The one constant recommendation by critics of police brutality and those trying to find ways to mitigate the problem without, you know, rioting, looting and burning every time a black man is killed by police is to eliminate or sharply curtail qualified immunity. Taylor v. Riojas, handed down in November by the Supreme Court in a 7-1 decision, might do just that.
A government officer sued for damages on a claim of violating the Constitution, such as violating an individual’s civil rights, must overcome the defendant’s claim of immunity. Judges (and Presidents) have absolute immunity for their conduct in the pursuit of their duties, no matter how outrageous or incompetent. Legislators cannot be sued for their decisions as lawmakers. Prosecutors cannot be sued for prosecuting. Other government officers, like police officers, have qualified immunity if they are sued for money damages for harming individuals in the course of their duties.
The Supreme Court has set up a tough standard for plaintiffs to meet in order to establish liability. Overcoming qualified immunity requires that the defendant officer acted in violation of law and Constitutional principles that any reasonable government official should know, and that the civil right allegedly breached has been established beyond question.
In a 2018 case, District of Columbia v. Wesby the Court stated:
“Existing law must have placed the constitutionality of the officer’s conduct ‘beyond debate.’ This demanding standard protects ‘all but the plainly incompetent or those who knowingly violate the law.’ To be clearly established, a legal principle must have a sufficiently clear foundation in then-existing precedent. The rule must be ‘settled law,’ which means it is dictated by ‘controlling authority’ or ‘a robust consensus of cases of persuasive authority.’ It is not enough that the rule is suggested by then-existing precedent. The precedent must be clear enough that every reasonable official would interpret it to establish the particular rule the plaintiff seeks to apply.”
This extreme hurdle has proved nearly impossible to clear. From 1982 to 2020, the Court reviewed 30 qualified immunity cases. Plaintiffs prevailed in two.
Yet in the per curiam opinion issued last year (that means there are no signed majority opinion or concurring opinions) the Court signaled a major shift, and ruled that prison guards had no qualified immunity even though there was no precedent that would have alerted them that their conduct was illegal or unconstitutional.