As a judge, I have to follow the Supreme Court. It should fix this mistake.

By James A. Wynn Jr.

James A. Wynn Jr. is a judge on the U.S. Court of Appeals for the 4th Circuit.

 

George Floyd’s unconscionable killing has properly brought renewed attention to the Supreme Court’s doctrine of “qualified immunity,” which shields law enforcement officers from civil lawsuits alleging excessive force. The judge-made law of qualified immunity subverts the Civil Rights Act of 1871, which Congress intended to provide remedies for constitutional violations perpetrated by state officers. Eliminating the defense of qualified immunity would improve our administration of justice and promote the public’s confidence and trust in the integrity of the judicial system.

I am not alone in my concerns about qualified immunity. Commentators — and justices — from across the ideological spectrum rightly contend that this doctrine has wandered far afield from the text of the Civil Rights Act. That landmark statute, enacted during Reconstruction, allows individuals to bring civil actions against state actors — including state and local law enforcement officers — for violating their constitutional rights. But two lines of Supreme Court precedent have rendered qualified immunity an increasingly insurmountable obstacle to individuals seeking legal redress for violations of their constitutional rights.

First, the Supreme Court has ratcheted up the standard a plaintiff must meet to bring a claim by requiring the plaintiff to show that the violation of his or her constitutional rights was “clearly established.” This means a plaintiff must demonstrate that the law enforcement officer’s challenged conduct was virtually identical to the facts of a previous Supreme Court or Court of Appeals decision finding a constitutional violation. The slightest factual variations can render a constitutional right not “clearly established” — meaning that the officer faces no civil liability for the violation.

Second, the Supreme Court has allowed, and even encouraged, lower courts to dismiss cases once they determine that a law enforcement officer’s challenged conduct did not violate a “clearly established” constitutional right — without ever deciding whether the conduct did in fact violate the Constitution. As a consequence, there are few judicial decisions against which to measure whether a law enforcement officer’s conduct amounted to a “clearly established” violation of constitutional rights.

In effect, those who allege that police officers have used excessive force are trapped in a never-ending self-fulfilling prophecy: They cannot sue officers who harm them because the harmful conduct has never been “clearly established” as a constitutional violation in a factually similar case. But because so many cases are dismissed without addressing whether the challenged conduct was in fact a constitutional violation, it is rarely “clearly established” that there was a violation.

This cycle prevents plaintiffs from pursuing their claims, gives officers little guidance on the contours of individuals’ rights and excuses ever more egregious conduct from liability...

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