‘Qualified immunity’ makes it too hard to hold public officials accountable.
Please try to imagine this scene. It’s the middle of a hot summer day in Georgia. A mom named Amy Corbett is inside, and her kids are outside, playing. Suddenly — through no fault of her own and through no fault of her children — police officers are swarming all over her property. They are in the process of apprehending a criminal suspect she doesn’t know, and they’re very aggressive in securing the location. They order all the children to lie down, and at least four of the kids are held at gunpoint. Soon the criminal suspect is in custody, “visibly unarmed,” and complying with officers’ orders.
At that moment, the family dog, Bruce, approaches the officers. There is no indication that he is threatening, and no officer tries to control him by peaceful means. Instead, one officer — a man by the name of Michael Vickers — opens fire. He aims a single shot at Bruce and misses. Bruce retreats briefly and then comes back.
The officer fires again, and misses Bruce again. But he hits Corbett’s ten-year-old son in the knee. Bullet fragments remain in the knee “for an extended period of time after the shooting,” and the young boy suffers “severe pain and trauma.”
Here’s perhaps the most astounding fact: The officer fired when the boy was only 18 inches away. What an astonishingly reckless and unreasonable use of a firearm. So the boy’s family sued. They lost. The reason? An unjust doctrine called “qualified immunity.”
Here’s the essential legal background. Since 1871, federal law has allowed citizens to sue public officials for violations of their constitutional rights. The relevant statutory language is clear and unambiguous (emphasis added):
Every person who, under color of any statute, ordinance, regulation, custom, or usage, of any State or Territory or the District of Columbia, subjects, or causes to be subjected, any citizen of the United States or other person within the jurisdiction thereof to the deprivation of any rights, privileges, or immunities secured by the Constitution and laws, shall be liable to the party injured in an action at law, suit in equity, or other proper proceeding for redress.
Since 1982, however — and thanks to the Supreme Court — the phrase “shall be liable” has been reinterpreted to essentially mean, “may occasionally, in extreme circumstances, be liable.” The court held that public officials could be immune from suit for damages when their “conduct does not violate clearly established statutory or constitutional rights of which a reasonable person would have known.”
Again, this language is not in the statute. Moreover, the definition of a “clearly established” right is extraordinarily restrictive. In its practical application, a plaintiff cannot be sure to prevail unless he or she can cite a remarkably similar case, with nearly identical facts, decided by a court of controlling jurisdiction.
In other words, to be sure to win, Corbett would have to find a case holding that officers who accidentally shoot innocent people they’ve “seized” as part of an arrest violate the Fourth Amendment’s prohibition against unreasonable search and seizure. In essence, this gives public officials in every jurisdiction one “free” constitutional violation, and since there are virtually endless different ways in which state officials can interact with citizens, these “free” violations can add up.
And that’s what happened in this case. The Eleventh Circuit majority (Carter and Trump appointees) held that there was no “clearly established” right not to be shot when you’re peacefully lying on the ground — at least not in this particular circumstance, because the shot was not directed at the child. The officer’s dangerously poor aim helped him evade liability.
The court’s words were clear:
Unlike any prior cases that could clearly establish the law for this case, at the time Vickers fired at the dog, SDC was not the intended target of an arrest or investigatory stop. Nor was he the intended target of Vickers’s shot; rather, he was accidentally hit when Vickers fired at the dog. The Supreme Court’s decision in Brower indicates that a Fourth Amendment violation depends upon intentional action on the part of the officer.
But there was an intentional action. The officer did intend to shoot the family dog. He did intend to pull the trigger 18 inches away from a child, without evidence before the court that the dog was threatening.
The brief dissent was spot-on. After noting that not even qualified immunity protects the “plainly incompetent,” the dissenting judge said, “Because no competent officer would fire his weapon in the direction of a nonthreatening pet while that pet was surrounded by children, qualified immunity should not protect Officer Vickers.” This seems plainly true.
But I’d go farther. As I’ve argued before, it’s time to rethink qualified immunity entirely. It’s time to apply the plain language of the relevant statute and hold public officials liable for their constitutional violations every time they commit a violation. After all, protecting and defending the Constitution is their primary job. As Fifth Circuit judge Don Willet wrote last year, “to some observers, qualified immunity smacks of unqualified impunity, letting public officials duck consequences for bad behavior — no matter how palpably unreasonable — as long as they were the first to behave badly.”
In fact, there is a budding left/right consensus against qualified immunity. Organizations such as the Alliance Defending Freedom, the American Civil Liberties Union Foundation, the Second Amendment Foundation, the Reason Foundation, the National Police Accountability Project, and Public Justice (among others) have joined forces to ask the Supreme Court to reverse the doctrine. So far they’ve been unsuccessful, but it can take time to persuade justices to rethink longstanding doctrine.
But that time has come. It’s time to apply the plain language of the statute to official misconduct, and it’s time to end the culture of impunity that qualified immunity creates. In virtually every other context, when one person violates another person’s legal rights, the violator can be held accountable. Public officials — who possess immense power over private citizens — should never enjoy one “free” act of abuse.
The police should never shoot children when they are lying compliant on the ground. But if they do, that child at the very least should be compensated for his grave injuries. The fact that he can’t be is gravely unjust.