Appeals Court Judge: Supreme Court Needs To Unfuck The Public By Rolling Back The Qualified Immunity Doctrine

Legal Issues

from the louder-for-the-cops-in-back dept

It’s not often you see a sitting judge condemn years of case law, especially when some of it is case law he likely helped convert into circuit precedent. But with everyone’s eyes currently on brutal cops and the system that has encouraged lawless behavior by law enforcement, very few people are sitting on the sidelines of the ongoing discussion. The killing of George Floyd by a police officer has resulted in demonstrations around the country, giving very few politicians, judges, and police representatives an opportunity to remain silent.

Perhaps the spiciest current take on qualified immunity — the Supreme Court-created legal doctrine that allows lots of cops to escape civil rights litigation — belongs to Judge Don Willett, who dissented from Fifth Circuit Appeals Court opinion with this devastating indictment of this extra right.

To some observers, 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.

[…]

Section 1983 meets Catch-22. Plaintiffs must produce precedent even as fewer courts are producing precedent. Important constitutional questions go unanswered precisely because those questions are yet unanswered. Courts then rely on that judicial silence to conclude there’s no equivalent case on the books. No precedent = no clearly established law = no liability. An Escherian Stairwell. Heads defendants win, tails plaintiffs lose.

This take, published by the Washington Post, features Fourth Circuit Appeals Court judge James A. Wynn Jr. calling out the system he helped perpetrate. Starting with George Floyd’s death, Wynn calls qualified immunity a “subversion” of the Civil Rights Act of 1871, which Congress erected to provide plaintiffs with an avenue to seek justice for rights violations committed by state officers. (h/t UnlawfulShield.com)

Qualified immunity has made seeking justice nearly impossible. That’s just the opening of his op-ed. From there, Wynn goes after the Supreme Court for continuously raising the bar plaintiffs must meet to establish a rights violation. (And even if they do establish one, it only helps plaintiffs who follow in their exact footsteps. It does nothing for them since it was not “clearly established” before this ruling.)

When the Supreme Court decided lower courts only needed to look at whether something was “clearly established,” it eliminated any examination of the Constitutionality of the act itself, allowing officers to walk away from rights violations because no other officer prior to them had violated rights in this exact way. Dismissals proceed determinations, eliminating the determinations needed to hold more cops accountable.

In effect, those who allege that police officers have used excessive force are trapped in a never-ending self-fulfilling prophecy: They cannot sue officers who harm them because the harmful conduct has never been “clearly established” as a constitutional violation in a factually similar case. But because so many cases are dismissed without addressing whether the challenged conduct was in fact a constitutional violation, it is rarely “clearly established” that there was a violation.

The Civil Rights Act was supposed to be a deterrent. And perhaps it was for a while. But the Supreme Court’s decision to conjure up a new legal protection for police officers neutered established law, turning courts into enablers of police misconduct. But SCOTUS makes the rules and the lower courts are obliged to follow them, even if the new rules invert Congressional intent.

Wynn doesn’t like it, but he’s in no position to do much about it, unfortunately. But he can point out that the Supreme Court’s qualified immunity construct screws the public the courts are supposed to protect from abuse perpetrated by other branches of the government. With QI, the courts are failing the public.

In my work as a judge, I follow the decisions of the Supreme Court because judges apply the law as it is, not as they believe it should be. The Framers embodied that concept by carefully and thoughtfully drafting each of the Constitution’s 7,600 words with the intention and expectation that the judiciary — the branch constitutionally entrusted and obligated to interpret the Constitution — would give effect to each and every one. We, as judges, must uphold that obligation. When we fail to do so, our communities bear the consequences.

Public statements like these may eventually move the Supreme Court to examine its qualified immunity case law and the decisions that have led to streamlined rejections of civil rights complaints. But for now, the nation’s top court still seems uninterested in reexamining its legal theory, much less the dozens of cases appealing immunity rulings piling up at its doorstep. At some point, it will be too much to ignore. But for now, it’s business as usual for the court that gave cops implicit permission to violate rights as long as they come up with creative ways to abuse the people they’re supposed to be serving.

Filed Under: 4th circuit, james wynn, police, qualified immunity