It is nighttime at the Supreme Court, and the flag is at half mast.
That is because American citizens need the Supreme Court to reaffirm the Constitutional civil rights of citizens, to end the deaths and other civil rights violations on the streets.
Let's consider "qualified immunity" (QI), and its derivatives.
Most are aware that officers are not held liable for civil rights violations in our courts, often because judges allow that officers have "qualified immunity" from liability. In an era where everyone can see the videos, and rights violations are painfully obvious, that notion seems to seriously fail the American people.
The Constitutional civil rights that the Federal courts exist to protect stem from the US Constitution, the highest law of the land. Nothing supersedes it. No law, and no court ruling can take priority over the Constitution, or diminish the rights enshrined there.
So, if restitution is denied when civil rights were clearly violated, we must ask, "How did we arrive at such nonsense?"
In 1804 in Little v Barreme, Justice John Marshall said (of civil rights violations), "A violation is a violation...and (when rights are violated) restitution is due..." He was weighing the matter before him in the scales of justice, and he focused on the perspective of the violated. He wrote that he struggled as he considered the perspective of the naval officer "following orders" and observed that officers are expected to follow orders. However, a violation had occurred, someone was harmed, and the damaged party must be made whole. The rights violator was before him, so the violator was held liable.
Through most of American history, our courts held that view.
Then in Pierson v Ray in 1967, the Supreme Court of the United States (SCOTUS) observed that police officers were merely "acting lawfully...in good faith reliance upon a (local, anti-loitering) law" when they arrested ministers protesting the civil rights violations of that era. The court was worried that officers might be hesitant to do the job if they constantly had to make a decision between [a] doing nothing, and [b] executing a law and being financially decimated to personally make restitution for damage a rights violation can inflict. So the officers were granted a new creation: 'qualified immunity' from liability for the civil rights violations they inflicted upon citizens who did nothing wrong, when the officer was "acting lawfully...in good faith reliance upon a law".
[That local law was later declared unconstitutional because it violated Constitutional civil rights. The Constitution prevailed...and there might be a keen observation to be made about that.]
That QI notion has expanded over time ("reasonable person", "clearly established law", "clear precedent", even to the point that "no allegation of malice need be alleged or proved", etc. See the "Relevant Laws" page). Today, QI absolves officers of liability in nearly every conceivable situation. The focus of judges has been only on the civil rights violator side of the scales of justice. That has protected officers, and generally ignored the violated citizen. Restitution, justice, is hard to find. Too many citizens have been left with nothing for obvious violations of civil rights, sometimes to the point of death, even when violations are recorded on video. And SCOTUS has recently even said 'it is not necessary to determine if rights were violated, first focus on whether the officer (or other government official) accused of a civil rights violation can be absolved of liability.'
When QI was originally created, SCOTUS suggested that officers should not have to choose between 'not doing their job by not enforcing a local law', or 'risk paying a financial penalty for violating civil rights when enforcing a local law'. That QI protection originally kept officers from being financially decimated if rights were violated and the officer otherwise would be required to compensate victims of obvious civil rights violations. But now QI and its derivatives have become a way to say to officers, "Behave as you wish. You have no worries", and to citizens, "Too bad for you! Even when video proves that your rights were violated, you shall have no relief."
SCOTUS Error - The Disease
QI means that the citizens whose rights were violated receive no restitution, no compensation for the damages they suffered. It is abundantly clear that SCOTUS gravely erred by considering only one side of the matter, the side of the violator, when creating a Constitution-ignoring system of denying justice for violated Constitutional rights.
And it is obvious that there was a third choice. Because it is not simply a matter of, "Compensate citizens whose rights were violated" or "Financially decimate officers earnestly and lawfully doing a job."
The "reasonable person" fiction denies that officers were trained specifically in the law, at a sanctioned law enforcement training academy...after being selected, and vetted from among a pool of applicants. "Reasonable persons" might include every high school student who studies "US Government" in high school. No, officers are "clearly not" average, "reasonable persons".
And imagine any court suggesting that you must find some "clearly established precedent" to prove that your rights were violated...as if the Constitution's 230+ years clearly articulating the rights of citizens are somehow "less clearly established".
SCOTUS has lost sight of its job of upholding and protecting the rights of citizens enshrined in the Constitution.
SCOTUS can and must fix the mess it created.
Here is why QI can be reconciled with the Constitution's civil rights guarantees. Officers in 1967's case were "agents" acting on behalf of a "principal" (defined legal terms). And SCOTUS (and civil rights attorneys) should have observed that the legal construction "the principal is responsible for the actions of the agent" applies. If officers are not liable and have QI, it was a grave error to conclude that means that rights were not violated and/or that restitution is not due for the damage. Officers have QI only because liability is found elsewhere. So we, and courts, should look for the proper place to reassign liability for the civil rights violations. We must identify the "principal". In the landmark 1967 case of Pierson v Ray, that means that the city council that passed a law that caused violations of civil rights was actually responsible for the violations of civil rights inflicted by officers employed by the city who were ordered to effect that law. Or perhaps individual council members are liable, perhaps even the city attorney who was supposed to ensure that no conflicts of law were created by the city's work. Nonetheless, officers may simply be "agents" and have qualified immunity in certain circumstances.
This requires thought. Few cases today are like those in Pierson v Ray. And too many cases involve officers clearly not "acting lawfully". Perhaps the "principal" today may be in whole or in part a law enforcement training academy that failed to properly teach respect for civil rights. Or an academy that teaches excessively aggressive tactics to violate rights. Or perhaps that principal is a supervisor and/or trainer at the department. Naming these parties in the lawsuits will help identify where liability rests if the officer is acting as "agent" and has QI, and therefore is not liable to those whose rights the officer has violated.
This is not hard.
Yet civil rights attorneys have missed it since 1967. And SCOTUS has either been negligent in defending the rights of citizens, or simply mum on this perhaps because the judges did not even consider any question beyond the surface of, "Is the officer who violated civil rights liable?"
Civil rights were violated. Restitution is due. Someone is responsible. Who is...? Think about it.
And if no "principal" is responsible for the rights violation, if the rights violation is done by the officer of the officer's initiative, then the officer is responsible for his/her actions, and is liable to the citizen whose rights the officer chose to violate.
Clear and easy.
It is interesting to consider, however, how rights and the QI concept may have evolved, and how Justice John Marshall may have opined, if President John Adams had been named as a co-defendant in the 1804 case of Little v Barreme.
There is no need to fight a battle over the often misunderstood QI. QI is obsolete. Two reasons.
1) Questions of whether QI applies are often moot because of abundant video today. It is easy to see the facts of what happened in so many cases. Were rights violated...or not? No guessing is required. Was the officer acting lawfully, and upon "probable cause"...or not? No guessing is required to determine if the officer was acting within the Constitutional standard.
It is easy to answer the question of whether rights were violated.
If rights were violated, then restitution is due.
Citizens demand it, and the Constitution demands it..."shall not be violated".
2) Worry about whether officers would be personally penalized for "acting lawfully and in good faith upon a law" are moot, because in today's world, officers are or could be covered by indemnity insurance policies to provide protection from officers having to personally pay for mistakes, whether those mistakes are violations caused by negligence or caused by malicious actions.
Financial Safety Net for a Modern America
*All officers should be covered by indemnity insurance, and those policies must be a minimum of $1,000,000.*
The power officers hold is real and serious. The power to stop and detain citizens can cause people to miss business and family appointments, arrest powers can greatly disrupt a life, weapons can inflict injuries and death, and the power to file accusations of crimes (whether truthful or not) can inflict both significant financial losses and significant loss of time into productive lives. All of this "power" is funded by the same citizen taxpayers who interact with officers on the street. And this power is wielded by officers who make spontaneous decisions about whether to address, admonish, attack or arrest citizens about whom the officers know close to nothing. Even the best of our officers are not perfect, and they will admit it.
The risk of unwarranted damage to citizens, the risk of violating 4th Amendment and other Constitutional rights is great. And it doesn't matter whether that damage is inflicted accidentally or maliciously. When rights are violated, lives are damaged and restitution is merited.
And it is impossible to deny that citizens have been harmed in every case where "Qualified immunity" or other legal constructions have been used by courts and judges to claim illegitimately that the citizens can have no restitution (from the officers who inflicted Constitutional rights violations and damage upon them). That denies the obvious, and denies common sense. And if another party cannot be identified as liable for the violation, and an officer is liable for a violation of civil rights, a safety net is required for two reasons:
1) To have a source of financial recovery that does not decimate the officer [allows them to do a job with less fear of financial loss - the very reason QI was created], and
2) To ensure that recovery is available and sufficient to make restitution for the damage that can happen to citizens of all walks of life.
Those states that do not require indemnity insurance should, and immediately. For at a minimum, the citizen whose rights are violated will first have to defend against bogus criminal charges. Because one of the most important elements in officer training today is education about how to arrest, file some charges and put the individual on defense. Whether those accusations have validity or not, that takes decision making out of the context of a street scene and leaves attorneys on both sides who have the luxury of (billable) time to strike a bargain to determine what should happen to the individual. That defense can easily cost citizens up to $20,000 or more. Actual damages (lost wages, lost time, physical injuries, etc.) to the rest of a person's life vary by individual, and $1M may not adequately cover cases of severe physical or other damage including loss of life, or damage done to citizens of consequence, but it is an acceptable minimum to start. The point is that this provides a source of financial recovery to any individual whose rights have been violated, and officers are no longer personally paying damage awards out of their own pockets, as may have been the case in 1967.
And the indemnity policies should be personal policies, for two important reasons.
1) Every officer has a policy that is priced according to the officer's record of compliance with the Constitution. Bad actors pay more, or become uninsurable, just like auto policies. The system "polices itself" by premiums pricing out of law enforcement those who violate civil rights.
2) Individually purchased policies protect departments and taxpayers from paying for those rare bad actors. Departments with good training protocols will see lower premiums, creating the right incentives for the entire law enforcement community...that is funded by "We the People".
Most officers are good people who want the same thing desired by the taxpayers who pay their salaries: "Life, liberty and the pursuit of happiness".
All of those good officers won't mind carrying a policy to protect citizens and themselves. And those same good officers will be happy to see citizens compensated for violations of civil rights when something unfortunate happens.
EQUAL JUSTICE UNDER LAW.
All of this won't change recruiting, but it will change training. And that will be good for citizens, good for officers, and good for America.
The end of the era where courts pretend there should be no restitution for civil rights violations is here now.
So, qualified immunity and its derivative legal constructions are obsolete. The issues are easily resolved in other ways that more effectively comply with the Constitution of the United States and its Bill of Rights, and bring law enforcement into the modern era. Civil rights can be restored.
Now, Americans just need our courts, starting with SCOTUS, to bring case law into accord with the modern era.