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What does qualified immunity look like?

In practice, qualified immunity makes it difficult for people to bring suits against police officers, to say nothing of winning them. Consider the case of Malaika Brooks:

In 2004, Ms. Brooks, a black woman who was seven months pregnant, was pulled over by the Seattle police for speeding while driving her 11-year-old son to school.

Ms. Brooks believed she had been wrongly stopped and refused to sign the ticket, thinking, mistakenly, that her signature would be an admission of guilt.

The officers then threatened to throw her in jail, twisted her arm behind her back and tased her three times first on her thigh, then in an arm and then in her neck before dragging her into the street, laying her face down and cuffing her.

Ms. Brooks sued the officers, and in 2011 a federal appeals court argued that a reasonable person could conclude that the officers had indeed violated her constitutional rights. But those same judges dismissed her case, arguing that no precedent had clearly established that tasing a woman in Ms. Brookss circumstances was unconstitutional at the time.

Ms. Brookss story is far from unique: An investigation by Reuters found that in the past 15 years, the courts have shown an increasing tendency to grant police officers immunity in excessive-force cases. The Supreme Court, for example, has denied immunity only twice in its 30 most recent relevant cases, according to George Will.

[Read the investigation: For cops who kill, special Supreme Court protection]

People all across the political spectrum, actually. Justice Sotomayor is arguably the Supreme Courts most left-leaning member, but her concern about police impunity is shared by one of the courts most conservative members, Justice Clarence Thomas.

From the right: In The Wall Street Journal, Robert McNamara, a member of the Federalist Society, raises the case of Shaniz West, an Idaho woman who gave her house keys to the police to search for her ex-boyfriend, who was wanted on firearms charges. He wasnt inside, but the police bombarded the house with grenades and shotguns until it was uninhabitable, leaving Ms. West homeless. Ms. West sued the officers for violating her Fourth Amendment rights, but her claim was rejected because of qualified immunity.

Nobody seriously believes that consent to enter a home is permission to lob grenades into it. But no court has ever decided the question, because as far as I can tell, this is the first time anybody has made the argument, Mr. McNamara writes. Since no court has considered it, qualified immunity means Ms. West loses. As long as an officials conduct is uniquely outrageous, its impossible to hold him liable for it.

From the left: In the New Republic, Matt Ford notes the case of three California police officers who were accused of seizing more than $275,000 in rare coins from a persons house while reporting that they had seized only $50,000. The federal Court of Appeals for the Ninth Circuit said the alleged theft of $225,000 was deeply disturbing, but it dismissed the suit anyway because it said no precedent had ever established that officers cant steal on the job.

See the rest here:
The One Police Reform That Both the Left and the Right Support - The New York Times