In a disappointing postscript to 2020’s summer of racial reckoning, the U.S. Supreme Court this week unanimously reaffirmed the doctrine of “qualified immunity,” which shields police from lawsuits for wrongdoing against citizens. The fact that the normally divided justices all came together on the wrong side of this issue negates any hope that the court will rethink it in the foreseeable future. That makes it more important than ever that strong state laws and city statutes protect the rights of citizens when cops go rogue.
Citizens who harm others generally can face not only criminal charges but litigation, in which injured plaintiffs can collect monetary damages if they can show the actions of the defendants were sufficiently harmful and egregious.
But because of a doctrine found nowhere in the Constitution but based entirely on Supreme Court precedent, public officials performing their duties, including police officers, are held to a different standard. They are generally immune from being sued for on-the-job wrongdoing unless the wrong they did was specifically prohibited by law or clearly established precedent.
It’s not primarily a question of whether police did something that should obviously merit a monetary judgment — say, extensively damaging the house of an innocent homeowner with teargas while trying to flush out a suspect who wasn’t there, then refusing to adequately compensate the homeowner. In that actual case (one of countless examples out there), the police were found to be immune from litigation — not because what they did wasn’t harmful and egregious but because the homeowner couldn’t point to a specific law or a previous case with the same circumstances that ended with police being successfully sued.
In the two cases the court decided this week, the police conduct wasn’t as obviously egregious — both involved officers subduing (and in one case killing) a suspect who was actually posing a threat. But the reason the court sided with the police is the problem: It was because, again, the plaintiffs couldn’t point to “clearly established” precedent prohibiting the cops’ actions.
As critics have argued for decades, that shouldn’t be the standard, because it can mean (and has meant) that whether cops get immunity is determined largely not on the seriousness of their wrongdoing, but on its uniqueness, even in cases that involve innocent deaths or outrageous abuses of power. Civil juries are perfectly capable of determining whether a given case justifies damages based on the case’s own merits, regardless of whether exactly that kind of case has been decided by a jury before.
This court may be deeply divided ideologically, but it’s apparently united in its blind adherence to its own bad precedence. States and cities can mitigate the damage of qualified immunity by passing laws governing police behavior as specifically as possible — which, in the post-George Floyd era, they should be doing anyway.