June 27, 2020 5:05PM

Tucker Carlson’s Fanciful Defense of What He Imagines Qualified Immunity To Be

A good sign that a policy is indefensible is when its proponents cannot bring themselves to describe it accurately. Such is the case with the doctrine of qualified immunity, which is currently the subject of a furious disinformation campaign led by the law‐​enforcement lobby (see here, here). The most recent mouthpiece for this campaign was Tucker Carlson, who two nights ago mounted a spirited defense of an imaginary legal rule that he called “qualified immunity,” but which bears only the faintest resemblance to the actual doctrine. Reason’s Billy Binion and IJ’s Patrick Jaicomo have already done a great job explaining some of Carlson’s biggest mistakes, but there is so much here that is either highly misleading or outright false that it’s worth unpacking in full. Strap in!

By way of background, the inciting incident for Carlson’s segment on qualified immunity was the “Reforming Qualified Immunity Act” introduced by Senator Mike Braun (R-IN) earlier this week. As I discussed here, what this bill would effectively do is eliminate qualified immunity in its current form and replace it with limited safe‐​harbor provisions. The main effect would be that people whose rights are violated would no longer need to find prior cases where someone else’s rights were violated in the same way before being allowed to proceed with their claims. However, if defendants could show that either (1) their actions were specifically authorized by a state or federal law they reasonably believed to be constitutional, or (2) their actions were specifically authorized by judicial precedent that was applicable at the time, then they could avoid liability.

In other words, this bill doesn’t go far as the Amash‐​Pressley “Ending Qualified Immunity Act,” which would eliminate the doctrine entirely. But it is still a significant proposal that both meaningfully addresses and corrects the core absurdity of the current qualified immunity regime (the “clearly established law” standard), while preserving immunity in those relatively rare—but more sympathetic—cases in which defendants are specifically acting in accordance with applicable statutes or judicial precedent. And, unlike the “Justice in Policing Act,” Senator Braun’s bill would reform qualified immunity across the board for all government agents, not just members of law enforcement.

So, what did Tucker Carlson have to say about this bill?

Braun has introduced legislation in the Congress that will make it easier for left‐​wing groups to sue police officers.

I won’t dwell on this point, because Carlson is clearly just being snarky here. But suffice to say, Braun’s proposal is not specific to “left‐​wing groups,” and indeed, not specific to police at all. Rather, it just amends Section 1983, our primary federal civil rights statute, which permits all citizens to sue government agents who violate their rights—to clarify that defendants cannot escape liability, just because there is no prior case with similar facts.

Under current law, police officers in this country benefit from something that’s called “qualified immunity.”

Again, qualified immunity is not limited to police officers. The defense can be raised by all state and local public officials who have civil rights claims brought against them, including corrections officers, public school officials, county clerks, and other municipal employees. Still, the reason qualified immunity is such a hot topic right now is because of its application to law enforcement, so I’ll stop harping on this issue. Also, the suggestion that police officers actually benefit from qualified immunity is highly suspect, but we’ll get to that later…

Qualified immunity means that cops can’t be personally sued when they accidentally violate people’s rights while conducting their duties. They can be sued personally when they do it intentionally, and they often are.

Here is where Carlson plunges headfirst into fantasy. This “accidental/​intentional” distinction he’s describing has no basis in qualified immunity case law. Indeed, under the “clearly established law” standard, a defendant’s state of mind has no bearing whatsoever on whether they are entitled to qualified immunity—a defendant could be explicitly acting in bad faith, with the express intent to violate someone’s rights, and still receive immunity, so long as there was no prior case involving the precise sort of misconduct they committed.

The best illustration of this point is the Ninth Circuit’s recent decision in Jessop v. City of Fresno, where the court granted immunity to police officers alleged to have stolen over $225,000 in cash and rare coins while executing a search warrant. The court noted that while “the theft [of] personal property by police officers sworn to uphold the law” may be “morally wrong,” the officers could not be sued for the theft because the Ninth Circuit had never specifically decided “whether the theft of property covered by the terms of a search warrant, and seized pursuant to that warrant, violates the Fourth Amendment.” In other words, it didn’t matter that the officers were intending to break the law; not even the defendants here claimed that they “accidentally” stole from this suspect. All that mattered was that the court hadn’t confronted this particular factual scenario before.

In other words, police officers are not above the law.

It is true that police officers are not literally immune from liability for their misconduct (unlike prosecutors, who actually do receive absolute immunity for violating people’s rights). But police officers are held to a vastly lower standard of accountability than the citizens they police. For regular people, it’s a well‐​known legal maxim that “ignorance of the law is no excuse.” Even in cases with serious criminal penalties, courts routinely permit the prosecution and conviction of defendants who had no idea they were breaking the law. If anything, you would expect law enforcement—public officials specifically charged with knowing and enforcing the law—to be held to a higher standard of care than ordinary citizens. But in fact, they’re held to a far lower standard. Ignorance of the law is no excuse—unless you wear a badge.

Cops who commit crimes can be punished .… Cops who make lesser mistakes can be disciplined, suspended, or fired, and they often are. That’s the system that we have now. It works pretty well.

If this assertion doesn’t cause you to burst out laughing, then you haven’t been paying attention to our criminal justice system for the last several decades. Suffice to say, no, our system is not working pretty well. It is extraordinarily difficult to convince prosecutors to bring charges against police officers, much less to obtain convictions (see here for a list of especially notable non‐​convictions). And internal discipline measures are laughably feeble, due in large part to the power of police unions. The inadequacy of both criminal prosecution and internal discipline as meaningful accountability measures is exactly why we need a robust civil remedy—and therefore exactly why qualified immunity is such a serious problem (we’ve argued this point in much more detail in our cross‐​ideological amicus briefs before the Supreme Court).

Civil immunity, by the way, has precisely nothing to do with anything that happened in the George Floyd case, just in case you’re wondering. That cop is in jail.

Qualified immunity applies in civil law suits, not criminal prosecutions, so it’s true that qualified immunity will not limit the criminal prosecution of Derek Chauvin. But Carlson is wrong that the doctrine has “nothing to do with anything that happened in the George Floyd case,” for two reasons.

First, if George Floyd’s family does decide to bring a civil rights claim against Chauvin and the other officers on the scene, it is entirely possible that the officers would be able to invoke qualified immunity, depending on whether there’s a prior case in the Eighth Circuit with similar facts (i.e., an officer kneeling on a non‐​resisting suspect’s neck for a long period of time while the suspect says he can’t breathe). Even if Chauvin is convicted of murder, that’s no guarantee that he wouldn’t be entitled to immunity in a civil suit. Whether a prosecutor can prove the elements of murder beyond a reasonable doubt is simply a different legal question than whether prior case law would make the violation of George Floyd’s rights “clearly established,” under modern qualified immunity doctrine.

Second, the senseless violence committed by Derek Chauvin and the stunning indifference of the other officers standing nearby are the product of our culture of near‐​zero accountability for law enforcement. While that culture has many complex causes, one of the most significant is qualified immunity. Section 1983 was supposed to be the primary means of holding accountable government agents who violate our constitutional rights. Qualified immunity has severely undermined the deterrent effect of that statute, and thereby contributed to an environment where police simply do not expect to be held to account when they commit misconduct.

Qualified immunity has worked so well because police officers, maybe more than anyone else in society, must make difficult split‐​second decisions on the job, and a lot. They do it constantly. Whether to arrest someone, whether to conduct a search, whether to use force against a suspect. Sometimes, actions they sincerely and reasonably believe are legal are found later by courts to be unconstitutional.

Here, Carlson regurgitates what is probably the most commonly invoked defense of qualified immunity: that it is necessary to protect the discretion of police officers to make split‐​second decisions. And, no surprise, it is profoundly mistaken. This was the very first issue I addressed in my previous post on “The Most Common Defenses of Qualified Immunity, and Why They’re Wrong,” but the short answer is that our substantive standards for determining what actions do and do not violate the Fourth Amendment already incorporate substantial deference to on‐​the‐​spot police decision‐​making. In other words, when police “sincerely and reasonably” make a decision about whether to arrest someone or use force, they almost certainly will not have broken the law in the first place. Qualified immunity is therefore unnecessary to protect this discretion, because the doctrine, by definition, only applies when a defendant has committed a constitutional violation.

Moreover, as a I discussed above, qualified immunity has nothing to do with whether an officer “sincerely and reasonably” believed their actions to be lawful. It doesn’t turn on their state of mind at all. All that matters is whether a court determines that the facts of prior cases were sufficiently similar to hold that the law was “clearly established.”

The Reason article by Billy Binion aptly notes that Carlson’s assertion here “can only be explained by a lack of familiarity with qualified immunity case law,” and provides numerous examples of the sort of egregious injustices this doctrine regularly permits:

Take the cop who received qualified immunity after shooting a 10‐​year‐​old while in pursuit of a suspect that had no relationship to the child. The officer, sheriff’s deputy Matthew Vickers, was aiming at the boy’s nonthreatening dog. There were also the cops who were granted qualified immunity after assaulting and arresting a man for standing outside of his own house. And the prison guards who locked a naked inmate in a cell filled with raw sewage and “massive amounts” of human feces. And the cop who, without warning, shot a 15‐​year‐​old who was on his way to school. And the cops who received qualified immunity after siccing a police dog on a person who’d surrendered. It doesn’t take much thought to conclude that those courses of action were morally bankrupt.

Just so. Okay, back to Carlson’s defense of what‐​he‐​calls‐​qualified‐​immunity:

Sometimes the very laws [police officers] enforce are struck down. That’s not their fault, obviously, but without qualified immunity, police could be sued for that personally.

Only a tiny fraction of lawsuits against police involve claims that the laws they’re enforcing are themselves unconstitutional. But Carlson actually is correct that, without qualified immunity, police officers could be held liable for enforcing unconstitutional statutes. Indeed, that sort of application was probably the principal evil that Congress had in mind when it enacted Section 1983 in 1871, as part of the Ku Klux Klan Act. Congress was well aware that southern states would continue passing laws infringing on the constitutional rights of recently freed slaves, and they wanted to deter state and local officials from carrying out such laws. Executive officers—no less than legislators or judges—have an independent obligation to enforce and respect constitutional limitations.

Still, one can understand the seeming unfairness in holding defendants personally liable when the only conduct alleged to be unlawful was executing a statute they reasonably believed to be valid. But, for that very reason, this is one of the two explicit safe harbors included in Braun’s bill! His proposal specifically states that a defendant will not be liable under Section 1983 when “the conduct alleged to be unlawful was specifically authorized or required by a Federal statute or regulation, or by a statute passed by the primary legislative body of the State … in which the conduct was committed.” In other words, Carlson is either entirely unaware of or willfully concealing the fact that Braun agrees with his own argument here, and has already incorporated it into his bill.

[Police officers] could be bankrupted, they could lose their homes. That’s unfair. It would also end law enforcement. No one would serve as a police officer.

This is another issue I already addressed in my “common defenses” post, but I’ll repeat the main points here. First, it’s crucial to understand that even today, police officers are nearly always indemnified for any settlements or judgments against them in civil rights claims. This means that their municipal employers, not the officers themselves, actually end up paying. Joanna Schwartz, a UCLA law professor and probably the foremost scholar of qualified immunity, demonstrated in a 2014 article called Police Indemnification that, in her study period, “governments paid approximately 99.98% of the dollars that plaintiffs recovered in lawsuits alleging civil rights violations by law enforcement.” In other words, even when plaintiffs do overcome qualified immunity, the individual police officers rarely pay a dime.

I have written elsewhere about how this practice of near‐​automatic indemnification is itself problematic, because it fails to provide for individualized accountability for officers who violate people’s rights. A better practice, as my colleague Clark Neily has also discussed, would be to take some portion of the money that municipalities already spend on civil rights judgments, and instead put that toward an insurance allowance for individual officers. Nevertheless, as things currently stand, officers are almost never required to pay anything personally, and that won’t change if we eliminate qualified immunity. The idea that police would be “bankrupted” or “lose their homes” is reckless fear‐​mongering. 

Also, with regard to the idea that eliminating qualified immunity would “end law enforcement,” I wonder whether Carlson is aware that he’s made a testable prediction? After all, as I discussed here, Colorado recently enacted a civil rights law that effectively removes the defense of qualified immunity for officers who violate people’s rights under the state constitution. Will this “end law enforcement” in Colorado? If Tucker Carlson or anyone who agrees with him would like to make a bet on this question, I’ll give generous odds.

And that’s why the Supreme Court has upheld the principle of qualified immunity for decades now, often unanimously, both sides agreeing.

I will give Carlson this—he is absolutely right that the Supreme Court has shown remarkable tenacity in sticking to one of the most embarrassing, egregious mistakes in its history. Section 1983 clearly says that any state actor who violates someone’s constitutional rights “shall be liable to the party injured,” and the common‐​law history against which that statute was passed did not include any across‐​the‐​board defenses for all public officials. The Supreme Court’s invention of qualified immunity was a brazen act of judicial policy‐​making that effectively rewrote this statute, and it’s shameful that the Justices have repeatedly declined the opportunity to correct this error.

What is surprising, however, is why Tucker Carlson approves of such blatant judicial activism in this case. After all, Carlson himself recently bemoaned how “courts increasingly have come to see themselves not as interpreters of the law, their constitutional role, but as the country’s main policy makers.” So, does he want the Supreme Court to faithfully interpret the text and history of Section 1983, or to continue imposing their own policy preferences?

But now, in order to placate the rioters, who he believes have more moral authority than the police, Senator Mike Braun of Indiana would like to gut qualified immunity, and make it easier for cops to be sued personally for mistakes.

I already discussed above how Senator Braun’s bill does not wholly abolish qualified immunity, but rather replaces the “clearly established law” standard with two limited, principled safe‐​harbors. I also discussed how Section 1983 doesn’t make cops liable for “mistakes,” it makes them liable for constitutional violations—and the Fourth Amendment itself is already incredibly deferential to police decision‐​making. An officer hasn’t violated the Fourth Amendment because they made the “wrong” call with regard to an arrest or use of force; they only violate the Fourth Amendment when they act objectively unreasonable, under the circumstances known to them at the time.

But I do want to address this idea of “moral authority.” Setting aside the nonsense about “placating rioters,” how does it affect the moral authority of the law enforcement community when we hold police officers to a lower standard of liability than any other profession? As I’ve discussed previously, the proponents of qualified immunity are profoundly mistaken if they think the doctrine is doing the law enforcement community any favors. If you want to restore the moral authority of the police, you can’t let police officers escape liability for egregious and immoral misconduct. If you want people to respect officers as professionals, then the law has to hold them to professional standards.

Qualified immunity, more than any other single rule or decision, has eroded the moral authority of the police, not protected it. And that is exactly why the more thoughtful members of law enforcement—such as the Law Enforcement Action Partnership and the National Organization of Black Law Enforcement Executives—have explicitly called for the elimination of qualified immunity. As Major Neill Franklin (Ret.) has explained: “Accountability measures that show an agency is serious about respecting the rights of all of its residents help the police as much as they help the communities we serve. There’s no better way to restore community trust. And we cannot do our jobs without trust.”

* * *

Carlson finishes his segment with a rant about Charles Koch that would make Nancy MacLean blush, and then asks whether Senator Braun would be willing to defend the absolute immunity that members of Congress enjoy. This latter question is interesting enough on its own, but Carlson obviously just intends it as a “gotcha,” not as a serious point of discussion.

But the bottom line is that Tucker Carlson has done a profound disservice to his viewers and to the country by further propagating blatant misunderstandings of what qualified immunity actually is. It’s honestly hard to say whether Carlson himself has been duped, or whether he is willfully joining the disinformation campaign of the law‐​enforcement lobby. But either way, nobody should take what he’s saying at face value. I remain interested to see whether any self‐​professed advocate of qualified immunity will defend the actual doctrine.