Legal Docket – Qualified immunity

BRIAN BASHAM, HOST: It’s Monday July 13th, 2020. Glad to have you along for today’s edition of The World and Everything in It. Good morning, I’m Brian Basham.

NICK EICHER, HOST: And I’m Nick Eicher. Good to be with ya, Bash. 

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Well, first up on The World and Everything in It, Legal Docket.

Today, with Mary Reichard on vacation this week—speaking of new features to come from WORLD—you’ll hear from Mary’s partner in the upcoming Legal Docket podcast. Today, our report comes from journalist and lawyer Jenny Rough.


FLOYD: I can’t breathe. My face. Just get up.

OFFICER: What do you want?

FLOYD: I can’t breathe. Please, the knee in my neck. I can’t breathe.

JENNY ROUGH, REPORTER: It’s been seven weeks since police officer Derek Chauvin placed his knee on George Floyd’s neck during an arrest in Minneapolis. Floyd died in that incident.

AUDIO: [Protestors]

PROTESTORS: No, justice, no peace! Prosecute the police!

His death stirred up debate over a legal doctrine known as qualified immunity.

Qualified immunity is a defense. It prevents government officials from personal liability for constitutional-rights violations in some circumstances.

We hear calls now to abolish it. Or reform it.

Now, this is a complex area of law. I talked with four different experts to help explain. To lead us off, here’s Melvin Otey. He’s a law professor at Faulkner University.

MELVIN OTEY: For a long time and before our country was founded, I mean, we inherited the common law from England I mean, you know, murder was murder, and there was no statute for it. Kidnapping was kidnapping, there was no statute for it. And so we sort of brought all of that into American jurisprudence and added statutory law on top of it.

We adopted that judge-made law from those old English courts. And part of the common law—:

OTEY: You couldn’t sue the king!

Sovereign immunity.

America doesn’t have a king, of course. And at the founding of our nation, one of the big concerns was oppression from the government.

Hence, the Bill of Rights.

Like the First Amendment’s protection of free speech. And:

OTEY: The Fourth Amendment in particular presents a list of restrictions on government agents who are investigating crimes, okay? So the prominent one, or the most prominent one, is a protection against unreasonable searches and seizures. The court has interpreted this idea of a seizure to include killing someone.

Congress began to put laws on the books.

Like 42 United States Code, Section 1983: That allows a person to sue state actors for violating constitutional rights.

OTEY: 42 U.S.C. 1983, that would allow a person to sue the government if a state actor, and it’s oftentimes a police officer, uses excessive force. I could sue and say, well these are all the ways that I was injured because you violated my constitutional rights, right? These are all the physical injuries and the property damage and emotional harms, and you know, and so then I could potentially be made whole financially.

The statute doesn’t mention qualified immunity. Yet over the years, courts allowed that as a defense to Section 1983 claims.

Now, here’s an important clarification: After Floyd’s death, officer Derek Chauvin was charged with second-degree murder.

Al Johnson is a St. Louis-based attorney who practices in the area of police misconduct. He says the criminal and civil bodies of law get mixed up pretty easily in these cases.

AL JOHNSON: One thing that’s misunderstood is that when we talk about the area of police misconduct, there are several different venues in which those types of situations are dealt with. First one is the criminal venue where an officer does something so egregious that he or she is charged with a crime. The intentional deliberate taking of a human life is murder. That’s pretty simple, and then a jury listens to that and applies the facts to it and decides whether the police officer involved intentionally took the life of George Floyd.

Qualified immunity won’t apply.

JOHNSON: That’s totally outside the realm of criminal law.

But while that criminal lawsuit is being resolved, Floyd’s survivors could file a civil lawsuit—a Section 1983 claim.

If they were to succeed, they may be entitled to money damages. Except.

This is where qualified immunity could kick in to prevent that from happening. Floyd’s survivors would have to clear a hurdle:

JOHNSON: You have to prove that the conduct the officer engaged in was prohibited by clearly established law.

That’s the legal standard: clearly established law.

It came from an opinion the Supreme Court handed down in a 1982 case called Harlow v. Fitzgerald.

Barry McDonald is a Constitutional Law professor at Pepperdine University. He walks us through the Harlow case.

BARRY MCDONALD: Harlow v. Fitzgerald was a lawsuit by Mr. Fitzgerald who was an analyst for the Air Force who testified before Congress that the Air Force was essentially hiding big cost overrides that were happening on a Lockheed jet that was being developed under contract with the federal government. So it was a big allegation of misconduct by the Air Force.

The Air Force fired Fitzgerald for exposing the misconduct.

He sued President Nixon and some of his aides for violating his First Amendment free-speech rights.

The Court held that the presidential aides were entitled to a qualified immunity defense. In order for Fitzgerald to overcome it—

MCDONALD: You have to be able to say that a reasonable officer should have known that somebody’s rights were clearly established and being violated in a particular situation before you can say that they don’t have qualified immunity.

So: Section 1983 says you can sue a government official for violating your rights. But then qualified immunity says, well, yes, you can sue, but you’ve got to jump a huge hurdle to get a remedy!

Over the years, the Court made incremental adjustments to the doctrine. The Court applied the modern doctrine in the 2018 case Kisela v. Hughes.

MCDONALD: Where in Kisela we had an incident in Tucson, Arizona, where the police had received reports of a woman acting erratically and stabbing a tree with a knife, and so they went to the scene and when they got there they saw a woman standing by a tree and another woman about five yards away…

Amy Hughes was the woman acting erratically. Police officer Andrew Kisela told her to drop the knife. She didn’t. Kisela shot her four times. She survived her gunshot wounds and sued. The Supreme Court said qualified immunity shields Kisela from liability. His conduct didn’t violate clearly established law.

MCDONALD: You have to look at the specific conduct and the specific sort of situation that the officer was facing before you say that he should’ve known he was clearly violating this person’s constitutional rights by shooting her, and when we look at the cases we don’t see a case that’s close enough on point.

That approach is what’s come under criticism. The more unique the fact pattern, the less likely the court has ever ruled on it. Because the specific conduct is different.

If George Floyd’s survivors bring a civil lawsuit, this will be one of the debates. Floyd’s lawyers will likely look for a pre-existing case that’s similar enough, maybe a case involving a chokehold as excessive force.

But it isn’t as if proponents of qualified immunity are without good arguments in favor. John Churchville is a lawyer who teaches at Lancaster Bible College:

CHURCHVILLE: Well, the pro is keeping people from frivolous lawsuits. Obviously, in America, we’re the most litigious society ever in the history of the world. The officer handcuffed me too tight, I’m going to sue him personally. Oh, the officer was rude to my mom.

Also: Without it there’s a chilling effect. People might be deterred from entering law enforcement. Or afraid to act for fear they would be sued.

That’s not to say nothing should be done. Johnson says there needs to be a better database to track police officers who are repeatedly caught in excessive force situations. Too often rogue officers will get fired from one department and just move to another. 

Churchville says a good place to start is to be a peacemaker. Changing a bunch of laws won’t do any good if hearts aren’t changed.

CHURCHVILLE: What are we trying to achieve? We want to save lives. We want to respect and honor and dignify police, judges, protestors, innocent people, guilty people, families, so let’s start with that, and let’s see what’s going to value everyone’s life that’s involved here.

And that’s it for this week’s Legal Docket.


WORLD Radio transcripts are created on a rush deadline. This text may not be in its final form and may be updated or revised in the future. Accuracy and availability may vary. The authoritative record of WORLD Radio programming is the audio record.

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