Fix qualified immunity travesty that lets police off the hook after violating civil rights

Our View: The absurdity of qualified immunity is obvious in the hair-splitting distinctions the courts make to give officers a free pass.

The USA TODAY Editorial Board

After police followed an unarmed robbery suspect into Amy Corbitt’s Georgia yard, they ordered four young children — at gunpoint — to lie face down on the ground. When a deputy sheriff spotted a pet dog, which Corbitt said “posed no threat,” he shot at the dog twice and missed. The second shot hit Corbitt’s 10-year-old son lying less than 2 feet from the deputy, causing a serious leg injury. 

Corbitt sued to hold the deputy liable for excessive force that violated her son’s constitutional rights, but she ran into a hurdle so high that it has stopped thousands of people from holding police accountable for unconstitutional acts.     

A federal appeals panel threw out Corbitt’s case, with a majority granting the deputy “qualified immunity.” Why? Because Corbitt failed to find a prior case with the same facts where a court ruled an officer violated the law by accidentally shooting a bystander. Thus, there was no “clearly established” law against the deputy’s actions. 

Police brutality 

A dissenting judge had a more sensible take on the events of July 10, 2014: “Facing no apparent threat (the officer) chose to fire his lethal weapon in the direction of these children. No reasonable officer would engage in such recklessness” or “think such recklessness was lawful.”

The Supreme Court declined to review the case last year, shutting Corbitt out of court. And no officer will be deterred from such reckless conduct in the future.  

In the wake of George Floyd’s murder last year and protests over police brutality, a once-obscure legal doctrine has turned into a rallying cry in the drive against excessive force.

George Floyd's daughter, Gianna Floyd, her mother, Roxie Washington, and House Speaker Nancy Pelosi in Congress on May 25, 2021, the first anniversary of his murder by police.

Created by the Supreme Court in a series of rulings starting in 1967, qualified immunity means if a victim wants to sue police – or any government official – she must find a case from the Supreme Court or in her federal circuit (the United States is divided into 12 circuits) where a court ruled that the exact same situation violated constitutional rights. If she can’t, those rights are not considered clearly established and the courtroom door is barred.

Outrageous court rulings

The doctrine has critics from across the ideological spectrum  – from Supreme Court Justice Sonia Sotomayor, perhaps the court’s most liberal justice, to Justice Clarence Thomas, its most conservative. 

The absurdity of qualified immunity is obvious in the hair-splitting distinctions courts make to let police officers off the hook. Among the most outrageous:

Officers in Fresno, California, allegedly stole more than $225,000 in cash and rare coins while executing a search warrant, but a federal appeals court ruled that “not all conduct that is improper or morally wrong violates the Constitution.” If that's not an unreasonable seizure, what is?

►A Mississippi sheriff’s deputy picked up a mentally infirm man who had been walking down the middle of a highway, drove him to the county line and dropped him off on a road at dusk. Later that night, the man was struck and killed by a car. But his heirs found no case where an officer was previously held liable under the same circumstances.

►A Los Angeles detective coerced a 13-year-old into confessing to a murder he didn’t commit, leading to his conviction and more than three years in detention. After the conviction was overturned, his mother sued, but a federal appeals court threw out one of her claims, concluding that while the detective’s “overbearing interrogation” came close to “psychological torture,” it lasted for “under two hours,” not the extended time of other interrogations ruled unconstitutional. Fortunately, the court let other parts of her case go forward.

Job for Congress

Not only do these decisions fail to stop police from similar egregious conduct in the future, they also fuel the public anger and distrust that make it harder for good officers to do their jobs. 

The Supreme Court could toss out qualified immunity but has repeatedly passed up that chance. In the past year, the court has taken a few baby steps to modify the doctrine, but it could take years for that to make a substantial difference.

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Fixing this travesty is a job for Congress, after lawmakers promised police reform in response to nationwide calls for change. The House passed a measure that among other changes would eliminate “qualified immunity” for law enforcement officers, but most Senate Republicans have sharply objected.

If police are going to keep — or regain — the public support they need to enforce the law, they must no longer be given a free pass when they violate citizens’ civil rights.

This editorial is part of a series by the USA TODAY Opinion team examining the issue of qualified immunity. The project is made possible in part by a grant from Stand Together. The opinions offered are those of the USA TODAY Editorial Board. Stand Together does not provide editorial input.