#238 / "Qualified Immunity" Equals Impunity

Chief Justice Earl Warren in Washington, 1954

Earl Warren, pictured above, served as Governor of California before he was named Chief Justice of the United States Supreme Court by President Dwight D. Eisenhower. Eisenhower was a Republican, and is generally thought to have been "conservative." Warren is generally considered to have been one of the most "liberal" persons ever to serve as Chief Justice. The "Warren Court" is, similarly, considered to have been one of the most "liberal" Supreme Courts in United States history. 

In the 1960s, as Wikipedia tells us, the Warren Court handed down several landmark rulings that established the Court's "liberal" reputation. These were cases that significantly transformed criminal procedure, redistricting, and other areas of the law. Many of the Court's decisions incorporated the Bill of Rights, making the protections of the Bill of Rights apply to state and local governments. Gideon v. Wainwright (1963) established a criminal defendant's right to an attorney in felony cases, and Miranda v. Arizona (1966) required police officers to give what became known as the Miranda warning to suspects taken into police custody that advises them of their constitutional protections. Reynolds v. Sims (1964) established that all state legislative districts must be of roughly equal population size, while the Court's holding in Wesberry v. Sanders (1964) required equal populations for congressional districts, thus achieving "one man, one vote" in the United States. Griswold v. Connecticut (1965) struck down a state law that restricted access to contraceptives and established a constitutional right to privacy. In Loving v. Virginia (1967), largely based on Griswold, the Court struck down state anti-miscegenation laws, which had banned or otherwise regulated interracial marriage. Warren announced his retirement in 1968 and was succeeded by Appellate Judge Warren E. Burger in 1969. Burger was definitely not "liberal."

Contemporary commentators have recently noted that the Warren Court was not as uniformly "liberal" as liberals might wish. As The Wall Street Journal has pointed out, it was Warren's decision in Pierson v. Ray (1967) that established a doctrine called "qualified immunity." This is a court-made doctrine that is commonly employed to excuse law enforcement officers from any legal responsibility for their mistreatment of members of the public. Most crudely put, Pierson v. Ray allows law enforcement officers to kill people with impunity. "Immunity," in this case, and "impunity," end up meaning pretty much the same thing. The impunity provided by Pierson v. Ray has been utilized, above all, to excuse from punishment white law enforcement officers who have killed Black men (and sometimes Black women). 

Click on this link to Pierson v. Ray, to read the actual decision. The Wall Street Journal article I have just mentioned, however, does a pretty good job of explaining it:

In Pierson v. Ray (1967), [the Supreme Court] relieved state officials from civil-rights liability unless their actions violated “clearly established law.” That’s “qualified immunity.”

The results can be infuriating. In one recent case, police officers escaped liability for siccing an attack dog on a suspect who was sitting with his hands up. A previous case had found a Fourth Amendment violation, but the court held the precedent didn’t apply because the suspect in the earlier case was lying on the ground. In another case, cops shot a fleeing driver who posed no threat. In another, police stole a collection of rare coins while executing a search warrant. Because such larceny by officers hadn’t arisen in a previous case, the court reasoned, the plaintiff’s right not to have his property stolen by police was not “clearly established.” 

To call this a double standard would be an understatement. Civilians are subject to civil and criminal liability when they violate the law, even when their legal obligations aren’t perfectly clear. When state officials violate constitutional rights, qualified immunity often makes it impossible to hold them to account. It’s easy to understand why this disparity inspires cynicism about the rule of law.

Rewire News makes the same point, and very dramatically, although its recent article focuses less on the "qualified immunity" doctrine itself, and more on a judge who recently utilized it. The judge was appointed by President Trump, and it is the president who gets most of the blame in the Rewire News account: 

Meet the Trump Judge Who’s OK With Cops Shooting Unarmed People in the Back

You can click that headline to get the Rewire story. Justice Jonathan Kobes, whom President Trump did appoint, and who sits on the Eighth Circuit Court of Appeals, wrote the majority opinion in Goffin v. Ashcraft (2020), which held that "a police officer had qualified immunity for shooting Davdrin Goffin, a Black man, in the back as he ran away, even after the officer had conducted a pat-down search and found no weapons on Goffin." The recent killing of Rayshard Brooks, in Atlanta, presents a very similar fact pattern. Today's news, in fact, brings news of another incident of a police officer shooting an unarmed Black man in the back.

The “qualified immunity” doctrine, which is what allowed the officer who killed Davdrin Goffin to escape any punishment for his actions, is described this way by the Rewire article:

"Qualified Immunity" is a judicial doctrine that excuses government officials—not just police—from personal liability unless they violate “clearly established” law. But unless a near-identical case has previously been heard, courts usually conclude that the law wasn’t “clearly established” and the officer thus could not have known they were in violation.

Here, Goffin’s counsel argued that Goffin had a clearly established right not to have deadly force used against him when he posed no threat to the officers. After all, the cops had not found weapons on him. 

But Kobes found that Officer Robbie Ashcraft could not have known that shooting someone in the back as they were running away—a person they believed had no weapons and therefore posed no danger—violated any law. Writing for the majority, Kobes said “it is not clearly established that after observing a pat down that removes nothing from a suspect who an officer reasonably believed to be armed and dangerous, an officer cannot use lethal force against that suspect when he flees and moves as though he is reaching for a weapon.” 

Since no previous case fit this exact fact pattern, Kobes held Ashcraft couldn’t have known she wasn’t allowed to shoot someone in the back as he was running away. This mindset will almost always excuse the behavior of police officers, which is why there is a concerted effort to hold police accountable for their actions by ending qualified immunity.

I have no great fondness for the judges appointed by our current president. I do think they are "ideologically inclined" in the wrong direction - and have been selected for exactly that reason. However, Justice Kobes could not have made the decision he did in the Goffin case without the precedent provided by Pierson v. Ray.

Getting a new president, and new judges, will not, by itself, solve the "qualified immunity" problem. If we are going to make the kind of changes that need to be made, and if we truly want to "end the war against Black people," and to" reimagine the police," the "qualified immunity" doctrine has got to go.

Here is my "liberal" analysis: Sorry, Earl. You blew it on this one!

oooOOOooo

POSTSCRIPT: 

An opinion column in another edition of The Wall Street Journal extends this discussion. Pierson v. Ray governs issues related to the possible criminal liability of law enforcement officers, but as Peter H. Schuck points out in "The Other Police Immunity Problem," the exact same principles apply to the governmental entities that have employed the officers. Schuck, who is a professor emeritus at Yale Law School, says this: "A legal remedy for police abuse is hidden in plain sight: The Civil Rights Act of 1871, also known as Section 1983, allows anyone deprived of a federal right by a state or local official to sue for damages. But the Supreme Court held in Monell v. Department of Social Services (1978) that victims can’t recover damages from the city under this statute unless the police misconduct was an “official policy or custom.” If this high bar can’t be surmounted, victims can make Section 1983 claims only against individual police officers.... Perhaps the Minneapolis police’s brutal treatment of the handcuffed George Floyd was authorized by police manuals, training or common practice. But more likely, the department will invoke Monell, claiming that the officers flouted standard practice. This cop-out would leave Floyd’s survivors with no effective federal remedy, as lawsuits against individual officers seldom succeed."

There is, Schuck says, an easy fix for this unfair situation: Congress can change the law.

It will be up to us, to "We, the people," to make sure that Congress does so!

Image Credit:

https://www.wsj.com/articles/how-the-warren-court-enabled-police-abuse-11592410930