Qualified immunity is one of those absurd abstract legal concepts that you never care about until the police shoot you in the back while you're leaving the mall. (True story, but we'll get to that later.) The Supreme Court next week will hear a case that may lead to a drastic and dangerous modification of a judge-made government shield that allows police officers to do essentially anything unless courts have expressly told them that they couldn't. Remember that old preschool defense for stealing your playmate's carton of chocolate milk, that you didn't know any better because nobody told you not to? It's exactly like that, except the police aren't told to stand in the corner and think about what they did. They get medals and awards, while Americans with bullets in their back get hospital bills.
Now let's travel to Utah to see how this practically plays out...
Let's stick with our preschooler. Let's say he has a birthday party and invites Johnny. Johnny is friends with that annoying kid Sam, who follows him everywhere, including to the birthday party, even though he isn't cool enough to receive his own invitation. Now replace Johnny with an undercover police informant and Sam with the police, and you have the worst birthday party ever and what the courts call consent-once-removed.
So how did this birthday massacre end up before the Court? A Utah appeals court agreed that the police couldn't use an informant to crash a party and seize cake (or drugs) without a warrant. The party host, Afton Callahan, then turned around and sued the police for violating his civil rights.
When deciding whether officers can hide behind their government shield, judges are first required to confirm that a specific right was violated, and only then can they consider whether the officer should have known any better. The district court ruled that even if Callahan's rights were violated, the officers could have reasonably concluded that their party crashing was legal, thus resulting in the officers being able to hide behind the judge-made government shield. The 10th Circuit Court of Appeals disagreed and tossed out the consent-once-removed doctrine embraced by several other Circuits, causing a split between the Circuit Courts that the Supreme Court will resolve.
As part of the case, the Justices asked if courts should still be required to first ask if a person's rights were violated. Keep in mind that there is no textual support for the government shield in the Constitution or civil rights laws in the first place. Despite that, this Court won't yet toss out the judge-made government shield altogether, so if we're stuck with a failed policy, we should choose to opt for the failed policy that causes the least harm. For the time being, it would simply be absurd to stop considering whether an officer violated a person's constitutional right, before deciding whether the officer should have known better. At least under the current system, judges can tell victims of civil rights violations that their rights were in fact violated, clearly establishing that similar conduct will be unacceptable in the future, even if the officer then gets to cower behind the government shield. This could change for the worse if the Court's balance shifts further to the right, slamming the courthouse doors to even more victims of civil rights abuses.
Another example that shows how this judge-made government shield plays out can be seen by looking at what happens to the rights of protesters at political conventions. St. Paul police arrested more than 800 protestors during the Republican National Convention, along with dozens of journalists. The arresting officers will claim they were doing what any other officer would do at the time, and so they're entitled to hide behind the government shield. The group-think here protects officers from numerous legitimate claims, but government could care less because violating our rights is relatively inexpensive.
Following a precedent set by Denver, New York, and Philadelphia, St. Paul made the Republican National Committee pay for a $10 million insurance policy to cover charges of police brutality and civil rights violations, just in case an officer was caught outside the bounds of the government shield. Michelle Gross of Communities United Against Police Brutality called the insurance policy "an extraordinary agreement... the police have nothing to hold them back from egregious behavior."
Constitutional rights are not worth that much money and damages may be relatively small, if not even nominal only. Claims that police stopped individuals from marching or protesting by dispersing or redirecting the crowd (in violation of the First Amendment) or that police temporarily seized them (without formal arrest or prosecution) will not produce large damages awards. Claims by those who were arrested and booked might be worth a little more. Claims that the city's pre-planned protest limitations (permit requirements, protest pens, distance rules, etc.) violated the First Amendment probably will be worth only nominal damages. Real excessive force claims with physical injuries (if any--I have not read reports) might be worth a lot more... Finally, officers will be able to argue in many situations that, given the facts at hand, their conduct was not what a reasonable officer would have known to be unlawful, therefore they are entitled to qualified immunity.
Do you feel satisfied that your civil rights have been sold to the highest bidder?
The Supreme Court needs to cast aside this unjust judge-made government shield so officers can be held accountable for their actions. "I didn't know any better," wasn't an acceptable excuse when you were five and it should never be an acceptable excuse for officers who violate civil rights.
Oh, that whole getting shot in the back while leaving the mall thing? The guy's name was Maurice Anderson. David Russell, an officer moonlighting as a part-time mall security officer, approached him after a mall patron mistook Anderson's eyeglass case for a gun. When approached by Russell, Maurice Anderson reached into his pocket to turn off his walkman. Russell thought he was reaching for the gun, and shot him three times. Russell's arm and leg were permanently injured. He received no compensation. Anderson was protected by the government shield because nobody told him he couldn't shoot people in the back while they were leaving the mall. He just didn't know any better.