Saturday, May 16, 2020

GateHouse: The High Court may finally reconsider qualified immunity

Matthew T. Mangino
GateHouse Media
Last week, the U.S. Supreme Court was sitting in an unprecedented “virtual” conference. At the May 15 conference, the Court decides which cases to accept for review. A case needs only four votes to be placed on the docket.
The issue of the day appears to be qualified immunity. The Supreme Court will review 13 cases that deal with the judicial doctrine that shields the police and other state officials from liability for misconduct.
This country’s primary federal civil rights statute can be found in Title 42 of the U.S. Code. “Section 1983” - as it is commonly referred to - provides that any state actor who violates a person’s constitutional rights “shall be liable” to the party injured.
Section 1983 grew out of the Civil Rights Acts of 1871. The Act was passed after the Civil War to prevent public officials and the Ku Klux Klan from violating the constitutional rights of former slaves.
Section 1983 provided relief - in the form of money damages - to claimants whose constitutional rights had been violated by a police officer or public official acting under state authority. The Act provides that a wrongdoer “shall be liable to the party injured in an action at law.”
About 100 years after the Civil Rights Act the Supreme Court established qualified immunity, a potential defense to wrongdoers. About a decade later, the High Court further refined qualified immunity. The Court ruled a state actor would be immune from liability if at the time of the harm, the conduct “was not clearly established” as a civil rights violation. The Court continued, “An official could not reasonably be expected to anticipate subsequent legal developments, nor could he fairly be said to ‘know’ that the law forbade conduct not previously identified as unlawful.”
Demonstrating “clearly established” conduct has proven difficult for plaintiffs. For a claimant to prevail in the face of a qualified immunity defense she would have to show that the harm inflicted was established as a civil rights violation in a prior case with identical facts. It is not unusual for a court to tell a Plaintiff that her civil rights were violated but there is no similar case on point - so you lose.
One of the 13 cases to be reviewed by the Supreme Court is out of Michigan and was brought by Joshua Brennan. The Sixth Circuit Court of Appeals granted immunity to a sheriff’s deputy who went to extreme lengths to attempt to administer an alcohol breath test to Brennan who was on probation. The deputy parked his patrol car in front of Brennan’s house turned the lights and sirens on for over an hour; circled the man’s house numerous times, peering into and knocking on windows; and covered the home’s security camera with tape.
Brennan filed a 1983 action against the deputy, the sheriff, and the County. The lower Court held that this warrantless invasion of Brennan’s property violated the Fourth Amendment, but nevertheless granted immunity due to a lack of “clearly established law.”
Such decisions seem to fly in the face of the very purpose of Section 1983. In fact the Supreme Court has said as much. The Supreme Court has suggested the remedy created by Section 1983 exists not just to provide a remedy for citizens whose rights are violated, but also - “to hold public officials accountable when they exercise power irresponsibly.”
It will be interesting to see what direction the Supreme Court goes. Left-leaning Justice Sonia Sotomayor and conservative Justice Clarence Thomas have recently criticized qualified immunity and the court’s role in expanding it.
In a 2018 dissent, Sotomayor wrote that a decision favoring the police tells officers that “they can shoot first and think later, and it tells the public that palpably unreasonable conduct will go unpunished.”
Thomas wrote, in a 2017 concurring opinion, ”(T)he ‘clearly established’ standard is designed to ‘protect the balance between vindication of constitutional rights and government officials’ effective performance of their duties.’” He lamented, that decision is for the legislature not the courts.
Matthew T. Mangino is of counsel with Luxenberg, Garbett, Kelly & George P.C. His book “The Executioner’s Toll, 2010” was released by McFarland Publishing. You can reach him at and follow him on Twitter at @MatthewTMangino.
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