Caleb Brown: This is the Cato Daily Podcast for Wednesday, February 28, 2018. I am Caleb Brown. Why do so many police officers seem to escape prosecution or sometimes even charges when they are accused of, and by all rights have committed, acts that would send anyone else to prison? It is called qualified immunity and it protects bad cops from the costs of their misconduct. So, what is qualified immunity and why do we have it? Clark Neily and Jay Schweikert of the Cato Institute explain. When it comes to liability for the actions that we take, how do you and I differ from cops?

Clark Neily: We are held to a much higher standard than police are. Doctors are held to a higher standard, architects, pretty much everybody you could name, except prosecutors, are held to a higher standard than police officers when it comes to liability for your own misconduct that results in an injury to somebody else. The courts have gone out of their way to create a whole web of special exceptions and doctrines that all add up to a policy of what amounts to near zero accountability for law enforcement.

Jay Schweikert: Well, and I mean, I think that that is put exactly correctly. I mean, I think you could go slightly more specifically. It is one sort of common maxim in the laws that ignorance of the law is no defense. Ordinary citizens are given really the extraordinary and probably literally impossible burden of trying to comply with thousands, or if you include regulatory crimes, hundreds of thousands of laws that no one would, you know, could ever read all of them, or would, you know, often not even suspect were laws in the first place if you did not accidentally run into them, and the courts do not permit that as an excuse. And yet that is the exact excuse they give. Police officers, and indeed all public officials under the qualified immunity doctrine that unless, you know, you had, unless you were essentially intending to violate the law or completely incompetent, you are not going to be held liable if the law was not clearly established enough.

Clark Neily: And that is not hyperbole by the way. That is actually a Supreme Court case that says that this qualified immunity doctrine is meant to protect “all but the plainly incompetent or those who deliberately violate the law.” Let me just ask you what you think about whether you would wish to be treated in a hospital that held its doctors to that incredibly low standard. I suspect that most people would run, not walk away, from that hospital.

Caleb Brown: So, to understand qualified immunity more clearly, I guess what is the case that is presented on behalf of its legitimacy? What is the best argument you could make on behalf of it?

Jay Schweikert: Sure. So, just to back up and give a little explanation here, as a doctrinal matter, qualified immunity is a gloss on Section 1983, which is our main civil rights statute. And this civil rights statute says in so many words any state actor who violates your constitutional rights shall be liable to the party injured. Read straightforwardly, it does not allow any kind of immunity. The qualified immunity is a doctrine that the court has essentially read into this statute to say even if a public official acts unlawfully, they won’t be held liable unless they have violated clearly established law. Now, the main case that the Supreme Court has made to defend this doctrine is the idea that it is purportedly grounded in historical common law immunities that existed at the time of 1871.

Clark Neily: When the civil rights law was enacted.

Jay Schweikert: Yes. I am sorry. When the civil rights law was originally enacted. The court has said that, well, even though the text is straightforward, we are not going to read it to displace preexisting immunities that existed at common law. And in certain respects that is correct. There were pretty well-established immunities, say for state legislators or for judges acting in their official capacity. There were certain limited defenses to particular torts. So, for instance, in the case of a false arrest, a police officer, if accused of the tort of false arrest, would have a defense of good faith and probable cause. That is, if they were acting in good faith there was no liability. The court started from that premise which is reasonable enough but expanded it far beyond what the history would justify. So now the court, the doctrine as it exists today, is an across-the-board defense for all public officials of any sort that doesn’t turn on their subjective good faith but turns on this clearly established law standard which is nearly impossible to meet and appears nowhere in the history.

Clark Neily: And let me just try to bring that down to earth a little bit with a practical illustration. What we are talking about here is essentially when a police officer violates your constitutional rights, the federal law, Section 1983, says you are entitled to a remedy. You are entitled to hold that person liable. What the Supreme Court has done is said well, we are going to essentially invent this doctrine of qualified immunity out of whole cloth and unless the right was clearly established then you don’t get any recovery. And what they mean by that is you have to be able to find a case directly on point in the relevant jurisdiction in order to show that the particular violation was one of clearly established law. Let me give you an illustration. There was a very tragic situation in Texas a couple of years ago where a man stopped taking his medication, he had some mental health problems, he went over to a relative’s house and he armed himself and another relative called the police and they showed up with a SWAT team as they so often do, and it happened that his daughter was in the house with him and she warned the police don’t call him on the phone to talk to him, you are just going to agitate him. So that is exactly what they did. It did agitate him. He went to the door, the front door of the house, with his daughter and a few seconds later was shot dead by one of the SWAT team members. So, this daughter is standing next to her father who is lying on the ground dead after being shot by a member of the SWAT team, one of them comes in and scoops her up like a sack of potatoes, throws her over a fence on the property into the waiting hands of another police officer who takes her into custody and puts her in a police car and she is not free to go. She has not committed any crime. They do not even allege that she has committed any crime. They just want to essentially hold her for questioning because, you know, she was a witness to this police shooting. After another sort of series of events we do not need to get into, she ended up suing the police officers for violating her Fourth Amendment right to be free from unreasonable seizures, they had no basis to grab her and to take her into custody, and the Fifth Circuit Court of Appeals that covers the state of Texas said, in essence, yes, your constitutional rights were violated because you are right, they did not have any basis to seize you, but there is no case on point where a police officer, after his teammate shot somebody’s relative dead, grabbed one of the family members who saw it happen, threw him over a fence like a sack of potatoes and took him into custody. And because that particular case has never been decided before, that police officer did not have clear notice that the conduct was proscribed, and you don’t get to sue him. It is hard to imagine a legal rule that is more antithetical to and more contrary to the actual text of this statute that it purports to be interpreting, but that is where we have gotten to from this side where this judge made a qualified immunity doctrine that requires this very hyper-technical kind of search through prior case law to find a prior case directly on point or else you won’t be able to meet the clearly established requirement.

Caleb Brown: So, help me understand this. Is it that – how the legal standard has changed here. Is it now a presumption of good faith or is good faith simply not a part of how courts deal with this issue?

Jay Schweikert: It is the latter. Good faith isn’t really the framework that the courts look at anymore. And, in fact, it specifically is irrelevant in the sense that if an officer was acting with bad faith, if you have smoking gun, you know, caught them on, you know, recording, expressing bad faith towards some particular suspect, so long as their behavior didn’t violate clearly established law, they are still not going to be liable. The court has defended this as a purportedly objective standard that doesn’t turn on the subjective good faith of the individual officer. I think it is problematic for two reasons. One, it is not objective because this is a sort of infinitely malleable standard because how you define the level of generality for established law is always going to be an open question. But it is also problematic because it gets even further away from the history that this doctrine is supposed to be based on. It would be one thing if courts were looking at this in a kind of case-by-case specific way where if you are bringing a tort and that tort, at common law, had good faith as an element, you know, the officer could assert it as a defense here, that would have some historical grounding. But where we are is just a complete policy invention. The courts have essentially said this is what we think would be a good policy for liability for government officials and even though the statute and history are to the contrary, that is what we are going to require plaintiffs to meet.

Caleb Brown: And how broad is qualified immunity? Because I am thinking of people who have a public responsibility. They deal with members of the public on a regular basis. My specific thought is of Child Protective Services and people like that. So how broad does, how far does it extend?

Jay Schweikert: It applies to anyone that you could sue under the statute. So, the civil rights statute covers anyone acting under color of state law, which basically means anyone who could be fairly understood as acting with the state’s authority. Anyone who comes within that range at least has qualified immunity. Certain officials actually even go beyond that. For instance, prosecutors have absolute immunity. So, you know, no matter what, no matter what kind of case you find you are not going to be able to sue them. But qualified immunity is the default baseline that every single public official gets.

Clark Neily: And, again, we can talk about a real case. Caleb, you mentioned Child Protective Services. There is actually a recent case out of the Ninth Circuit in California where some parents had taken some pictures, some photographs, of their children during bath time, and, I didn’t know people still used cameras with film, but I guess they do, because they sent the film out to be developed and an employee at the, you know, the Walgreens or wherever it was, notified Child Protective Services that there were some, you know, dubious pictures that they had just developed. The most any of these pictures apparently showed was, you know, an uncovered buttock. There wasn’t anything more intimate than that. But on that basis not only the police, but Child Protective Services, showed up at these parents’ house and removed the children from the home, took them away from the parents, and it all got sorted out and the children were eventually returned and the parents sued, and not only the trial court judge, but one of the Ninth Circuit Court of Appeals judges held that that Child Protective Services worker should have been entitled to qualified immunity on the grounds that there was not a case directly on point and therefore what that person, the way that person violated those parents’ constitutional rights was not “clearly established.” Now, fortunately, two of the Ninth Circuit judges went the other way and said no, that qualified immunity defense does not apply in this case, but it was as close as can be. And so you are right, yes it does, qualified immunity does apply to other government officials besides police officers. And when it applies to any government official it is extraordinary how far backwards many judges will bend over to find a way to absolve the government official of responsibility. And it has become a real problem.

Caleb Brown: It almost seems like the criminal justice equivalent of a rational basis test. That is, we can imagine, or I should say, we can imagine the specific set of circumstances here and how it might differ somewhat from a previous case that what may have been substantially very similar, and so, because it does not really match those facts closely enough, we have to extend this immunity.

Jay Schweikert: Yeah. I think that is a good comparison. One of the ways that the court has framed this is to ask whether the existing case law places the question beyond all debate. And if you ask, of course if you ask any lawyer, no question is beyond all debate. You can always argue cases. And I think one of the ways you see this reflected is how quickly civil rights cases get thrown out extremely early in the litigation before someone has even had their day in court. So, what will happen is a civil rights plaintiff will file a complaint alleging unlawful behavior by a government official. Before there is any even evidence taken in the case, the defendants might raise a qualified immunity defense and say that, you know, on these facts we should be entitled to qualified immunity. What the courts are supposed to do when reviewing a motion to dismiss in that posture is to assume that all of the facts are true, that whatever the plaintiff has alleged they can prove and that if they have evidence they will be able to argue it to a jury. What you often see happening is the courts sort of slipping on this a bit and assuming more in the defendant’s favor, more in the government’s favor here than is necessarily the case. It could be, you know, it could be the case that a jury found that what a police officer did here was objectively unreasonable. You know, maybe they would go that way, maybe not. That is the reason we have trials, is to let juries decide those kinds of complicated questions. But a lot of times you see judges falling down on their responsibility to interpret the complaint in the way that is most favorable to the plaintiff to essentially help the government get out of the case as soon as they can. And will kind of shade the facts in a light that would permit qualified immunity even if the plaintiff might have been able to convince a jury otherwise.

Caleb Brown: So how important is the relationship between cops and prosecutors here then?

Clark Neily: Well, it is a real problem because they work together, you know, on an ongoing basis. And we have seen time and time again that prosecutors tend to be extremely reluctant to bring charges against police officers, I think in part because they work together, and prosecutors depend on police officers to provide testimony in their cases, to investigate crimes that can then be, you know, turned over into indictments, et cetera, so they work very closely together and have a, you know, a mutually dependent relationship. That is point one. The other point is that even when police officers are prosecuted we have seen multiple times where prosecutors will go to a grand jury and normally what a prosecutor does is present only the evidence that is favorable to the prosecution. In a grand jury proceeding, the point which is not to try to obtain a conviction but simply to essentially ask the grand jury whether there is probable cause to proceed with the prosecution and indict the defendant, so prosecutors are allowed to just present their strongest case, they do not have to present any, you know, exculpatory evidence or contrary witnesses. And that is normally what they do. And that is one of the reasons why we have this expression that any competent prosecutor could indict a ham sandwich. What we have seen when it is a police officer who is the defendant, and we saw this most vividly in the shooting of Michael Brown in Ferguson, Missouri, instead of presenting just the pro-prosecution side of the case during the grand jury proceeding, the prosecutor actually went ahead and presented both sides. You know, I have got this evidence that, you know points one way, but then, you know, there is all this other evidence that might exonerate the police officer, and guess what, he was not indicted. I can’t think of a single time when I have seen a prosecutor do that for a regular citizen and you know, anecdotally it seems that they do it consistently for police officers. So, it can hardly be an accident that it happens that way and it seems to me quite likely that a big part of the reason why it happens is because they work together. And that matters a lot, because it means that criminal prosecution is not going to be an effective means of holding police officers accountable. I mean, you know, when a police officer, you know, beats somebody up who is already in handcuffs, that is both a crime and a tort. In other words, it is a constitutional violation that the civil acts right was designed to remedy so you can sue the police officer, but it is also something for which the police officer should at least in theory go to prison, because it is an assault. And the point that we are making here is because police and prosecutors work together so closely, it is proven that the criminal prosecution route is not a reliable means of holding police officers who engage in this kind of horrible misconduct that is both criminal and tortious. The criminal route has not been effective in holding them accountable.

Jay Schweikert: And that is exactly why qualified immunity is such a problem, because not only does it deny justice to individual claimants whose rights have been violated, I mean that is important for its own sake, but at a larger structural level it is, for the very reasons that Clark just said, it is crippling our best tool of actually creating accountability for law enforcement, which is civil liability. That is the best shot, that is the best tool we have in our toolbox here. And qualified immunity makes that extremely difficult to get.

Caleb Brown: How do we get to that point? How do we open up civil liability? What are the necessary and sufficient conditions for making that the law?

Clark Neily: Well, I mean, the starting place is to get rid of qualified immunity.

Caleb Brown: Right, but that is a big lift and what is step one and step two there?

Jay Schweikert: So, I think the step one, you know, you are looking at this from the sort of legal-judicial side. Step one is increasing, getting the courts to recognize how historically unjustified this doctrine is, and this process has actually already started. Justice Thomas, actually, in a recent concurrence in a 2017 case, Ziglar v. Abbasi, he has a whole separate opinion basically just saying I am concurring in the result because the court correctly applies our precedent, but I am skeptical about the justification for qualified immunity. It seems like we have gone far beyond the historical baseline, this does not seem to be compelled by the text of the statute or the history. I think the, you know, the first step, at the very least, is to stop – is to encourage the courts to not expand this any further. In the last several decades the Supreme Court has been extremely aggressive in making qualified immunity a stricter and stricter standard. Out of the last 30 cases, qualified immunity cases, the court has heard, in only, in 28 out of – I think there are only three of those 30 cases where the court denied qualified immunity, i.e. where they said the defendant actually should be liable. In the rest, they granted qualified immunity to the defendant. So, you know, they have been pushing the doctrine further and further. I think step one at the very least is to not go any further than we are now and to stay this far but no further. And then hopefully to encourage the court to start cutting back and reconsidering and interpreting Section 1983 according to its text and according to the common law history against which it was past. I don’t think that is that aggressive of an ask. I think that, you know, frankly I think there are a number of members, a number of members of the court who I think would be receptive to that.

Clark Neily: Caleb, I want to add one other thing, which is that it is extremely important to educate people about the role that qualified immunity plays as the cornerstone of what amounts to a near-zero accountability policy for law enforcement that has been largely, but not exclusively, created by the judiciary. And what I mean by that is this: If you want to see the face of near-zero accountability for police officers, of which qualified immunity, again, is the cornerstone, you have no further to look than Broward County Sheriff Scott Israel who has been on TV and on social media the last few days as, you know, basically one of the most irresponsible people in the country. This is a man whose officers missed repeated opportunities to stop the tragic shooting in Parkland, Florida, whose one or more of his officers cowered outside the building while the shooting was going on. They were armed, they were present, they had the ability to go in and engage the shooter and they failed to do so. And this man disclaims responsibility for all of that, and in a way that seems, you know, quite outrage that anybody would even suggest that he should be responsible, that is the face of near-zero accountability for law enforcement. And, again, the courts have been largely responsible for creating that policy by inventing qualified immunity out of whole cloth, by inventing absolute prosecutorial immunity out of whole cloth, by eliminating the doctrine of respondeat superior, that is the doctrine that says that an employer should be responsible for the misconduct of its employees, the Supreme Court eliminated that doctrine when it comes to law enforcement. There is also a judge-made doctrine that says that police officers have no legal duty to protect you. And when they negligently fail to do so, as they have in the past and as they quite clearly did in Parkland, Florida, and if they get sued for that, they routinely assert this judge-made rule that says that police officers have no legal duty to defend us from harm. So, what we are looking at here is an entire kind of palette of non-responsibility, much of it created by the courts, that again has created a policy that can best be described as near-zero accountability for law enforcement, and we are seeing the living personification of that policy in the face of Scott Israel down in Florida, and it is both a tragedy and an outrage.

Caleb Brown: Jay Schweikert is a policy analyst and Clark Neily is vice president for criminal justice at the Cato Institute. Subscribe to and rate the Cato Daily Podcast at iTunes and Google Play, and follow us on Twitter, @CatoPodcast.