Chief Justice Earl Warren in Washington, 1954
In Pierson v. Ray (1967), [the Supreme Court] relieved state officials from civil-rights liability unless their actions violated “clearly established law.” That’s “qualified immunity.”
The results can be infuriating. In one recent case, police officers escaped liability for siccing an attack dog on a suspect who was sitting with his hands up. A previous case had found a Fourth Amendment violation, but the court held the precedent didn’t apply because the suspect in the earlier case was lying on the ground. In another case, cops shot a fleeing driver who posed no threat. In another, police stole a collection of rare coins while executing a search warrant. Because such larceny by officers hadn’t arisen in a previous case, the court reasoned, the plaintiff’s right not to have his property stolen by police was not “clearly established.”
To call this a double standard would be an understatement. Civilians are subject to civil and criminal liability when they violate the law, even when their legal obligations aren’t perfectly clear. When state officials violate constitutional rights, qualified immunity often makes it impossible to hold them to account. It’s easy to understand why this disparity inspires cynicism about the rule of law.
The “qualified immunity” doctrine, which is what allowed the officer who killed Davdrin Goffin to escape any punishment for his actions, is described this way by the Rewire article:
"Qualified Immunity" is a judicial doctrine that excuses government officials—not just police—from personal liability unless they violate “clearly established” law. But unless a near-identical case has previously been heard, courts usually conclude that the law wasn’t “clearly established” and the officer thus could not have known they were in violation.
Here, Goffin’s counsel argued that Goffin had a clearly established right not to have deadly force used against him when he posed no threat to the officers. After all, the cops had not found weapons on him.
But Kobes found that Officer Robbie Ashcraft could not have known that shooting someone in the back as they were running away—a person they believed had no weapons and therefore posed no danger—violated any law. Writing for the majority, Kobes said “it is not clearly established that after observing a pat down that removes nothing from a suspect who an officer reasonably believed to be armed and dangerous, an officer cannot use lethal force against that suspect when he flees and moves as though he is reaching for a weapon.”
Since no previous case fit this exact fact pattern, Kobes held Ashcraft couldn’t have known she wasn’t allowed to shoot someone in the back as he was running away. This mindset will almost always excuse the behavior of police officers, which is why there is a concerted effort to hold police accountable for their actions by ending qualified immunity.
I have no great fondness for the judges appointed by our current president. I do think they are "ideologically inclined" in the wrong direction - and have been selected for exactly that reason. However, Justice Kobes could not have made the decision he did in the Goffin case without the precedent provided by Pierson v. Ray.
Getting a new president, and new judges, will not, by itself, solve the "qualified immunity" problem. If we are going to make the kind of changes that need to be made, and if we truly want to "end the war against Black people," and to" reimagine the police," the "qualified immunity" doctrine has got to go.
Here is my "liberal" analysis: Sorry, Earl. You blew it on this one!