Qualified immunity must be ended across the board | TheHill – The Hill

In July 2016, Cleveland police officers stopped a 20-year-old Black man namedShase Howse. According to Howse, police slammed him to the ground, struck him twice in the back of his neck while he was trying to enter his own home, and took him to jail. Howse subsequently sued the police officers for using excessive force. But because of a judicially created doctrine called qualified immunity, the officers were not held accountable. In all too many cases like these, justice could have been served, if it were not for qualified immunity.

In 1967, the Supreme Courtcreatedfrom whole cloth the legal doctrine ofqualified immunity, and it has repeatedly expanded the defense ever since. As the doctrine currently exists, government officials, including police officers, cannot be held personally liable for their official misconduct unless they have violated a constitutional right that was clearly established at the time of the violation. In practice, this has become very difficult because plaintiffs are practically always required to identify prior case law involving nearly identical fact patterns. Even in cases in which the defendants actions were obviously unconstitutional, the plaintiff is often denied relief and the government official escapes accountability.

Unfortunately, thats exactly what happened in Howses case. In 2020, the U.S. Court of Appeals for the Sixth Circuit refused to consider whether the police violated Howses rights and held that the police officers were entitled to qualified immunity because there was no prior case exactly like Howses. And earlier this year, the U.S. Supreme Courtdeclinedto review this case, thereby letting the Sixth Circuits decision stand. This pattern repeats itself again and again, enabling the cycle of police violence to continue without accountability.

In March, the U.S. House of Representativespassedthe George Floyd Justice in Policing Act, which would eliminate qualified immunity as a defense for law enforcement officers, therefore allowing victims of the kind of police violence Howse and others have experienced to hold law enforcement officers accountable. While some argue that it's not fair to hold police officers liable if they didnt know that they violated the Constitution, in many cases, this concern is irrelevant because indemnification arrangements processes of compensating for injuries practically always shift financial liability away from those individual officers to their employers. Furthermore, constitutional doctrines that govern the use of force already give police leeway to make reasonable mistakes. Qualified immunity, however, shields officers from suit even when they trample on constitutional rights.

Even still, the Justice in Policing Act does not go far enough. While there are countless qualified immunity cases dealing with law enforcement officers, qualified immunity reaches further than the realm of policing. It applies to a wide variety of government action and has thwarted justice for constitutional violations that take place in schools, child protective contexts, state prisons, and more.

For example, an Arizona school nurse and administrative assistantsubjecteda 13-year-old girl to a strip search of her bra and underpants because they believed she had pain relief pills. This was an apparent violation of the girls Fourth Amendment rights; the girls mother sued, arguing school officials had no reason to believe the girl was hiding a pain reliever in her underpants. The Supreme Court held that the school officials could not be held accountable in a court of law for their misconduct because of the impossibly high threshold created by the Supreme Courts qualified immunity doctrine.

In another case, the Second Circuitgrantedqualified immunity to prison officials who had kept a pretrial detainee in solitary confinement for more than a year simply because the detainee asked a question about commissary access. While the Second Circuit held that the prison officials had violated the Constitution, the court granted qualified immunity, even though as the dissent observed, the prison officials actions were no different from loading [him] with chains and shackles and throwing him in a dungeon. Once again, because there wasnt a case with a similar enough fact pattern, justice was not delivered.

Qualified immunity cases like these, which do not involve police officers, are not covered by the Justice in Policing Act. Given that, several members of Congress led by Sen. Ed MarkeyEd MarkeyQualified immunity must be ended across the board Democrats ask Facebook to abandon 'Instagram for kids' plans Ron Johnson calls cyber attacks an 'existential' threat following Colonial Pipeline shutdown MORE (D-Mass.) and Rep. Ayanna PressleyAyanna PressleyOcasio-Cortez leading effort to block arms sale to Israel Qualified immunity must be ended across the board Dems offer bill to help single-parent families get expanded child tax credit MORE (D-Mass.) have proposed theEnding Qualified Immunity Act, which would eliminate qualified immunity across the board, not just in the context of policing.

Congress should make clear thatallgovernment officials should be held accountable when they violate peoples constitutional rights. The doctrine of qualified immunity must be ended completely.

Elizabeth Wydrais president ofConstitutional Accountability Center, a public interest law firm and think tank dedicated to promoting the progressive promise of the Constitutions text and history. She previously served as clerk at the U.S. Court of Appeals for the Ninth Circuit, Follow her on Twitter@ElizabethWydra.

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Qualified immunity must be ended across the board | TheHill - The Hill