Supreme Court, Officer And Clark Neily discussed on Vox's The Weeds
Senior politics reporter box and today. My guest is Clark. NEILY! Vice President for criminal justice at the Cato Institute today. We are talking about qualified immunity qualified. Immunity is the doctrine that has led to many police officers, not really facing the consequences of their actions. Through a protection that actually applies to all public sector employees, but is generally used most when it comes to policing, we talked about the history of qualified immunity. How the Supreme Court has invented an interpreted qualified immunity, and we talked about the challenges faced ending or eliminate unqualified immunity altogether so without further ado here is Clark neily. Clark Neily, thank you so much for joining me on the weeds. To be thanks so much for having me, so we're talking about qualified immunity, and it's interesting that we're doing this on this day. In which the Supreme Court has decided, it does not want to talk about qualified immunity, but I want to back up because there's been a lot of conversation about ending qualified immunity or changing qualified immunity, but no real conversation about what it actually is because I think a challenge from people's that qualified immunity is not a law. In fact, it's an interpretation of a law, and so I'd like to go a little bit into the history of of qualified immunity, which involves talking a little bit about section nineteen, eighty three. And so if you could kind of get us from this law that is passed in its earliest form in eighteen, seventy, one how we get from there to this moment in which qualified immunity exists the doctrine that no one likes, but the supreme. Court appears unwilling to challenge Yeah Lotta impact, but we can do it pretty quickly. The first question is you when you clothe. Government officials, including particularly police officers with these awesome powers the power to arrest the power to take life. Life and we equip them with weapons to that. It's incredibly important how much accountability comes with that, and as you noted in eighteen seventy one congress enacted what was then known as the Enforcement Act, otherwise known as the Ku Klux Klan Act and provided that Individuals Citizens Could Vindicate Their Rights in Federal Court by pursuing a civil lawsuit against the government official that they believed violated their rights, and it read the same then as it reads today, and here's how it reads. Any state actor that means anybody employed by the state, or by a city shall be liable to the party, injured for the deprivation of any rights shall be liable for the deprivation of any rights. And for variety of reasons, section what we now call a section, nine, hundred, eighty three. That's the language I. Just quoted didn't really do a lot of work. For many years the courts recruited a number of kind of obstacles to people who might WANNA pursue remedies in court, and it wasn't until the middle of the twentieth century that the court really started building out what we now recognize. It's kind of modern individual rights jurisprudence. That's really the first time that people would have had much opportunity to use section nineteen, ninety-three to really go, and try to vindicate their rights in court and right around that time the Supreme Court began to invent the doctrine called qualified immunity. Immunity and first case purported to be interpretation of the statute, in which the court held that police who act in good faith meaning they enforce a law that at the time they thought was valid, and only later is that law struck down well, they shouldn't be subjected to civil liability, and what started as a kind of a small, and probably to most people sensible sounding seed grew into this huge tree of injustice that we call qualified immunity and the real turning point was in one thousand, nine, hundred eighty two ks called Harlow in which the Supreme Court expanded this narrow exception to what we now recognize as the modern qualified immunity doctrine in. Here's the key move. As you recall the language of the statute says that a state actor she'll be liable to the person injured for the depredation of any rights. What the Supreme Court did effectively was to insert two words into that statute, and so now in order to sue a police officer or other government official. You have to show that the right in question was quote unquote clearly established so now you can only sue for the deprivation of a clearly. Clearly established right and those two words clearly established, do an astonishing amount of work in real life, because what they require and practical effect is for somebody who wants to sue a police officer or other government official to show that the precise thing that was done to you that you claim violates your rights was done to somebody else and a court in your same jurisdiction has already said that the exact same conduct is a rights violation. Anthem thing that was done to you isn't already the subject of a pre existing case. You are going to have your case thrown out of court on qualified immunity grounds. Even if everybody agrees that you rights were violated, that won't matter all that matters is whether you can point to this factually identical pre existing case, and if you can't, you are toast, it's interesting because if you go back and look at some of these cases, in which qualified immunity has played in qualified immunity involves a two part test, so there's the first part is were your rights violated and in so many of? Of these cases, the answer is absolutely yes. Amber, going to put a couple of these cases in the show notes, but one of the more notable ones is heart V, board of commissioners restrict place in Kansas, which involves the police mistaking allegedly gardening supplies for drugs, and so as we'll put this in this case, the court ruled. Yes, your fourth amendment rights were infringed upon, but those rights appeared not to have been clearly established that second part of that test, and it's interesting because all we have cases that will put in the show notes in which the police officers steal money from people. which is not just a violation of the civil rights of the individual, but also a legal in its own right. Why would a police officer not just violating the rights that they may not have hypothetically? Let's take that example may not have known about, but violating another law. You're not supposed to steal money from anyone. That's illegal in that case. Why would those officers have gotten qualified immunity? Yeah, this. That's exactly right, and it really is that perverse I. Mean you might think you and I are just caricaturing it. We're making stuff up. We're not making stuff up. That's an actual case. Case that one's called JESSOP versus city of Fresno California and you're exactly right. The Ninth Circuit held that it may be immoral, and everybody knows that it is immoral to steal because we don't have a case here in the Ninth Circuit that tells police officers that they cannot steal while executing a search warrant which what was happening in that case, then they get qualified immunity and your. We're not saying it's okay what they did. We're just saying that we have to grant qualified. Immunity dismissed the case because there wasn't a pre existing case on point, and that's I. think a really. Really powerful illustration of how completely unmonitored the qualified immunity doctrine has come from any rationale. This idea that you know it enables cops to avoid liability for split-second decisions. They make in the field. That's the classic rationale that's articulated for it, but the idea that police officers will make a conscious decision to steal somebody's personal property while executing a sort search warrant are entitled to any sort of legal protection is bonkers on yet. That's where we've gotten to. It becomes almost like a I. I think of qualified. Immunity is almost a I. It's not really even a legal. Legal framework anymore at simply a signal from the Supreme Court to the lower courts that they should bend over backwards engage in all manner of Creator reasoning to ensure that police and other government officials are almost never held liable, and then just sort of you know, work your way backwards from there, but be clear. That's the end result that you should reach in most cases, is that the police officer or other government officials should get a free pass from civil liability, and then you know you. The lower court judges workout how that happens so qualified immunity rests on the idea. That this is what English common law used to look like which is fascinating, because at no point, did anyone you? There was no congress that said actually government actors should have protections against liability. The argument is that they traditionally did. A little bit about that..