The Federal Law Enforcement Officers Association put forward a nonsensical defense of qualified immunity in The Hill Monday. The article starts tamely enough, with a classic misexplanation of the doctrine.
When determining whether [a law has been clearly established], courts consider whether a hypothetical reasonable official would have known that the defendant’s conduct violated the plaintiff’s rights.
Nope. Courts never use a reasonable person test to determine if a law was clearly established: they consider whether a previous case already held near‐identical conduct unconstitutional, a standard rarely set since courts can dismiss cases for qualified immunity without answering that question. It works a little like this.
FLEOA’s strawman is bad, but it’s at least on‐topic. The article proceeds to veer wildly off‐course.
Bizarrely, FLEOA invokes a sexual misconduct allegation against a police officer that never got past the initial complaint. Sherita Dixon‐Cole accused Officer Hubbard of groping her during a DUI stop — an accusation quickly refuted by Hubbard’s dash cam footage. FLEOA goes on to say that the woman’s complaint, which was shared widely on social media, “led to a conviction of the officer in the court of public opinion.”
Qualified immunity is a legal defense — not a defense that can be asserted on Twitter. And as happened here, there are several stages built into every civil trial to quickly weed out false allegations like these. Determining the truth of contested matters is a purpose of the trial itself. If FLEOA wants to use a single complaint to crudely color a case for the doctrine, ignoring the volume of cases illustrating otherwise, you’d think they would pick one that involves qualified immunity.
It only gets worse as FLEOA attempts to connect the dots.
Had this case gotten to the point of a lawsuit, if the trooper’s conduct was found to be unconstitutional or unethical, he may have been left exposed by his agency to any legal ramifications from that unethical conduct.
Hold the phone.
So if this were a totally different case where the officer was actually sued because he actually groped a woman at a DUI stop — he might be “exposed” to “legal ramifications from that unethical conduct?” The kicker for FLEOA’s stray logic is that it’s not wrong. It just seems to be literally arguing that officers need qualified immunity to protect them from being sued for sexually abusing people they detain at traffic stops. That is what qualified immunity does — and why it should be abolished.
Without elaborating on why anyone should support a doctrine that prevents us from suing troopers for “unethical conduct,” FLEOA declares that they have made their point and the article is over.
This example speaks to the need for qualified immunity, especially since all lawyers know how to file lawsuits and their actions are not bound by an investigation.
I’m not sure which part of this grand finale speaks to me more — the disjointed “what we just said proves our point,” or the bonus argument that officers may be vulnerable because another profession is capable of doing its job.