Tuesday, September 04, 2018

Willett decries Catch-22 on qualified immunity for police

Newly appointed federal 5th Circuit Court of Appeals Judge Don Willett last week issued a "concurrence dubitante" (meaning he concurred despite skepticism over the legal proposition at hand) concerning qualified immunity for police officers who violate people's constitutional rights, in this case due to an unconstitutional search. (Check out the case here, his concurrence begins on p. 21; see also coverage from Reason.)

Opined Willett: "To some observers, qualified immunity smacks of unqualified impunity, letting public officials duck consequences for bad behavior."

And he sums up a Catch-22 regarding police litigation that's bothered me for years:
many courts grant immunity without first determining whether the challenged behavior violates the Constitution. They avoid scrutinizing the alleged offense by skipping to the simpler second prong: no factually analogous precedent. Forgoing a knotty constitutional inquiry makes for easier sledding. 
However, the judge argued, this failure to analyze the constitutionality of police behavior has (unintended?) consequences:
Plaintiffs must produce precedent even as fewer courts are producing precedent. Important constitutional questions go unanswered precisely because those questions are yet unanswered. Courts then rely on that judicial silence to conclude there’s no equivalent case on the books. No precedent = no clearly established law = no liability. An Escherian Stairwell. Heads defendants win, tails plaintiffs lose. 
Willett concluded:
Count me with Chief Justice Marshall: “The government of the United States has been emphatically termed a government of laws, and not of men. It will certainly cease to deserve this high appellation, if the laws furnish no remedy for the violation of a vested legal right.” The current “yes harm, no foul” imbalance leaves victims violated but not vindicated; wrongs are not righted, wrongdoers are not reproached, and those wronged are not redressed. It is indeed curious how qualified immunity excuses constitutional violations by limiting the statute Congress passed to redress constitutional violations.
That's an excellent, brief summary of one of the biggest problems with qualified immunity. For more, one of the judge's footnotes included references to several items that readers interested in more detail on the topic may want to review:


Steven Michael Seys said...

I have often lamented that a large body of public employees are held above the law. At least I'm not the only one who noticed this injustice.

Steven Michael Seys said...

In this mornings news is a true hero. Kudos to Seagoville officer Sam Click. President Trump ought to nominate him for the highest civilian award for heroism. The man exemplifies the meaning of first responder.

Anonymous said...

Judge Willett certainly doesn't sound like a republican. Indeed, it's his party which has refused to recognize their decisions grant police this "unqualified impunity" as many democratic judges across the nation have decried these rulings in their dissenting opinions.

Gritsforbreakfast said...

In my experience, 9:29, this isn't a particularly partisan issue. On SCOTUS, for example, Sotomayor criticizes it, but so does Justice Thomas (e.g., here).

More accurate so say the doctrine has supporters and critics in both parties.

Anonymous said...

I'm not aware of any ruling in which Uncle Tom Thomas went against the police. He, along with the other republicans rarely if ever support the common guy. Their decisions always favor the ruling class and their enforcers. Democrats on the other hand will usually throw the average guy a bone.

Gritsforbreakfast said...

@6:58, I gave you the link above. Thomas' opinion discussing qualified immunity begins on p. 39 of the pdf.

Jennifer Laurin said...

Nice. Hoping my former student in Policing the Police who's now clerking for him had a hand in that.

Anonymous said...

Any reason why the Police (or any other State employee) shouldn't just rely on malpractice insurance like defense attorneys and doctors rather than QI? If those govt employees want to act recklessly, then their own malpractice insurance (that THEY pay for) should cover for damages that they cause, not the taxpayer's rights (or monies).

Remove QI, and let the personal malpractice insurance take over.

Anonymous said...

The courts simply "made up" qualified immunity to serve their own purpose. The courts now wonder why the public doesn't trust them or respect so many of their decisions. It really doesn't matter if the Supreme Court is conservative or liberal.

Kuato said...

Worse than 'qualified impunity' is the 'absolute impunity' they have given to Prosecutors, Criminal Court Judges. Most offensive of all is sovereign immunity used to give government entities on every level freedom to act without any accountability for what is done by those who act in it's name.
Our Constitutions, and all other laws, exist for one reason. That is to bind, limit, control, manage, govern, our government and all who act in it's name.
Constitutions and Laws are not needed to protect private persons from other private persons.
Lawless Regimes have always been willing to play that role.
Constitutions and laws are to protect the private person (human and artificial) FROM government. We have lost our protection of the law.
What we have today is only the mere pretense of a Constitution, the Color of Law, with no substance. It began in the 70's. And with it our incarceration rate began to clime.
People just don't want to face the truth, the reality, that authoritarianism has replaced The Rule of Law. We have lost our Liberty.