MARTI CROW: How qualified immunity has grown

Marti Crow
Marti Crow

For four years, the implied cause of action created by the Supreme Court in the Pierson case only applied to state officials. These were the years of civil rights marches, protests against the Vietnam War and the beginnings of a war on drugs. In 1971, the Supreme Court heard Bivens v. Six Unknown Named Agents.

Webster Bivens’ home was searched without a warrant by Federal Bureau of Narcotics agents and he was arrested. Drug charges were filed but later dismissed. Bivens filed a civil rights lawsuit. The federal district court and Court of Appeals dismissed the suit, ruling that the civil rights cause of action only applied to state officials. Upon appeal, the Supreme Court ruled that people whose civil rights are violated by federal officials may also sue for damages.

So, if a citizen sues a state or local official for civil rights infringement, it is called a “Section 1983” case and if the lawsuit is against a federal official, it is called a “Bivens” case.

The opinion was written by Justice William Brennan who wrote that the court will infer a remedy for the vindication of a constitutional right when no other federal remedy is provided, based on the common law legal principle that “for every wrong there is a remedy.”

The test for qualified immunity was clarified in another Supreme Court case, Harlow v. Fitzgerald, in 1982. The official may only be granted immunity if he/she believed in good faith that their official conduct was lawful and his/her conduct was objectively reasonable. Qualified immunity does not protect officials who violate clearly established statutory or constitutional rights if a reasonable person would have known better. The official must be performing a “discretionary” act rather than an action that is ministerial or clearly defined by government policy or rules.

Arguably, it is extremely difficult to sue individual public officials for misconduct. The “clearly established law” requirement typically requires that the official’s behavior violates written law and that there is a clear judicial precedent establishing the behavior as unlawful.

If no statute clearly defines the limits on police officers’ use of force, the court will look at the department’s policy, procedures and past record.

A 2020 Reuters report reviewed over 200 cases involving excess force claims against police since 2007, and found that plaintiffs have a difficult time due to the qualified immunity defense. Again, no federal statute explicitly grants qualified immunity. Critics have argued that the judicial creation of qualified immunity amounts to judicial activism, inventing a judicial doctrine that has little basis in written law.

Conservative Justices Scalia and Thomas have expressed such concern. Other critics have argued that the Supreme Court’s creation of qualified immunity guts the Section 1983 Civil Rights Act since Congress has been unable or unwilling to act to address the issue. Without legislative action, they argue, qualified immunity shouldn’t apply in cases against government officials.

More recently, critics argue that the use of the qualified immunity doctrine has created an inability to address egregious incidents of police misconduct and insulated government officials from answering for violating the rights of people who they have sworn to serve.

On the other hand, the doctrine was created and furthered by the judiciary over these many years to protect governmental officials, especially law enforcement officers, from frivolous lawsuits. The courts were concerned that public safety personnel would be hesitant to act when necessary for fear of being held liable if they made a good faith mistake.

Law enforcement and guarding public safety are often dangerous jobs. Just imagine how often a Leavenworth police officer stops a car for a traffic infraction or is called to enter a domestic dispute or crime scene. They walk into possible life-threatening situations constantly. Our citizenry is heavily weaponized, our mental health services are spotty, our society is estranged and often combative.

Legislative action at the state and federal level may address the balancing of citizens’ civil rights and the conduct of public safety officers. Community policing works well in many places. In smaller communities, police officers are not as anonymous and the officers and citizens can take the opportunity to build relationships and trust with each other. However, there is always more to do to create a productive and safe relationship between law abiding citizens and law enforcement personnel. There is also much to be done right here in River City to provide affordable housing, job opportunities, economic vitality, neighborhood communication and cooperation, coordinated crime prevention and a better quality of life for all. Community safety is a joint undertaking between the protectors and the protected. We can do this together.

Marti Crow is a Leavenworth Times columnist.