Imagining the Problem of UnQualified Immunity
Imagine a case with me in which police (all else being equal) do everything by the book, do it right, and are protected by the Courts for doing so. I want to start here so we can begin to understand what has become this big problem with police immunity.
Imagine that police respond to a call regarding an alleged armed robbery of a restaurant. They employ a police dog, trained to bite and hold, to track the suspect. The dog leads them down an alley. At the end of the alley is a large wall. There is an individual in the alley. A large handgun is visible in this individual’s hand. When he sees the police, feeling trapped, he shouts, “I’m gonna kill you motherf---ers!” But he runs instead. He secures the gun in his waistband, then jumps and successfully climbs the eight-foot solid wall. The officers arrive seconds later with the dog at the wall. They shout to the other side of the wall: instead of exposing themselves to open fire or other attack, they announce they are going to let the dog loose over the wall. They give clear, audible, and loud warning of what is coming. It is made known the dog will bite and hold the suspect if it can. The officers do what they said. The dog overtakes immediately and bites the suspect on the leg, holding him until the police could catch up less than a minute later. The suspect was arrested and taken to jail. But the dog bite caused tremendous damage, causing the suspect to be hospitalized and eventually requiring his leg to be amputated.
The suspect then sued the policemen for excessive force and violations of his civil rights (presumably, not to be attacked so viciously by a dog that he loses his leg, etc., or at all). The police argue they have “qualified immunity” in defense. As long as they are acting in good faith, doing their job, following accepted practices, and not violating any clearly established law, they did nothing Constitutionally wrong. As far as what cops have done in a thousand similar scenarios, all found Constitutional, they are well above the line here. They not only followed well-known best practices, they openly announced their intent to the suspect, knew he was armed and had threatened life and then attempted to flee. There was more than adequate clear warning given.
The judge agrees, and throws out the suit against the officers, citing the claim of “qualified immunity.”
While we can have a good discussion about whether or not the existing powers, precedents, accepted practices, use of dogs, etc. by police are acceptable (they are not always), we would have to say that according to standards and long-established precedents agreed upon by most of the mainstream, these police did not violate a constitutional right. We could say that this example of the appeal to “qualified immunity” was at least warranted, even if we didn’t agree there should be such a category as qualified immunity, for whatever reason.
Now, indulge me briefly to imagine a second scenario, similar to the first, but different. In this one, the officers never see the suspect and never see a gun. They hear no threats. The dog simply leads them to the same wall. They announce, and then lower the dog who attacks an individual who turns out to be the suspect. The same result happens; same lawsuit; and the same judgment. Qualified immunity still prevails. The only difference here is that the officers had not previously seen any suspect, let alone weapon, to know that turning loose the dog would result in getting anyone, let alone the right guy.
Still happy with a qualified immunity defense and ruling? Maybe, maybe not. The cops only got lucky. Should they be protected when they act without clear knowledge and take risks like that, but just get lucky? Is that just doing their job? Rightly?
OK, imagine a third scenario. This time is like the second, except the cops do not announce they will lower the dog. They just do it. It attacks, gets the right guy, and all the same results. The judge again grants qualified immunity. Still happy? Can police actually act blindly from behind a wall, not knowing what is on the other side, without even announcing their intent to use force, let alone deadly force? Is that a clearly established right? Is that considered good faith or just doing their job?
I would assume at this point that you are at least uncertain, if not clearly opposed to these police actions. In the unlikely event that you are still fully backing these blue actors, let’s go one step further.
In a fourth scenario, imagine that the cops didn’t see anyone, yet their dog led them to the same blind wall. They did not hear any threat, did not see anyone, and did not announce their intent to lower the dog over.
This time, the dog did not get the right guy. This time it attacked an innocent person.
Let’s make it even worse. Let’s say the person was of the sort who had no chance of defending themselves against a large, trained attack dog. Let’s say it was a 90-year old man enjoying some fresh air in his own back yard. Without warning the dog is lowered, it attacks, shreds the leg. The leg has to be amputated, and the man can no longer live on his own in his own house. He is transferred to an elderly care center where he dies two months later from complications.
The question is, where is the line to be drawn for police “immunity” in between that first case and this last, obvious case where they are culpable? Do you have any idea?
If you get some idea, please let the Supreme Court know, because by their current standard, a judge gave the officers qualified immunity in that last scenario, too!
That’s right. The case was McKay v. City of Hayward (2012) in the Northern District of California. The facts were just like that “obvious” last scenario I offered. Cops saw no one go over the wall. They did not announce the dog or lowering it over. The dog attacked an innocent, completely unconnected 89-year old man. The bite got infected and the leg was amputated, and the man died two months later.
Were the officers held accountable? No. The one who was named in the suit was still granted qualified immunity, despite what should have been a clear case of acting recklessly with deadly force.
[Note: the city was required to pay up, but the individual officers were protected.]
One major reason for this is because of how the Supreme Court has come to test for qualified immunity. The police are not the ones who have to worry about “clearly established” practices and staying within any such boundaries. It is the victims of even these most extreme incidents who are burdened with proving that police violated a “clearly established” instance of the same type of violation, with similar details, before the Court will recognize it.
Our victims in our case here would have to be able show the court another instance in which an unannounced attack dog was lowered over a wall and attacked an innocent man, and that the courts at that time decided that instance was a violation of that person’s rights (and probably also that the police had time to learn of it and incorporate it into their training). It requires both aspects. The similar incident has to have happened and a court has to have determined it was a violation of Constitutional rights. Without these two things, the instance is not “clearly established,” and the officers’ immunity defense prevails.
This is one of the main features causing so many objections to qualified immunity. It creates a catch-22 in which police misconduct in more and more cases grows more and more protected. Every new instance that happens can get dismissed because a very similar instance has not yet come before the court, or has but was not judged a violation. But unless more instances are acknowledged and determined to be violations, you cannot have more documented instances to draw from. So, cop abuses can continue to get protected, and frequently victims simply despair of even bringing suit.
There is much to say yet as to the existence of other remedies, and the bad precedent set for protecting individual rogue cops, but perhaps this much can help you see one of the more outstanding problems with our system. And it is a growing problem. The Supreme Court has spent a large chunk of its docket time on qualified immunity cases; and its decisions seem to be ever-expanding police protects.
The abuse of police power is a huge, wide, deep, and broad problem. It will require much more than ending qualified immunity; but we need to be understanding at least this much of a big problem, which is big enough in itself.
More to come. . . .