By David B. Rivkin
Jr. and Andrew M. Grossman
June 17, 2020, in
the Wall Street Journal
Senate Republicans have an opportunity to reverse one of Chief Justice Earl Warren’s most pernicious legacies—but they seem determined to blow it. Sen. Tim Scott, who is leading the majority’s police-reform effort, said Sunday that abolishing “qualified immunity,” which protects law-enforcement officers from lawsuits under a law known as Section 1983, is “off the table.” Police unions, Mr. Scott said, view it as a “poison pill.”
Section 1983 originated in the Civil Rights Act of 1871, which opened federal courts to lawsuits challenging civil-rights violations by defendants acting “under color” of state and local law. It provides that violators “shall be liable” to their victims. The idea was that freed slaves could go to court to enforce their newly won constitutional rights.
It didn’t work out
that way, and much of the blame lies with the Supreme Court, which in
the late 19th century defanged the 14th Amendment,
relieving states of their obligation to honor all citizens’ federal
rights. The court only began to correct that error in the mid-20th
century, proceeding on a right-by-right basis under a doctrine known
as incorporation.
What the court gave
with one hand, it took away with the other. In Mapp v. Ohio (1961),
the justices held that states were obligated to observe the Fourth
Amendment right against unreasonable searches and seizures. But in
Pierson v. Ray (1967), they relieved state officials from
civil-rights liability unless their actions violated “clearly
established law.” That’s “qualified immunity.”
The results can be
infuriating. In one recent case, police officers escaped liability
for siccing an attack dog on a suspect who was sitting with his hands
up. A previous case had found a Fourth Amendment violation, but the
court held the precedent didn’t apply because the suspect in the
earlier case was lying on the ground. In another case, cops shot a
fleeing driver who posed no threat. In another, police stole a
collection of rare coins while executing a search warrant. Because
such larceny by officers hadn’t arisen in a previous case, the
court reasoned, the plaintiff’s right not to have his property
stolen by police was not “clearly established.”
To call this a double standard would be an understatement. Civilians are subject to civil and criminal liability when they violate the law, even when their legal obligations aren’t perfectly clear. When state officials violate constitutional rights, qualified immunity often makes it impossible to hold them to account. It’s easy to understand why this disparity inspires cynicism about the rule of law.
Warren’s rationale for qualified immunity was that officials had historically enjoyed immunity for acts taken in “good faith.” He concluded that unless a court had already established that a particular act violated the law, it couldn’t be presumed that Congress intended to impose liability.
But Will Baude of
the University of Chicago has demonstrated that there was no general
“good-faith defense” for public officials and that qualified
immunity can apply even to violations committed in bad faith.
Further, Warren’s conclusion about Congress’s intent is at odds
with the statute’s language; the words “shall be liable” brook
no exception.
The Warren court
established qualified immunity at a time when it was rewriting the
Constitution by discovering new rights at an astonishing clip. It’s
possible the justices worried that imposing liability for violations
of the new rights would encourage resistance and stymie the rights
revolution.
Yet as the Warren
court relieved itself from the strictures of the Constitution, it did
the same for state officials. Qualified immunity has made
civil-rights litigation such a crapshoot that it does little to deter
misconduct, particularly rights violations by police, which can be
remedied only after the fact with money damages.
Some conservatives
fear that correcting the error of qualified immunity could alter
incentives for the worse, by putting police officers at risk of
liability for doing their best to protect the public. That concern is
misplaced. Other professionals face tort liability irrespective of
whether the law on some point was “clearly established” by a
prior court decision. No one argues that hinders the practice of law
or engineering.
Besides, unlike most
other professionals, police are almost always indemnified by their
departments. Police departments take advantage of qualified immunity
rather than make difficult choices like confronting or firing bad
cops, standing up to police unions, or insisting on use-of-force
rules that could deter abuses. In these ways, qualified immunity does
a disservice to the overwhelming majority of police who take their
duties to their communities seriously.
The Roberts court
appears disinclined to correct its predecessor’s error, denying
review this week in a score of cases asking it to reconsider the
doctrine. That means it’s up to Congress. House Democrats are
promoting legislation that would eliminate immunity for police
officers. The only sound objection is that the Democratic plan stops
short of ending the failed experiment of qualified immunity
altogether.
Limited to police
officers, it would leave the doctrine on the books for other state
officials, making the Supreme Court less likely to correct its
original error. And it would arbitrarily deny recourse to victims of,
say religious discrimination by a mayor or racial discrimination by a
licensing officer. All state officials, including the police, should
be accountable for respecting constitutional rights.
Mr. Rivkin served at the Justice Department and the White House Counsel’s Office. Mr. Grossman is an adjunct scholar at the Cato Institute. Both practice appellate and constitutional law in Washington.
Source: https://www.wsj.com/articles/how-the-warren-court-enabled-police-abuse-11592410930