Qualified Immunity--Why is it un-understandable?

Qualified immunity isn't an easy concept to grasp. There isn't an elevator pitch. It's pretty involved. But let's start with this:

Every person in the United States has rights that are protected. Also true is the fact that governments have made themselves and their 'agents' somewhat invincible when it comes to lawsuits. 

Recall that this country supposedly wanted to break up with King George III, in part because he was unaccountable; he was immune from prosecution. Our bewigged forebears didn't like that. It's known as sovereign immunity, and it's part of why they dumped him.

However, when the chips were down and the quill pens were out, the ancestral legislators of the so-called Land of the Free decided that well, maybe a little immunity wasn't such a bad thing for them, as a government. And so, they put sovereign immunity into the Constitution. There's a little YouTube primer here. 

Then the states put sovereign immunity into their statutes as well. They also added governmental immunity, which gives protection from suit to state and local governments and agencies.

It was only natural that this immunity would trickle down to the individual, and so you have qualified immunity for an agent of the state. But qualified immunity was developed solely by the courts--the judicial branch instead of the legislative branch.

In real life, qualified immunity takes away the rights supposedly guaranteed to the people by the government, and says, "okay, now prove that you can have these rights, and once you've done that, prove that they were violated." 

That's what this post is about: these rights have never been granted to everyone, and haven't been protected or enforced by any level of government with consistency and equity. 

Qualified immunity means you can get injured, wrongly arrested, beaten, wrongly convicted, maliciously prosecuted, killed--it's endless--and you likely won't have any recourse if those deeds have been committed by law enforcement. It will take years and even decades to get a final decision on whether your case can even be brought for trial. That's right. You have to bring suit to see if you can bring suit. And you're paying for it all the while, unless an advocacy organization has agreed to help you.

It becomes even more convoluted if a federal officer violated your rights; they are virtually untouchable, and were recently made more so by the U.S. Supreme Court in Egbert v. Boule.

If you've done some reading on the civil rights struggle during the 1960's, it's clear that Black Americans did not have the rights enumerated in the U.S. Constitution. These rights were kept from them through violence, intimidation, control of the workforce, mass incarceration, sharecropping, and more. Much of this was enforced or committed by local police, who were acting illegally, immorally, and unethically. It wasn't just happening in law enforcement: these violent and repressive tactics were permitted by the criminal legal system as well. 

Qualified immunity actively supports the violation of civil rights, and increases police misconduct and leaves victims without any recourse. Qualified immunity can be eliminated at the State level. Do you know what your state statute says about immunity for government officials? 

More Reading
Qualified Immunity (americanbar.org)

What Is Qualified Immunity, and What Does It Have to Do With Police Reform? - Lawfare (lawfareblog.com)

Hamdi Mohamud--Wrongly arrested and incarcerated in 2011. Still waiting for justice in 2022.

Here is just one case that shows some of what's involved in seeking restitution for a violation of constitutional 'rights'. It's life-changing and frightening, and it can happen to anyone. 

Hamdi Mohamud

Hamdi Mohamud, Credit: Institute for Justice

• Rights violation took place in 2011
• Ms. Mohamud was wrongly incarcerated for two years at age 16. One of those years was spent in federal prison.
• Still waiting for her case to be heard in 2022

Hamdi Mohamud was arrested at the age of 16 and incarcerated for 2 years without a trial based solely on false information provided by a police officer. Eleven years after her initial arrest and eventual release, the case against the officer that provided bogus evidence against her still has not been allowed to go to trial.

In June 2011, 16 year old Hamdi Mohamud and a friend were innocent bystanders during a fight involving three older girls. St. Paul police officers responded when Muna, one of the older girls, attacked the others with a knife. Unknown to responding officers at the scene, Muna was an informant in separate investigation by a federal task force. Heather Weyker, an officer on that task force, hearing about the incident, convinced responding officers to free Muna, and arrest the other girls in an effort to protect her own informant in an investigation that later turned out to be meritless.

The day after the initial baseless arrests, officer Weyker filed a federal criminal complaint and affidavit with information that she knew to be false in an effort to enforce the detention of the innocent girls without probable cause. There are many news stories about Officer Weyker's documented lies. Although Hamdi was never involved in the initial altercation and should never have been charged with any crime, she ended up spending 2 years in detention, including 1 year in federal prison without ever receiving a trial.

Upon dismissal of the charges against her, Ms. Mohamud sought to hold officer Weyker accountable for her actions. Like many victims of police misconduct, she then entered a world of protracted litigation that victims are forced to engage in if they seek any recourse for a violation of their Constitutional rights.

Police routinely claim qualified immunity to have cases against them dismissed before trial, and they are able to appeal denials of their claims all the way to the U.S. Supreme Court. Victims can only bring cases of police misconduct to court if all appeals for qualified immunity have been denied and this can take years.

Officer Weyker was initially denied qualified immunity and Ms. Mohamud's case against the officer was allowed to proceed. Weyker appealed, and the 8th Circuit Court of Appeals ruled that because Weyker was deputized as part of a federal task force at the time, Ms. Mohamud could not sue Weyker in her capacity as a federal officer.
 
In a follow-up appeal filed with the U.S. Supreme Court, the issue was summarized as follows:
 
“The officer, Respondent Heather Weyker, was denied qualified immunity because ‘a reasonable officer would know that deliberately misleading another officer into arresting an innocent individual to protect a sham investigation is unlawful.’
 
To resolve the growing circuit split on the application of Ziglar v. Abbasi, the question presented is: Whether a constitutional remedy is available against federal officers for individual instances of law enforcement overreach in violation of the Fourth Amendment.”
 
Ms. Mohamud is represented by the Institute for Justice. See more details of the case and access court documents here.

The Institute for Justice also has a helpful FAQ on qualified immunity here. For a brief explainer of qualified immunity, see this post.