The American right, of which I am proudly part, has an unfortunate tendency to reflexively defend law enforcement against all charges of misconduct. I suspect the impulse is an honest attempt to counter the left’s overstated condemnation of the police. But conservatives cannot grant blanket dispensation to state agents while claiming reverence for personal liberty. And even the most reasonable right-wing defense of policing is bound to fall flat under a legal system incapable of punishing malfeasant cops.
Qualified immunity is a judge-created legal doctrine that shields law enforcement from personal liability for constitutional violations. Under qualified immunity, civil liberties take a backseat to the protection of state actors. This notion should repulse any conservative.
Under qualified immunity, civil liberties take a backseat to the protection of state actors. This notion should repulse any conservative.
Section 1983, our primary federal civil rights statute, gives citizens recourse in federal court when a state actor violates their constitutional rights. In an act of judicial policy-making of the sort conservatives routinely rail against, the Supreme Court decided in 1982 that the statute only applies to “clearly established” rights, thereby creating a new legal doctrine of qualified immunity. Unless citizens whose rights are violated by a state agent can find a case with a near-identical fact pattern in which the violated right was affirmed, qualified immunity immunizes the offending officers from civil suit.
On their website and Twitter page, UnlawfulShield.com documents hundreds of instances in which qualified immunity protected law enforcement from prosecution, even when courts found that a rights violation occurred. In one of the doctrine’s most horrifying applications, qualified immunity shielded a pair of prison guards who locked a naked inmate in a cell covered in feces and raw sewage, without a bed or toilet, for six days. The Fifth Circuit Court of Appeals found a clear violation of the plaintiff’s eighth amendment right against cruel and unusual punishment but, without a similar case on the books, ruled that the defendants could not be held civilly liable for the violation.
In one stroke, qualified immunity violates two bedrock conservative principles: state accountability and civil liberties. American conservatism roots itself in the idea of a limited state, constricted chiefly by a set of fundamental rights set purposefully outside its reach. Qualified immunity spurns the conservative conception of government by privileging state agents at the expense of individual rights.
In one stroke, qualified immunity violates two bedrock conservative principles: state accountability and civil liberties … Qualified immunity spurns the conservative conception of government by privileging state agents at the expense of individual rights.
Faced with this philosophical inconsistency, conservatives often put forth a practical argument: removing qualified immunity would disincentivize necessary policing. Cops might choose not to enter delicate situations or opt against becoming officers in the first place.
This line of argument misses the mark for a few reasons. For one, there was no apparent shortage of law enforcement before 1982, when the Court created qualified immunity. Moreover, someone who chooses not to become a cop because he or she can’t act with impunity is ill-suited for the profession. We don’t have to claim ACAB to admit that certain cops should not be allowed a badge.
In raising legitimately ambiguous situations, conservatives misunderstand qualified immunity. Qualified immunity deals with whether a civil suit can occur at all; it has no bearing on the subsequent prosecution. Presumably, juries would be sympathetic to an officer in a precarious position and would apply the existing objective reasonableness standard.
Fortunately, we are not without recourse against this deeply harmful legal doctrine. Although the Supreme Court dropped the ball when it refused to reconsider its own invention, Congress has the power to set the record straight. Several representatives, including former Republican Justin Amash, have sponsored bills to end qualified immunity. These bills have garnered support from the left and center but cannot pass unless conservatives reject party politics and join the growing chorus against qualified immunity. And for the sake of our liberties and our professed principles, we ought to.