UCLA Law Prof: Qualified Immunity Allows Police Officers to Violate Rights of Citizens, Contrary to Constitution

Image via UCLA Campus News Room

By Leslie Acevedo

LOS ANGELES, CA: Joanna Schwartz, a professor of law at University of California, Los Angeles, published Shielded: How the Police Became Untouchable this month and charged, “Ending qualified immunity would not usher in a golden age of police accountability,” but it would be a start.

The author describes a police encounter with Jayzel Mattos and her husband Troy in 2006, where police were of little help. Arguing and tension escalated, then, “Without warning, (one of the two officers) tased Jayzel in her hand and breast,” causing her to fall hard on the floor, losing consciousness.

Schwartz wrote “Jayzel sued Aikala and several other officers for excessive force and other misconduct, and both a trial court in Hawaii and the 9th Circuit Court of Appeals concluded that Aikala had violated the Constitution.”  

But the UCLA prof said proving Officer Aikala violated the Constitution was not enough, because the officer was protected by qualified immunity (protects police officers and government officials from being held accountable when they violate people’s rights).

Matto’s lawyer would have to find, argued Schwartz, a Supreme Court opinion or an opinion from this same court of appeals holding the use of tasing in similar circumstances was unconstitutional.

Schwartz writes because no prior court opinions with similar facts existed, “The appeals court judges dismissed Jayzel’s excessive-force claim, even though they believed Aikala’s decision to tase a potential domestic violence victim went ‘far beyond the pale’ and violated the Fourth Amendment.”

Schwartz also notes that last month, while people’s TV screens were filled with the murder of Tyre Nichols by police officers, “Horrifying images of a Black man killed by police are prompting impassioned pleas for more accountability and justice when officers violate the law.”

Said Schwartz, “Qualified immunity is squarely in the sights of many legislators and advocates.”

The author said after the murder of George Floyd, qualified immunity entered public consciousness. The House passed the George Floyd Justice in Policing act in the summer of 2022, which “[w]ould have abolished qualified immunity, among other important reforms.”

Republican Sen. Tim Scott opposed ending qualified immunity, as “[i]n August 2020, Indiana congressman Jim Banks introduced a bill to preserve qualified immunity.” 

But, added Schwartz, efforts to pass the George Floyd Justice in Policing Act failed after more than a year, as states who introduced laws ending qualified immunity would meet the same fate.  

Jim Banks’s predictions about the reality of qualified immunity are nothing new, as defenders of qualified immunity “[h]ave claimed that the defense is necessary to prevent courthouses from filling with frivolous lawsuits that would bankrupt well-meaning police officers for split-second mistakes, discourage people ever from agreeing to become police officers and push society into a lawless chaos.”

Schwartz said she has spent much of her academic career examining the justifications for qualified immunity and have found each to be false.

Schwartz adds qualified immunity was created by the Supreme Court in 1967, and in Pierson v. Ray, the “Court held that the officers were entitled to a “good faith” immunity in civil rights cases.” Chief Justice Earl Warren explains the immunity was necessary, since officers would be found liable when they mistakenly believed the law authorized an arrest.

Schwartz emphasizes officers are “entitled to qualified immunity even if they act in bad faith, so long as there is no prior court decision with nearly identical facts,” because courts are strengthening qualified immunity.

Schwartz writes the shift to qualified immunity came in 1982, in Harlow v. Fitzgerald, “To protect officers from having to participate in discovery and trial in ‘insubstantial cases,’ the Court held in Harlow that an officer’s intentions do not matter to the qualified immunity analysis, instead, officers are entitled to qualified immunity so long as they do not violate what the Court called ‘clearly established law.’”

Schwartz adds the Supreme Court’s decision in Harlow did not explain what it meant by “clearly established law,” because the Supreme Court has “[r]epeatedly reversed lower courts that have denied officers qualified immunity, chastising those courts for not appreciating the importance of qualified immunity to ‘society as a whole’ and arguing they misunderstood the ‘clearly established’ analysis” because they “failed to identify a case where an officer acting under similar circumstances as (the defendant) was held to have violated the Fourth Amendment.”

The Supreme Court in a 2009 decision made it more arduous for plaintiffs to find “clearly established law” by holding that lower courts could grant qualified immunity without first ruling on the constitutionality of a defendant’s behavior, said Schwartz.

The Supreme Court has instructed lower courts to grant defendants qualified immunity unless the plaintiff can find a prior case in which an officer violated the Constitution under nearly identical circumstances and has also instructed lower courts that they do not need to issue these types of constitutional rulings, making it hard to defeat a qualified immunity motion, she explained.

Schwartz writes defenders of qualified immunity point to the financial loss of police officers, saying it gives government officials breathing room to make reasonable but mistaken judgments on legal questions, it protects officers and spares them from participating in litigation, among other reasons.

President Joe Biden, at his State of the Union address, called on Congress to pass comprehensive police reform, stating, “Let’s commit ourselves to make the words of Tyre’s mother come true: ‘Something good must come from this,’” noted Schwartz.

However, Schwartz explains, Congressman Banks introduced his bills to focus on increasing police finding and training, to “[p]reserve qualified immunity on January 10, the day Tyre Nichols died, and Republican Sen. Tim Scott has called resurrecting the George Floyd Justice in Policing Act ‘a nonstarter.’” 

Schwartz adds, “Ending qualified immunity would not usher in a golden age of police accountability; there are many other shields that protect officers and local governments from being held responsible when they violate the Constitution.”

But, Schwartz adds, “If our lawmakers are going to ‘rise to this moment,’ as President Biden has asked them to, a key first step is to focus on facts, not fearmongering.”

About The Author

Leslie Acevedo is a senior undergraduate student at California State University, Long Beach, majoring in Criminology/Criminal Justice. She intends to pursue a Master's Degree in Forensic Science or Criminal Justice. She aspires to become a forensic investigator.

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