In a remarkable CONTESTATION, a Federal Court of Appeals judge called for the abolition of qualified immunity, which he called “an unfounded, court-crafted doctrine.” Under qualified immunity, police officers and all other government employees cannot be prosecuted for violation of the Constitution unless they violated a person’s “clearly established” rights. This requires finding almost exactly identical cases as previous ones, which in turn creates an incredibly high bar for victims to cross.
“Qualified immunity is the law, and, unless and until the Supreme Court, Congress or both amend this doctrine, I am bound by it,” said Guido Calabresi, senior judge at the Court. Appellate for the United States Second Circuit and former Dean of Yale Law School. Nevertheless, he forcefully argued in an appendix “why the doctrine of qualified immunity – ill-conceived and erroneous – should disappear”.
Qualified immunity advocates often claim it is necessary to protect individual officers from financial ruin. But as Judge Calabresi rightly pointed out, “qualified immunity is largely irrelevant to the individual financial liability of agents” since “indemnification is the general rule and agents rarely pay anything”. The judge cited a thorough investigation by Joanna Schwartz, a UCLA law professor, who found that in 99.59% of civil rights cases, officers did not have to pay a penny in damages.
Given that qualified immunity unfairly denies compensation to victims, Judge Calabresi offered “a long-recognized better solution: to formally make the employer the defendant and the only one who pays”. After all, “the employer is in a better position to prevent future misconduct and errors and to ensure that violations of constitutional rights do not go uncompensated,” he added.
Not only is employer liability “the rule in most other areas of tort law,” but it is also becoming a reality for law enforcement agencies. In an innovative reform based on model legislation by the Institute for Justice, New Mexico prohibits qualified immunity for state constitutional claims and places the burden of paying the claims squarely on the government employer.
As a result, agencies in the Land of Enchantment are now increasingly under pressure to reduce liability costs, or face extremely high insurance rates. For example, the Washington Post recently reported that New Mexico’s largest risk pool, “which covers a third of the state’s police officers,” has hired a de-escalation instructor “after private insurance rates soared more than 60% “.
The case that sparked Calabresi’s dissent centered on William McKinney, who was beaten and shocked by officers and mauled by a police dog while in a jail cell in Middletown, Connecticut. As Judge Calabresi recounted, “McKinney was locked in a cell alone in department-issued pajamas; there was no risk that McKinney could escape or carry out threats against officers. After being attacked, McKinney suffered a scalp laceration and two large leg wounds that required staples and sutures.
To enforce his rights, McKinney sued the officers who deployed the K-9 unit, arguing that their actions inflicted excessive force in violation of the Fourth Amendment. However, the Second Circuit dismissed the lawsuit, saying McKinney’s rights were not “clearly established” at the time of the attack.
“Although the police may violate a clearly established law in initiate significant force against a suspect who merely resists passively,” the court said, “McKinney has not demonstrated that it is a violation of clearly established law for police to ensure that a violent suspect has been secured before withdrawal the significant force required to subdue the suspect.
In response, Justice Calabresi asserted that the majority distinction “has no place in precedent”. “The discussion should focus on the real issue, on when we want a city or state to pay an injured victim,” Judge Calabresi concluded, “and not on the bogus question of when officers’ liability is appropriate.”