I get many calls each week from people who believe they have been abused by the police. That is because for many years I was at the forefront of police misconduct litigation. But these days I rarely file a complaint against police officers. It is not that I have become a police groupie. Rather, I've read the handwriting on the wall. In the past decade, there has been a silent coup d' etat. Our courts have transformed themselves into the guardians of a police state in a stunning, and largely unnoticed, act of judicial activism. Their primary tool was a tricky legal doctrine known as qualified immunity.
This coup has gone unnoticed by the general public. Even academics seem blind to its import. Practitioners know better.
Consider the following fact pattern: A man calls to complain that his son was brutalized by local law enforcement officers. He was hit with fists, kicked and subjected to high-voltage shock by a police officer using a Taser. The man is angry. How could police do this?
I ask what crime the boy was charged with. The man seems surprised by the question. How had I known his son had been arrested? I know the boy must have been charged with interfering with a police officer, a charge that makes it a misdemeanor to obstruct, hinder or delay an officer in the performance of his lawful duty. Just what does this mean? The statute is so broad that almost anything other a supine bending of the knee is a crime. Police routinely charge the crime when force is used to take a person into custody. It is the first line of defense against a charge of unreasonable force: We needed to use force against resistance.
The boy's father did not want to hear a word of it. How can a boy in handcuffs resist arrest?, he asks with scorn. I tell him about cases I have seen. Young men in handcuffs who kicked out windows of police cruisers, in one case kicking so hard as to dislodge a car door from its joints. I try to explain that the law permits the police to use reasonable force to overcome a person's resistance. There are many judges who would conclude that the use of a Taser is justified against a person wildly kicking while cuffed. Bringing a civil action against the police carries with it a substantial risk that the case will be thrown out by a judge granting the police officers qualified immunity.
By now the caller has transferred his anger against the police to me. The police were wrong, he tells me. The case is a slam dunk, he insists. I tell him to take the slam dunk elsewhere. There is no such thing in the world of police misconduct. The call ends with the man no doubt wondering whether I am defending police officers. I hate fielding such calls.
We boast about the rule of law, saying that no one is beyond the law's reach. That's not quite true. The law recognizes broad immunities. If life is a board game, the rule of law defines what pieces on the board can do to one another. An immunity removes a piece from the board, placing it beyond the reach of the law. Thus, a lawmaker trashing a person on the floor of a legislative chamber is absolutely immune from a suit for defamation. We say the lawmaker is immune by operation of law: In other words, any person who knows the law knows that the lawmaker cannot be sued.
A qualified immunity is one that a judge is free to impose or not, depending on the facts presented to the judge. In the context of police misconduct litigation, judges are free to grant a police officer immunity from suit if the officer's conduct does not violate clearly established law or if reasonable police officers could disagree about whether the alleged conduct violated the law. Translated into lay terms, police officers are given the benefit of the doubt in close cases. But judges, not juries, make this call. That's the coup.
Qualified immunity is a prime example of judicial activism, yet no one on the right seems very concerned when judicial activism narrows the rights of ordinary Americans. Fifteen years ago, the courts rarely granted qualified immunity to police officers; now it happens with a regularity that makes it pointless to file suit against police officers in all but the most egregious cases. In other words, a powerful legal doctrine created by judges has declared broader and broader ranges of police conduct beyond the reach of the law. Police misconduct cases rarely it to juries any longer. Judges, not the people, decide what is reasonable for police to do.
The judiciary is self-satisfied about this, and why not? Throwing a case out of court is a whole lot less trouble than going to trial. But it comes at a cost. The cost is a police state. Officers are free to act with impunity, their conduct beyond the review of ordinary citizens so long as it satisfies the jaundiced eye of a judiciary free to decided without real review what is and is not reasonable.
I read these judicial decisions and although I do not weep, I heed what they teach. There is little point in filing a suit that will simply be tossed from court. I send most callers away these days. There are a lot of angry people out there who aren't getting justice in the courts. I suppose when there are enough of them out there someone will listen. But the listeners aren't on the bench; the nation's judges have become accomplices in a police state; most of them don't even realize it.