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Curbing Immunity for Police Could Affect School Employees as Well
The national dialogue about racial injustice in the aftermath of the death of George Floyd in Minneapolis police custody has brought renewed attention to “qualified immunity,” a legal doctrine that some advocates believe has helped insulate police officers from accountability for misconduct. Qualified immunity comes up when individual government officials are sued in federal court by someone asserting that his or her constitutional or statutory rights were violated “under color of law.” ...But any major changes to that doctrine would also likely affect another group of government workers: public school educators.
Curbing Immunity for Police Could Affect School Employees as Well
by Mark Walsh, Education Week, June 11, 2020

The national dialogue about racial injustice in the aftermath of the death of George Floyd in Minneapolis police custody has brought renewed attention to “qualified immunity,” a legal doctrine that some advocates believe has helped insulate police officers from accountability for misconduct.

But any major changes to that doctrine would also likely affect another group of government workers: public school educators.

Qualified immunity protects certain classifications of government officials from personal liability, including money damages, in civil lawsuits in federal courts, as long as the conduct in question does not violate clearly established statutory or constitutional rights of which a reasonable person would have known.

The doctrine is available not just to police officers—including school police officers—but to any government official exercising discretionary functions, and that includes teachers, principals, superintendents, and school board members. Some of the U.S. Supreme Court’s most significant decisions outlining the contours of qualified immunity have come in K-12 school cases, and educators routinely invoke it when they are sued, sometimes successfully and sometimes not.

But qualified immunity is under growing criticism from scholars, advocates, and even Supreme Court justices on the left and right, and the high court is weighing whether to take up one or more of nine pending appeals that ask for a broad reconsideration of the doctrine. In the wake of Floyd’s death, the Democratic police reform bill in Congress would eliminate qualified immunity for police officers, and Republicans are also looking at the doctrine.

“There is an unjust and indefensible double standard when it comes to accountability” for law enforcement officers, educators, and other government officials, said Clark Neily, the vice president for criminal justice of the Cato Institute, a libertarian think tank in Washington that has helped lead the charge for doing away with qualified immunity.

“This double standard has been a contributing factor in the anger and frustration spilling out into the streets,” Neily said.

For education groups, the debate is a bit delicate. Most have issued statements recommitting their support for racial equality after the death of Floyd, but likely would be reluctant to have the protections of qualified immunity stripped from their members.

Several education groups contacted by Education Week to discuss qualified immunity, including AASA, the School Superintendents Association, and the National School Boards Association, declined an interview request on the topic, and others did not respond.

“Qualified immunity is inherently a balancing act,” said Thomas Hutton, the interim executive director of the Education Law Association, a group for professors who teach school law as well as lawyers and some K-12 educators
Hutton, a former staff lawyer for the NSBA and a former state charter school official in Hawaii, said care would need to be taken in eliminating or scaling back qualified immunity for educators.

“It’s good to have a healthy discussion of where to strike the balance” between protecting individual rights and shielding officials from personal liability, he said. “But if you are going to suggest that public servants can be sued personally when they’re just trying to do their jobs and where the law is debatable even among lawyers and judges, that bodes ill for how we provide government services.”

Balancing ‘Two Important Interests’
Qualified immunity comes up when individual government officials are sued in federal court by someone asserting that his or her constitutional or statutory rights were violated “under color of law.” That right to sue comes from the Civil Rights Act of 1871, a Reconstruction-era law enacted in part to help battle the Ku Klux Klan. Such claims are known as Section 1983 claims for the law’s place in the U.S. code.

The doctrine of qualified immunity became available much later, beginning with police officers in the 1960s and other government officials after that. In 1975, in Wood v. Strickland, the Supreme Court recognized qualified immunity under Section 1983 for a school board member who was sued over the expulsion of three students. And in 1982, in Harlow v. Fitzgerald, the court overhauled the doctrine and held that government officials performing discretionary functions had qualified immunity based on an objective standard that their conduct did not violate clearly established rights about which a reasonable person would have known.

In a 1986 decision involving the police, Justice Byron R. White summarized qualified immunity as protecting “all but the plainly incompetent or those who knowingly violate the law.”

More recently, in a 2009 decision, Justice Samuel A. Alito Jr. observed for a unanimous court that “qualified immunity balances two important interests—the need to hold public officials accountable when they exercise power irresponsibly and the need to shield officials from harassment, distraction, and liability when they perform their duties reasonably.”

Qualified immunity does not apply to school districts or other agencies often sued in civil rights cases. They have other immunities or defenses they can raise. And the federal doctrine does not apply in state court actions, though some states offer similar immunities to individual defendants.

Qualified immunity has figured prominently in some landmark school law cases in the Supreme Court.

In Morse v. Frederick, a 2007 case involving a student who displayed the infamous “Bong Hits 4 Jesus” banner, Chief Justice John G. Roberts Jr. expressed dismay during oral arguments that the high school principal who had disciplined the student was denied qualified immunity by a lower court.

“Your client wants money from the principal personally for her actions in this case,” the chief justice told the student’s lawyer.

Ultimately, Roberts wrote the opinion for the court holding that schools could restrict pro-drug messages without running afoul of the First Amendment. Thus, the court held that it did not need to decide whether the principal was entitled to qualified immunity.

A 2009 Supreme Court decision illustrates a common situation in cases brought under Section 1983. A court may find a constitutional violation but go on to hold that the official who was sued merits qualified immunity because the law was not clearly established at the time of the infraction.

In Safford Unified School District v. Redding, Justice David H. Souter wrote for the court that a search of a middle school girl’s underwear for painkillers violated her Fourth Amendment right to be free from an unreasonable search, “but because there is reason to question the clarity with which the right was established, the official who ordered the unconstitutional search is entitled to qualified immunity from liability.”

Recent School Cases
A search of federal court records reveals that qualified immunity is regularly invoked by educators and officials in a range of school conflicts, a recent number of which involve school resource officers.

In a decision just last month, a federal district judge in Texas granted qualified immunity to a school resource officer who handcuffed and used his body weight to subdue an 85-pound 5th grader with autism who was acting out and would not leave his classroom at his teacher’s direction.

In tossing out the family’s Fourth Amendment excessive-force claim, the judge wrote in Brown v. Coulston on May 29 that prevailing precedent shows “that there is no clearly established law that a police officer may not handcuff or otherwise use his body weight to restrain a student, including a student who has special needs and is repeatedly disruptive, combative, noncompliant, and resisting the officer’s commands.”

Last year, a federal district court in New Mexico granted qualified immunity to a school resource officer who shot his Taser in an attempt to restrain a 13-year-old student with autism who had begun to “shut down” and was wandering away from campus. The judge ruled in Gutierrez v. Albuquerque Public Schools that there was no unconstitutional seizure because the student continued to walk after being tased until he reached the car of a school aide, and thus the officer was entitled to qualified immunity.

However, a federal district judge in West Virginia earlier this year denied qualified immunity to a school resource officer who pinned a 14-year-old student to the floor of a school hallway “with an elbow at his neck and a knee on his back” for about 20 seconds while he searched for the student’s cellphone, which school officials thought might contain nude photos of a female student that had circulated. (A search of the phone’s contents found no such photos.)

Ruling on Jan. 29 in Z.F. v. Adkins, the judge held that the student provided enough evidence that the officer had used excessive force to send the case to a jury, and that “a middle school student posing no imminent risk of harm has a right to be free from excessive force, and that the right was clearly established” when the incident occurred.

In a case involving a school administrator, a federal appeals court ruled in February that a California principal was entitled to qualified immunity against allegations by an undocumented immigrant mother that the principal threatened to call immigration authorities if the mother complained again about the school’s lunch policy.

A panel of the U.S. Court of Appeals for the 9th Circuit, in San Francisco, said in Doe v. Pasadena Unified School District that the principal’s alleged threat “may be unseemly and unbecoming of a school principal.” But the principal merited qualified immunity because under 9th Circuit case law, “parents did not enjoy a ‘clearly established’ right to be free from a school official’s threats.”

Critiques From Right and Left
These school cases are not among the group of nine pending petitions that ask the Supreme Court to reconsider the qualified immunity doctrine. The high court appeals mostly involve alleged police misconduct, including one case in which a 10-year-old child was shot in the leg by an officer aiming at the family’s barking dog after police had chased an unarmed criminal suspect into a yard. Another involves a 17-year-old youth walking around a neighborhood with a gun who was shot and killed by police who feared, in part, he might be a threat to a nearby school.

In several of the cases, groups across the ideological spectrum have joined in a friend-of-the-court brief urging the justices to reconsider the scope of qualified immunity.

The groups include the Alliance Defending Freedom and Second Amendment Foundation on the right, the American Civil Liberties Union and the NAACP Legal Defense and Educational Fund on the left, as well as the Cato Institute.

Qualified immunity “is a textually and historically baseless doctrine that represents pure judicial policymaking,” said Neily, of Cato. “Our position is that the Supreme Court ought to, in effect, clean up its own mess.”

Joining the advocacy groups are a number of scholars who have raised questions about qualified immunity in recent years. And members of the court have raised concerns about the doctrine.

In a 2017 case, Ziglar v. Abbasi, conservative Justice Clarence Thomas wrote a concurrence to say that the court’s qualified immunity rulings have gone beyond the common-law immunities that were available when the Section 1983 statute was adopted in 1871.

“In an appropriate case, we should reconsider our qualified immunity jurisprudence,” Thomas wrote.

In a 2018 decision in which the court summarily granted qualified immunity to a police officer involved in a fatal shooting, liberal Justice Sonia Sotomayor dissented and said there was a “disturbing trend” of the court being quick to intervene to overturn lower-court rulings when officers were denied immunity.

The doctrine was being transformed into “an absolute shield for law enforcement officers,” Sotomayor said in Kisela v. Hughes, in an opinion joined by liberal Justice Ruth Bader Ginsburg.

Hutton, of the Education Law Association, said there is room for courts to improve the way they apply qualified immunity doctrine without eliminating it, such as by ruling on more underlying constitutional questions so that officials have a better sense of what has been “clearly established.”

“I would have some caution here,” he said.

The Supreme Court’s Insidious Development of Qualified Immunity
by Nimra Azmi, Justsecurity, June 12, 2020

The American policing and criminal justice system is a complex machine, soldered together from a variety of tools and tactics of oppression. By purpose, design, and effect, the system bars access to justice and equality, especially for people of color and the poor. Some of its tools are obvious: a heavily militarized police and systematized degradation of Black lives and the lives of other people of color. Some tactics, however, are subtler. Among these less visible measures is the odd legal doctrine of qualified immunity, which has recently drawn increased attention — including legislative proposals for its repeal — in the wake of widespread protests following the killing of George Floyd.

A doctrine developed through a series of judicial decisions, several of which are discussed below, qualified immunity, shields public officials — including police officers, prison staff, and federal agents — from liability for constitutional violations unless a “reasonable officer” would have believed that the unconstitutionality of his actions was “clearly established” at the time of his offense. During litigation, this translates to a simple question: is there a legal precedent in the relevant jurisdiction that clearly says that the officer’s actions are unconstitutional? In another twist, this means that if an officer is the first person to violate someone’s constitutional rights in a particular way, he can escape civil liability. Qualified immunity thus lives in a strange, fictional universe where law enforcement officers, police departments, and prisons refine their actions based on each new court decision. In reality, the actions of officers and departments are written more by broad policies as well as prejudices held personally and communally.

In endless examples, after victims of state violence finally clear the hurdles necessary to get into court — from surmounting potential language and financial barriers to securing counsel — qualified immunity slaps them back. For example, in May, a Reuters report highlighted the case of Johnny Leija, a mentally ill man killed by an officer while hospitalized for pneumonia. When Leija refused to accept treatment, the hospital called the police. Upon arriving, the police first shot Leija with a taser. When Leija turned his back, an officer tackled him to the ground and tasered him again. As he straddled Leija, the officer forced Leija face down to the floor. Leija died of suffocation. Leija’s family sued, alleging that the officer’s conduct violated the Fourth Amendment’s bar against excessive force. While the district court and appeals court initially found for Leija’s family, following the Supreme Court’s intervention, the Tenth Circuit essentially found that tasering, tackling, suffocating, and killing an unarmed mentally ill hospital patient was not “clearly established” as illegal. The officer walked away.

The result is preposterous, a miscarriage of justice of the highest order. It is also entirely normal, a natural and foreseeable result of qualified immunity.

Qualified immunity has deep roots in the lack of accountability for police officers engaged in racist and suppressive conduct against Black Americans. As applicable to constitutional violations, the doctrine developed in Pierson v. Ray (1967), a case brought by black and white clergymen who went on a 1961 prayer pilgrimage through the South to advocate for integration. When these clergymen tried to use a segregated bus waiting room in Jackson, Mississippi, a police officer arrested them. The clergymen sued pursuant to 42 U.S.C. § 1983, a key Reconstruction-era civil rights statute that allows lawsuits against state and local officials who deprive a person of their civil rights while acting under “color of law” and under which many cases involving questions of qualified immunity are brought. In response, the officer claimed that he sincerely believed that his conduct was legal.

Although it did not hold that qualified immunity protected the defendant officer, the Supreme Court established that state officers who commit violations in “good faith” and with “probable cause” can raise qualified immunity as a defense under § 1983. The Court has subsequently concluded that qualified immunity also protects federal employees from civil rights lawsuits brought against them.

Since then, qualified immunity’s protections for officers have only expanded. The doctrine has grown as a barrier to justice in three intertwined ways.

First: Whereas in Pierson the Court found qualified immunity to apply on the twin predicates of “good faith” and “probable cause,” those boundaries have blurred and disappeared. Instead, the Court began to utilize the “reasonable officer” and “clearly established” standards. The Supreme Court’s 1982 decision in Harlow v. Fitzgerald, a case concerning Nixon aides, highlights that transformation. The Harlow Court constructed qualified immunity as a device “need[ed] to protect officials” and to “encourage the vigorous exercise of official authority.” The use of vigorous is telling. Qualified immunity is not intended to promote careful decision-making by those in trusted public roles. Rather, it aims to protect officials as they run up against and even cross constitutional lines. Far from a shield, qualified immunity is a tool in the arsenal, an ace in the hole, a get-out-of-jail free card. As applied to policing and prisons, this tool has yielded deadly results.

Second: The Supreme Court encourages the “vigorous exercise of official authority” by defining with increasing narrowness what it means for a law to be “clearly established.” This leads to results that run counter to clear principles of justice, as exemplified by the outcome of Leija’s case. In a per curiam decision, the Supreme Court instructed the Tenth Circuit to reconsider its original favorable outcome for Leija in light of Mullenix v. Luna, in which the Court noted that the qualified immunity analysis must be performed based on the case’s specific context and “not as a broad general proposition.”

But that can prove challenging. As the context that courts demand victims provide becomes increasingly specific, so-called “broad general proposition[s]” of constitutional rights and liberties are lost in a formalistic inquiry that does not hold justice, restitution, or accountability at its heart. To wit, in Ashcroft v. al-Kidd the Supreme Court held the plaintiffs seeking to refute qualified immunity must offer “existing precedent” that places the legal question “beyond debate.” But this is the law we’re dealing with — as any law student would tell you, lawyers operate in analogies and distinctions where virtually everything is subject to debate.

As defendants in litigation, police officers and prison officials have made good use of the fertile ground laid by the Supreme Court. They continuously seek a more cramped understanding of rights and a broader application of immunity for violations of those rights. As such, more and more public officials are able to be deemed the “first” to have violated a constitutional right in a specific way and, as a reward for their ingenuity, they escape legal liability.

Third: Prior to 2009, courts engaged in a two-step analysis, established in 2001 by the Supreme Court in Saucier v. Katz, to decide whether qualified immunity applied. First, a court determined whether an officer’s actions had violated the Constitution. Then, the court evaluated whether qualified immunity applied — that is, whether the right at issue had already been “clearly established.” In 2009, in Pearson v. Callahan, the Court eradicated the requirement that courts first adjudicate whether the government official’s conduct ran afoul of the Constitution. In a majority opinion by Justice Alito, the Court claimed that this change was to allow courts to avoid resolving difficult constitutional questions at the expense of “scarce judicial resources.”

As a result of Pearson, courts can leapfrog to the second inquiry: whether a right was “clearly established.” If they find that the right was not clearly established, they need not analyze whether the officer’s actions did in fact violate the Constitution. Pearson has thus dammed the creation of new, applicable precedent. As unprecedented constitutional claims arise — particularly with the advent of new technologies and legal analyses — if a court fails to engage in the constitutional inquiry and simply finds that the violation was not “clearly established,” nothing changes. The conduct’s unconstitutional nature will not be established despite the lawsuit. Consequently, officials, departments, and prisons can continue to evade liability for the exact same acts, no matter how often repeated.

Far from ensuring that police, prisons, and those nominally designated to protect us make choices that serve the public good, qualified immunity has perversely resulted in placing police and prisons above the law, relieving them of responsibility for their personal or institutional choices. Qualified immunity is thus designed in a way that protects abusive government officials from the people and communities whose civil rights they have violated.

Perhaps in the absence of qualified immunity, as the Supreme Court fears, state and federal law enforcement and prison officials would be overly restrained. But we have seen qualified immunity contribute to an environment where lack of police accountability is the norm and gross violations of the law and public trust by officers are protected conduct. As Justice Sotomayor put it in her dissent in Kisela v. Hughes, this resultant “shoot first and think later” mentality has dire consequences. Officers break into the wrong house and shoot a woman in her bed; they suffocate a man in the street with a knee to his neck; they shove a septuagenarian to the ground and ignore him as he lies bleeding from a cracked skull; they arrest reporters and put rubber bullets in the eyes of photographers.

The last few weeks — not to speak of the preceding decades — have demonstrated that police do not deserve the benefit of the doubt, that when given the grace afforded by qualified immunity, they remove the “qualified” altogether. When they are given grace, they abuse it. And when they abuse it, people die.

These last weeks are also a reminder of how systems that many of us are trained to see as fair — the police for one, but the courts for another — are anything but. As scholars like Michelle Alexander and Alex Vitale have shown, far from being colorblind tools of justice, policing and judicial systems are constructed in oppressive ways to the particular detriment of Black people and other people of color. Untwisting qualified immunity from the law is only one step necessary for a far-reaching transformation of the broader system of racial inequality of which policing is a crucial part. But it is a step that’s essential to ensuring that officers who abuse government power are held accountable when they violate the rights and lives of the very people they have sworn to serve.

© 2003 The E-Accountability Foundation