In a decision with potentially large ramifications, New York Federal Judge LaShann DeArcy Hall won't dismiss a libel suit against "Shitty Media Men" creator Moira Donegan.
Explaining, the judge says it is possible that Donegan created the entry herself. The judge believes that Elliott should be able to explore whether the entry was fabricated. Accordingly, discovery proceeds, which will now put pressure on Google to respond to broad subpoena demands. The next motion stage could feature a high-stakes one about the reaches of CDA 230.
Unqualified: The Winding Road of Qualified Immunity
Scene: After midnight in a small town Taco Bell drive-thru. Two trucks waiting their turn in line. Something occurs- maybe the truck in the back impatiently honked at the one in front of it, maybe someone stuck a middle finger out of a window. But something, because a few men jump out of each truck, ready to square off. One has a small bat in his hands, another a large Mag-Lite flashlight. A third man has nothing in his hands, because his arm is in a sling.
Two officers on foot patrol hear the ruckus and head to the Taco Bell. Just about the time they arrive, the two groups of men realize something: they know each other. They’re friends. The situation diffuses, but all the officers see on arrival are several men, some with make-shift weapons in hand, who had been yelling obscenities at each other moments before. Once on the scene, an officer orders the men to get face down on the ground. All the men comply immediately, save one. The man with the casted arm only goes to his knees, his broken arm in a sling in front of his body making it hard for him to go all the way down. The officer rushes up behind him, knees him in the back, and then hits him in the head with the butt of his service weapon, either once or three times, depending on whether you believe the officer or the man. In any event, the result was a gaping head wound requiring seven staples, and criminal charges of resisting arrest.
The subsequent civil suit ended up at the state Supreme Court, after the officer’s motion to dismiss on grounds of qualified immunity was denied. Because qualified immunity is intended to save a defendant the burden and expense of a trial, the claim is to be decided at the earliest possible stage of the case, and denial of relief entitles the officer to an interlocutory appeal -that is, an appeal brought during the course of a lawsuit rather that after its final judgment.
Qualified immunity: two words we hear often in the context of the rampant stories of police brutality (words that sound ridiculously trite in light of recent atrocities.) Most of us have some idea of what it is: protections enjoyed by government officials, including police officers, that often shield them from being successfully sued by those alleging a violation of his or her civil rights. Note that the doctrine is applicable to civil suits, not criminal, though criminal accountability is just as rare if not more so.
To understand QI, we go back to the Civil Rights Act of 1871, which first gave Americans the right to sue agents of the government for violating their constitutional rights. This right to sue is found in Title 42, Section 1983 of the United States Code:
Every person who, under color of any statute, ordinance, regulation, custom, or usage, of any State or Territory or the District of Columbia, subjects, or causes to be subjected, any citizen of the United States or other person within the jurisdiction thereof to the deprivation of any rights, privileges, or immunities secured by the Constitution and laws, shall be liable to the party injured in an action at law, suit in equity, or other proper proceeding for redress…
Though section 1983 has been around since 1871, it was a fairly obscure provision until the civil rights era of the 1950s and 60s. In 1961 the Supreme Court had occasion to interpret the statute when 13 Chicago police officers, having no warrant, broke into the residence of the Monroes, a black family with 6 children. The family was made to stand nude in their living room while the police ransacked their home before Mr. Monroe was taken into custody, detained for ten hours and interrogated about a murder before being released. The family filed suit under §1983 against the officers and the city, alleging deprivation of rights under color of law. Their case was dismissed at the trial and appeals court levels, but the Supreme Court reversed as to the officers, holding that §1983 permitted lawsuits against individual government actors for constitutional violations (its holding that §1983 did not apply to suits against municipalities would be overruled later.)
In 1967, the Supreme Court first articulated the underpinnings of qualified immunity in the case of Pierson v. Ray. In Jackson, Mississippi in 1961, a group of 15 clergymen, many of them black, used a segregated waiting room at a bus station and were arrested for “breach of the peace”. They were convicted in municipal bench trials. One of the defendants appealed and received a directed verdict of acquittal at a second trial, after which the cases against all of the co-defendants were dismissed. Subsequently, the clergymen filed a §1983 suit in federal District Court against the arresting officers and the justice of the peace who had found them guilty. The jury in the case found in favor of the officers and the justice of the peace. The clergymen appealed; the appeals court found that the justice of the peace enjoyed judicial immunity, but ruled in favor of the clergymen as to the police officers. The law under which the men had been arrested had been declared unconstitutional in 1965; even though this was long after the arrest and the trials, the Court of Appeals interpreted the ruling in Monroe meant that the officers could be held liable for an unconstitutional arrest, even if acting in good faith and in accordance with an active law. The officers appealed to the Supreme Court, who reversed the Court of Appeals, holding that “[T]he defense of good faith and probable cause which is available to police officers in a common law action for false arrest and imprisonment is also available in an action under §1983.” Qualified immunity for “good faith” acts by government officials was born.1
In Harlow v. Fitzgerald, a 1982 decision, the Supreme Court changed the test for qualified immunity: No longer would the test of QI be whether a government official acted in good faith; the Court held that “government officials performing discretionary functions, generally are shielded from liability for civil damages insofar as their conduct does not violate clearly established statutory or constitutional rights of which a reasonable person would have known.” A plaintiff in a §1983 action must prove that the right claimed violated was one that was “clearly established”, even if the government official was not acting in good faith.
The problem with this test is that “clearly established” is interpreted to mean that the same specific circumstances were recognized as a civil right in some prior court case. But since some case has to be first, it is a self-defeating loop.
“Government officials performing discretionary functions are shielded from liability for civil damages insofar as their conduct does not violate clearly established statutory or constitutional rights of which a reasonable person would have known. A policeman’s lot is not so unhappy that he must choose between being charged with dereliction of duty if he does not arrest when he has probable cause, and being mulcted in damages if he does.” Syllabus, Bennett v. Coffman, 178 W.Va. 500, 361 S.E.2d 465 (1987).
Thus cited the Supreme Court of the State of West Virginia in its decision in favor of the police officer who split open the man’s head at Taco Bell. The Court faced two questions: whether the officer’s conduct violated the victim’s constitutional rights; and whether that right was so clearly established that a “reasonable officer” would have known his actions violated that right.
In determining whether the force used was justified, the Court accepted the undisputed facts: There was an altercation, which had only just abated as the officers arrived. Two of the 6 men present held potential weapons. From there, the Court opined that ordering the men to lie flat was reasonable, and that the man in the cast “has demonstrated no constitutional basis for failing to comply” with the order. The officer had no reason to know that the man’s broken arm in a sling made doing so difficult. Also, maybe that cast could be used as a weapon (the ensuing criminal complaint did in fact describe the plaintiff as “armed with a cast.”) Therefore, the Court concluded that the use of force was justified, and that there was no basis to believe “that a reasonable officer would be on notice under these circumstances that the conduct complained of was unlawful.”
It is worth mentioning more about this officer. Several years prior to this incident, while working for the police department of a nearby town, the same officer killed a woman when he sped through the city’s downtown area, without lights or sirens, right through an intersection and into another car traveling legally through the same intersection. He pleaded guilty to two misdemeanors–speeding and failing to use his emergency lights–resigned, and left the state. The woman’s husband received almost 2 million dollars from the city in settlement of his lawsuit (I don’t know whether the issue of QI was ever raised prior to the settlement; my hunch is the city thought it best to settle quietly.) A few years later, the officer returned to the state and took the job he had at the time of the Taco Bell incident. He remained with that department until 2018, when it was alleged that he had been engaging in sexual acts in his cruiser and had provided alcohol to underage persons- including an 18 year old girl with whom he had a relationship and whom he met while acting as a school safety resource officer at the local high school.
Even if the Court knew all of the above, it would not have factored into their decision in the excessive force case, because qualified immunity turns on what is deemed objectively reasonable, without regard for the subjective motivations of a particular officer. It doesn’t matter what this officer’s real intentions were, or whether he sincerely thought the man with the broken arm was a threat. The force was justified- and the pistol-whipping therefore crossed no clearly established constitutional lines.
Wrote the Court:
Moreover, a contrary conclusion would leave law-enforcement officers acting at their peril in such uncertain situations where quick action is often required. As the Fourth Circuit recognized in Maciariello v. Sumner, 973 F.2d 295, qualified immunity should serve to shield law enforcement officers from “bad guesses in gray areas; they are liable for transgressing bright lines.” No bright lines exist in this case.
Bad guesses in gray areas; that is what qualified immunity was designed to protect. Shooting at a suspect who raises a gun, only to learn afterward that the gun is a toy. Chasing down and forcibly detaining a person who matches the description of a sought perpetrator, but finding out it is the wrong man. These are bad guesses, and without qualified immunity, an officer involved could face the burden and expense of protracted litigation. But somewhere along the way, the doctrine was twisted to shield officers from consequences of actions that no one can seriously argue were ambiguous in their wrongness.
In the matter of Jessop v. City of Fresno, Fresno police are alleged to have stolen $225,000 from two businessmen. The Ninth Circuit ruled against the businessmen in their suit for damages, holding that there is no clearly established constitutional right under the 4th or 14th Amendment, not to have one’s seized property stolen by the police. Theft is a crime; everyone knows it’s wrong; it is biblical in its wrongness. But because there exists no prior case which specifically held that theft of seized property by the government is a violation of civil rights, the citizens cannot sue. The Supreme Court of the United States just denied certiorari in Jessop.
There are several other QI petitions in the queue right now, waiting for SCOTUS to decide whether or not to hear them. Meanwhile, our country burns, literally and figuratively, with anger at yet another death of a black American at the hands of police. There is more consensus this time; nearly everyone agrees that George Floyd was murdered. The cop who killed him was arrested relatively quickly, as far as these things go. And like every time this happens, the call goes out to end qualified immunity, once and for all.
But QI has far more reach than just law enforcement officers. Many civil rights suits under §1983 are wrongful termination of employment disputes (Harlow v. Fitzgerald, for example); many are filed by prisoners regarding various aspects of their confinement. Basically, anyone who feels their rights have been violated by a government employee can file a §1983 action; QI was meant to weed out nuisance suits and frivolous claims before the defendant expends much effort or money on the matter (Read: your money, because most of the time these lawsuits are defended by insurance companies who represent the government entity, especially in local government- at least until they find a way to convince the court to let them deny coverage.)
And though it is not popular to consider, especially right now, there is a rationale that QI helps officers feel free to legitimately do their jobs without fear of constant lawsuits. Not every claim of police brutality or wrongful arrest is valid; QI was established to weed those out quickly. But the doctrine has evolved into an untenable beast that, instead of protecting good cops, allows bad cops to act with impunity from civil liability. Perhaps if more abusive and corrupt cops faced criminal charges, or even job loss and loss of LEO certification, civil liability would be of less concern. As it is, a lawsuit is often the only avenue of accountability left.
What is the answer? We could simply do away with qualified immunity altogether; after all, a skilled lawyer has other avenues available to get a meritless case tossed before trial. There’s the 12(b)(6) motion to dismiss for failure to state a claim upon which relief can be granted — a personal favorite. And there’s summary judgment, which can be argued on various grounds that do not involve immunity. Abolishing QI does not create carte blanche for lawsuit abuse.
On the other hand, we don’t want officers to hesitate to act when they should because they fear legal consequences, or for government agencies to continue to employ incompetent or unscrupulous employees out of fear of a vindictive lawsuit.
Perhaps there is a middle ground. For example, good faith seemed to be a fair and workable test; revert to that and do away with the two-prong test articulated in Harlow, or at least remove the requirement of specific precedent to show a right has been “clearly established.”(I.e., it should not be necessary for a court to have specifically held that cops stealing money from suspects violates their 4th amendment search and seizure rights in order to bring a civil rights claim.). That might help rebalance the system.
The Courts are pretty far down this dark road, though, and finding our way back to a balanced approach is far from an illuminated path. With the current bounty of QI cases awaiting consideration by the justices, let’s hope the Court takes this opportunity to fix what’s broken.