Fix It

Update: On Monday, June 15, 2020, the Supreme Court declined to hear any of the qualified immunity cases pending before the court. On Wednesday, June 17, 2020, MinnPost published a version of this blog post in “Community Voices”:  Fix It

The federal Civil Rights Act of 1871, also known as the Ku Klux Klan Act, was passed to combat atrocities of the Ku Klux Klan and other white supremacy groups in the aftermath of the Civil War. It was signed into law by President Ulysses S. Grant on April 20, 1871. The act gave the president the power to suspend the writ of habeas corpus. Grant used this authority during his presidency. Because of the specific provisions in the Civil Rights Act, and Grant’s robust enforcement of them, the first-generation KKK was quashed and did not rise up again until the Jim Crow era of the early 20th century. The act remains largely unchanged but has been subject to much interpretation by the courts.

Perhaps the act’s single most important provision was codified into federal law as 42 U.S.C. §1983, Civil Action for Deprivation of Rights, which reads:

Every person who, under color of any statute, ordinance, regulation, custom, or usage, of any State or Territory or the District of Columbia, subjects, or causes to be subjected, any citizen of the United States or other person within the jurisdiction thereof to the deprivation of any rights, privileges, or immunities secured by the Constitution and laws, shall be liable to the party injured….

In other words, if an agent of state government, such as a county sheriff or municipal police officer, acting in his or her official capacity (i.e., on duty, wearing a uniform, using agency equipment such as a gun) violates an individual’s constitutional rights that person can sue for redress and the offending person is liable to the injured party – or to the party’s family if he or she was killed, which seems to happen all too frequently.

The statute embodies a fundamental constitutional tenet: where there is a right, there must be a remedy. The statute is designed to prevent rogue behavior of state-level agents from violating an individual’s federal constitutional rights under the pretext of “doing their job.” It seems simple and just. Nothing is simple and a lot of things are unjust.

From the viewpoint of the defendant (the person who allegedly violated a person’s constitutional rights) as well as in certain cases the agency he or she represents, a great deal is at stake. One of these is the real possibility of fending off frivolous lawsuits. But two issues loom larger:

Number 1: A lot of money for legal fees and compensation. In 2019 the City of Minneapolis agreed to pay $20 million to the family of Justine Ruszczyk for her wrongful death by a police officer in 2017. However, defendants are largely indemnified by their agencies and agencies in turn have liability insurance. So, in reality, no person or governmental entity goes bankrupt in the course of paying legal fees or compensation. I assume we taxpayers foot the bill for the insurance premiums.

Number 2: Possible conviction of the defendant for his or her crime, which goes with, I believe, loss of perceived power and honor. Historically police officers have been held in high esteem in our culture, while a portion of the people they pursue – alleged drug dealers, members of the Mafia, people of color, especially African-American males – are not. That imbalance of power appears to be rapidly changing.

Over the years – in large measure to address the balance or imbalance of power between defendant and plaintiff – 42 U.S.C § 1983 has been altered through Supreme Court decisions.

The most significant change came in the 1967 Supreme Court case Pierson v. Ray with the introduction of qualified immunity as a defense in Section 1983 cases. The petitioners in the case were a group of white and black clergymen on a prayer pilgrimage to promote racial integration, who were attempting to use a segregated interstate bus terminal waiting room in Jackson, Mississippi in 1961. In an 8 to 1 vote, the justices argued that the officials – Mississippi police officers who arrested the clergy on grounds of breaching the peace – while committing constitutional violations were acting in “good faith” and therefore could raise a “qualified immunity” defense. Justice Earl Warren wrote the majority opinion. William O. Douglas cast the lone dissenting vote.

One might say that Justice Warren and his colleagues minus one hammered the first nail into the coffin of civil action for deprivation of rights.

Four decades later, the 2009 Supreme Court case Pearson v. Callahan continued to address the balance of powers between defendant and plaintiff. In this unanimous decision by the Roberts court, the justices wrote, “Qualified immunity balances two important interests – the need to hold public officials accountable when they exercise power irresponsibly and the need to shield officials from harassment, distraction, and liability when they perform their duties reasonably.” In this case, centering on Fourth Amendment protections of unreasonable search and seizure, an informant of Central Utah Narcotics Task Force, wearing a wire, entered the home of an alleged methamphetamine dealer to buy some meth. With completion of the purchase, his colleagues on the Task Force entered the home to conduct a search without a warrant. The case buffeted from the Utah Court of Appeals, to the U.S. District Court for Utah, to the U.S. Court of Appeals for the 10th Circuit and finally to the Supreme Court. A host of judges pondered whether or not an arcane consent-once-removed doctrine pertaining to searches protected the actions of the Task Force. The Supreme Court justices ultimately determined that at the time of the Task Force’s entry it was not clearly established that consent-once-removed violated the Fourth Amendment; therefore qualified immunity shielded the officers.

A group of white and black clergymen in a segregated bus station in midst of the Civil Rights Movement and a methamphetamine dealer plying his illicit trade during the height of the methamphetamine crisis have very little in common – except their constitutional rights, as guaranteed variously in the First, Fourth, and Fourteenth Amendments, were violated but not redressed because of the powerful cultural benefit-of-the-doubt embedded in qualified immunity that resonates loudly in courts of law with regard to public law enforcement officers.

And here we are. George Floyd is dead. As are recently Manuel Ellis (March 3, Tacoma, Washington), Breonna Taylor (March 13, Louisville, Kentucky), Mike Ramos (April 24, Austin, Texas), and Dreasjon “Sean” Reed (May 6, Indianapolis, Indiana). It is a deeply painful irony that a provision in the 1871 Civil Rights Act designed to protect African Americans from acts of violence perpetrated by the Ku Klux Klan in the guise of local law enforcement has been subverted by court decisions to protect law enforcement officers in no guise at all from killing African Americans.

Of all the justified calls for change being made now as people continue to peacefully protest around the world, should not one of these pleas be to address the gross inequity of qualified immunity?

There are rumblings. In 2018, Evan Bernick, a member of the Federalist Society and currently a law clerk for Judge Diane S. Sykes of the U.S. Court of Appeals for the 7th Circuit, wrote an article when he was a visiting lecturer at Georgetown University Law Center entitled “It’s Time to Limit Qualified Immunity.”

He clearly explains in a way that even a non-lawyer can understand how Section 1983 has been eviscerated by the Supreme Court, why a growing number of legal scholars question the Court’s logic in its decisions, and how the current perversity of qualified immunity could be remedied. Basically, there are two recourses. Either Congress, which has never passed legislation related to qualified immunity, could amend Section 1983 to, in his words, “take aim at the Court’s various departures from its original meaning.” Or the Supreme Court could, as he wrote, “retreat from its more sweeping statements concerning qualified immunity – disavowing, for instance, the proposition that officials must be ‘plainly incompetent or…knowingly violate the law’ before they are denied qualified immunity” [from 1986 Malley v. Briggs, a case involving the plaintiff’s alleged possession of marijuana]. “Plainly incompetent” is the bar set by the justices? That’s a punch in the gut.

At the time he wrote the article, Bernick was not particularly optimistic that change would come. “The political and doctrinal impediments to doing so are substantial, but that doesn’t make the constitutional problems that qualified immunity creates or the practical impact that qualified immunity has on a person’s rights any less severe.” However, in the last few years there seems to be a growing consensus across the political spectrum that qualified immunity decisions have gone too far.

Currently, and coincidentally to current events surrounding the killing of George Floyd, there are nine qualified immunity petitions pending before the Supreme Court. The cases are listed at the end of this article, but here is a sampling with the salient issues as summarized by

In West v. Winfield, the issue, which goes to the heart of the case without further details, is “Whether an officer who has consent to ‘get inside’ a house but instead destroys it from the outside is entitled to qualified immunity…”

Baxter v. Bracey is a case involving a police office who unleashed a police dog to apprehend a suspect who had already surrendered. The issue in part is “…whether the judge-made doctrine of qualified immunity, which cannot be justified by reference to the text of 42 U.S.C. § 1983 or the relevant common law background, and which has been shown not to serve its intended policy goals, should be narrowed or abolished.” It is of note that 10 organizations that would ordinarily be disinclined to get in bed together have filed a friend of the court brief on behalf of the plaintiff entitled “Brief of Cross-ideological Groups Dedicated to Ensuring Official Accountability, Restoring the Public’s Trust in Law Enforcement, and Promoting the Rule of Law.”

Anderson v. the City of Minneapolis is a heartrending case that is close to home. It involves first responders who discovered a missing college student along the Mississippi River apparently frozen. They took his vitals and declared him dead at the scene instead of following protocol that calls for warming the body. (The medical rule is that a person in this state is not dead until he or she is warm and dead.) The issues here are 1) “Whether the burden of persuasion in qualified immunity cases should be, in part or entirely, on the plaintiff…or whether it should be placed on the defendant…”, 2) “…whether, under the state-created-danger doctrine, due process is violated when first responders fail to provide any treatment to a person suffering from severe hypothermia, and instead erroneously declare him dead…”, and 3) “…whether the 8th Circuit erred in dismissing this state-created-danger case on qualified immunity grounds.”

Assuming the Supreme Court agrees to hear some or all of the pending qualified immunity cases, we shall see how they rule.

In any case, now should be the golden moment for Senator Amy Klobuchar, Senator Tina Smith, and the Minnesota Congressional Delegation (at least the Democrats) to seize the opportunity to introduce legislation to repeal or revise the doctrine of qualified immunity. I know they have their hands full, but I would think Governor Tim Walz, Mayors Jacob Frey and Melvin Carter, and the Minnesota Mayors Association would be clamoring for changing the current power of qualified immunity.

Representative Justin Amash, Libertarian from Michigan, beat them to it. In early June he introduced H.R. 7085 Ending Qualified Immunity Act. To date, Representative Ilhan Omar is the only member of the Minnesota delegation to sign on as a co-sponsor. Perhaps Klobuchar et al. have something up their sleeve that a mere citizen like me is not privy to, but there is something oddly disquieting and sad to me that Minnesota’s political leaders are not owning this issue.

In the last week, this is what I have learned so far about the doctrine of qualified immunity, a legal term I had never heard of before. I twist like a flag in the wind between cautious optimism and despair that the Supreme Court or Congress will fix it.

Addendum: Here are the nine of the petitions pending before the Supreme Court: McDermott Will & Emery partner Paul Hughes (Zadeh v. Robinson; Corbitt v. Vickers), Scott Michelman of ACLU (Baxter v. Bracey); Tillman Breckenridge of Breckenridge (Brennan v. Dawson); Marcelyn Stepanski of Rosati Schultz Joppich & Amtsbuechler (Dawson v. Brennan); Erwin Chemerinsky, University of California Berkeley School of Law (Anderson v. City of Minneapolis); Robert McNamara, Institute of Justice (West v. Winfield); Jeffery Speer of Doucet Speer, Lafayette, Louisiana (Mason v. Faul); and James Jeffrey of Arlington, Texas (Hunter v. Cole).and subsequent peaceful protest But there are glimmers of hope.

This entry was posted in Qualified Immunity. Bookmark the permalink.