Did police violate your constitutional rights when they stole your money? Well, maybe, but there isn’t a lot of case on point, so bye. Yes. That is basically how “qualified immunity” works. The idea is police, or any state actor really, need to be able to carry out their duties without worrying if they’ll get sued. If the law does not clearly warn them that whatever act they intend to carry out is illegal, they should not have to second guess their decision to proceed. Qualified Immunity doesn’t just relieve police of the fear of losing a lawsuit, it relieves them of the concern of going through the process of a civil lawsuit at all. So regarding police stealing your money, unless there is clear precedent in case law or a clear statute on point, the act of theft may be immoral, it may even be unconstitutional, but a lawsuit could still get thrown out because … qualified immunity. The court need not make any decision as to the constitutionality of the act.
The catch 22 that appears obvious, and many others have noted, is that if courts throw out these cases, how can precedent ever be established?
In some cases, the rule can be established through the criminal process. If police entered your house without a warrant and found drugs, you could challenge the use of those drugs as evidence against you in court. But what if you aren’t prosecuted. Maybe the drugs belonged to a guest in your house and you were unaware they were there. You feel violated and want to challenge the police entry into your house. You could sue them, but if the police successfully argue that nothing in any statute or previous case law made it clear that their entry was a violation of your rights, a court would simply throw out your lawsuit because of qualified immunity. Maybe their conduct was unconstitutional, but the court may never even bother with that question.
A real world example: A few years ago, Fresno police officers seized money, with a warrant, but, allegedly, stole most of it. Because the warrant allowed officers to seize money on the premises that could have been used in illegal activities, there was nothing unconstitutional about their taking the money. But, they allegedly took a lot more money than they reported, and may have later pocketed it for themselves. The law only says that they need to have a warrant or some other legal reason to seize the money, it doesn’t say much about what they must do with what they’ve found afterward. Because of that, the officers were protected by qualified immunity and could not be sued for the theft. Their actions might have been immoral, even criminal – though try to get the Fresno prosecutor to file charges on that one – but they could not be the basis for a civil suit against the police based on a constitutional violation.
There are ways to reverse this troubling trajectory. One is for legislators to pass laws, potentially going as far as to strip law enforcement of qualified immunity altogether. Unfortunately, police unions have had great success preventing widespread adoption of such legislation. Courts, however, are not completely impotent, even when they lack precedent.
For some time, courts were required to decide the issue of whether some act violated the Constitution, before then deciding whether the rule was well-established. No more. The Supreme Court decided that process was often cumbersome and unecessary.
So, the police stole your money?
Yes.
Well, there’s no clear precedent.
OK, but I think stealing my money should be considered an unconstitutional violation of my rights.
We’re not touching that.
It’s basically an invitation for police to keep stealing people’s money.
But the Supreme Court did not bar courts from deciding the constitutionality question, it just declared that it was not necessary. As long as it is permissible to decide the constitutionality of an act, it seems imperative that sympathetic courts do that whenever they can. These courts should be declaring acts, such as stealing legally seized money, to be unconstitutional. It might not help the victim in that particular case, but it could help future victims facing similar circumstances. Even if case after case is thrown out because of qualified immunity, the courts would still be building a panoply of case law giving police notice that their acts are subject to suit.
In two cases this month, the Supreme Court reversed lower courts on qualified immunity grounds. The lower courts had found, not just that qualified immunity did not save the cops, but also that their conduct was unconstitutional.
In reviewing these cases, the Supremes did not address whether the acts violated the Constitution, only that it didn’t matter because the precedent cited was not enough to put police on notice that their conduct was clearly unconstitutional.
We need not, and do not, decide whether the officers violated the Fourth Amendment in the first place …
Rivas-Villegas v. Cortesluna
Compare that to a case like Ashcroft v. Al–Kidd, where the Court explicitly reversed the lower court on its “unconstitutional” finding, because it did not want lower courts to be making “constitutional decisions at the frontiers of the law,” without the highest court in the land having the opportunity to chime in.
So fine. Let them chime in. In fact, force them to by explicitly deciding the constitutional question. Doing so puts law enforcement on notice about future conduct regardless of whether qualified immunity applies.
Obviously it helps to have legislators explicitly strip law enforcement of qualified immunity. But it isn’t entirely true that the courts are in a bind in the meantime. Courts can still decide that police conduct is unconstitutional, even if they also declare that the police cannot, yet, be held liable for said conduct. Even at the Supreme Court, if the majority refuses to address the constitutionality of the act, concurring and dissenting justices should have their say on the matter. Judges and justices who care, ought to be taking every opportunity to do this.