Snopes is supposedly a myth-busting web site. But occasionally, it promotes myths of its own. For example, it recently made false claims about the legal doctrine of qualified immunity, which was invented by the courts in 1967. Snopes falsely claimed that this immunity blocks lawsuits over a constitutional violation unless a court has previously found a violation in “nearly identical” circumstances. It also falsely claimed that qualified immunity would likely prevent George Floyd’s family from bringing a wrongful death lawsuit over his killing.
Neither of these claims is true. Qualified immunity does not apply when a government official commits a violation of “clearly established” constitutional rights. That includes violations that are so outrageous or unique that no prior court ruling could ever have dealt with “nearly identical” facts. Such violations are nevertheless deemed “clearly established” and grounds for denying qualified immunity. As the Supreme Court explained in United States v. Lanier (1997), “The easiest cases don’t even arise. There has never been . . . a section 1983 case accusing welfare officials of selling foster children into slavery; it does not follow that if such a case arose, the officials would be immune from damages [or criminal] liability.’”
Lawyers who sue police departments have said that the slow killing of George Floyd was a violation of his clearly-established constitutional rights. An officer killing a non‐resisting suspect by kneeling on his neck for a long period of time while the suspect says he can’t breathe, is a clear violation of the right to be free of excessive use of force. Police who murder someone also violate the clear language of the Fourteenth Amendment’s due process clause, which protects the right to “life” against arbitrary deprivation. As the civil-rights lawyer Chris Wiest noted, “I do civil rights cases. And I sue police. I assure you, there is no qualified immunity in [the Floyd] case for the officers involved on these facts with the video evidence.”
Will this presidential election be the most important in American history?
Yet, here is how Scopes describes qualified immunity:
Viral video of former Minneapolis police officer Derek Chauvin pressing his knee into the neck of George Floyd, a Black man, for nearly nine minutes before his death resulted in widespread outrage and weeks of civil rights protests across the U.S. Amid a groundswell of popular pressure, prosecutors took the unusual step of arresting and charging Chauvin with second-degree murder and also charging three other officers at the scene with aiding and abetting him.
But even if Chauvin is found guilty, attorneys we spoke to who are experts in a legal doctrine called “qualified immunity” told us it would still be an uphill battle for Floyd’s family to successfully sue for restitution.
That’s because qualified immunity, though obscure, is a significant legal hurdle for civilians who try to sue police for claims of constitutional violations, such as the Fourth Amendment protection against unlawful search and seizure, when police kill or injure someone. To get past it, plaintiffs in lawsuits have to show that the exact manner in which a police officer violated their rights has been “clearly established” as wrongful by legal precedent. That means they must be able to point to another court case with circumstances nearly identical to theirs, and in which a court ruled that an officer had violated the Constitution.
But plaintiffs don’t have to point to another case “with circumstances nearly identical to theirs.” The fact that a cop has chosen to abuse you in a novel way doesn’t mean courts will grant him qualified immunity, and it doesn’t mean it doesn’t count as “excessive use of force.” For example, the fact that cops previously violated the constitution by beating or shooting the people they arrested didn’t keep the Ninth Circuit from denying qualified immunity to cops who put pepper spray in people’s eyes. The fact that police chose a novel way to use excessive force didn’t prevent the judges from finding it was still a violation of “clearly established” constitutional rights. (See Headwaters Forest Defense v. Cty. of Humboldt, 276 F.3d 1125 (9th Cir. 2002)).
Similarly, a federal appeals court recently ruled that prison officials violated clearly established constitutional rights, if they failed to remove items from an inmate’s cell that he could use to hang himself. It allowed the officials to be sued, even though the appeals court had never before confronted nearly identical circumstances, and it ruled the prison officials could be sued even if they did not intend to specifically cause the inmate’s death. (See Converse v. City of Kemah (2020)).
Similarly, an appeals court allowed a man’s estate to sue the police for unnecessarily shooting him, even though he allegedly possessed a knife, and had resisted arrest, in Estate of Jones v. City of Martinsburg (2020).
By contrast, George Floyd was not resisting arrest, and was not carrying a weapon. Floyd’s estate would thus have an easier time suing, and an even easier time defeating a claim of qualified immunity.
So the doctrine of qualified immunity is not a license to murder people.
It is nonetheless controversial, for good reason. It was made up by judges in a 1967 Supreme Court ruling. It is not even mentioned in the text of 42 U.S.C. 1983, the law that qualified immunity was read into, which simply allows lawsuits over violations of constitutional and federal statutory rights. It also has no common-law pedigree, unlike other defenses like the doctrine of judicial immunity. Judges like Supreme Court Justice Clarence Thomas have sensibly argued that qualified immunity should be abolished by the Supreme Court.
It is also not applied in a very consistent manner. Usually, courts don’t require that a case involve “nearly identical circumstances” to a past court ruling before stripping a violator of qualified immunity. I cited examples of such cases denying qualified immunity above, which follow the approach of the Supreme Court’s binding Lanier decision. But in a minority of cases, judges ignore the Supreme Court’s Lanier decision, and do come close to requiring “nearly identical” facts. Several such cases are listed on the web site of the Cato Institute, a critic of qualified immunity.
One case on that list is Jessop v. City of Fresno. In that case, an appeals court refused to allow business owners to sue under the Fourth Amendment for police stealing $225,000 they seized in the course of executing a search warrant. The case is often cited by critics of qualified immunity as suggesting that the police have a license to steal. This is an overstatement, because the court only dealt with a Fourth Amendment claim alleging an unlawful search and seizure, not a Fifth Amendment claim alleging a deprivation of property.
One critic of qualified immunity describes the decision this way: “Two cops in Fresno, California, were afforded qualified immunity after allegedly stealing $225,000 while executing a search warrant because it had not been ‘clearly established’ in case law that stealing is wrong.”
But the court, however misguided it may have been, did not deny that stealing was wrong. What the appeals court ruled was that it was not clearly established that the Fourth Amendment was violated. That was likely wrong, and several appeals courts in different parts of the country have found Fourth Amendment violations based on deprivations of property obtained in the course of executing a search warrant.
But the court’s ruling did not preclude people from suing based on other constitutional provisions designed to protect property rights, rather than the Fourth Amendment, which deals more with privacy interests. And some Fourth Amendment experts, like professor Orin Kerr, have expressed uncertainty as to whether the Fourth Amendment — as opposed to other constitutional provisions — applies to failure to return property obtained in the course of executing a search warrant.
While the doctrine of qualified immunity is not as bad as many of its critics claim, it seems to do little to achieve the goals for which the doctrine was created, as Jay Schweikert, a critic of qualified immunity, notes at this link, in “The Most Common Defenses of Qualified Immunity, and Why They Are Wrong.”
Qualified immunity doesn’t just apply to police officers. It applies to all government officials. It is frequently used to prevent students at state universities from suing for restitution or other compensation for unconstitutional speech restrictions, as Samantha Harris of the Foundation for Individual Rights in Education notes. Courts sometimes misapply the doctrine to block lawsuits for compensation, even if it is rather obvious that the student’s speech was protected and should not have led to discipline, simply because the Supreme Court and federal appeals court for the region in which the student is suing have not previously addressed a case involving strikingly similar facts.
If qualified immunity is abolished — as it probably should be — it should be abolished for all government officials, not just police officers.
