In an all-but-forgotten story from 2019, the Ninth Circuit Court of Appeals — widely considered the most liberal federal court in America— let cops off the hook for stealing $225,000 from two business owners. This wasn’t a criminal case, of course. The idea that cops would face prosecution for stealing cash is practically unheard of. Rather, the court absolved them of all civil liability, meaning they didn’t have to pay the money back. The case was dismissed, never to be heard by a jury, and the officers never faced any meaningful consequences.
Qualified immunity, a judge-made hobgoblin long despised by civil rights lawyers, basically means that cops can get away with bad behavior if the law wasn’t “clearly established.” In other words, even if everyone knows an officer’s conduct is wrong, even if my 4-year-old knows not to do it, even if it violates all the established mores in the history of human society, the case is still a loser if there’s not an earlier court opinion saying “this specific thing is wrong.” There is, as it turns out, no case that says “it violates the Constitution for cops to steal your money.” And so, in Jessop v. City of Fresno, the Ninth Circuit reasoned that “although the City Officers ought to have recognized that the alleged theft was morally wrong, they did not have clear notice that it violated the Fourth Amendment.”
Cases like Jessop have earned qualified immunity some overdue public ire as of late. But while some politicians are finally paying attention, our hopelessly inert Congress is unlikely to do away with the doctrine anytime soon. And if judges like Clarence Thomas get their way (which they will, wait and see), the law is bound to get even worse. In a case called Hope v. Pelzer, a prisoner sued after he was tied to a hitching post and left to blister in the Alabama sun for seven hours with no bathroom breaks. Justice Thomas wrote a dissenting opinion in which he said he would grant qualified immunity to the guards because, while cases said it was wrong to tie a prisoner to a fence for hours, there was no case on hitching posts.
You can see how this doctrine can be contorted in favor of the government, even under the most absurd facts. Is there a case that says eating human flesh is wrong? If yes, is there a case about eating men as opposed to women? If yes, what about eating white men? No? Welp, looks like the law isn’t “clearly established,” so an officer can’t be sued for devouring a WASPish arrestee. Worse, a court doesn’t have to say whether the practice is unconstitutional to flush a civil rights case — it can just say the law is unclear without making any effort to clarify it, thus ensuring its unclarity for all time. How will we ever know stealing, torturing prisoners or cannibalism is wrong if the courts won’t say so?
But there’s another problem that goes deeper than the clearly-established prong; one that speaks ill of the judiciary overall, and of our entire system of laws. Judges don’t believe that bad behavior is unconstitutional. There are endless rows of rotten teeth which may be pulled from the mouth of federal caselaw, but a small sampling of my own cases illustrates the point.
Roger King was killed while sleeping on his couch by a Kentucky State Trooper named Eric Taylor. Taylor was tasked with serving a court summons on King. Taylor, not knowing he was being recorded, all but told a dispatcher that he was on his way to kill King who had been known to get into scrapes with police in the past. When Taylor got to King’s house, he went around to the back door. The story told by police was that King, who was lying on his couch, sat up and pointed a revolver at Taylor. One blast of a semiautomatic rifle went through the sliding glass patio door, into King’s face and pierced his medulla oblongata, which would have immediately robbed him of consciousness. Despite the hole in his head, King managed to lie back down, cover himself with a blanket, and lay his pistol neatly on his chest before dying. At least that’s how the body was found. Taylor didn’t get prosecuted, fired or disciplined in any way. He got a “Citation for Bravery” and a promotion.
By the time the King case got to court, the only living witnesses were the cops who participated in the killing. Their stories contradicted each other about basic details of King’s death and contradicted their own expert’s medical opinion. It didn’t matter. The case was tossed out because, in the trial judge’s view, since the cops said Taylor pointed a gun at them, there was no constitutional violation at all. And if there’s no constitutional violation, there’s no case. The “clearly established” analysis didn’t matter.
Another of my clients was locked up for over a year on a cold-case murder he had nothing to do with. He was friends with the main suspect, and police were convinced he would ultimately “flip”; that is, provide evidence against his friend. But he had no such evidence. He also had no money to post bond, so there he sat for a year awaiting a murder trial. At trial, not a single witness identified him. In his closing statement, the prosecutor argued that there was enough evidence to convict his co-defendant, but told the jury “please do not” convict my client, who was then in his early 20s. Even the prosecutor didn’t think he was guilty. He spent that time in jail because police wanted him there; that’s all. That wasn’t enough to establish a constitutional violation, though. Again, it didn’t matter whether the law was “clearly established” or not.
Qualified immunity should, of course, be done away with. But there are lots of tools in the judicial toolkit. If a judge wants cops to win, the cops will win. The current focus on abolishing qualified immunity is, in many ways, a distraction from the basic problems of our justice system. It’s another species of America’s favorite genus of argument: i.e., that resolving the symptoms is the same as the finding a cure. Just as training alone won’t fix cop culture, and voter turnout alone won’t fix the electoral system, the abolition of qualified immunity alone — assuming it ever happens — would be a shallow victory. The real change has to happen where the rot starts: on the federal bench, and deeper still.