Did you know that a doctrine known as “qualified immunity” shields local and state police from accountability? Federal cops enjoy an even broader, absolute immunity based on recent Supreme Court rulings that have eroded an earlier 1971 Supreme Court decision that allowed some lawsuits. Each of the federal circuit courts interprets prior high court rulings in its own way. In several cases, judges have shown common sense, allowing citizens to find a remedy when a federal cop violates their rights. Still, the weight of the law favors the feds.

Bizarre rulings in the Fifth and Eighth Circuits establish that, unless a federal incident exactly mirrors the 1971 case of Webster Bivens—a man who was handcuffed, arrested, and later strip-searched by federal agents after a warrantless search of his home—people whose rights are trampled by a federal officer have no remedy available to them.

As a result, the Constitution does not protect from abuse by federal police the millions of citizens residing in Texas, Louisiana, Mississippi, Minnesota, Iowa, Missouri, Arkansas, North Dakota, South Dakota, and Nebraska—all of whom fall in the districts covered by the Fifth and Eighth Circuits. This split among the courts means that Americans’ rights now depend on where they happen to live.

Image by DALL-E AI.

How bad is it?

Consider this headline from a June 21, 2022, press release from the Institute for Justice: “Supreme Court Ignores Constitutional Violations by Federal Police, Green Lights Absolute Immunity Even in Cases Dealing with Attempted Murder and Well-Documented Lies by Officers”

One petition to the Supreme Court sought to overturn a ruling from the Eighth Circuit appellate court granting immunity to a federally deputized St. Paul, Minnesota police officer whose well-documented lies cost Hamdi Mohamud, a teenage Somali refugee, two years of her life. When a rogue federal law enforcement officer lied about and manipulated facts, she was condemned to two years in federal prison: “My life was never the same since the time I got arrested. They took my life away.”

Kevin Byrd is another person who was entangled with a rogue federal law enforcement officer. He petitioned the Supreme Court, asking it to reverse a Fifth Circuit decision that granted immunity to Ray Lamb, a Department of Homeland Security agent, who tried to shoot and kill Byrd to prevent the latter from asking questions about Lamb’s son, who was involved in a drunken car crash the night before. Of his experience with Lamb, Byrd said, “I thought I was going to lose my life.”

This is sobering stuff, especially when juxtaposed with the weaponization of federal agencies. A 2020 report from Open The Books, describes “The Militarization of the U.S. Executive Agencies.” It explains,

There are 458 ‘Special Office of Inspector General Agents’ within Health and Human Services (HHS) armed with sophisticated weaponry and trained by military Special Forces contractors.

[snip]

Why did HHS purchase four million rounds over the last eight years and stockpile five submachine guns? And what about the 800,000 rounds purchased by the Social Security Administration (SSA)?

According to the Heritage Foundation, you can “[a]dd the U.S. Department of Education to the list of federal agencies that can invade your home at gunpoint and hold you and your family in custody for hours.”

The reason for this warning was because of a bizarre 2011 incident in California. Federal “education” agents busted down the front door of his Stockton, California, home for a paramilitary-style raid because his estranged wife, who didn’t live with him, allegedly misused federal aid for students. Wright’s three children—3, 9, and 11—were at home and sequestered in a patrol car for two hours, while Wright was in custody for six hours.

Said a neighbor, “They all had guns. They dragged him out in his boxer shorts, threw him to the ground and handcuffed him.”

Qualified immunity also makes it difficult to win civil damages against local and state police for misconduct, a right Americans first gained in 1871. That year, Congress passed a law allowing lawsuits against state and local authorities who refused to protect African Americans from terrifying lynchings. In 1967, the Supreme Court limited that right by invoking this so-called “qualified immunity” doctrine that now makes it very difficult to win civil damages against local and state police. For example, one of the requirements to win damages against a police officer for unlawful conduct, including the use of excessive or deadly force, is that the case must be factually almost identical to a previous one where the police were found guilty (the “clearly established law” threshold).

How far will the courts go to avoid convicting a police officer? Very far.

In 2014, Nashville police officers released a police dog on a suspect after he had surrendered and was sitting with his hands raised. The man sued for damages to compensate for his multiple injuries. To satisfy the “clearly established law” requirement, he relied on a previous decision holding that officers had violated a person’s rights when they released a police dog on a man who had surrendered by lying down.

Now, to any normal person, the case would be a slam dunk. But that’s not how things turned out. Instead, the court held that, in the cited case of “clearly established law,” the victim was in a prone position when a police dog was sicced on him, but the victim in the challenging case was sitting instead of lying down. Therefore, he was denied compensation!!

In another 2014 case, a court granted qualified immunity to an officer who used a “takedown maneuver” against a small woman who was trying to assist her daughter, who was fighting with a third party. The officer slammed the woman to the ground, breaking her collarbone and rendering her unconscious. The court noted that, while past cases were similar, there was no precise set of circumstances where “a deputy use[d] a takedown maneuver to arrest a suspect who ignored the deputy’s instruction ‘to get back here.’”

When the woman sued to hold the officer accountable for blatant excessive force, the court granted qualified immunity to the officer, and the badly injured woman was left without means of redress.

It is certainly true that police officers must make difficult, on‐the‐spot decisions under conditions of danger and uncertainty. But the fact is that, under a 1989 Supreme Court decision, existing legal standards already exist for determining whether a constitutional violation occurred in the first place already take into account on‐the‐spot police decision‐making. In Graham v. Connor, the Court held that lower courts cannot second guess instantaneous on‐the‐spot policing decisions.

Even as police sometimes need to be protected from the public, so too do members of the public need to be protected from police who abuse their authority. Too often, though, the qualified immunity doctrine lets police brutality go unchecked, denying victims their constitutional rights.