today i got the opportunity to speak to a class of high school seniors in washington d.c about the ever-exciting topic of qualified immunity and they had some great questions about about the fourth amendment about civil rights law really gives me hope for the future that there is there are some great students coming along who are interested in learning about the constitution and that got me thinking what do we need to teach our kids to teach our students about things like qualified immunity you know most judges don't really understand the concept of qualified immunity most lawyers don't understand it and certainly most just general people out there and for that matter police officers as well don't really understand qualified immunity it's a very very difficult topic so what are section 1983 cases generally if a government officer violates a federally protected civil right the citizen has the legal right to sue to file a civil lawsuit against that police officer or that officer it doesn't have to be a police officer that was by a statute of congress passed in 1871 it allows for this lawsuit of damages so long as a federal protect federally protected right is violated by the officer you get at very least whatever damages you have plus your reasonable attorney fees and expenses so that's what section 1983 cases are qualified immunity is the defense that the supreme court created out of thin air for police officers generally to these lawsuits the qualified immunity doctrine is extremely confusing it's been described as a mayor's nest of complexity and confusion 155 lower federal courts are hopelessly conflict conflicted both within and among themselves as scholars have noted one circuit court judge reported that wading through the doctrine of qualified immunity is one of the most morally and conceptually challenging tasks federal appellate court judges routinely face so it's a difficult topic but what do we need to know it's a creature of judicial activism not congress it's the very definition of judicial activism and legislation from the bench it wasn't created until the supreme court case of pearson versus rey in 1967. it was modified mostly to its current form in harlow v versus fitzgerald 1982 and then modified again somewhat in pearson versus callaway in 2009. so that's three different primarily u.s supreme court decisions that have created this doctrine of qualified immunity it protects officials not only from money damages in one of these lawsuits but also from even being subjected to the burdens of participating in one of these lawsuits so discovery depositions and things like that what is very important to understand about qualified immunity it's that the officer's subjective motivation is irrelevant the standard is judged objectively that means that even if the government official knew that he was violating federal law and intended to violate the federal law that's not taken into consideration rather the court uses an objective analysis with the theoretically objective person objective police officer what he would have known about existing case law as of the date of the act that he committed the supreme court described qualified immunity as a fair warning standard and that is if federal law was clearly established the an official is theoretically on notice that violating that federal law may lead to personal monetary liability theoretically qualified immunity means that public officials are not liable for bad guesses in gray areas but they are liable for transgressing bright lines so that is from the case law that's what the courts have held another important thing to understand is it only can be asserted by individuals individual officers it does not apply to their employers it doesn't apply to political subdivisions cities or counties they can't assert qualified immunity in these civil lawsuits assuming there's a cause of action against them which is a whole other video and remember you can't sue the state of west virginia for instance for federal civil rights violations why because the 11th amendment of the constitution says that you can't that's 11th amendment immunity now the stated why did the supreme court create qualified immunity this is the important thing that we need to teach why did why did they create it there were two stated policy goals one to protect law enforcement officers from financial liability themselves and number two to avoid subjecting them to the costs to the burdens of trial and the discovery process qualified immunity cannot be justified as a means of protecting police officers from personal financial liability there was a yale study of 1183 civil section 1983 lawsuits where that showed that police officer defendants paid little to none of any settlement or verdict amounts out of the 44 largest law enforcement agencies that were included in the study which included 70 agencies overall the individual officers paid just 0.02 percent of the dollars awarded to the plaintiffs in those suits in the 37 smaller and mid-sized law enforcement agencies no individual police officer whatsoever contributed any amount to any award to a plaintiff during the period of the study all of the officers were indemnified by their employers even where they were fired or disciplined or even where they were criminally prosecuted for their conduct and that's been my experience as well generally secondly qualified immunity cannot be justified as a means of protecting police officers and government officials from the non-financial burdens of discovery and trial why studies show the same yale study shows that qualified immunity as a defense is rarely asserted early enough in the process to avoid them being drugged through the discovery process such as depositions overall just 3.9 percent of cases in the yale study resulted in dismissal of the case on qualified immunity grounds where it was even available as a defense just 0.6 percent of cases in the study were dismissed at the pre-discovery stage on qualified immunity grounds and remember the the second stated policy goal that the supreme court used when creating qualified immunity was that we need to allow police officers to avoid even being drugged through the process but look only 0.6 of cases were dismissed at the pre-discovery stage and qualified immunity grounds the overwhelming majority of all cases were not dismissed on qualified immunity grounds not even close therefore the existence of qualified immunity is not even serving that alleged policy goal of shielding government officials and primary police officers from the burden of participating as a defendant in these lawsuits unless of course you you consider 3.2 percent to be a substantial shield from litigation and to the contrary as the yale study argued it really has increased the negative public perception of a lack of equal justice in the justice system as a whole i've posted before that there's three basically steps to stripping a police officer of qualified immunity number one the officer's conduct has to have violated a federal statute or constitutional right not state federal and number two that the right was clearly established at the time of the conduct such that number three an objectively reasonable police officer would have understood that the conduct violated that right so which comes first until recently the federal appellate courts required a court to first determine whether or not a constitutional right had been violated and then to determine whether or not qualified immunity applies and but now as of around 2009 now courts are free to go ahead and agree that quali to rule that qualified immunity applies without even really going through the analysis of whether a constitutional right has been violated what is the what is the real world application of qualified immunity that people need to know one is that there's generally a grace period between a change in the case law a change in the law and the moment violating that law becomes clearly established for qualified immunity purposes secondly qualified immunity is generally a poor defense to excessive force claims so if a police officer is is is beating somebody unnecessarily that's not going to be generally a qualified immunity case it's going to be more the technical cases involving like search and seizure things of that nature so number three qualified immunity is a very effective defense in dealing with those technical fourth amendment search and seizure cases especially if it's sort of a gray area it's basically about mistakes so number four an officer's mistaken understanding of the law or the reasonable misapprehension of whether their conduct was constitutional or not that does provide a defense under qualified immunity so it it it it it applies to just really uh gray area sort of cases and is not supposed to apply to those sort of situations where everybody only every police officer should know that that sort of conduct violates a federal constitutional right so plea for instance of police beating cases or searching a house without a warrant really really clear-cut cases is where qualified immunity can be beaten so ironically qualified immunity ends up not being much of a borrower to a plaintiff in a lawsuit seeking to hold a police officer responsible for those cases that we see on the news like george floyd for instance there is no court in the land who would give that police officer qualified immunity why because it's it's it's obvious to any police officer that you're not allowed to engage in excessive force and there are a lot of cases to point to in the case law of similar sorts of conduct where the qualified immunity has been has been found to have been unconstitutional and been denied excuse me where qualified immunity has been denied and the conduct has been declared unconstitutional so i really would agree with the yale law review study that we don't need qualified immunity it is a creature of judicial activism congress did not pass it there were two stated policy goals neither of which are being served and the way it turns out is it's not really applying as a defense to the really bad cases that we're upset about it's applying in situations that are really unfair in practice you can contrast two recent examples of qualified immunity both of which i've posted about on my website at the civil rights lawyer dot com look at the post i did a few posts back on the sixth circuit denying qualified immunity for the rest of the man wearing the f the police t-shirt and that's from when in 2016 police officers in ohio pulled this guy out of a crowd because he was wearing an f the police t-shirt they taunted him about the shirt ultimately arrested him for so-called disorderly conduct eventually the 6th circuit court of appeals issued an opinion denying qualified immunity to those officers and the civil rights lawsuit remember how do you strip a police officer of qualified immunity one the conduct has to have violated a federal statute or constitutional right two the right was clearly established at the time of the conduct and three an objectively reasonable officer would have understood that their conduct violated that right so using that that three-step analysis in the f the police t-shirt case what rights were violated well the fourth amendment was violated there was a false arrest a warrantless arrest where there's no probable cause justifying that warrantless arrest that's a federal right that's violated in that case also you had the first amendment the 14th amendment due to the first amendment retaliation that took place the f the police t-shirt was constitutionally protected speech it's been clearly established as the court set out in the opinion that a state cannot criminalize the display of a four-letter expletive without more the facts were that they removed him from the crowd under an armed guard and that that obviously was would be sufficient to chill somebody's freedom of speech um therefore uh even looking at the officer's motivations and removing the plaintiff under armed guard and it indicated it was because of the shirt so it was constitutional to wear the shirt they they removed him under armed guard for wearing the shirt that is a sufficient action that to constitute retaliating on somebody and for their first amendment protected activities so therefore qualified immunity was denied for police officers unconstitutionally arresting the guy with the f the police t-shirt recent that's a recent case out of the sixth circuit now let's i also posted about one from the 11th circuit 11th circuit that's where the police officer granted qualified immunity after the shooting the shooting the innocent homeowner at the wrong address and i'll put links to to these decisions and my posts on these decisions in the description to review them also 2016 case out of henry county georgia that's where the police sergeant arrived at the wrong house from the shadows basically he ends up shooting and killing the innocent homeowner who was standing in his driveway trying to figure out what the dogs were barking at outside and he never said police or gave any indication to the homeowner that there was a police officer out there with a gun that was about to shoot him just shot first basically and the courts ended up denying call or granting qualified immunity for the officer and dismissing the lawsuit so why let's look at the same three steps number one the officer's conduct violated a federal statute or constitutional right number two the right was clearly established at the time of the conduct and number three an objectively reasonable officer would have understood that the conduct violated that right so number one what rights were violated well fourth amendment is the issue here this is uh excessive force analysis a deadly force analysis generally an officer may use deadly force if he has probable cause to believe that the suspect poses a serious threat of physical harm either to the officer or to others and that he's committed a crime or that he's committed a crime involving the infliction or threatened infliction of serious physical harm and two reasonably believes that the use of deadly force was necessary to prevent escape and three is given some warning about the possible use of deadly force if feasible so that is from tennessee versus garner that is the law of the land from the supreme court on police shootings so what did that say he's given some warning about the possible use of deadly force if feasible in the end that's where the court went with this is that the plaintiff claimed that police always under every circumstances have to give a warning before using deadly force and the court unfortunately i think it's the wrong decision but granted qualified immunity finding that you know that's not exactly the clearly established case law because the supreme court said if feasible the court explained that under some circumstances under under many circumstances the officer has an obligation to warn before shooting but not every circumstance and the way this the the facts played out in that case it was such that qualified immunity went in the in the other direction so like i said qualified immunity really like who who wins there when it really applies it applies under unfair circumstances there is no need as per the yell study for police officers to be shielded from this financial liability because they have no financial liability in practice there's insurance coverage important provided by the employers they indemnify any settlements or verdicts even where prosecuted police officers haven't been paying anything the second policy goal is not met as well because they're still participating in defense of the cases and the insurance policies the taxpayers are still paying anyways even with the qualified immunity defense to defend the cases because it for various reasons it is not asserted as defense or cannot be asserted as a defense effectively so it's not meeting any of the stated policy goals it's judicial activism that is really un-american and it's also really shedding putting a bad light on the the criminal justice system on police and law enforcement in general but those are that's about as quick as as i can explain qualified immunity in the context of you know what every student coming out of high school really ought to know or even college or even law school for that matter but it's very very difficult that's just the the really brief overview but hey that that's about the best as i can explain it but it was really it was really cool being able to talk to a group of students today in washington dc who are interested in this topic and i didn't get to even go into all that so perhaps they'll see this video and get to see you know my explanation of qualified immunity in general that we didn't even have time to go over so thanks for watching [Music]