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A once-obscure legal doctrine, qualified immunity, is under scrutiny in Spokane and Congress in police reform debate

UPDATED: Tue., June 16, 2020

Demonstrators protest Thursday, June 4, 2020, on the West Front of the U.S. Capitol in Washington, over the death of George Floyd, a black man who was in police custody in Minneapolis.   (Associated Press)
Demonstrators protest Thursday, June 4, 2020, on the West Front of the U.S. Capitol in Washington, over the death of George Floyd, a black man who was in police custody in Minneapolis.  (Associated Press)

On an August afternoon in 2014, Shaniz West came home to find her house in Caldwell, Idaho, surrounded by police officers. They were looking for her ex-boyfriend, who was wanted on firearms charges.

She told them she didn’t think he was there, but – after an officer threatened to arrest her for harboring a fugitive if he was – gave them her keys and said they were welcome to go inside and check.

Instead, according to court filings, police called a SWAT team and repeatedly bombarded her house with tear gas grenades. About five hours later, police entered the house. By then they didn’t need the key West had given them; the door had been shattered by a grenade.

Police confirmed what West had told them was true: The man wasn’t there. Only her dog, Blue, was inside. When she was allowed to enter her house, she found it destroyed, with holes in the walls and ceiling and surfaces covered in debris, shattered glass and tear gas residue.

With their belongings destroyed and their home unlivable, the city of Caldwell, about 25 miles west of Boise, gave West and her two young children just $900 and paid for three weeks in a hotel. West sued the city for violating her constitutional rights under the Fourth Amendment, which protects citizens against unreasonable searches and seizures.

No reasonable police officer, West argued, would take her consent to go inside her house as permission to destroy it.

But a judge ruled against her, and when she appealed the decision, the Ninth Circuit Court of Appeals agreed: The court said it didn’t matter whether the police had acted lawfully, only that no case in the Supreme Court or Ninth Circuit had “clearly established” that sufficiently similar conduct violated the Constitution.

What happened to West was unusual, and that was exactly the problem. Because of a legal doctrine called qualified immunity, judges have little choice but to rule in favor of police and other government officials unless a court has already found a virtually identical act to have violated someone’s civil rights.

In the conversation about police reform in the wake of George Floyd’s killing in Minneapolis and the nationwide protests that have followed it, that previously little-known doctrine is suddenly in the spotlight, and ending it is one of the few proposals with some bipartisan backing.

It’s also likely to be debated locally. Spokane City Council President Breean Beggs said Monday that the council may unveil a proposal this week to end qualified immunity for city employees.

But while critics say it represents a major barrier to holding law enforcement accountable for misconduct, defenders of qualified immunity say eliminating it would deny an important protection that government employees need in order to do their jobs.

In Congress, multiple bills are seeking to do away with qualified immunity, which creates a broad, though not absolute, shield protecting police officers and other government officials from civil lawsuits over actions taken while doing their jobs.

The protection applies to all executive-branch officials, while the other two branches of government – legislative and judicial – enjoy absolute immunity from lawsuits.

One piece of legislation, championed by Libertarian Rep. Justin Amash of Michigan, a former Republican, has so far gained the support of 54 co-sponsors , including several Washington Democrats. Amash’s bill would do away with qualified immunity for all state and local officials, not just police. Just one Republican, Rep. Tom McClintock of California, had signed onto the bill as of Monday evening.

The broad police reform package unveiled by Congressional Democrats on June 8 would also throw out the doctrine – though only for law enforcement – but writing on Twitter on June 6, Amash urged a piecemeal approach to reform.

“We should vote on each proposal separately,” Amash wrote. “Massive bills with dozens of topics aren’t serious efforts to change law. They’re messaging bills with no expectation of getting signed.”

But Sen. Tim Scott of South Carolina, who is leading Senate Republicans’ police reform efforts, told CBS on Sunday that ending qualified immunity is a “poison pill” that GOP senators would reject. A week earlier, on June 7, Attorney General William Barr suggested the White House also opposes such an effort.

“I don’t think you need to reduce immunity to go after the bad cops,” Barr said on CBS, “because that would result certainly in police pulling back.”

In recent weeks, it looked like the Supreme Court, which established the doctrine of qualified immunity in a 1967 ruling, was also rethinking it. Justices Sonia Sotomayor and Clarence Thomas, widely seen to be at opposite ends of the court’s ideological spectrum, had both expressed criticism of the doctrine.

As the sole dissenter in a 2015 case in which the court granted qualified immunity to an officer who ignored orders and shot and killed a fleeing driver, Sotomayor wrote, “By sanctioning a ‘shoot first, think later’ approach to policing, the Court renders the protections of the Fourth Amendment hollow.”

Thomas, a staunch “originalist” who tries to interpret the Constitution as its writers meant it without regard for changing conditions, had expressed doubts about the relatively novel doctrine, invented by judges a little more than 50 years ago.

Shaniz West’s case was one of at least eight qualified immunity cases the justices were considering hearing, and the growing attention to the issue led to speculation that the court may take action. An ideologically diverse alliance of groups including the libertarian Reason Foundation, the left-wing ACLU and the right-wing Americans for Prosperity came together to oppose qualified immunity.

But on Monday, the court refused to hear all eight cases, including West’s, letting lower courts’ rulings stand. Sotomayor joined her colleagues in turning down the cases, but Thomas dissented, writing, “I continue to have strong doubts about our … qualified immunity doctrine.”

The nationwide protests against police misconduct in recent days have brought another wave of calls to end the broad protections for police, but Jason Gillmer, professor of civil liberties and director of the Center for Civil and Human Rights at Gonzaga University School of Law, cautioned that dismantling qualified immunity could have sweeping consequences.

The goal of the doctrine, Gillmer explained, is “to provide some amount of protection for public officials so that they are not unduly hampered with the threat of litigation from doing their job.”

Because the protection applies for any executive-branch official, it also shields, for instance, environmental regulators against lawsuits from polluters trying to keep them from doing their jobs.

Rocky Treppiedi, a Spokane lawyer who has defended police officers in private practice and in his former role as assistant city attorney, said he sees a contradiction in what lawmakers are calling for.

“On the one hand, they’re saying we need excellent people to be police officers,” Treppiedi said. “We need the best of the best and we need lots of them. And then you strip away this type of defense. How many of those good folks are going to step forward or stay in a profession if the first time they get sued, they’re not allowed to use the qualified immunity defense?”

Treppiedi emphasized that qualified immunity applies only in civil lawsuits and does not prevent officers from being criminally prosecuted.

“Qualified immunity still requires the officer to act lawfully,” he said. “Why are you going to strip an officer of a defense which requires them to act lawfully?”

The qualified immunity doctrine as it exists today didn’t emerge all at once. Not long after the end of the Civil War, Congress passed the Civil Rights Act of 1871, intended largely to protect African Americans from the Ku Klux Klan and other white supremacist groups. The law allowed someone whose constitutional rights were violated by a government official to sue for damages in civil court.

In 1967, the Supreme Court invented qualified immunity to protect government officials who were acting “in good faith” when they violated someone’s civil rights. Fifteen years later, the court widened the shield, deciding that even acts committed maliciously were protected so long as the right that was violated had not been “clearly established.”

That meant that even if someone’s rights were violated, the government official wasn’t liable unless a court had determined that person’s rights had been violated in the same “specific context” by the same “particular conduct.”

“It’s not enough just to say, ‘Well, you can’t use excessive force under the Fourth Amendment,’ ” Gillmer explained. Instead, the question is: “Under these circumstances would the police officer know that he or she is violating this person’s Fourth Amendment rights?”

Gillmer said a court is supposed to consider what a “reasonable” officer would know is unlawful, not whether a particular officer knows what they did was wrong, and he emphasized that the protection is not absolute. But in practice, courts’ decisions have stretched the meaning of “reasonable.”

Qualified immunity has been invoked to protect officers for using a Taser to get a pregnant woman out of her car, shooting a 10-year-old child while trying to shoot the family’s dog, and stealing $225,000 in cash and rare coins during a raid.

A recent investigation by Reuters found that in 252 cases where judges considered qualified immunity from 2015 to 2019, they granted the protection more than half the time.

Momentum seems to be building to address qualified immunity. On June 10, a coalition of 1,400 pro athletes, coaches and front-office executives – including NFL quarterbacks Tom Brady, Dak Prescott and Drew Brees – signed a petition supporting the effort.

Senate Republicans are on the brink of unveiling their own police reform bill. The Senate Judiciary Committee, whose members include Idaho GOP Sen. Mike Crapo, will hold a hearing Tuesday to consider a range of police reform proposals.

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