Shared from the 6/4/2020 The Denver Post eEdition

Qualified immunity is killing civil rights


The political right is very fond of loudly and repeatedly announcing “We only want federal judges who interpret the law, not make the law. That’s judicial activism and we won’t stand for it!” Unless, of course, that “activism” includes injecting the judge-made doctrine of “qualified immunity” into the civil rights laws, which results in the wholesale dismissal of perfectly valid complaints lodged against brutal cops.

How does this game work?

In 1967, the Supreme Court decided that cops needed protection from liability brought by changes in the law. An example would be if before Miranda warnings were required and a cop didn’t read a suspect his rights, that cop shouldn’t be liable for that unpredictable change in the law. That makes perfect sense.

In the 1970s, however, a conservative Supreme Court took this doctrine and ran amok with it, developing what is now known as “qualified immunity.” Today, based on nothing but the activism of conservative Supreme Court justices, to have a case, people seeking to vindicate their civil rights need to pass what I call the “dumbest cop on the force” test. First, a plaintiff needs to show the court that there was in fact a civil rights violation. Not usually a big problem for lawyers. The second hurdle is where the plaintiff has to show that the action complained of is prohibited by “clearly established” case law.

This is where the legal shenanigans begin. To show that the law being violated was “clearly established” a plaintiff has to show a prior U.S. Supreme Court case, or a case from the circuit court of appeals where the incident occurred, which is directly on point with what happened to the plaintiff standing before the court. Colorado examples abound. I recently filed a lawsuit in federal court where my female client was groped sexually by a guard in a Colorado prison. Colorado moved to dismiss on the grounds that while there is “clearly established” law telling the dumbest guard at DOC that he can’t rape female prisoners, there is no case directly on point from the Supreme Court or the 10th Circuit (covering Colorado) that he can’t sexually grope female prisoners.

We had to show the court that there was a case on point or our case would be dismissed. In a ludicrous debate, the Supreme Court has wrestled with the “complex” notion that they have “clearly established” that a sheriff can’t handcuff a prisoner to a chain link fence in the hot sun until the prisoner is nearly dead, but when a cop does it to a hitching post and not a fence, should the cop be liable?

To the average person with a lick of common sense, the answer is obvious, but not to the federal judiciary. What is “clearly established” is in the eye of the beholder. If you have a judge with a pro-cop agenda, there is almost nothing that is “clearly established,” and case after case gets dismissed.

The plot thickens because courts have started playing the game of refusing to “clearly establish” anything. They will first find that there is no case on point and then duck the issue of whether what the cops did in fact violate the constitution. To be “clearly established” a court has to find a constitutional violation and now, because they won’t decide whether there was or was not any violation, nothing is being “clearly established.”

To duck the issue, all they have to do is say “no clearly established case on point. Case dismissed.”

If we want our civil rights to mean anything, the doctrine of qualified immunity has to be eliminated. The plain words of the law don’t confer this immunity. The Colorado legislature is now considering a civil rights bill, and qualified immunity needs to be gone if our rights are to be vindicated. Congress needs to stop it federally.

David Lane has been a civil rights attorney for 40 years and is a partner with the Denver law firm Killmer, Lane & Newman, LLP

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