Qualified immunity doesn’t stand alone as a puzzling contradiction to American values

Scenario One: Police in a suburban town pursue a criminal suspect, who runs into the Bernstein family’s front yard, where Moishy and his friends are playing. The officers arrived with guns drawn, and order both the suspect and the children present to lie on the ground motionless. Just then, the neighbor’s dog saunters over unthreateningly to one of the sheriff’s deputies, who shoots at the animal but misses, then shoots again, this time unfortunately hitting a ten-year-old boy lying just 18 inches away.

The child suffers severe pain and mental trauma, and his parents file a $2 million lawsuit alleging violation of their child’s Fourth Amendment rights. Although a district court rules in their favor, a federal appeals court overturns that ruling and dismisses the case against the officer.

Scenario Two: The FBI raids the offices of two frum businessmen with a search warrant based on suspicion of Medicaid fraud. Upon completing the search, the agents provide the businessmen with a ledger stating that they’ve seized $50,000, but in reality the agents make off with $275, 000, amounting to a $225,000 theft. The businessmen are never charged with any crime, but a federal appeals court rules they cannot not sue the FBI agents for the theft, either.

Scenario Three: During an altercation with a female traffic cop on Boro Park’s Thirteenth Avenue over a double-parking ticket, the car’s owner, a 130-pound lady, stalks off, ignoring a command to “get back over here.” The officer pursues her, lifting her off the ground in a bear hug and throwing her to the ground, breaking her collarbone and knocking her unconscious. A federal appeals court rules she cannot sue the officer for assault.

Can’t be, right? Not in these United States, land of the free and home of the brave. But it is.

The reason given by the courts in cases involving all three of the above scenarios (the actual scenarios didn’t involve religious Jewish plaintiffs), and many hundreds more like them each year, is that the law enforcement officials involved were protected from civil liability based a legal doctrine known as “qualified immunity.”

To explain: Section 1983 of the US Code allows people to sue state officials for violating their constitutional rights under color of law. But in the 1982 case of Harlow v. Fitzgerald, the US Supreme Court decided to do its own legislating, ruling that lawsuits under Section 1983 (and another law that permits suits against federal officials) are allowed to proceed only when they allege violations of rights that were “clearly established” at the time. Officials are shielded from liability, however, if their conduct “does not violate clearly established statutory or constitutional rights of which a reasonable person would have known.” In each of the three above scenarios, federal courts ruled that the facts didn’t meet that standard.

But that’s outrageous, you say. Aren’t shooting at a harmless dog while kids are nearby, stealing hundreds of thousands of dollars, and violently assaulting an unarmed citizen all violations of rights that a reasonable person — an officer of the law, at that — should have known about?

Yes, but those aren’t “clearly established” rights. According to a Supreme Court ruling, so long as the plaintiff can’t point to an actual prior court case with nearly identical facts in which the court held that the plaintiff’s rights had been violated, the case against the law enforcement officer must be dismissed. The result, wrote Judge Don Willet of the Fifth Circuit Court of Appeals, is that

qualified immunity smacks of unqualified impunity, letting public officials duck consequences for bad behavior — no matter how palpably unreasonable — as long as they were the first to behave badly…. This entrenched, judge created doctrine excuses constitutional violations by limiting the statute Congress passed to redress constitutional violations…. Merely proving a constitutional deprivation doesn’t cut it; plaintiffs must cite functionally identical precedent that places the legal question “beyond debate” to “every” reasonable officer.

How can a federal appeals court possibly rule in good conscience that in the above scenario of the office raid, the FBI agents “ought to have recognized that the alleged theft was morally wrong,” but must be allowed to go scot-free from liability because they “did not have clear notice that it violated the Fourth Amendment” right against unreasonable search and seizure, merely because there wasn’t a case on the books with facts nearly identical to those of this case?

It gets worse: In November 2019, the United States Court of Appeals for the Sixth Circuit dismissed a case in which Tennessee police allowed their police dog to bite a surrendered suspect who was lying on the ground, based on qualified immunity. Although there was indeed a prior court decision holding that it is unconstitutional for policemen to sic dogs on suspects, that case had involved a suspect who had surrendered not by lying down but by sitting on the ground and raising his hands. See the difference?

Permit me to put my extensive legal background to use (not to mention that heretofore useless law-school award in constitutional law) by framing the matter in more precise, lawyerly terms: This is nuts.

Thankfully, a very large and growing number of legal experts, including many judges, agree. In March 2018, the libertarian Cato Institute launched a nationwide campaign to oppose the use of qualified immunity by the courts, organizing a massive alliance of public interest groups spanning the ideological spectrum from right to left to sign on to amicus briefs challenging the doctrine.

These include such diverse groups as Alliance Defending Freedom, the American Association for Justice, the ACLU, Americans for Prosperity, the Due Process Institute, the Law Enforcement Action Partnership, the MacArthur Justice Center, the NAACP, Public Justice, R Street, and the Second Amendment Foundation. If even some of those names are familiar to you, you’ll understand why Judge Willett called it “perhaps the most diverse amici ever assembled.”

A further indication of the ideologically neutral nature of the opposition to the rule of qualified immunity is that both Justices Clarence Thomas and Sonia Sotomayor, nearly as far apart on the Supreme Court’s partisan divide as it gets, have criticized it and called for the Court to consider doing away with it. Thomas notes that with this doctrine, which the Court created out of whole cloth, “substitutes our own policy preferences for the mandates of Congress,” which for constitutional originalists like him is anathema. Cato’s Jay Schweikert and Clark Neily write that underscoring “the incredible ideological breadth of the opposition to qualified immunity [is that] the judicial critics of the doctrine now include nominees of every single president since Carter….”

Qualified immunity doesn’t stand alone as a puzzling contradiction to American values. There are a number of similar judicial doctrines, which people are often shocked to learn are part of our legal system and are regularly invoked against American citizens.

Consider the widespread law enforcement practice known as civil asset forfeiture: According to the Fifth Amendment, the government may not deprive any person of life, liberty, or property without due process of law. Yet civil asset forfeiture, sanctioned by the Supreme Court in the 1996 decision of Bennis v. Michigan, permits law enforcement agencies to seize and keep cash, cars, houses, boats, and other property from people who have been neither charged nor convicted of any underlying crime, if they merely say they suspect the property was connected to a crime. In 2017, Justice Thomas wrote that this system, “where police can seize property with limited judicial oversight and retain it for their own use — has led to egregious and well-chronicled abuses.”

We live in a medinah shel chesed, for which we should be grateful and to which we must be loyal. The majority of its laws are necessary and fair and the officials who enforce them are decent, law-abiding people. But to advocate changing those aspects of its legal system that may be illogical and downright unjust isn’t to be ungrateful or disloyal.

To the contrary, that is the highest service one can do for his country.

Originally featured in Mishpacha, Issue 815. Eytan Kobre may be contacted directly at kobre@mishpacha.com