XPost: talk.politics.guns, alt.government.abuse, alt.politics.republicans XPost: sac.politics

On July 10, 2014, Michael Vickers, a deputy sheriff in Coffee
County, Georgia, fired two shots. The first missed its target.
The second also missed its target—and hit an unarmed 10-year-old
boy instead.

The sheriff and a few other officers were in pursuit of a
fleeing suspect just before the shooting. To escape the police,
the suspect ran onto Amy Corbitt's property, where six children
including her own were playing, two of them under the age of
three. The children found themselves caught up in the frenzied
scene, allegedly ordered to lay face-down in the grass with
loaded guns pressed into their backs.

All complied with the officers' orders—including the suspect. It
wasn't him who deputy sheriff Vickers shot. It was Amy Corbitt's
dog, Bruce, who by eyewitness accounts posed no threat to the
group. The sheriff's deputy shot him anyway, missed, and then
shot again. The second bullet dug its way into the back of
Corbitt's son's right knee, who was lying 18 inches from Vickers.

The boy survived, but bullet fragments remained lodged in his
body long after the shooting. He required the medical
intervention of an orthopedic surgeon and his mother had to
finance homeschooling; the event left him too traumatized to
interact with others socially.

It gets worse: The family was barred from suing for damages,
thanks to a law that shields officers from civil damages. It's
called qualified immunity, and it's a legal doctrine that makes
it bewilderingly difficult to bring lawsuits against government
officials accused of misconduct.

Corbitt subsequently filed suit seeking compensatory damages
related to ongoing treatment. In evaluating her claims, the U.S.
Court of Appeals for the 11th Circuit stated the obvious: "We do
not doubt Vickers could have acted more carefully," wrote
Circuit Judge Robert Lanier Anderson III. "The firing of a
deadly weapon at a dog located close enough to a prone child
that the child is struck by a trained officer's errant shot
hardly qualifies as conduct we wish to see repeated."

But if you thought that meant Corbitt had a case, you would be
wrong. Because neither the Supreme Court nor the 11th Circuit
had ruled on a scenario with nearly identical facts, the panel
said Corbitt had no right to argue her suit before a jury.

Such is the case with qualified immunity, the perverted
principle conjured out of nothing into something by the U.S.
Supreme Court, first in Pierson v. Ray (1967) and then in Harlow
v. Fitzgerald (1982). The doctrine allows state actors to
violate your constitutional rights with impunity if the precise
way in which they misbehave has not been "clearly
established"—or, in other words, outlined with razor-like
exactitude—in a previous court ruling.

Harlow was supposed to protect government officials from a
cascade of breathless lawsuits. It has instead shielded them
from meritorious ones—even in instances where the Average Joe
would arguably face criminal charges.

Consider the two cops in Fresno, California, who allegedly stole
$225,000 while executing a search warrant. "The City Officers
ought to have recognized that the alleged theft was morally
wrong," wrote a panel for the U.S. Court of Appeals for the 9th
Circuit. But because there was no precedent on the books that
explicitly deemed stealing in such a manner unconstitutional,
the officers "did not have clear notice that it violated the
Fourth Amendment." They were granted qualified immunity, and
their victims thus had no right to sue.

It's an unnervingly low standard at which to hold government
officials. Richly ironic is that reasonableness is core to the
qualified immunity doctrine: Would a reasonable official know
their conduct violated the Constitution?

To find our answer, we're told to dredge up that mirror-like
court ruling. Two problems come to mind: That assumes civil
servants are combing through case law before starting their
shifts. I'd venture they're not. It also assumes those civil
servants cannot deduce it is morally transgressive to steal
hundreds of thousands of dollars. Put plainly, we are to assume
they are stupid. That's unreasonable.

Indeed, under our current system, judges often rob a victim of
the privilege to sue while simultaneously agreeing that their
rights were infringed on. Take the case of Richland Police
Department Officer Nick McClendon, who subjected a man named
Clarence Jamison to a bogus, hours-long drug search after
pulling him over and lying to obtain consent. Officer McClendon
found no contraband yet managed to ravage Jamison's vehicle to
the tune of $4,000.

McClendon breached the man's constitutional rights, said Judge
Carlton W. Reeves of the U.S. District Court for the Southern
District of Mississippi. But in a fiery opinion, he begrudgingly
handed the cop qualified immunity, as Jamison was unable to
pinpoint relevant case law.

If the data are any indication, qualified immunity proponents
are a dying breed, heavily represented among police unions and
less so among the general population. 66 percent of the public
opposes the doctrine, according to a Pew poll released last
July, not long after the killing of George Floyd galvanized a
conversation around police accountability.

But supporters have legitimate concerns worth addressing.
Perhaps most common is the notion that, without qualified
immunity, officers will find themselves in financial ruin.
That's not the case: Cities indemnify their employees against
such harms. Between 2006-2011, individual police officers paid a
whopping 0.02 percent of the $730 million in judgments handed
down against them.

Another frequent objection: Vacuous lawsuits would deluge the
courts. It's a well-intentioned but misguided critique. That's
because every victim would be required to convince a judge that
his or her constitutional rights were violated before commencing
a jury trial. Abolishing qualified immunity only removes the
second prong, in which plaintiffs are sent on a wild goose chase
searching for a matching court decision that doesn't exist.

Like most discussions on the national stage, the debate around
qualified immunity is spit-roasted in partisanship, with
Republican politicians hesitant to make waves. But reforming the
doctrine should be a conservative hill to die on. It was
legislated into existence by the Supreme Court in direct
contradiction of U.S. law—a flagrant example of judicial
activism. And it gives rogue government officials the green
light to trample on the little guy, something that should bother
any limited government advocate. Lost on many is that the
doctrine applies not just to cops but to all state actors,
including, say, a corrupt college administrator who rolls right
over a student's free speech rights.

Such obvious abuses should animate everyone—the progressive, the
liberal, the libertarian, and, yes, the conservative. To
demonstrate the absurdity inherent in qualified immunity, let's
probe a case where a court didn't grant it. In 2013, a man was
accosted by police for walking on the street, not the sidewalk.
That confrontation ended with a cadre of cops beating him to a
pulp and shooting him almost two dozen times.

The lower court awarded the group qualified immunity. The
appeals court overturned.

"Seven years later," wrote Judge Henry F. Floyd of the U.S.
Court of Appeals for the 4th Circuit, "we are asked to decide
whether it was clearly established that five officers could not
shoot a man 22 times as he lay motionless on the ground." The
standard really is that granular.

Officers who commit such violent acts rarely face criminal
prosecution. Civil court, then, is the last remaining avenue for
victims to hold the state accountable. Up against qualified
immunity, they often lose before they begin.

Dissenters may cite the triple-guilty verdict in the trial of
Derek Chauvin, the former cop now convicted of murdering Floyd;
that Chauvin was convicted is proof the criminal justice system
is working to hold bad apple cops accountable. But Chauvin is
very much the exception. And even so, a court could very
plausibly grant qualified immunity to someone guilty of murder
if the way in which they killed their victim was not "clearly
established" in previous case law.

Others may worry that abolishing qualified immunity will drive
cops out of the profession in droves. But this, too, is easily
dismissible. Connecticut and Colorado passed state laws
curtailing the doctrine last year, and they have seen no such
exodus.

Maybe a better question is, which state actors will be inspired
to go elsewhere? If we're talking about the ones who steal,
shoot without provocation, and kill those in their community
absent just cause, then I'm glad they might be forced to
reexamine their choices—and you should be, too.

Billy Binion is an Assistant Editor at Reason magazine.

The views in this article are the writer's own.

https://www.newsweek.com/its-time-get-rid-qualified-immunity-
opinion-1586850

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