May 10, 2021 5:31PM # Police Officers Never Learn “Clearly Established Law” By [James Craven](https://www.cato.org/people/james-craven) --- SHARE Most people would agree that police officers shouldn’t be punished for split-second mistakes in judgment. That’s why the *[Graham](https://supreme.justia.com/cases/federal/us/490/386/)* and *[Garner](https://supreme.justia.com/cases/federal/us/471/1/)* tests for whether or not an officer’s use of force amounts to a constitutional violation require an analysis of whether that use of force was reasonable with regard to the *particular circumstances* the officer was in. But qualified immunity goes beyond *Graham* and *Garner* with its maddeningly arbitrary “clearly established law” requirement. In effect, “clearly established law” adds a separate, completely illogical burden of proof to constitutional torts cases: proving the existence of a prior case with functionally identical facts. To illustrate how this works, [consider the case of Amy Corbitt](https://www.unlawfulshield.com/2019/07/eleventh-circuit-grants-immunity-to-officer-who-shot-a-child-lying-on-the-ground-while-trying-to-shoot-a-harmless-dog/). Officer Vickers, in pursuit of an unrelated criminal suspect, showed up in Amy Corbitt’s yard where children were playing. After making everyone lie down on the ground, Officer Vickers—under no provocation whatsoever—shot at Amy’s dog, missed, and hit her child instead. Very clearly, Officer Vicker’s use of force was unreasonable under the tests of *Garner* and *Graham*. But since there wasn’t a prior court case where an officer shot at a harmless dog, missed and then hit a child, Officer Vickers was granted qualified immunity and Amy Corbitt wasn’t allowed to take him to trial for the injury to her child at all. The theoretical justification for this absurd outcome is that without the clear guidance of existing case law, public officials would not be able to discern what conduct is permissible under the plain text of the Constitution. There are a lot of flaws with this reasoning, but a [new article](https://lawreview.uchicago.edu/sites/lawreview.uchicago.edu/files/Schwartz_QualifiedImmunity_88UCLR605.pdf) from Joanna Schwartz, a UCLA law professor and leading scholar of qualified immunity, has identified a particularly damning one: police officers don’t study “clearly established law” at all. Professor Schwartz combed through 284 Supreme Court and Ninth Circuit cases involving excessive force claims and then compared them to the actual training received by California police officers. What she found: 95% of agencies rely on the same company to develop the use-of-force guidelines in their policy manuals, which teach officers the “reasonableness” tests of *Graham* and *Garner* but provide scant or no instruction on the subsequent holdings that form the body of “clearly established law.” The other 5% fare little better. Likewise, California’s POST training—required by all California law enforcement officers—sticks firmly to *Graham* and *Garner* and barely mentions any of the 284 cases that create the body of “clearly established law.” The [full article](https://lawreview.uchicago.edu/sites/lawreview.uchicago.edu/files/Schwartz_QualifiedImmunity_88UCLR605.pdf) goes on to examine police training in far greater detail, including in-service police training and police training courses available at community colleges. Professor Schwartz’s conclusion is that the “clearly established law” standard serves no meaningful purpose in educating officers about the appropriate use of force—and that the arbitrary standard of qualified immunity should be eliminated. Her article thus provides solid empirical support for what was already a commonsense intuition: police officers never learn “clearly established law.” As Judge James Browning of the District of New Mexico wrote in a 2018 opinion: > The Supreme Court’s obsession with the clearly established prong assumes that officers are routinely reading Supreme Court and Tenth Circuit opinions in their spare time, carefully comparing the facts in these qualified immunity cases with the circumstances they confront in their day-to-day police work. It is hard enough for the federal judiciary to embark on such an exercise, let alone likely that police officers are endeavoring to parse opinions. It is far more likely that, in their training and continuing education, police officers are taught general principles, and, in the intense atmosphere of an arrest, police officers rely on these general principles, rather than engaging in a detailed comparison of their situation with a previous Supreme Court or published Tenth Circuit case. It strains credulity to believe that a reasonable officer, as he is approaching a suspect to arrest, is thinking to himself: “Are the facts here anything like the facts in *York v. City of Las Cruces*? As [we’ve argued in the past](https://www.unlawfulshield.com/2020/06/the-most-common-defenses-of-qualified-immunity-and-why-theyre-wrong/), eliminating qualified immunity wouldn’t change the fact that *Garner* and *Graham* protect police from the consequences of good-faith mistakes made in dangerous, volatile encounters. Now we know it would also bring the state of the law in line with what officers are actually being taught about the legal boundaries of the use of force—which is almost exclusively *Graham* and *Garner*. Joanna Schwartz’s full article is available [here](https://lawreview.uchicago.edu/sites/lawreview.uchicago.edu/files/Schwartz_QualifiedImmunity_88UCLR605.pdf). ##### Related Tags [Constitutional Law](https://www.cato.org/constitutional-law), [Criminal Justice](https://www.cato.org/criminal-justice), [End Qualified Immunity](https://www.cato.org/qualified-immunity) [![Creative Commons License](/build/cato_2020/images/creative-commons.svg)](http://creativecommons.org/licenses/by-nc-sa/4.0/) This work is licensed under a [Creative Commons Attribution-NonCommercial-ShareAlike 4.0 International License](https://creativecommons.org/licenses/by-nc-sa/4.0/).