Cline on the Constitution – Qualified Immunity and The Paralysis of Fear

We are afraid.  

Americans, once a proud, robust, hearty people, sometimes stubborn, often stern, cower in fear.  College professors are afraid to speak the truth; College Administrators are intimidated by students. It is rare the author, with the fortitude to call a man a man and a woman a woman. Today few good men and women can participate in the public arena without fear.  Those holding public office, dare not make a provocative comment, render an opinion, take a risk, do their department’s business if it might offend the wrong person or group.

The intimidation is palpable.  Business Executives are made to apologize for acts or words decades old. They are made to kneel in abject confessions of sins, for acting in accordance with the times and not anticipating what passes for virtue in this new more correct age.  One wonders, where went the Captains of Industry?  Those tough-minded builders of things, throwing up buildings, roads, bridges, dams, factories. What happened to those gruff individualists who brooked no quarter, hammering a project done, not giving a hoot who gets offended or why. 

Well, they are gone.  There are no Titians of Industry anymore.  None.  Instead our business leaders are wimpy smart kids with MBAs, who hire other wimpy smart kids who spend their time on things that don’t matter like who is correct today and who isn’t.  They never produce a thing.  Except cowards.

Everywhere there is fear of cyber bullying especially in the young.  It is a fear as a mind control technique perfected on college campuses and now exported to the outside world, corporations, news outlets, sports leagues, teaching, the arts, medicine, science, social studies.

A culture is being torn down before our very eyes.  A great Western culture developed over dozens of centuries producing wonderful art and sculpture is being banned, works by writers of genius and insight are being pulled from bookshelves.  Monument to great explorers and extollers of liberty like Washington, Jefferson and Lincoln and, yes, Columbus, are being defaced and torn down.  

And Americans do nothing.

Why?  Speak up. Resist. And you can get fired, dismissed, harassed, beat up.  Canceled. 

There is Fear. And Fear causes paralysis.  

Ironically, two issues that have been discussed in this last few weeks are based upon Fear. And each is a doctrine of Constitutional dimension in which the Supreme Court addresses the paralysis of fear. The first is Qualified Immunity, the subject of this segment, and the second is the use of Deadly Force by Police Officers, which I will discuss in my next post.

Qualified Immunity:

First let’s understand what Immunity is and then discuss why it is of such Constitutional significance that it is protected by the Supreme Court. 

There are two kinds of immunity, Absolute and Qualified. Police Officers (and other officials) enjoy Qualified Immunity. But it is helpful to understand the concept by starting the discussion with Absolute Immunity.

In my time as District Attorney, like many of my colleagues around the State, I found it necessary, on occasion, to investigate and prosecute individuals that were rich, powerful, influential and had many powerful friends. There was no limit to the amount of money they could spend on their defense.   And they had the financial means to personally retaliate against anyone who challenged their domain.  It is one thing, to face political opposition every four years.  To be challenged and maybe win, and maybe lose.  If you can’t face up to that without whining, then you have no business holding office.  That is not something to fear.  What is something to fear, however, is the loss of your home, the disability of endless lawsuits and legal fees threatening to bankrupt you and having a clueless judge pass on your every move. Why would one choose to take on a powerful person if he or she was to face endless lawsuits and the destruction of their family’s financial well-being. 

Without immunity that is what one can expect.  And that is the reason Prosecutors are protected by Absolute Immunity.

The Supreme Court has recognized that without such a protection the fear of endless personal lawsuits engenders a chilling effect on the public official.  It’s a paralysis caused by fear.  And it is not a new concept.  It was recognized at Common law and ultimately preserved by decisions of the Supreme court.    It’s the reason for Absolute Immunity.  And to a lesser extent the Qualified Immunity police officers have. 

The Historical context is important. 

After the Civil War, the Thirteenth Amendment (which outlawed involuntary servitude) and the Fourteenth Amendment (which guaranteed Equal Protection of Laws and Due Process by the States) was passed.  These two Amendments had unique sections authorizing Congress to enact legislation for the enforcement of the Amendments.  Congress took advantage of the provisions and passed a series of Civil Rights Acts.  

One of the Acts had Section 1983 of the United States Code which says, “Every person who, under color of [authority] subjects any citizen . . . to the deprivation of any rights, privileges, or immunities secured by the Constitution and laws, shall be liable to the party injured . . . .”  

It is this section that is used to sue public officials, including police officers, who violate someone’s civil rights, including killing or injuring them in the application of force.  Under the clear language of section 1983, an officer is personally liable if he is found to have acted under color of his authority as a peace officer and his actions resulted in the deprivation of an individual’s rights.  

However, the Supreme court has held that Congress, when it passed the civil rights legislation, did not intend to abrogate Immunities that existed at Common Law.  Immunities that existed at Common Law at the time the legislation was passed included Absolute Immunity for certain high officials and Qualified Immunity for others, including police officers.

Absolute immunity means that you cannot be required to defend a lawsuit for any act done within the scope of the duties of the office.  Even if done for base reasons. Doesn’t matter.  It’s over.  No case that can be brought. No case has to be defended.  

Absolute immunity exists for Judges, Prosecutors, and Legislators.  And Presidents.  If a President acts within the scope of his office, he can’t be personally sued for money damages.  As long as he is in office when he acts.  For example, when one of President Clinton’s large haired doxies sued him for sexual assault committed before he was President, the Supreme Court rejected his assertion of Absolute Immunity. Since the act was alleged to have happened before he assumed the Presidency he was required to defend against the suit. 

Qualified Immunity for lesser officials including police officers, provides less protection. But it relies on the same principles.

In Harlow vs. Fitzgerald decided in 1985, the Supreme Court in upholding that government officials are entitled to Qualified Immunity reasoned that the doctrine was justified by “the need to protect officials who are required to exercise discretion and the related public interest in encouraging the vigorous exercise of official authority.” The Supreme Court said, “Qualified immunity balances two important interests—the need to hold public officials accountable when they exercise power irresponsibly and the need to shield officials from harassment, distraction, and liability when they perform their duties reasonably.”  In other words so public officials and police officers aren’t fearful that if they act they will face a deluge of lawsuits.

Qualified immunity is not immunity from having to pay money damages, but rather immunity from having to go through the costs of a trial at all. 

Specifically, Qualified Immunity protects a government official from lawsuits in which conjured up, novel theories are advanced that some act of an official violated a person’s rights. The doctrine restricts such suits to only those where officials violated a “clearly established” statutory or constitutional right. When determining whether or not a right was “clearly established,” courts consider whether a hypothetical reasonable official would have known that a defendant’s conduct violated the plaintiff’s rights. Courts conducting this analysis apply the law that was in force at the time of the alleged violation, not the law in effect when the court considers the case.

For example, in Anderson v Creighton, a 1987 case, the Supreme Court held that when an officer of the law (in this case, an FBI officer) conducted a search which violated the Fourth Amendment that officer was entitled to Qualified Immunity if a reasonable officer could have believed that the search constitutionally complied with the Fourth Amendment.  It is not expected that a police officer has to know or anticipate the endless and obscure nuances courts have a tendency to append to legal rules. 

There is clearly a movement to deprive police officers the protections of the Qualified Immunity doctrine. Fortunately, so far at least, the Supreme Court has turned away invitations to do so. But the attacks will continue.  Like efforts to disarm, defund, and defame the brave and dedicated men and women in law enforcement, removing the basic protection of Qualified Immunity in which our officers must daily risk financial ruin if they act will further paralyze police from insuring we and our families are safe from the ever more violent bullying spreading through our society. 

For more writings by Phil Cline, visit philcline.com