Sunday, May 3, 2020

Qualified Immunity: A Free Pass for Abuse?

project      Trent Taylor served six days of his 11-year prison sentence for aggravated robbery in  Texas prison cells in what his lawyers describe as unconstitutionally filthy conditions: the floor in one covered with human feces and forced to sleep naked in the other in a pool of sewage backed up from a clogged drain. Taylor claims in a federal civil rights suit that guards at the maximum-security prison in Huntsville, Texas, were deliberately indifferent to conditions that amounted to prohibited “cruel and unusual punishment” under the Eighth Amendment.
      Surely, any parent who punished a child in similar conditions for a single day or even a single hour could be prosecuted for criminal child abuse. The federal appeals court for Texas has ruled in a prior case that punishment along these lines covering a period of months amounts to a constitutional violation, but Taylor’s six days of confinement in early September 2013 was not enough for the court to find a constitutional violation.
      Instead, the Fifth U.S. Circuit Court of Appeals ruled for the officers in Taylor’s case under a doctrine known as qualified immunity that gives government officials one free pass for constitutional violations without an identical precedent. The three-judge panel acknowledged some “factual disputes as to a constitutional violation,” but ruled for the officers on the ground that the applicable law “wasn’t clearly established.”
      Taylor is asking the Supreme Court to review the decision — the latest in a pileup of petitions urging the justices to reconsider qualified immunity, a judicially created doctrine dating from the 1980s with no explicit legislative authorization. The appeals court ruled in the guards’ favor on the ground that earlier decisions about unconstitutional prison conditions involved “longer periods of confinement” and thus did not clearly establish a constitutional violation under the precise circumstances of Taylor’s confinement.
      Taylor’s petition for certiorari, filed on April 24, caught the attention of Marcia Coyle, the National Law Journal’s ever watchful Supreme Court correspondent, who included it in a story compiling other, similar petitions pending before the justices. Those cases include other examples of seemingly unconstitutional conduct by law enforcement officers excused by lower courts under the qualified immunity (QI) defense. In West v. Winfield, for example, an Idaho woman, Shaniz West, sued local police officers for what she termed the “destruction” of her home in a SWAT-style raid in August 2014 after she had agreed to let the officers inside to look for her not-present fugitive ex-boyfriend.
      West is being represented in appealing the Ninth Circuit’s decision by lawyers from the libertarian Institute for Justice as part of its Immunity and Accountability Project. The project, according to the institute’s website, “is devoted to the simple idea that government officials are not above the law; if citizens must follow the law, then government must follow the Constitution.” Qualified immunity routinely comes under attack in litigation from civil liberties groups on the political right, including the Cato Institute, and on the political left, such as the American Civil Liberties Union (ACLU).
      The doctrine has critics on the Court itself — from justices as ideologically diverse as Clarence Thomas and Sonia Sotomayor. Thomas voiced “growing doubts” about the Court’s qualified immunity jurisprudence in his separate opinion in Ziglar v. Abbasi (2017) as the Court cited qualified immunity for one reason to block civil rights suits against federal officials for the post-9/11 round-up of Arab and Muslim immigrants. Thomas argued in the mid-June decision that the application of the doctrine should turn on the question of whether 19th century common law would have recognized immunity.
      Two months earlier in the same term, Sotomayor had voiced concern about what she called a “disturbing trend” in favoring police officers in qualified immunity defenses. Sotomayor’s comments came in dissenting from the justices’ refusal to hear a Texas man’s effort in Salazar-Limon v. City of Houston (2017) to revive a suit for injuries sustained when a Texas trooper shot him as he was fleeing possible arrest.
      “We have not hesitated to summarily reverse courts for wrongly denying officers the protection of qualified immunity in cases involving the use of force,” Sotomayor wrote in the April 24, 2017, opinion. “But we rarely intervene where courts wrongly afford officers the benefit of qualified immunity in these same cases.”
      In its modern form, qualified immunity dates from the Court’s 1982 decision in Harlow v. Fitzgerald, which extended qualified but not absolute immunity to Nixon White House aides for their alleged role in firing a whistleblowing Air Force contractor, Ernest Fitzgerald. In his opinion for the Court, Justice Lewis F. Powell Jr. stated the holding in these terms: “[G]overnment officials performing discretionary functions, generally are shielded from liability for civil damages insofar as their conduct does not violate clearly established statutory or constitutional rights of which a reasonable person would have known."
      In another of the pending cases, a Tennessee man, Alexander Baxter, represented by ACLU lawyers, is asking the Court to revive his suit against Nashville police officers for injuries sustained after they unleashed a police dog on him as he was trying to surrender with his arms raised in the air. The Sixth Circuit extended qualified immunity to the officers in rejecting the suit. The justices are scheduled to consider Baxter’s appeal, Baxter v. Bracey, in their May 15 conference: the sixth relisting since October 2019. The Cato Institute and an ideologically diverse group of law professors are urging the Court to hear the case.

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