified immunity while completely neglecting to rule on whether or not the officers’ actions were in fact a constitutional violation. While granting qualified immunity to the accused officers, the court did not rule on the question of whether or not the alleged theft in fact violates the Fourth or Fourteenth Amendments. Because of this, the door was left open for future courts to continue granting qualified immunity to police officers accused of stealing property after seizure.
In May 2020, the Supreme Court declined to hear this case.
The 2009 Loophole
The modern standard for qualified immunity was established in 1982; however, the method courts have used to grant qualified immunity has changed throughout the years. In 2001, the Supreme Court held that qualified immunity must be considered through a two-step procedure that required, first, answering “whether a constitutional right had been violated on the facts alleged” and, second, whether the violation had been “clearly established” as a constitutional violation at the time it occurred.
This all changed in 2009. That year, the Supreme Court held that, when granting qualified immunity, the sequence established in 2001 was no longer mandatory, allowing courts to grant qualified immunity if the court finds that a statutory or constitutional right was not “clearly established” without deciding whether a statutory or constitutional right was violated. This ability of courts to grant qualified immunity without having to determine if an act violates a constitutional right, as in the case of alleged police theft noted above, leaves the door open for future courts to repeatedly grant qualified immunity for the same or similar actions.