The Supreme Court has repeatedly characterized qualified immunity as protecting “all but the plainly incompetent or those who knowingly violate the law.” Even taken at face value, that standard of care is depressingly low, especially with respect to law enforcement—i.e., the profession expressly charged with knowing and enforcing the law. But the Tenth Circuit’s recent decision in Frasier v. Evans illustrates how this oft-repeated maxim is itself highly misleading—because even when police officers do, in fact, know that they are violating someone’s rights, they can still receive qualified immunity.

The issue in this case is the First Amendment right to record police officers in the course of their public duty. While the Supreme Court itself has not directly addressed this question, the First, Third, Fifth, Seventh, Ninth, and Eleventh Circuits have all upheld this right (the earliest of these decisions dates back to 1995), and no circuit has held to the contrary. But in 2014, a group of Denver police officers violated this right when they threatened to arrest and conducted an illegal search of Levi Frasier, all because Frasier had recorded them using excessive force in the course of making a drug arrest.

Since 2007, the City of Denver has trained its officers that people have a First Amendment right to observe and record the police in public. This training included multiple courses for officers—which the defendants in this case had completed just a year before the incident—with a slide explicitly instructing that “citizens have a First Amendment right to videotape the actions of police officers in public places and that seizure or destruction of such recordings violates constitutional rights.”

Nevertheless, the Tenth Circuit held that these officers were entitled to qualified immunity. Even though, at the time of the incident, four circuits had already held that such conduct was unconstitutional, this particular right was not yet “clearly established” in the Tenth Circuit. Therefore, according to the court, the fact that the officers were explicitly on notice that their actions were unlawful was irrelevant.

Frasier v. Evans is an important case for understanding qualified immunity because, as appalling as the outcome is, it’s not obvious that the panel’s decision was actually at odds with current doctrine. To the contrary, this case illustrates how qualified immunity applies not in an exceptional case, but in a typical one, and it’s therefore an instructive primer on nearly all of qualified immunity’s perverse features. Consider the following basic tenets of qualified immunity, and how they’re applied in this case.

Constitutional rights can only be “clearly established” by circuit-specific judicial decisions.

As noted above, when Denver police officers violated Levi Frasier’s First Amendment rights in 2014, four circuit courts had already held that such conduct was unconstitutional. But the Tenth Circuit panel here dismissed any reliance on those cases because “those decisions do not indicate that this right was clearly established law in our circuit in August 2014.” In theory, the Supreme Court has indicated that a “robust consensus of cases of persuasive authority” can clearly establish a legal principle for the purposes of qualified immunity, but apparently the uniform out-of-circuit authority here was insufficient.

Nor was it relevant to the Tenth Circuit that the Department of Justice, the City of Denver, and police departments around the country had also explicitly instructed their officers that the First Amendment protects the right to record the police in public. As the panel explained, “judicial decisions are the only valid interpretive source of the content of clearly established law.”

Of course, in principle, the Supreme Court itself could take a case on this question and issue a decision “clearly establishing” this First Amendment right nationwide. The problem, however, is that the Supreme Court only decides a small number of cases every year, and most of these are limited to resolving circuit splits. But in this case, the First Amendment right at issue is sufficiently clear that there is no circuit split—every court that addresses the underlying merits question agrees, so there’s relatively little incentive for the Supreme Court to get involved!

In light of qualified immunity, this leads to the perverse result that the uniform consensus of many circuits on a particular right actually makes that right less likely to be protected in other circuits. If there were a circuit split, the Supreme Court might resolve the issue nationwide. But without one, courts can continue saying, as the Tenth Circuit did in this case, “maybe it’s clearly established over there, but it’s not clearly established here.”

Qualified immunity protects police officers acting in bad faith.

The evidence in this case overwhelmingly demonstrated that the Denver police officers who harassed, threatened, and searched Levi Frasier knew they were violating his First Amendment rights. As noted above, the City of Denver had instructed its officers on the right to record police since 2007, and the defendants here had taken a course covering exactly this subject just a year before the incident.

The record also plainly supported the conclusion that the officers’ subjective motive was retaliation against Frasier for recording them: one of them yelled “Camera!” as Frasier recorded them using force on an arrestee; the officers followed Frasier to his van and demanded both his identification and the video; they threatened to arrest him after he refused to volunteer his video; they illegally searched his tablet for the recording; and they let him leave only when they thought he did not have any video recording of them.

This is about the most damning evidence one could ask for that these officers were acting in bad faith and knowingly violating Frasier’s rights. One could thus be forgiven for thinking these officers shouldn’t receive qualified immunity, given the Supreme Court’s repeated insistence that qualified immunity does not protect those who “knowingly violate the law.” Ashcroft v. al-Kidd, 563 U.S. 731, 743 (2011) (quoting Malley v. Briggs, 475 U.S. 335, 341 (1986)). But as the Tenth Circuit’s decision here makes plain, the way courts conceptualize what it means to “knowingly violate the law” is nothing like what an ordinary person would understand this concept to mean.

The panel here explained that “qualified immunity is judged by an objective standard,” and thus, “what the officer defendants subjectively understood or believed the law to be was irrelevant.” In other words, even if a defendant has actual knowledge that they’re violating someone’s rights, that doesn’t mean they were “knowingly violating the law” for the purposes of qualified immunity. When the Supreme Court says qualified immunity doesn’t apply to those who “knowingly violate the law,” it’s really just restating the “clearly established law” standard, which is defined entirely by the particulars of past judicial decisions, not a defendant’s actual knowledge or intentions.

When the Supreme Court first announced the “clearly established law” standard in Harlow v. Fitzgerald, the Court purported to recast qualified immunity in terms of “objective good faith” (the state of the law at the time the conduct was committed), rather than “subjective good faith” (the defendant’s state of mind as to the legality of their conduct).

A more accurate description, however, would be to say that the Court changed the standard from “actual good faith” to “pretend good faith.” The officers who violated Frasier’s First Amendment rights weren’t actually acting in good faith, because they knew Frasier had the right to record them, and they retaliated against him anyway. But because this particular circuit had yet to address this exact question, they did have “pretend good faith,” and thus were entitled to qualified immunity.

Qualified immunity gives a one-sided procedural advantage to defendants in civil rights cases.

When the defendants in this case asked the district court to grant them summary judgment on the basis of qualified immunity, they lost—the district court denied immunity because the officers knowingly violated Frasier’s rights. And under normal rules of civil procedure, parties can’t appeal the denial of a motion for summary judgment. Federal appellate courts can only hear appeals from “final decisions” of district courts, but denying summary judgment isn’t a final decision—it just means that there’s a genuine issue of material fact, so the case can proceed to trial.

But qualified immunity is different. The Supreme Court has asserted that qualified immunity is not just a defense against liability, but rather is intended to be an immunity from suit altogether. Therefore, denials of qualified immunity are a rare instance of decisions subject to what is called the “collateral order doctrine”—if a district court denies immunity, the defendant can immediately appeal that decision. That’s why the officers in this case were allowed to argue for qualified immunity before the Tenth Circuit, even though the case had not yet gone to trial.

In other words, to even get his day in court, Levi Frasier essentially had to win twice in a row—first he had to convince the district court to deny immunity, and then he had to convince the Tenth Circuit to affirm that denial. In this case, he won the first time, but lost the second. More generally, this procedural aspect of qualified immunity makes civil rights litigation far more expensive, because the time and cost of pretrial appellate litigation can easily exhaust the limited resources of civil rights plaintiffs.

The bar for “obvious” constitutional violations remains high and will generally be difficult for plaintiffs to meet.

The Supreme Court has always officially stated that overcoming qualified immunity does not require a case exactly on point, and that for sufficiently obvious constitutional violation, general constitutional rules may give adequate notice to defendants. In practice, however, lower courts have all but ignored this imperative and essentially required a case on point even for the most egregious violations. In Jessop v. City of Fresno, for example, the Ninth Circuit granted immunity to officers alleged to have stolen over $200,000 in cash and rare coins from a suspect while executing a search warrant, notwithstanding that the unlawfulness of this conduct would seem to be quite obvious.

As I discussed here, recent decisions from the Supreme Court may be attempts to reaffirm to lower courts that qualified immunity can be denied for sufficiently obviously constitutional violations, even without a case exactly on point. For example, in Taylor v. Riojas, the Court vacated a Fifth Circuit opinion granting immunity to prison officials who held an inmate in inhumane conditions—one cell that was covered floor-to-ceiling in human feces, and another kept at freezing temperatures with sewage coming out of a drain in the floor—for six days. In the Court’s brief per curiam opinion, it explained that “no reasonable correctional officer could have concluded that, under the extreme circumstances of this case, it was constitutionally permissible to house Taylor in such deplorably unsanitary conditions for such an extended period of time.”

But while the Court’s recent clarification may help curb the very worst excesses of qualified immunity, Frasier v. Evans indicates that “obviousness” will still be incredibly difficult to show in the mine run of cases. Indeed, the panel here explicitly cited Taylor, noting that “the Supreme Court has reminded us recently that under certain ‘extreme circumstances’ general constitutional principles established in the caselaw may give reasonable government officials fair warning that their conduct is constitutionally or statutorily unlawful.”

Nevertheless, the panel held that this was not a case where constitutional principles applied “with obvious clarity.” According to the court, such cases will be “rare,” generally involving “particularly egregious” misconduct, and the retaliatory conduct by the officers in this case didn’t rise to that level. In other words, whether or not a constitutional violation is “obvious” has nothing to do with whether it was, in fact, obvious to the defendants. Only the most extraordinary and outlandish misconduct will free plaintiffs from the need to identify a prior case on point.

Qualified immunity stagnates the development of the law and creates unequal protection of constitutional rights throughout the country.

When courts grant qualified immunity because a right wasn’t “clearly established,” they have the discretion to decide whether to first address the underlying merits questions, or to grant immunity without addressing the merits question one way or another. In other words, courts can either say (1) “yes, your rights were violated, but those rights weren’t clearly established, so you lose,” or (2) “whether or not your rights were actually violated, they weren’t clearly established, so you lose.”

As unjust and absurd as option #1 is, it’s far preferable to #2, because at least the court is “establishing” the right for future cases. But when courts fail to address the merits entirely, not only does the current defendant get immunity, but future defendants who commit the exact same misconduct will get immunity as well, because the right will still not be “clearly established.” The result is what one federal judge recently characterized as “Section 1983 meets Catch-22”:

Plaintiffs must produce precedent even as fewer courts are producing precedent. Important constitutional questions go unanswered precisely because those questions are yet unanswered. Courts then rely on that judicial silence to conclude there’s no equivalent case on the books. No precedent = no clearly established law = no liability. An Escherian Stairwell. Heads defendants win, tails plaintiffs lose.

In Frasier’s case, the Tenth Circuit not only held that the officers were entitled to qualified immunity, but refused to even hold that Frasier’s First Amendment rights were violated. The first part of this holding was plainly unjust, and clearly contrary to the text and history of Section 1983, but at least has the virtue of being arguably compelled by Supreme Court precedent. But the refusal to at least resolve the First Amendment question was inexcusable. Courts clearly have the authority (though not the obligation) to decide constitutional questions before granting qualified immunity, and there was no good reason not to do so in this case.

Indeed, the failure to hold that Frasier’s rights were violated is especially galling because the particular right at issue—the right to record police in public—is itself a textbook example of the extent to which qualified immunity stagnates the development of the law. As noted above, every single appellate court that has addressed this issue on the merits has held that there is, in fact, a First Amendment right to record the police. But in several circuits, even before this case, that right has long gone unprotected, precisely because the issue was addressed only in qualified immunity decisions that refused to reach the merits.

For example, the Third Circuit confronted this issue in a 2010 decision called Kelly v. Borough of Carlisle, noting that the court had “not addressed directly the right to videotape police officers.” The panel granted qualified immunity because this right was not clearly established in the Third Circuit (even though it was already clear in several other circuits), but declined to decide whether there actually was such a right. Nearly a decade later, the Third Circuit faced this exact same question in two additional cases—Karns v. Shanahan and Fields v. City of Philadelphia—and again granted immunity to the police in both cases because, of course, the right was still not “clearly established.”

Thankfully, the Fields opinion did at least recognize that there is a First Amendment right to record the police before it held that the defendants were entitled to immunity. So now that right will finally be protected in the Third Circuit. But there was no justification for that right to go unprotected for as long as it did. Nor is there any good reason that this right is still unprotected in the Fourth Circuit, given that a panel of that court had an opportunity to recognize this right over a decade ago in Szymecki v. Houck, but failed to do so.

In an era where the rising awareness of police brutality has facilitated a crisis of confidence in law enforcement, the right to record the police is as important as it has ever been. But because of qualified immunity, that right is inconsistently protected across the nation, based solely on the happenstance of which circuits have already addressed the issue, and the inclination of judges to actually decide constitutional questions. The Tenth Circuit can now be added to the list of jurisdictions where this right should be protected–even in the face of qualified immunity!–but isn’t.

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To channel my inner G.K. Chesterton, Levi Frasier’s case is extraordinary precisely because of how ordinary it is. It reveals the legal, practical, and moral failures of qualified immunity not through aggressive expansion of the doctrine, but through mundane application. No matter what the Supreme Court does to tinker with the fringes, the Tenth Circuit’s decision here is illustrative of how qualified immunity will continue to apply in the typical case. That is precisely why the elimination of qualified immunity is and must remain a top legislative priority both for Congress and for states across the nation.