JAMES: Want Law And Order? End Police Immunity

(Photo by Alex Wroblewski/Getty Images)

Daryl James Contributor
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Summer break turned violent for Amy Corbitt’s family on July 10, 2014. While the mother tended two children inside her home, her 10-year-old son played in the yard with others from the neighborhood in Coffee County, Georgia.

Suddenly, the boy found himself surrounded by police in pursuit of an unarmed suspect, who had wandered into the area. With weapons drawn, the officers ordered everyone onto the ground while they detained the man — a person Corbitt had never met. Her son complied and laid still. But the family dog, Bruce, had a harder time following instructions.

Without “any immediate threat or cause,” one sheriff’s deputy aimed his gun at the pet and fired two shots several seconds apart, missing both times. Two toddlers nearby escaped injury, but the second bullet hit Corbitt’s son in the back of his right knee.

Corbitt accused the deputy of reckless behavior in a federal lawsuit, but the 11th U.S. Circuit Court of Appeals gave the officer a pass in 2019. On Monday, the U.S. Supreme Court declined to intervene, ending Corbitt’s six-year quest for justice.

Her lawsuit against the officer hinged on a legal doctrine called “qualified immunity.” This judge-made rule, invented by the Supreme Court in 1982, shields police and other government officials from personal responsibility when they violate people’s constitutional rights — unless the rule is “clearly established” in prior cases.

Some courts require almost an exact match to meet the standard. Prison inmate Prince McCoy learned the hard way when a guard shot him in the face with pepper spray for no reason.

The 5th U.S. Circuit Court of Appeals held that the guard was entitled to qualified immunity even though his assault violated the Constitution. Why? Because although the court had previously condemned punching and tasing defenseless inmates, it hadn’t previously condemned pepper spraying defenseless inmates.

Despite the invitation for abuse, many law-and-order advocates support the lack of accountability. They argue that police need wide latitude to make decisions in high-stress situations without worrying about getting sued.

President Trump says ending qualified immunity is a “nonstarter” in police reform following George Floyd’s death, and his executive order signed Tuesday avoids the issue. Key Republican lawmakers agree with the position.

In actual practice, however, qualified immunity destroys law and order. Giving government officials permission to act in a lawless and disorderly manner can have no other effect.

As the nonprofit Institute for Justice has argued in Supreme Court petitions, qualified immunity sets up a two-tier system of justice. Instead of political equality for all, some in society become more equal than others. Carving out special privileges for an entire group also undercuts the ideal of individualism, allowing “us versus them” attitudes to fester.

Nobody wins.

Targets of police brutality and other forms of misconduct suffer because they lose the ability to seek justice for themselves. Government workers may face suspension, demotion, termination or even criminal prosecution for poor decisions, but the people they hurt have no control over internal discipline. They must rely on the integrity of a system that has operated for nearly 40 years with a key safety valve removed.

Qualified immunity also hurts public servants who seek to build relationships of trust in their communities. The job becomes harder, not easier, when rogue colleagues get away with outrageous behavior. Police will feel the difference the next time they need to conduct business in Corbitt’s neighborhood. Hundreds of other communities have endured similar betrayals.

Just in 2019 alone, courts used qualified immunity to excuse the destruction of an innocent woman’s home with gas grenades, the theft of $225,000 by police officers, the warrantless search of a doctor’s medical records, the punishment of a high school cheerleader for off-campus speech, and the solitary pretrial confinement of a 14-year-old child and the torture of a prison inmate left alone for six days in an “extremely cold” cell without a bed or toilet.

Although in the minority on the bench, Supreme Court Justice Clarence Thomas has developed “strong doubts” about qualified immunity and is ready to revisit the doctrine. In a dissenting opinion on Monday, he lays out the legal basis for such a challenge.

Champions of law and order should stand with Thomas. If the Constitution does not protect the ability of people like Corbitt to sue when her son gets shot, then the document loses its meaning. Rights without remedies become mere suggestions.

Daryl James is a writer at the Institute for Justice in Arlington, Va