On September 10, 2013, three City of Fresno police officers executed a search warrant to look for evidence of illegal gambling and money laundering.¹ Jessop v. City of Fresno, 936 F.3d 937, 939 (9th Cir. 2019); Jessop v. City of Fresno, No. 1:15-cv-00316, 2017 U.S. Dist. LEXIS 120931, at *4–5 (E.D. Cal. July 31, 2017). Following their search, the officers gave the homeowners an inventory of what the officers had seized.²Jessop, 936 F.3d at 939. The inventory stated that they had seized approximately $50,000 worth of money and property.³Id. After inventorying their property, however, the homeowners realized that the officers had actually seized over $275,000 worth of property.⁴Id. at 939–40. According to the homeowners, the officers claimed to have seized only $50,000 but “actually seized $151,380 in cash and another $125,000 in rare coins.” Id. According to the homeowners, the officers stole an additional $225,000 and fudged the paperwork so they could pocket the extra money.⁵Id. at 940. The homeowners subsequently sued these officers under 42 U.S.C. § 1983, arguing that the officers’ theft of their property was an “unreasonable” seizure in violation of the Fourth Amendment.⁶Id. The Fourth Amendment prohibits “unreasonable” governmental “searches and seizures.” U.S. Const. amend. IV (“The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated . . . .”); see also Brigham City v. Stuart, 547 U.S. 398, 403 (2006) (“[T]he ultimate touchstone of the Fourth Amendment is ‘reasonableness.’” (citation omitted)).

Employing an all-too-common legal defense, the officers argued: (1) that their theft was reasonable under the Fourth Amendment, and (2) even if their theft was unreasonable, they didn’t know any better and therefore couldn’t be held liable.⁷See Jessop, 936 F.3d at 940. Shockingly, in Jessop v. City of Fresno,⁸936 F.3d 937 (9th Cir. 2019). the U.S. Court of Appeals for the Ninth Circuit agreed.⁹Id. at 942. Although the officers’ theft of the homeowners’ property was “deeply disturbing” and “morally wrong,” the Jessop court held that the officers could not be held liable because “they did not have clear notice that [their theft] violated the Fourth Amendment.”¹⁰Id. Whether “the theft of over $225,000 . . . violates the Fourth Amendment’s prohibition [of] unreasonable searches and seizures,” the court held, “would not be clear to a reasonable [police] officer.”¹¹Id. (quoting Brosseau v. Haugen, 543 U.S. 194, 199 (2004) (per curiam)) (internal quotation marks omitted). Thus, qualified immunity applied and the officers could not be sued.¹²Id.

The main reason qualified immunity has gotten out of hand is because the courts require plaintiffs to identify favorable precedent that has virtually identical facts to avoid dismissal of their case.¹³See, e.g., id. (“The lack of ‘any cases of controlling authority’ or a ‘consensus of cases of persuasive authority’ on the constitutional question compels the conclusion that the law was not clearly established at the time of the incident.” (quoting Wilson v. Layne, 526 U.S. 603, 617 (1999))); Randall v. Scott, 610 F.3d 701, 715 (11th Cir. 2010) (awarding qualified immunity because the court was “aware of no precedential case with similar facts”); Stoot v. City of Everett, 582 F.3d 910, 922 (9th Cir. 2009) (awarding an officer qualified immunity because the plaintiffs “ha[d] not cited a single case squarely holding” that the officer’s conduct was unlawful, even though the court ultimately determined that the officer did in fact act unlawfully). The courts have held that an officer is “on notice” that certain conduct is unconstitutional only if a court has previously decided a virtually identical case.¹⁴See, e.g., Kisela v. Hughes, 138 S. Ct. 1148, 1153 (2018) (holding that, in excessive-force cases, “police officers are entitled to qualified immunity unless existing precedent ‘squarely governs’ the specific facts at issue” (quoting Mullenix v. Luna, 136 S. Ct. 305, 309 (2015))); District of Columbia v. Wesby, 138 S. Ct. 577, 589–90 (2018) (explaining that to show that a law is “clearly established,” a plaintiff must point to “‘controlling authority’ or a ‘robust consensus of cases of persuasive authority’” (quoting Ashcroft v. al-Kidd, 563 U.S. 731, 741–42 (2011)) (internal quotation marks omitted)); White v. Pauly, 137 S. Ct. 548, 552 (2017) (holding that qualified immunity was wrongly withheld from the defendant-officer because the court below “failed to identify a case where an officer acting under similar circumstances . . . was held to have violated the Fourth Amendment”); see also Robert Barnes & Ann E. Marimow, Supreme Court Refuses to Reconsider Immunity That Shields Police Accused of Brutality, Wash. Post (June 15, 2020, 11:58 AM), https://perma.cc/KB64-HCUP (observing that “the ‘clearly established’ test often means that . . . civil rights plaintiffs must identify a nearly identical violation that has been recognized by the Supreme Court or appellate courts in the same jurisdiction”). This makes no sense. All executive-branch officials should be able to recognize blatantly unconstitutional behavior without reading a judicial opinion. Take Jessop, for example. Is it “unreasonable” under the Fourth Amendment for a police officer to steal your money? Of course, it is. It’s not even a close call. But the plaintiffs in Jessop could not point to a case that specifically said it is unreasonable for a police officer to steal money from suspects—so the officers were immunized from suit. In other words, as a Fifth Circuit judge recently put it: “No precedent = no clearly established law = no liability.”¹⁵Zadeh v. Robinson, 928 F.3d 457, 479–80 (5th Cir. 2019) (Willett, J., concurring and dissenting in part). There are hundreds of lower court cases where officers were awarded qualified immunity despite exhibiting blatantly unconstitutional behavior.¹⁶See Part II infra.

This article argues that the courts should more frequently withhold qualified immunity from officers who commit obvious constitutional violations. Officers who blatantly exceed the bounds of the Constitution should not be awarded immunity, even if the plaintiff cannot point to analogous precedent. By recognizing more “obvious” constitutional violations, the courts will ensure that reckless and incompetent officers are held accountable, thereby increasing the public’s trust in the justice system and ensuring that constitutional rights are meaningfully enforced.

This article proceeds in four parts. Part I provides a brief history of the qualified immunity doctrine, focusing heavily on the Supreme Court’s 2002 decision in Hope v. Pelzer¹⁷536 U.S. 730 (2002). and the contradictory cases that followed. Part II takes a deep dive into several egregious lower court decisions in which the officers were awarded qualified immunity despite committing obvious constitutional violations. Part III argues that the courts should expand upon Hope v. Pelzer by more frequently withholding qualified immunity from officers who commit “obvious” constitutional violations. Part IV responds to likely counterarguments to this article.

Police officers, from time to time, engage in blatantly unconstitutional behavior. They steal.¹⁸See Jessop, 936 F.3d at 939–40. They torture.¹⁹Ziglar v. Abbasi, 137 S. Ct. 1843, 1853, 1862 (2017); Chambers v. Pennycook, 641 F.3d 898, 907–09 (8th Cir. 2011) (awarding qualified immunity to officers who “kicked [an arrestee] several times on both sides of his body, although he was restrained on the ground and offering no resistance,” “repeatedly choked and kicked [the arrestee] during the trip to the hospital,” and “extended the journey [to the hospital] by taking a roundabout route and intentionally driving so erratically that [the arrestee] was jerked roughly back and forth in his car seat while his head was positioned adjacent to the dashboard”). They fabricate evidence.²⁰See Costanich v. Dep’t of Soc. & Health Servs., 627 F.3d 1101, 1108, 1112–14 (9th Cir. 2010) (“[D]eliberately fabricating evidence in civil child abuse proceedings violates the Due Process Clause of the Fourteenth Amendment . . . .”). They arrest people who haven’t broken any laws.²¹See Brennan v. Dawson, 752 F. App’x 276, 278–79, 285 (6th Cir. 2018) (awarding qualified immunity to an officer who arrested a parolee after he blew a 0.000 BAC because there was no “clearly established law” holding this sort of conduct was “unreasonable” under the Fourth Amendment); Amore v. Novarro, 624 F.3d 522, 531–33, 535 (2d Cir. 2010) (holding that a police officer could not be held liable for arresting a suspect under a statute that had been ruled unconstitutional eighteen years prior because it was not unreasonable for the officer “to have believed that the statute in question remained fully in force”). They shoot kids.²²Hernández v. Mesa, 140 S. Ct. 735, 740 (2020); Corbitt v. Vickers, 929 F.3d 1304, 1308, 1318–19 (11th Cir. 2019) (awarding qualified immunity to an officer who, while repeatedly attempting to shoot a pet dog that wasn’t posing any threat, shot a ten‐year‐old child lying on the ground). And so on. But the courts too often refuse to hold these incompetent officers accountable. The time has come for the courts to recognize obvious constitutional violations and revamp the broken doctrine of qualified immunity.

I.     A Brief History of the Qualified Immunity Doctrine

The qualified immunity doctrine was born in shame. In the first case recognizing qualified immunity—1967’s Pierson v. Ray²³386 U.S. 547 (1967).—the Supreme Court immunized several police officers who wrongfully arrested a group of black ministers embarked on a “prayer pilgrimage” through the South.²⁴Id. at 549, 552, 556–57. These ministers were arrested for sitting in a “whites only” portion of a bus station in Jackson, Mississippi.²⁵Id. at 552–53. “The purpose of the pilgrimage was to visit church institutions and other places in the North and South to promote racial equality and integration . . . .” Id. at 552. Although “[a]ll witnesses including the police officers agreed that the ministers entered the waiting room peacefully and engaged in no boisterous or objectionable conduct,”²⁶Id. at 553. “[t]hey were each given the maximum sentence” for “breach of the peace.”²⁷Id. at 549. The breach-of-the-peace statute the ministers were arrested under was declared unconstitutional by the Supreme Court four years later in Thomas v. Mississippi, 380 U.S. 524 (1965). Id. at 550.

After their convictions were overturned on appeal, the ministers sued their arresting officers under § 1983.²⁸Id. On appeal, the Supreme Court held that the arresting officers were entitled to “the defense of good faith and probable cause.”²⁹Pierson, 386 U.S. at 557. So long as “the officers reasonably believed in good faith that the arrest was constitutional,” they could not be held liable, “even though the arrest was in fact unconstitutional.”³⁰Id.

The Court applied this “good faith” test to an even more tragic set of facts in 1974’s Scheuer v. Rhodes.³¹416 U.S. 232 (1974). In 1970, during the height of protests against the Vietnam War, Ohio governor Jim Rhodes ordered the Ohio National Guard onto the campus of Kent State University to quell “civil disorder.”³²See id. at 234. What followed became known as the “Kent State Massacre,” where the Ohio National Guard shot and killed four Kent State students and wounded nine others.³³See id. at 235. The deceased students’ estates sued Rhodes, the National Guard members, and other state officials under § 1983.³⁴Id. at 234. The U.S. Court of Appeals for the Sixth Circuit held that these executive-branch officials were entitled to absolute immunity.³⁵Krause v. Rhodes, 471 F.2d 430, 443 (6th Cir. 1972).

On appeal, the Supreme Court held that the National Guard members were not entitled to absolute immunity, but rather should have been judged under the “good faith and probable cause” guidelines set in Pierson.³⁶Scheuer, 416 U.S. at 245 (internal quotation marks omitted) (citation omitted). But the Court also went on to note that “the inquiry [was] far more complex” when it came to the “higher officers of the executive branch,” like the governor.³⁷Id.at 246. In remanding the case, the Court held that executive officials enjoy varying levels of qualified immunity depending on “the scope of discretion and responsibilities of the[ir] office,”³⁸Id. at 247. and that executive officials would typically be immune if they acted “in good faith.”³⁹See id. at 245, 249–50.

Less than a decade later, however, the Court abandoned Scheuer’s flexible, varying-levels-of-immunity approach and instead opted for a uniform standard that applied to all executive-branch officials. In Harlow v. Fitzgerald,⁴⁰457 U.S. 800 (1982). the Court set forth the current test for executive official immunity: Executive officials are “shielded from [civil] liability [if] . . . their conduct does not violate clearly established . . . constitutional rights of which a reasonable person would have known.”⁴¹Id. at 818. If the defendant-officer violated a “clearly established” right, “the immunity defense ordinarily should fail, since a reasonably competent public official should know the law governing his conduct.”⁴²Id. at 818–19. But if the right was not “clearly established” at the time of the violation, “the defense should be sustained” and the plaintiff’s case should be dismissed.⁴³Id. at 819. This test, the Harlow Court held, “focuses on the objective legal reasonableness of an official’s acts.”⁴⁴Id. If the official “could be expected to know that certain conduct would violate statutory or constitutional rights,” the official should be subject to suit.⁴⁵Id. “But where an official’s duties legitimately require action in which clearly established rights are not implicated, the public interest may be better served by action taken ‘with independence and without fear of consequences.’”⁴⁶Harlow, 457 U.S. at 819 (quoting Pierson v. Ray, 386 U.S. 547, 554 (1967)).

This language has served as the foundation of the qualified immunity defense for almost forty years. Under the Harlow test, a plaintiff must make two showings to avoid dismissal of their case: (1) the defendant-officer violated one of their constitutional rights; and (2) the right was “clearly established” at the time.⁴⁷Pearson v. Callahan, 555 U.S. 223, 232 (2009); Saucier v. Katz, 533 U.S. 194, 201 (2001). Although the Supreme Court has never decided whether the plaintiff or the defendant bears the burden of proof in a case involving qualified immunity, nearly every Circuit that has addressed the issue has held that the plaintiff has the burden to overcome the qualified immunity defense. See Harrington v. City of Council Bluffs, 678 F.3d 676, 679 (8th Cir. 2012) (holding that the plaintiff has the burden to show that the law was “clearly established” at the time of the alleged constitutional violation); Collier v. Montgomery, 569 F.3d 214, 217 (5th Cir. 2009) (“[T]he plaintiff has the burden to negate the assertion of qualified immunity once properly raised.”); Gonzalez v. Reno, 325 F.3d 1228, 1234 (11th Cir. 2003) (“Once the defendants have established that they were acting within their discretionary authority, the burden shifts to the plaintiffs to show that qualified immunity is not appropriate.”); Camfield v. City of Oklahoma City, 248 F.3d 1214, 1225–26 (10th Cir. 2001) (“[T]he plaintiff bears the burden of satisfying a strict two-part test once a defendant invokes a qualified immunity defense.”); DiRuzza v. Cnty. of Tehama, 206 F.3d 1304, 1313 (9th Cir. 2000) (“[T]he plaintiff bears the burden of proof regarding whether the right is clearly established . . . .”); Erwin v. Daley, 92 F.3d 521, 525 (7th Cir. 1996) (“Once a public official raises the defense of qualified immunity, the plaintiff bears the burden of proof on the issue.”). Since the Court’s decision in Harlow, qualified immunity has slowly but surely “morphed into impenetrable armor” that overwhelmingly protects officers and almost always leaves plaintiffs out to dry.⁴⁸Alexander J. Lindvall, Gutting Bivens: How the Supreme Court Shielded Federal Officials from Constitutional Litigation, 85 Mo. L. Rev. (forthcoming 2021) (manuscript at 150). As one lower court judge put it, qualified immunity has become a “[h]eads [the] government wins, tails [the] plaintiff loses” doctrine.⁴⁹Zadeh v. Robinson, 928 F.3d 457, 480 (5th Cir. 2019) (Willett, J., concurring and dissenting in part).

Over the last forty years, with very limited exceptions, the Court has made the “clearly established” prong harder and harder to prove. Between 1982 and 2019, the Supreme Court heard thirty-three qualified immunity cases and found that the law was “clearly established” only twice.⁵⁰In his excellent 2018 California Law Review article, Professor William Baude observed that of the Supreme Court’s thirty qualified immunity cases decided between 1982 and 2018, it found that the defendant-officers violated “clearly established” law only twice. William Baude, Is Qualified Immunity Unlawful?, 106 Calif. L. Rev. 45, 82 (2018). Since Professor Baude’s article was published, the Court has heard an additional three qualified immunity cases and awarded immunity in all of them: City of Escondido v. Emmons, 139 S. Ct. 500, 503–04 (2019); District of Columbia v. Wesby, 138 S. Ct. 577, 593 (2018); Kisela v. Hughes, 138 S. Ct. 1148, 1154–55 (2018). That brings executive officials’ all-time record in the Supreme Court to 31-2. Not bad. The two cases in which the executive officers lost were Groh v. Ramirez, 540 U.S. 551, 556, 566 (2004), and Hope v. Pelzer, 536 U.S. 730, 744–46 (2002). One of the two cases in which the Court found that the defendant-officers violated clearly established law was Hope v. Pelzer.⁵¹536 U.S. 730 (2002).

In Hope, three prison guards handcuffed Larry Hope to a “hitching post” for seven hours to punish him for “disruptive conduct.”⁵²Id. at 733, 735. The guards also made him take off his shirt so that the sun would burn his skin.⁵³Id. at 734–35. “[H]e was given water only once or twice and was given no bathroom breaks.”⁵⁴Id. at 735. “At one point,” one of the guards even “taunted Hope about his thirst” and kicked a cooler full of water over at Hope’s feet to antagonize Hope. Id. After this incident, Hope sued the guards under § 1983, alleging that this treatment amounted to “cruel and unusual punishment” under the Eighth Amendment.⁵⁵Id. at 735, 737 (internal quotation marks omitted) (citation omitted). The district court awarded the guards qualified immunity and dismissed Hope’s case.⁵⁶Id. at 735. The U.S. Court of Appeals for the Eleventh Circuit affirmed, finding that the guards were entitled to immunity because Hope was unable to identify an already-decided case with facts that were “materially similar” to his situation.⁵⁷Hope, 536 U.S. at 735–36 (quoting Hope v. Pelzer, 240 F.3d 975, 981 (11th Cir. 2001)).

On appeal, the Supreme Court reversed, holding that Hope’s rights were clearly established even though there weren’t any materially similar cases already on the books.⁵⁸Id. at 744–45, 748. Justice Stevens, writing for the Court, noted that the “unnecessary and wanton infliction of pain . . . constitutes cruel and unusual punishment forbidden by the Eighth Amendment,” especially when it is not supported by any sort of “penological justification.”⁵⁹Id. at 737 (quoting Whitley v. Albers, 475 U.S. 312, 319 (1986), and Rhodes v. Chapman, 452 U.S. 337, 346 (1981)) (internal quotation marks omitted). Given this general standard, the Court held that “the Eighth Amendment violation [was] obvious.”⁶⁰Id. at 738.

“Any safety concerns had long since abated by the time [Hope] was handcuffed to the hitching post,” Justice Stevens reasoned, “because [he] had already been subdued, handcuffed, placed in leg irons, and transported back to the prison.”⁶¹Id.

Despite the clear lack of an emergency situation, the [guards] knowingly subjected [Hope] to a substantial risk of physical harm, to unnecessary pain caused by the handcuffs and the restricted position of confinement for a 7-hour period, to unnecessary exposure to the heat of the sun, to prolonged thirst and taunting, and to a deprivation of bathroom breaks that created a risk of particular discomfort and humiliation.⁶²Id.

Accordingly, given these facts, the Court found that the guards’ use of the hitching post under these circumstances violated “the basic concept” underlying the Eighth Amendment: “the dignity of man.”⁶³Hope, 536 U.S. at 738(quoting Trop v. Dulles, 356 U.S. 86, 100 (1958)).

The Court went on to hold that this Eighth Amendment violation was “so obvious” that Hope was not required to point to materially similar precedent, as the Eleventh Circuit had required.⁶⁴Id. at 739–41. The Hope Court noted that what is truly important in a qualified immunity analysis is that the officers had “fair warning” that their conduct was unlawful.⁶⁵Id. at 741. Under this standard, “officials can still be on notice that their conduct violates established law, even in novel factual circumstances.”⁶⁶Id. And though “earlier cases involving ‘fundamentally similar’ facts can provide especially strong support for a conclusion that the law is clearly established, they are not necessary to such a finding.”⁶⁷Id. The Court went on to hold that the guards violated clearly established law, because the law that existed at the time gave them fair warning that tying Hope to the hitching post was unlawful (i.e., it was cruel and unusual).⁶⁸Id. at 744–45.

When Hope was handed down, it seemed that the Court was adding some much-needed flexibility to its otherwise rigid qualified immunity standard.⁶⁹See generally Amanda K. Eaton, Note, Optical Illusions: The Hazy Contours of the Clearly Established Law and the Effects of Hope v. Pelzer on the Qualified Immunity Doctrine, 38 Ga. L. Rev. 661, 667 (2004) (arguing that more flexible standards for qualified immunity could reach more fair results). In response to the Hope decision, the Eleventh Circuit reformulated its qualified immunity standard to allow plaintiffs to make the “obvious violation” argument.⁷⁰See Vinyard v. Wilson, 311 F.3d 1340, 1350–52 (11th Cir. 2002) (allowing plaintiffs to overcome the “clearly established” prong by showing that a federal statute or constitutional provision applies with “obvious clarity,” even if there is a “total absence of case law”). But in the years that followed, the Supreme Court consistently and dramatically strayed away from Hope, causing the lower courts to follow suit.

In expounding on the “clearly established” test,⁷¹See Kit Kinports, The Supreme Court’s Quiet Expansion of Qualified Immunity, 100 Minn. L. Rev. Headnotes 62, 70–71 (2016) (illustrating the Court’s shifting, meandering approach to qualified immunity). the Supreme Court has added a slew of buzz phrases: “fair warning,”⁷²Hope v. Pelzer, 536 U.S. 730, 741, 745 (2002). “beyond debate,”⁷³District of Columbia v. Wesby, 138 S. Ct. 577, 589 (2018) (citing Ashcroft v. al-Kidd, 563 U.S. 731, 741 (2011)). “plainly incompetent,”⁷⁴Hunter v. Bryant, 502 U.S. 224, 229 (1991). “squarely governs,”⁷⁵Kisela v. Hughes, 138 S. Ct. 1148, 1153 (2018) (quoting Mullenix v. Luna, 577 U.S. 7, 15 (2015)). etc. But no matter what language the Court uses, it’s clear that “qualified immunity’s shield against government damages liability is stronger than ever.”⁷⁶Joanna C. Schwartz, The Case Against Qualified Immunity, 93 Notre Dame L. Rev. 1797, 1798 (2018). In recent years, the Court has “dedicate[d] an outsized portion of its docket to reviewing—and virtually always reversing—denials of qualified immunity in the lower courts.”⁷⁷Id. It bears repeating that since the Court adopted the “clearly established” test in 1982, it has heard thirty-three qualified immunity cases and it has found the law was “clearly established” only twice.⁷⁸See supranote 50. And the lower courts—to avoid summary reversal by the Supreme Court—have adopted very stringent standards in their qualified immunity cases. Curiously, in many of the Supreme Court’s post-Hope qualified immunity cases, the Court has awarded immunity to officers whose conduct was more obviously unconstitutional than the officers’ conduct in Hope.

In Safford v. Redding,⁷⁹557 U.S. 364 (2009). for example, the Court awarded immunity to several school officials who strip-searched a thirteen-year-old girl to see if she was carrying ibuprofen.⁸⁰Id. at 368. A middle-school’s assistant principal “received a report” that Savana Redding gave some ibuprofen to a fellow student.⁸¹Id. The assistant principal called Redding into his office to question her.⁸²Id. Redding denied having or distributing ibuprofen.⁸³Id. The assistant principal and his assistant then searched Redding’s backpack.⁸⁴Id. They found no pills.⁸⁵Safford, 557 U.S. at 368. The assistant principal then ordered Redding to the school-nurse’s office where she was ordered to strip down to her bra and underwear.⁸⁶Id. at 369. The nurse then ordered Redding to “pull her bra out and to the side and shake it, and to pull out the elastic on her underpants, thus exposing her breasts and pelvic area . . . . No pills were found.”⁸⁷Id.

After learning of this humiliating and degrading search, Redding’s mother sued these school officials under § 1983, arguing that strip-searching a thirteen-year-old girl amounts to an “unreasonable” search under the Fourth Amendment.⁸⁸Id. On appeal, the Supreme Court agreed.⁸⁹Id. at 375–77. This wasn’t a close call. Redding was suspected of having “common pain relievers equivalent to two Advil,”⁹⁰Id. at 375. and the officials had no reason to believe that Redding was stashing these pills in her bra or underwear.⁹¹Safford, 557 U.S. at 376. It was obviously unreasonable to strip-search a middle-school-aged girl without probable cause when the officials had no reason to suspect that any students were in danger.⁹²Id. at 376–77 (holding, 8-to-1, that the officials’ strip search violated the Fourth Amendment because there was no “indication of danger to the students” or “any reason to suppose that [Redding] was carrying pills in her underwear”).

But though the Court easily concluded that the strip search was unconstitutional, it nonetheless awarded the school officials immunity because existing precedent was not “sufficiently clear” to put them “on notice” of their unconstitutional behavior.⁹³Id. at 377–79. Although the Court paid lip service to Hope by noting that qualified immunity is inappropriate when a defendant’s conduct is “obviously” unconstitutional,⁹⁴Id. at 377–78 (citing Hope v. Pelzer, 536 U.S. 730, 741 (2002)). it concluded that searching a thirteen-year-old girl’s underwear without probable cause to look for non-dangerous pills was not “obviously” unconstitutional.⁹⁵Id. at 378–79. This doesn’t make sense. Shouldn’t every reasonable school official realize they can’t look into their students’ underwear without probable cause, especially when the student isn’t suspected of carrying anything dangerous? To many observers, this was not a close call, and the officials should have been stripped (no pun intended) of their immunity.⁹⁶E.g., Erwin Chemerinsky, Closing the Courthouse Door: How Your Constitutional Rights Became Unenforceable 88–89 (2017) (arguing that the officials in Redding should not have been awarded immunity because any reasonable school official should know they can’t look into their students’ underwear without a very good reason); Lewis R. Katz & Carl J. Mazzone, Safford Unified School District No. 1 v. Redding and the Future of School Strip Searches, 60 Case W. Res. L. Rev. 363, 393–96 (2010) (arguing that Redding was an inappropriate case for qualified immunity).

In 2011’s Ashcroft v. al-Kidd,⁹⁷563 U.S. 731 (2011). the Court yet again awarded immunity to executive-branch officials who engaged in obviously unconstitutional behavior. In al-Kidd, the plaintiff alleged that former Attorney General John Ashcroft was using the federal material-witness statute to illegally detain Muslim Americans without probable cause.⁹⁸Id. at 733–34. The federal material-witness statute allows federal officials to arrest a person whose testimony is essential to a criminal trial if it would be “impracticable to secure [their] presence . . . by subpoena.”⁹⁹Id. at 733 (citing 18 U.S.C. § 3144). The law further requires the government to release the arrestee if their testimony can be secured by an under-oath deposition.¹⁰⁰Id. In the wake of the September 11th terrorist attacks, however, Ashcroft directed federal law enforcement agencies to use this statute as an excuse to detain of-interest Muslim Americans without probable cause.¹⁰¹See id. at 734.

Abdulla al-Kidd alleged he was rounded up and jailed without cause as part of this illegal detention scheme. In 2003, al-Kidd was arrested at Dulles Airport in Virginia.¹⁰²al-Kidd v. Ashcroft, 598 F.3d 1129, 1132 (9th Cir. 2010) (Smith, J., concurring in the denial of rehearing en banc). Federal officials stated that al-Kidd’s testimony was “crucial” to prosecuting a suspected terrorist sympathizer.¹⁰³Ashcroft, 563 U.S. at 734. Al-Kidd was a native-born U.S. citizen with a job, a wife, and two children.¹⁰⁴al-Kidd, 598 F.3d at 1130 (Smith, J., concurring in the denial of rehearing en banc). Over the next sixteen days, al-Kidd was held in “high-security” cells in Virginia, Oklahoma, and Idaho, where, “[h]e was strip-searched, denied visits [from his] family, and denied requests to shower.”¹⁰⁵Id. at 1132. (Remember, al-Kidd was not arrested on suspicion of committing any crime; he was arrested because he supposedly had “crucial” information related to a criminal prosecution.) He was subsequently released on supervised house arrest, but had multiple living and travel restrictions placed on him.¹⁰⁶Id. By the time his confinement and supervision ended, he had lost his job and his wife had left him.¹⁰⁷Id. After sixteen days of federal custody and fourteen months of supervised house arrest, prosecutors never called al-Kidd as a witness at a trial or any other proceeding.¹⁰⁸al-Kidd v. Ashcroft, 580 F.3d 949, 953–54 (9th Cir. 2009).

Al-Kidd’s complaint alleged that Ashcroft and his underlings systematically used the material-witness statute “as a pretext to arrest and detain terrorism suspects about whom they did not have sufficient evidence to arrest on criminal charges but wished to hold preventatively or to investigate further.”¹⁰⁹Id. at 954 (cleaned up). Ashcroft asserted that qualified immunity protected him from suit. The Ninth Circuit disagreed, holding that the Fourth Amendment prohibits pretextual arrests absent probable cause, and that Ashcroft, as the head law enforcement official in the country, knew or should have known that his conduct was unlawful.¹¹⁰Id. at 972–73. The Ninth Circuit noted that a federal court had even called out John Ashcroft by name in a previous opinion, telling him that his pretextual use of the material-witness statute was unlawful.¹¹¹Id. at 972 (“Attorney General John Ashcroft has been reported as saying: ‘Aggressive detention of lawbreakers and material witnesses is vital to preventing, disrupting or delaying new attacks.’ Relying on the material witness statute to detain people who are presumed innocent under our Constitution in order to prevent potential crimes is an illegitimate use of the statute. If there is probable cause to believe an individual has committed a crime or is conspiring to commit a crime, then the government may lawfully arrest that person, but only upon such a showing.” (citing United States v. Awadallah, 202 F. Supp. 2d 55, 77 n. 28 (S.D.N.Y. 2002))).

On appeal, however, the Supreme Court reversed, holding that “Ashcroft did not violate clearly established law” by using the material-witness statute as an excuse to arrest Muslim-American men without cause.¹¹²Ashcroft v. al-Kidd, 563 U.S. 731, 743–44 (2011). Despite the fact that a district court had called out Ashcroft by name and told him that using the material-witness statute in this manner was illegal, the al-Kidd Court held that this did not give Ashcroft “fair warning” that this conduct was illegal.¹¹³Id. at 741–42. Justice Scalia, writing for the Court, addressed this issue with a confusingly sarcastic question: “[W]ould [the fact that Ashcroft had been called out by name in a prior judicial opinion] prove that for him (and for him only?) it became clearly established that pretextual use of the material-witness statute rendered the arrest unconstitutional? An extraordinary proposition.”¹¹⁴Id. at 741.

This is a strange argument. Justice Scalia dismisses as laughable the idea that the Attorney General—the nation’s top law enforcement official—should realize that the “pretextual use of the material-witness statute” is illegal. But of course it is. Any person who is mildly familiar with the Fourth Amendment would recognize this as a constitutional violation, especially because the government was targeting the plaintiffs because of their religion, national origin, and political views. As Professor Erwin Chemerinsky has noted:

Surely it does not take a case on point for the Attorney General of the United States to know that it is unconstitutional to detain someone as a material witness on false pretenses. It is clearly established law that it violates the Fourth Amendment to detain a person without probable cause, and this is exactly what the Justice Department did to [a]l-Kidd.¹¹⁵Chemerinsky, supra note 96, at 87.

This portion of al-Kidd suggests that the Supreme Court’s standards for the Attorney General are alarmingly low.

Since al-Kidd, the Court has “dedicate[d] an outsized portion of its docket to reviewing—and virtually always reversing—denials of qualified immunity in the lower courts.”¹¹⁶Schwartz, supra note 76, at 1798. To the lower courts, al-Kidd represented a paradigm shift on the issue of qualified immunity—and that awarding qualified immunity should be the norm and allowing trial should be the exception.¹¹⁷See, e.g., Jamison v. McClendon, 476 F. Supp. 3d 386, 404 (S.D. Miss. 2020) (noting that the Court “ratcheted up” the qualified immunity standard in al-Kidd so that “[t]he doctrine now protects all officers, no matter how egregious their conduct . . . .”). And they were right. Between 2014 and 2018, the Supreme Court decided over a dozen qualified immunity cases and awarded immunity to the executive-branch officials every time.¹¹⁸See, e.g., City of Escondido v. Emmons, 139 S. Ct. 500, 502, 504 (2019) (reversing the lower court’s denial of qualified immunity to officers accused of excessive force); District of Columbia v. Wesby, 138 S. Ct. 577, 582, 593 (2018) (awarding immunity to officers who entered a house and arrested several partygoers without probable cause); Kisela v. Hughes, 138 S. Ct. 1148, 1150, 1154–55 (2018) (awarding immunity to officers who shot a woman holding a knife without trying to deescalate the situation); White v. Pauly, 137 S. Ct. 548, 552 (2017) (holding that qualified immunity was wrongly withheld from the defendant-officer because the plaintiff “failed to identify a case where an officer acting under similar circumstances . . . was held to have violated the Fourth Amendment”); Ziglar v. Abbasi, 137 S. Ct. 1843, 1852–53, 1869 (2017) (awarding immunity to several executive-branch officials who allegedly conspired to round-up and jail Muslims without adequate cause); City & Cnty. of San Francisco v. Sheehan, 135 S. Ct. 1765, 1769–72, 1778 (2015) (awarding immunity to officers who shot and killed a mentally ill woman who was alone in her room with a knife); Mullenix v. Luna, 577 U.S. 7, 8–10, 19 (2015) (awarding immunity to an officer who shot and killed a suspect during a high-speed chase, even though spike-strips were available); Taylor v. Barkes, 135 S. Ct. 2042, 2043, 2045 (2015) (holding that prison guards that failed to prevent a prisoner’s suicide were entitled to immunity); Carroll v. Carman, 574 U.S. 13, 20 (2014) (summarily reversing the lower court’s denial of qualified immunity); Lane v. Franks, 573 U.S. 228, 233–34, 243 (2014) (awarding immunity to a government official who fired a subordinate for truthfully testifying in court); Plumhoff v. Rickard, 572 U.S. 765, 768–70, 781 (2014) (awarding immunity to an officer who shot and killed a suspect during a high-speed chase); Wood v. Moss, 572 U.S. 744, 747–48, 764 (2014) (awarding immunity to several secret service agents who gave preferential treatment to the president’s supporters and punished the president’s detractors).

In Lane v. Franks,¹¹⁹573 U.S. 228 (2014). for example, the Court immunized a governmental employer who fired an employee for truthfully testifying in court.¹²⁰Id. at 243. Edward Lane was an employee of Alabama’s community college system.¹²¹Id. at 231–32. While performing his work, he discovered that there was a woman on the state’s payroll who was doing no work.¹²²Id. at 232. This woman was eventually criminally prosecuted for fraud, and Lane was subpoenaed to testify at trial.¹²³Id. at 232–33. Lane, abiding by the subpoena, appeared and truthfully testified about his knowledge of the case.¹²⁴Id. at 233. Shortly thereafter, Lane’s supervisor fired him, and Lane alleged that it was because of his testimony against the fraudulent employee.¹²⁵Lane, 573 U.S. at 233–34. When Lane first discovered this non-working employee was getting paid, his supervisor told him that firing this employee “could have negative repercussions for him.” Id. at 232. Lane sued his supervisor under § 1983, alleging that his supervisor violated the First Amendment by terminating him because of his truthful, in-court testimony.¹²⁶Id.at 234.

The Supreme Court concluded with little difficulty that Lane’s firing violated the First Amendment.¹²⁷Id. at 238, 241. Lane was testifying pursuant to a lawfully issued subpoena and his testimony “obviously involve[d] a matter of significant public concern.”¹²⁸Id. at 241. This is exactly the sort of speech the First Amendment was meant to protect.¹²⁹Id. at 235–36, 238–40; see also Alexander J. Lindvall, Political Hacktivism: Doxing & The First Amendment, 53 Creighton L. Rev. 1, 7–8 (2019) (“At its core, the First Amendment is meant to ensure ‘uninhibited, robust, and wide-open’ debate on matters that are ‘of public concern.’” (citing N.Y. Times Co. v. Sullivan, 376 U.S. 254, 270 (1964), and Connick v. Myers, 461 U.S. 138, 145 (1983))). But the Court nonetheless awarded Lane’s supervisor qualified immunity because this supervisor could have reasonably believed it was permissible to fire an employee for giving truthful, under-oath testimony in open court while acting under a subpoena.¹³⁰Lane, 573 U.S. at 243.

After meticulously reviewing precedent from the Eleventh Circuit Court of Appeals, the Lane Court ultimately concluded that “[t]here [was] no doubt that the Eleventh Circuit incorrectly concluded that Lane’s testimony was not entitled to First Amendment protection,” but that existing precedent had not placed the issue “beyond debate,” thereby entitling the supervisor to immunity.¹³¹Id. at 246 (citing Ashcroft v. al-Kidd, 563 U.S. 731, 741 (2011)) (internal quotation marks omitted).

This decision does not make sense in light of Hope. In Hope, the Court held that there did not need to be a case on point to overcome qualified immunity, as long as the defendant’s constitutional violation was “obvious.”¹³²Hope v. Pelzer, 536 U.S. 730, 739–41 (2002). That was definitely the case in Lane. Of course it’s wrong to fire an employee for giving truthful testimony in court, especially when they were forced to testify by way of a subpoena. Shouldn’t we expect every government official to know they can’t fire their employees for telling the truth on the witness stand? A plaintiff shouldn’t have to point to an already-decided case to prove such an obvious proposition.

In Ziglar v. Abbasi¹³³137 S. Ct. 1843 (2017).—perhaps the Court’s most disappointing opinion in this area of law—the Court awarded qualified immunity to several high-ranking federal officials who rounded up, jailed, and tortured Muslim-American immigrants “because of their race, religion, ethnicity, and national origin.”¹³⁴Id. at 1852–53, 1865–69. For a deep dive into why Abbasi is one of the Supreme Court’s worst decisions, see Lindvall, supra note 48. After the terrorist attacks of September 11, 2001, the federal government detained hundreds of Muslim-American immigrants who were “of interest.”¹³⁵Abbasi, 137 S. Ct. at 1852. Eighty-four of these detainees were held, without bail, at a detention center in Brooklyn, New York, where they were repeatedly strip-searched, verbally abused, tortured, and humiliated.¹³⁶Id. at 1852–53. Their bones were broken.¹³⁷Id. at 1853. They weren’t allowed to have basic hygiene products, like toothbrushes or soap.¹³⁸Id. They were kept in small “cells for over 23 hours a day.”¹³⁹Id. And their religious beliefs and practices were prohibited and belittled.¹⁴⁰Id. After eight months of confinement and mistreatment, these detainees were released and deported.¹⁴¹Abbasi, 137 S. Ct. at 1853.

The detainees eventually filed suit, alleging the government “had no reason to suspect them of any connection to terrorism, and thus had no legitimate reason to hold them for so long in these harsh conditions.”¹⁴²Id. Among others, these detainees sued three high-ranking federal officials: Attorney General John Ashcroft, FBI Director Robert Mueller, and Immigration and Naturalization Service Commissioner James Ziglar.¹⁴³Id. The detainees alleged these officials implemented and oversaw a policy that was designed to imprison and torture Muslims without adequate cause in violation of the Fourth and Fifth Amendments.¹⁴⁴Id. at 1853–54.

In Abbasi, in a 4-to-2 opinion,¹⁴⁵Justices Sotomayor, Kagan, and Gorsuch did not participate in Abbasi. See id. at 1843. Only six Justices are required to reach a quorum and decide a case. 28 U.S.C. § 1. the Court held that these officials were entitled to immunity because “reasonable officials in [their] positions would not have known” that this sort of conduct was unlawful.¹⁴⁶Abbasi, 137 S. Ct. at 1867. The Abbasi Court found that these officials “could not have predicted” that rounding up and jailing immigrants because of their religion and national origin violated federal law because (1) their conspiracy was “among officers in the same branch of the Government (the Executive Branch) and in the same Department (the Department of Justice),” and there were still a lot of open questions surrounding the “intracorporate-conspiracy doctrine;” and (2) “the [officials’] discussions were the preface to, and the outline of, a general and far-reaching policy,” which should be given significant deference by the courts.¹⁴⁷Id. at 1867–69. As such, because there were just too many question marks surrounding this case, the Abbasi Court concluded that “reasonable officers in [the defendants’] positions would not have known with any certainty that the alleged agreements [to round up and jail Muslims] were forbidden by law.”¹⁴⁸Id. at 1869.

This decision is unacceptable. The officials in Abbasi violated several well-established constitutional principles. It is unconstitutional for the government to seize people, even momentarily, without reasonable suspicion of wrongdoing.¹⁴⁹See Florida v. J.L., 529 U.S. 266, 272 (2000). It is unconstitutional for the government to jail people without probable cause.¹⁵⁰Dunaway v. New York, 442 U.S. 200, 207 (1979). And it is unconstitutional for the government to torture prisoners,¹⁵¹Whitley v. Albers, 475 U.S. 312, 319 (1986); Brown v. Mississippi, 297 U.S. 278, 285–86 (1936). especially when it lacks any sort of “penological justification.”¹⁵²Rhodes v. Chapman, 452 U.S. 337, 346 (1981) (internal quotation marks omitted) (citation omitted). The defendants in Abbasi violated each of these well-known constitutional safeguards. Abbasi should have been an easy case—but the Court decided to insert unnecessary confusion into the case to shield these officials from liability.

To reconcile Abbasi with Hope, you would have to assume that it is obviously unconstitutional to handcuff a prisoner to a post for several hours, but it is not obviously unconstitutional to round up and jail Muslim immigrants without cause. But these cases cannot be reconciled. The officers’ conduct in Hope was mild when compared to the officers’ conduct in Abbasi. The Court has lost its way in this area of law.

As these cases show, “[t]he pages of the United States Reports teem with warnings about the difficulty of placing a question beyond debate.”¹⁵³Morrow v. Meachum, 917 F.3d 870, 874 (5th Cir. 2019). Synthesizing these cases, the Fifth Circuit recently announced the “four commandments” of qualified immunity:¹⁵⁴Id. at 874.

* Commandment One: The courts “must frame the constitutional question with specificity and granularity.”¹⁵⁵Id. at 874–75. It is “not enough” to point out that the Fourth Amendment prohibits “unreasonable . . . seizures,” for example.¹⁵⁶Id. at 875 (internal quotation marks omitted) (citation omitted). Rather, the plaintiff must show that the “particular conduct” being complained of has been declared unlawful.¹⁵⁷Id.

* Commandment Two: “[C]learly established law comes from holdings, not dicta.”¹⁵⁸Id. Dicta is not law, and therefore it is certainly not “clearly established law.”¹⁵⁹Morrow, 917 F.3d at 875. “[O]fficers are charged with knowing the results of [court] cases,” not “every jot and tittle [judges] write to explain them.”¹⁶⁰Id. at 875–76 (emphasis added).

* Commandment Three: “[O]vercoming qualified immunity is especially difficult in excessive-force cases.”¹⁶¹Id.at 876. Officers are often expected to make “split-second decisions” in dicey situations.¹⁶²Id. (internal quotation marks omitted) (citation omitted). As such, “the law must be so clearly established that—in the blink of an eye, in the middle of a high-speed chase—every reasonable officer would know it immediately.”¹⁶³Id.

* Commandment Four: The courts “must think twice before denying qualified immunity.”¹⁶⁴Id. The Supreme Court routinely uses its “extraordinary [power] of summary reversal” to overrule decisions that denied officers qualified immunity.¹⁶⁵Morrow, 917 F.3d at 876 (collecting cases). It’s pretty easy to read the tea leaves here. And the courts would be “ill advised to misunderstand the message and deny qualified immunity to anyone ‘but the plainly incompetent or those who knowingly violate the law.’”¹⁶⁶Id. (quoting Malley v. Briggs, 475 U.S. 335, 341 (1986)).

In real-world terms, these commandments mean that an officer will be awarded immunity unless the plaintiff can find an already-decided case that says exactly what the officer did was unconstitutional. Qualified immunity protects the police first and asks questions later. Given this standard, the lower courts have awarded immunity to officers who exhibited seriously egregious behavior. These lower court decisions, discussed in Part II below, show how far off the rails this doctrine has gone.

II.     Obvious Constitutional Violations in the Lower Courts

There are some truly jaw-dropping qualified immunity cases out there—and the officers’ conduct only seems to be getting more and more egregious. This Part catalogs and criticizes six of the “worst of the worst” qualified immunity cases from the lower courts. In Brennan v. Dawson,¹⁶⁷752 F. App’x 276 (6th Cir. 2018). the Sixth Circuit immunized an officer who threw an hour-and-a-half-long temper tantrum outside a suspect’s house, knocking on the door, peering in windows, and blaring his cruiser’s sirens, only for the suspect to pass the breathalyzer test the officer was there to administer.¹⁶⁸Id. at 279–80, 283, 288. In Jessop v. City of Fresno, the Ninth Circuit immunized officers who stole $225,000 while executing a search warrant.¹⁶⁹Jessop v. City of Fresno, 936 F.3d 937, 939–40, 943 (9th Cir. 2019). In Costanich v. Department of Social and Health Services,¹⁷⁰627 F.3d 1101 (9th Cir. 2010). the Ninth Circuit immunized state officials who fabricated evidence in a child-custody trial.¹⁷¹Id. at 1115–16. In Corbitt v. Vickers,¹⁷²929 F.3d 1304 (11th Cir. 2019). the Eleventh Circuit immunized an officer who shot a child while aiming for the child’s dog.¹⁷³Id. at 1308, 1318–19. In Taylor v. Stevens,¹⁷⁴946 F.3d 211 (5th Cir. 2019). the Fifth Circuit immunized several prison guards who made a prisoner sleep in a feces-covered room for nearly a week.¹⁷⁵Id. at 218–19, 221–22. And in Mattos v. Agarano,¹⁷⁶661 F.3d 433 (9th Cir. 2011). the Ninth Circuit immunized a police officer who tased a pregnant woman because she refused to sign a speeding ticket.¹⁷⁷Id. at 436–37, 448.

In Brennan v. Dawson, a sheriff’s deputy went to the home of Joshua Brennan to give him a breath-alcohol test.¹⁷⁸752 F. App’x 276, 278 (6th Cir. 2018). Brennan had recently been put on probation, and the terms of his probation required him to submit to periodic breath-alcohol tests.¹⁷⁹Id. When the deputy knocked on Brennan’s door, no one answered.¹⁸⁰Id. Suspecting Brennan was ignoring him, the deputy threw an hour-and-a-half-long temper tantrum outside Brennan’s house attempting to goad Brennan into coming outside.¹⁸¹See id. The deputy activated his cruiser’s lights and sirens, in an apparent attempt to annoy Brennan into coming outside.¹⁸²Id. at 279.During the incident, the deputy “told dispatch that [his] siren was ‘on as loud as she’ll go.’” Id. The deputy then put police tape over several of Brennan’s home-security cameras and proceeded to circle Brennan’s house five to ten times, banging on doors and windows and yelling for Brennan to come outside.¹⁸³Id. After ninety minutes of flashing lights, blaring sirens, and door pounding, Brennan finally exited his home.¹⁸⁴Brennan, 752 F. App’x at 279–80. He submitted to the deputy’s breath test and blew a 0.000.¹⁸⁵Id. at 280. The deputy nonetheless arrested Brennan for violating the terms of his probation.¹⁸⁶Id.

Brennan subsequently sued the deputy under § 1983, alleging the deputy’s actions were “unreasonable” under the Fourth Amendment.¹⁸⁷Id. On appeal, in a 2-to-1 decision, the Sixth Circuit acknowledged that the deputy’s actions were unreasonable under the Fourth Amendment,¹⁸⁸Id. at 283 (“[W]e hold that Dawson exceeded his implied license when he repeatedly entered and traveled through Brennan’s curtilage over the course of ninety minutes and thus violated Brennan’s Fourth Amendment rights.”). but nonetheless refused to hold the deputy liable because the then-existing caselaw did not “clearly prohibit [the deputy’s] conduct in the particular circumstances before him.”¹⁸⁹Id. at 286 (quoting District of Columbia v. Wesby, 138 S. Ct. 577, 590 (2018)) (internal quotation marks omitted). Although more recent developments in the law left “no room for doubt that [the deputy] violated Brennan’s constitutional rights,” the court believed “the law was not so clear” at the time of the incident, meaning the deputy was entitled to immunity.¹⁹⁰Brennan, 752 F. App’x at 285.

In other words, the deputy was immune because there was not a case that told the officer he could not blare his sirens in a person’s driveway, place tape over their security cameras, and bang on their windows for an hour and a half. But why would there be a case like that out there? The deputy’s actions, as the Sixth Circuit acknowledged, were beyond the pale—so it stands to reason the plaintiff wasn’t going to be able to find a similar case.¹⁹¹As Judge Posner has noted, it makes no sense to require plaintiffs to point to similar precedent in easy cases because “[t]he easiest cases don’t even arise” in the courts. K.H. ex rel. Murphy v. Morgan, 914 F.2d 846, 851 (7th Cir. 1990). For example, “[t]here has never been a [§] 1983 case accusing welfare officials of selling foster children into slavery,” but “it does not follow that if such a case arose, the officials would be immune from damages liability because no previous case had found liability in those circumstances.” Id. If the constitutional violation is truly obvious, in other words, immunity is and/or should be withheld regardless of the existing caselaw (or lack thereof). If this is going to be the standard for qualified immunity, officers should make sure their actions are uniquely outrageous so that there will not be any analogous precedent to point to.

Jessop v. City of Fresno is another case in which the defendant-officers were unjustifiably awarded immunity.¹⁹²See Jessop v. City of Fresno, 936 F.3d 937, 942 (9th Cir. 2019). On September 10, 2013, three City of Fresno police officers executed a search warrant to look for evidence of illegal gambling and money laundering.¹⁹³Jessop v. City of Fresno, No. 1:15-cv-00316, 2017 U.S. Dist. LEXIS 120931, at *4–5 (E.D. Cal. July 31, 2017). Following their search, the officers gave the homeowners an inventory of what was seized.¹⁹⁴Jessop, 936 F.3d at 939. The inventory stated that the officers seized approximately $50,000 worth of money and property.¹⁹⁵Id. After inventorying their property, however, the homeowners realized that the officers had actually seized over $275,000 worth of property.¹⁹⁶Id. at 939–40. The homeowners alleged that the officers claimed to have seized only $50,000 but “actually seized $151,380 in cash and another $125,000 in rare coins.” Id. According to the homeowners, the officers stole an additional $225,000 and fudged the paperwork so they could pocket the extra money.¹⁹⁷Id. at 940. The homeowners subsequently sued these officers under § 1983, arguing that the officers’ theft of their property was an “unreasonable” seizure in violation of the Fourth Amendment.¹⁹⁸Id. The Fourth Amendment prohibits “unreasonable” governmental “searches and seizures.” U.S. Const. amend. IV (“The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated . . . .”). See also Brigham City v. Stuart, 547 U.S. 398, 403 (2006) (noting that “the ultimate touchstone of the Fourth Amendment is ‘reasonableness’”).

Employing a common, albeit brazen, legal defense, the officers argued (1) that their theft was reasonable under the Fourth Amendment, and (2) even if their theft was unreasonable, they didn’t know any better and therefore couldn’t be held liable.¹⁹⁹See Jessop, 936 F.3d at 940, 942. Shockingly, the Ninth Circuit agreed.²⁰⁰Id. Although the officers’ theft of the homeowners’ property was “deeply disturbing” and “morally wrong,” the Jessop court held that the officers could not be held liable because “they did not have clear notice that [their theft] violated the Fourth Amendment.”²⁰¹Id. Whether “the theft of over $225,000 . . . violates the Fourth Amendment’s prohibition [of] unreasonable searches and seizures,” the Court held, “would not be clear to a reasonable [police] officer.”²⁰²Id. (citing Brosseau v. Haugen, 543 U.S. 194, 199 (2004)) (internal quotation marks omitted). Thus, qualified immunity applied, and the officers could not be sued.²⁰³Id.

Jessop shows how out of hand the doctrine of qualified immunity has become: officers can steal property and they are assumed to be too incompetent or too undertrained to realize what they are doing is unlawful. Under the Jessop court’s rationale, a reasonable police officer—a person whose entire job is to uphold the law—wouldn’t realize that stealing is against the rules. To be sure, there are many problems with the current qualified immunity doctrine—and scholars have not been shy in voicing their criticism.²⁰⁴See, e.g., William Baude, Is Qualified Immunity Unlawful?, 106 Calif. L. Rev. 45, 88 (2018) (claiming the doctrine “lacks legal justification, and [that] the Court’s justifications are unpersuasive”); Lindvall, supra note 48, at 152 (arguing that the “qualified immunity doctrine should be discarded” primarily because it “prevents the courts from [effectively] enforcing the Constitution”); John C. Jeffries, Jr., What’s Wrong with Qualified Immunity?, 62 U. Fla. L. Rev. 851, 869 (2010) (“Today, the law of qualified immunity is out of balance . . . The Supreme Court needs to intervene, not only to reconcile the divergent approaches of the Circuits but also, and more fundamentally, to rethink qualified immunity and get constitutional tort law back on track.”); Schwartz, supra note 76, at 1799–1800 (arguing that qualified immunity “fails to achieve its intended policy aims,” “does not shield individual officers from financial liability,” “almost never shields government officials from costs and burdens associated with discovery and trial in filed cases,” and “appears unnecessary to encourage vigorous enforcement of the law”); Joanna C. Schwartz, How Qualified Immunity Fails, 127 Yale L.J. 2, 70 (2017) (concluding that “the Court’s efforts to advance its policy goals through qualified immunity doctrine has been an exercise in futility”). But this article focuses on one specific problem with the current qualified immunity standard: the courts refuse to recognize obvious constitutional violations.

The main reason qualified immunity has gotten out of hand is because the courts require plaintiffs to identify favorable precedent that has virtually identical facts to avoid dismissal of their case.²⁰⁵See, e.g., Jessop, 936 F.3d at 942 (“The lack of ‘any cases of controlling authority’ or a ‘consensus of cases of persuasive authority’ on the constitutional question compels the conclusion that the law was not clearly established at the time of the incident.” (quoting Wilson v. Layne, 526 U.S. 603, 617 (1999))); Randall v. Scott, 610 F.3d 701, 715 (11th Cir. 2010) (awarding qualified immunity because the court was “aware of no precedential case with similar facts”); Stoot v. City of Everett, 582 F.3d 910, 922 (9th Cir. 2009) (awarding an officer qualified immunity because the plaintiffs “ha[d] not cited a single case squarely holding” that the officer’s conduct was unlawful, even though the court ultimately determined that the officer did in fact act unlawfully). The courts have held that an officer is “on notice” that certain conduct is unconstitutional only if a court has previously decided a virtually identical case.²⁰⁶See, e.g., Kisela v. Hughes, 138 S. Ct. 1148, 1153 (2018) (holding that, in excessive-force cases, “police officers are entitled to qualified immunity unless existing precedent ‘squarely governs’ the specific facts at issue”) (quoting Mullenix v. Luna, 136 S. Ct. 305, 309 (2015)); District of Columbia v. Wesby, 138 S. Ct. 577, 589–90 (2018) (to show that the law was “clearly established,” a plaintiff must point to “‘controlling authority’ or a robust ‘consensus of cases of persuasive authority’”) (quoting Wilson v. Layne, 526 U.S. 603, 617 (1999) (citation omitted))); White v. Pauly, 137 S. Ct. 548, 552 (2017) (holding that qualified immunity was wrongly withheld from the defendant-officer because the plaintiff “failed to identify a case where an officer acting under similar circumstances . . . was held to have violated the Fourth Amendment”); see also Barnes & Marimow, supra note 14(observing that “the ‘clearly established’ test often means that . . . civil rights plaintiffs must identify a nearly identical violation that has been recognized by the Supreme Court or appellate courts in the same jurisdiction”). This gives too much leeway to defendants and prevents the courts from properly enforcing the Constitution.²⁰⁷Lindvall, supra note 48, at 149–52. All executive-branch officials should be able to recognize blatantly unconstitutional behavior without reading a judicial opinion. Take Jessop, for example. Is it “unreasonable” under the Fourth Amendment for a police officer to steal your money? This seems like a question with an obvious answer: yes. But the plaintiffs in Jessop could not point to a case that specifically said that it is unreasonable for a police officer to steal money from suspects—so the officers were immunized from suit. In other words, as a Fifth Circuit judge recently put it: “No precedent = no clearly established law = no liability.”²⁰⁸Zadeh v. Robinson, 928 F.3d 457, 479–80 (5th Cir. 2019) (Willett, J., concurring and dissenting in part). There are hundreds of lower court cases where the court awarded qualified immunity to officers who engaged in blatantly unconstitutional behavior.²⁰⁹See supra notes 167–77 and accompanying text.

Here’s another one: Is it unconstitutional for government officials to deliberately fabricate evidence in a civil child-custody trial? Again, this seems obvious: parents have a constitutional right to the custody of their children,²¹⁰Troxel v. Granville, 530 U.S. 57, 65–66 (2000) (describing “the fundamental right of parents to make decisions concerning the care, custody, and control of their children” as “perhaps the oldest of the fundamental liberty interests recognized by [the Supreme] Court”). and the government cannot manufacture inculpatory evidence to take someone’s kids away. But in Costanich v. Department of Social and Health Services,²¹¹627 F.3d 1101 (9th Cir. 2010). the Ninth Circuit held that a reasonable government official wouldn’t realize that they cannot fabricate evidence in court.²¹²Id. at 1116 (awarding qualified immunity to government officials who “deliberately falsified evidence” in a civil child abuse proceeding because it was not “clearly established” that fabricating evidence in the civil context was unconstitutional). “Because . . . the right not to be accused based on deliberately falsified evidence during civil [child-custody] investigations . . . was not clearly established” by prior caselaw, the Constanich court awarded qualified immunity to the defendants.²¹³Id.

Or how about this one: Is it unreasonable for an officer to try to shoot a child’s non-threatening pet dog only to end up shooting the child, who was lying only a few feet away from the dog? In Corbitt v. Vickers, the Eleventh Circuit held that “intentionally firing at [a] dog and unintentionally shooting [a nearby child] did not violate any clearly established Fourth Amendment rights.”²¹⁴Corbitt v. Vickers, 929 F.3d 1304, 1315 (11th Cir. 2019). Because the plaintiff could not point to a “materially similar binding case,” the court held that the officer was entitled to immunity.²¹⁵Id. at 1320, 1323. Although the dog had “retreated under [the plaintiff’s] home” and “no one appeared threatened by him,”²¹⁶Id. at 1308. the Corbitt court nonetheless held that “[t]his is not a case that so obviously violates the Fourth Amendment that prior case law is unnecessary to hold [the officer] individually liable for his conduct.”²¹⁷Id. at 1321. The Corbitt court, in other words, believed that a reasonable officer wouldn’t realize that he shouldn’t “fir[e] . . . a deadly weapon at a dog located close enough to a . . . child that the child [would likely be] struck by [an] errant shot. . . .”²¹⁸See id.

This decision is shameful. Place yourself in Corbitt’s shoes. You’re in your front yard playing with your kids.²¹⁹See id. at 1308. Several officers suddenly show up and without explanation demand, at gunpoint, for you and the kids to get down on the ground.²²⁰See Corbitt, 929 F.3d at 1308. Your dog, Bruce, comes outside to investigate.²²¹See id. Although Bruce doesn’t do anything threatening, one of the officers fires his gun at him.²²²Id. Bruce, terrified, retreats under your front porch.²²³Id. A few seconds later, Bruce comes out from under the porch.²²⁴Id. The officer again shoots at Bruce, but his errant shot hits your child instead.²²⁵Id. Now, ask yourself this: Did the officer who shot your child act unreasonably? Any reasonable person would answer this question with a resounding “yes.” But the court held that this officer could not be held accountable because the plaintiff couldn’t find any precedent with similar facts.²²⁶Corbitt, 929 F.3d at 1315.

Here’s another: Is it clearly “cruel and unusual” to make a prisoner sleep in a feces-covered room for six days? In Taylor v. Stevens, Trent Taylor claimed that his prison’s living conditions did not meet the constitutional minimum.²²⁷Taylor v. Stevens, 946 F.3d 211, 216 (5th Cir. 2019). Taylor’s cell was covered in “massive amounts” of feces—on the floor, ceiling, windows, walls, and sink—apparently because of one of the prison’s “psych patients.”²²⁸Id. at 218. The prison guards refused to clean the cell; instead, they laughed at Taylor and told him he was in for “a long weekend.”²²⁹Id. Taylor was forced to sleep there for four nights.²³⁰Id. After four nights of sleeping in that feces-covered cell, the guards moved Taylor to another cell.²³¹See id. But the floor-drain in the new cell was clogged, causing raw sewage to seep up onto the floor.²³²Id. Taylor stayed in that cell for two nights.²³³Taylor, 946 F.3d at 218–19.

Taylor subsequently sued his guards under § 1983, arguing that his living conditions violated the Eighth Amendment’s prohibition of cruel and unusual punishments and “inhumane” living conditions.²³⁴Id. at 219 (internal quotation marks omitted); see also U.S. Const. amend. VIII (“Excessive bail shall not be required, nor excessive fines imposed, nor cruel and unusual punishments inflicted.”); Farmer v. Brennan, 511 U.S. 825, 832 (1994) (holding that the Eighth Amendment prohibits “inhumane” living conditions, and that prison officials “must provide humane conditions of confinement” and “ensure that inmates receive adequate food, clothing, shelter, and medical care”). The Fifth Circuit awarded the guards qualified immunity.²³⁵Taylor, 946 F.3d at 222. According to the Fifth Circuit, it wasn’t “clearly established” that “only six days” of living in a cesspool of human waste was unconstitutional.²³⁶Id. Although the law “was clear that prisoners couldn’t be housed in cells teeming with human waste for months on end,”²³⁷Id. (citing McCord v. Maggio, 927 F.2d 844, 848 (5th Cir. 1991)). the Fifth Circuit hadn’t previously held that living in these conditions for such a short period of time was unlawful.²³⁸Id. “It was therefore not ‘beyond debate’ that the defendants broke the law.”²³⁹Id. (quoting Ashcroft v. al-Kidd, 563 U.S. 731, 741 (2011)). “No precedent = no clearly established law = no liability.”²⁴⁰Zadeh v. Robinson, 928 F.3d 475, 479–80 (5th Cir. 2019) (Willett, J., concurring and dissenting in part).

How can this be the result? Our laws are not supposed to shield bullies; they are supposed to shield victims. They are not supposed to shield those in power; they are supposed to shield the vulnerable. They are not supposed to protect the government; they are supposed to limit the government. The current iteration of the qualified immunity doctrine has turned the law of constitutional torts on its head.

Or how about this one: Is it obviously unreasonable for an officer to use a taser on a pregnant woman for refusing to sign a speeding ticket? That was the issue in the Ninth Circuit Court of Appeals case Mattos v. Agarano. In Mattos, a police officer pulled over a mother as she was dropping off her eleven-year-old son at school.²⁴¹Mattos v. Agarano, 661 F.3d 433, 436 (9th Cir. 2011). The officer ultimately chose to cite the mother for speeding.²⁴²Id. at 437. The mother insisted that she was not speeding and said that she would accept the ticket but she would not sign it because she did not want to admit to speeding.²⁴³Id. The officer said that if she did not sign the ticket he would arrest her.²⁴⁴Id. When the mother again refused to sign the ticket, the officer pulled out his taser and pointed it at her.²⁴⁵Id. The mother told the officer she was pregnant and “less than 60 days from having [her] baby.”²⁴⁶Id.

Despite learning that this speeder was seven months pregnant, the officer opened the car door, twisted the mother’s arm behind her back, and applied the taser to her left thigh.²⁴⁷Mattos, 661 F.3d at 437. The mother “began to cry and started honking her car horn.”²⁴⁸Id. The officer then applied the taser to the mother’s left arm, and then immediately applied the taser to her neck as she continued to cry out in pain.²⁴⁹Id. After this third tase, the mother “fell over in her car and the officers dragged her out, laying her face down on the street and handcuffing her hands behind her back.”²⁵⁰Id.

The mother subsequently sued her arresting officers for using excessive force in violation of the Fourth Amendment.²⁵¹Id. at 438. On appeal, the Ninth Circuit correctly held that the officer’s choice to tase this pregnant woman was unconstitutionally excessive.²⁵²Id. at 446. But the court nonetheless awarded the officer immunity because “the law was not sufficiently clear at the time of the incident to render the alleged violation clearly established.”²⁵³Mattos, 661 F.3d at 448. The Mattos court found that “existing precedents” had not placed this excessive-force issue “beyond debate,” such that “every ‘reasonable official would have understood’ . . . that tasing [the suspect] in these circumstances constituted excessive force.”²⁵⁴Id. (quoting Ashcroft v. al-Kidd, 563 U.S. 731, 741 (2011))(internal quotations omitted). And in a single conclusory sentence, the court held that this constitutional violation (i.e., tasing a pregnant woman for failing to sign a misdemeanor speeding ticket) was not “so obvious” that the plaintiff could satisfy the “clearly established” prong without pointing to factually analogous precedent.²⁵⁵Id. (“Moreover, the violation was not so obvious that we can ‘define clearly established law at a high level of generality,’ finding that Graham alone renders the unconstitutionality of [the suspect’s] tasing clearly established.” (internal quotation marks omitted) (citation omitted)). In other words, it would not be “obvious” to a reasonable police officer that tasing a pregnant woman for failing to sign a speeding ticket is unconstitutionally excessive.

These cases seem to suggest that the archetypal “reasonable police officer” the courts often reference is completely unfit to do his job.²⁵⁶Cf. City & Cnty. of San Francisco v. Sheehan, 135 S. Ct. 1765, 1774 (2015) (holding that plaintiffs must show that their constitutional rights were “clearly established” at the time, such that a “reasonable official” would have understood that the alleged conduct was unconstitutional); Ashcroft v. al-Kidd, 563 U.S. 731, 741 (2011) (noting that a right is “clearly established” only if a “reasonable official” would be able to recognize the contours of the right); Anderson v. Creighton, 483 U.S. 635, 640 (1987) (same). He doesn’t realize that theft is unreasonable.²⁵⁷See Jessop v. City of Fresno, 936 F.3d 937, 939–40, 942 (9th Cir. 2019) (awarding qualified immunity to several officers who stole $225,000 worth of property while executing a warrant because “they did not have clear notice that [their theft] violated the Fourth Amendment”). He shoots at dogs for no reason—but he’s such a bad shot that he sometimes hits nearby children instead.²⁵⁸See Corbitt v. Vickers, 929 F.3d 1304, 1308, 1318–19 (11th Cir. 2019) (awarding qualified immunity to an officer who, while repeatedly attempting to shoot a pet dog that wasn’t posing any threat, shot a ten‐year‐old child lying on the ground). He arrests people for having a 0.000 blood-alcohol content.²⁵⁹See Brennan v. Dawson, 752 F. App’x 276, 278, 285 (6th Cir. 2018) (awarding qualified immunity to an officer who arrested a parolee after he blew a 0.000 BAC because there was no “clearly established rules of constitutional law” holding this sort of conduct was “unreasonable” under the Fourth Amendment). He doesn’t realize that you can’t fabricate evidence.²⁶⁰See Costanich v. Dep’t of Soc. & Health Servs., 627 F.3d 1101, 1108, 1114 (9th Cir. 2010) (awarding qualified immunity to government officials who “deliberately fabricated evidence” in a civil child abuse proceeding because it was not “clearly established” that fabricating evidence in the civil context was unconstitutional). He beats his arrestees for no reason—and sometimes he purposely drives like a maniac just to mess with them.²⁶¹Chambers v. Pennycook, 641 F.3d 898, 907–09 (8th Cir. 2011) (awarding qualified immunity to officers who “kicked [an arrestee] several times on both sides of his body, although he was restrained on the ground and offering no resistance,” “repeatedly choked and kicked [the arrestee] during the trip to the hospital,” and “extended the journey [to the hospital] by taking a roundabout route and intentionally driving so erratically that [the arrestee] was jerked roughly back and forth in his car seat while his head was positioned adjacent to the dashboard”). And he often uses his taser on suspects, even if they’re pregnant,²⁶²Mattos v. Agarano, 661 F.3d 433, 437, 448 (9th Cir. 2011) (awarding qualified immunity to an officer who tased a pregnant woman for refusing to sign a speeding ticket). but only because he doesn’t realize that tasing someone is a “significant level of force.”²⁶³Bryan v. MacPherson, 630 F.3d 805, 809 (9th Cir. 2010) (Wardlaw, J., concurring in the denial of rehearing en banc) (finding that an officer violated the Fourth Amendment when he used a taser against a plaintiff who “was obviously and noticeably unarmed, made no threatening statements or gestures, did not resist or attempt to flee, but was standing inert twenty to twenty-five feet away from the officer,” yet awarding the officer qualified immunity because it wasn’t clearly established that tasers cause a “significant level of force that must be justified by the governmental interest involved”). This, apparently, is the courts’ idea of a “reasonable” police officer.

Plaintiffs and police officers both deserve better. Plaintiffs deserve better because the primary purpose of the federal courts is to enforce the Constitution and to ensure that the Bill of Rights affords actual, substantial rights, rather than hollow guarantees.²⁶⁴Lindvall, supra note 48, at 123 (citing Faitoute Iron & Steel Co. v. City of Ashbury Park, 316 U.S. 502, 514 (1942)). Under the current iteration of the qualified immunity doctrine, however, officers are rarely held responsible for their patently unreasonable conduct and their victims are often left out to dry.²⁶⁵Id. And police officers deserve better because the courts should not assume that your everyday “reasonable police officer” is a clumsy, trigger-happy liability magnet. By refusing to recognize obviously unconstitutional police behavior, the courts allow “bad” cops to remain on the streets—which can often have dire consequences.

Following the murder of George Floyd in 2020, America’s streets flooded with demonstrators who protested and called for systemic reforms to policing.²⁶⁶E.g., Evan Hill, Ainara Tiefenthäler, Christiaan Triebert, Drew Jordan, Haley Willis & Robin Stein, How George Floyd Was Killed in Police Custody, N.Y. Times (May 31, 2020), https://perma.cc/4MKD-FQPG; Dennis Romero, George Floyd Protestors Hit Streets Across U.S. for Third Weekend, NBC News (June 12, 2020, 9:11 PM), https://perma.cc/7U7K-Q37P; Jennifer Rubin, Opinion, The Massive Scope of Change Following George Floyd’s Death, Wash. Post (June 12, 2020, 9:30 AM), https://perma.cc/4YUL-5VUC. The officer who killed George Floyd had eighteen complaints filed against him before he set off this firestorm, but only two of those complaints were “closed with discipline,” which entailed only “a letter of reprimand.”²⁶⁷Scottie Andrew, Derek Chauvin: What We Know About the Former Officer Charged in George Floyd’s Death, CNN (June 1, 2020, 2:19 PM), https://perma.cc/M9Z9-5DSZ. Maybe if this bad cop had been forced to pay a few hefty civil judgments for his past bad acts instead of merely receiving a pair of strongly worded letters, he wouldn’t have kneeled on George Floyd’s neck for nine minutes. Hopefully, the Floyd family can find precedent in the U.S. Court of Appeals for the Eighth Circuit that “squarely governs”²⁶⁸Kisela v. Hughes, 138 S. Ct. 1148, 1153 (2018) (quoting Mullenix v. Luna, 136 S. Ct. 305, 309 (2015)). their case and places the constitutional issue “beyond debate.”²⁶⁹Id. at 1152 (quoting White v. Pauly, 137 S. Ct. 548, 551 (2017)). If not, this officer might become the latest bad cop to avoid civil liability for his obviously unconstitutional behavior.²⁷⁰A quick Westlaw search suggests that George Floyd’s family might have an uphill battle in a § 1983 suit against the officer who killed George Floyd. Although there is caselaw holding that it is unconstitutionally excessive for officers to kneel on the neck or back of an already-restrained suspect—see, e.g., McCue v. City of Bangor, 838 F.3d 55, 64 (1st Cir. 2016); Weigel v. Broad, 544 F.3d 1143, 1152, 1155 (10th Cir. 2008); Drummond ex rel. Drummond v. City of Anaheim, 343 F.3d 1052, 1057, 1059–60 (9th Cir. 2003)—the plaintiffs may be unable to point to “existing precedent” in the Eighth Circuit that “‘squarely governs’ the specific facts at issue” in their case. See Kisela, 138 S. Ct. at 1153 (quoting Mullenix v. Luna, 136 S. Ct. 305, 308 (2015)). In Lombardo v. Saint Louis City, 361 F. Supp. 3d 882 (E.D. Mo. 2019), for example, the court awarded qualified immunity to officers who killed a handcuffed prison inmate by kneeling on his neck. Id. at 895. In Grady v. Becker, 907 F. Supp. 2d 975 (D. Minn. 2012), the court granted immunity to officers who “kneeled on [a handcuffed suspect’s] face for 30 to 40 seconds.” Id. at 978, 983–84. And in Giannetti v. City of Stillwater, 216 F. App’x 756 (10th Cir. 2007), the court awarded immunity to officers who killed a handcuffed prisoner by kneeling on the back of her neck, all because she refused to put on an orange jumpsuit. Id.at 759–60, 762, 766. The decedent in Giannetti, like George Floyd, even complained that “she couldn’t breathe” just before she died. Id. at 760. If the officers were entitled to immunity in these cases, the officer who killed Floyd might be able to successfully argue that the “contours” of Floyd’s rights were not “sufficiently clear,” such that his use of force was clearly excessive. See Ashcroft v. al-Kidd, 563 U.S. 731, 741 (2011).

III.     The Courts Should More Frequently Withhold Qualified Immunity from Officers Who Commit “Obvious” Constitutional Violations

Judges, scholars, and commentators have called for a number of reforms to the qualified immunity doctrine,²⁷¹See, e.g., Zadeh v. Robinson, 928 F.3d 457, 479 (5th Cir. 2019) (Willett, J., concurring and dissenting in part) (arguing that the courts, at a minimum, should be required to decide both whether a constitutional violation occurred and whether the law was clearly established at the time to avoid “constitutional stagnation” (citation omitted)); I. Bennett Capers, John C.P. Goldberg & Benjamin C. Zipursky, Opinion, How to Reform Police Liability Without Involving McConnell or Trump,Wash. Post (Aug. 17, 2020, 8:00 AM), https://perma.cc/6G92-JHHV (urging the States to enact civil rights legislation that does not allow for the defense of qualified immunity); Alan K. Chen, The Ultimate Standard: Qualified Immunity in the Age of Constitutional Balancing Tests, 81 Iowa L. Rev. 261, 267 (1995) (arguing for a more rules-based approach to qualified immunity); Katherine Mims Crocker, Qualified Immunity and Constitutional Structure, 117 Mich. L. Rev. 1405, 1409–10 (2019) (outlining the legal community’s disapprovals of qualified immunity); Jeffries, supra note 204, at 869 (urging the Supreme Court to “reconcile the divergent approaches of the Circuits” on qualified immunity, and more fundamentally to “rethink qualified immunity [to] get constitutional tort law back on track”). with some calling for it to be discarded in its entirety.²⁷²See, e.g., Chemerinsky, supra note 96, at 91–92; R. George Wright, Qualified and Civic Immunity in Section 1983 Actions: What Do Justice and Efficiency Require?, 49 Syracuse L. Rev. 1, 29–33 (1998). This article offers a middle-ground alternative: the courts should retain qualified immunity but more frequently recognize “obvious” constitutional violations, à la Hope v. Pelzer. Under this approach, if the court determines that the defendant-officer obviously violated the plaintiff’s constitutional rights, qualified immunity should be denied.

After the Supreme Court decided Hope in 2002, the Eleventh Circuit reformulated its qualified immunity standard to allow plaintiffs to make the “obvious constitutional violation” argument to overcome qualified immunity. Specifically, the Eleventh Circuit recognized two different obvious-constitutional-violation arguments available to § 1983 plaintiffs. One, if a plaintiff could not “show that a materially similar case ha[d] already been decided,” they could argue that “a broader, clearly established principle should control the novel facts” presented by their case,²⁷³Mercado v. City of Orlando, 407 F.3d 1152, 1159 (11th Cir. 2005) (citing Hope v. Pelzer, 536 U.S 730, 741 (2002)). as long this broader principle was “established with obvious clarity by the case law so that every objectively reasonable government official facing the circumstances would know that the [alleged] conduct . . . violate[d] federal law . . . .”²⁷⁴Loftus v. Clark-Moore, 690 F.3d 1200, 1205 (11th Cir. 2012) (citing Terrell v. Smith, 668 F.3d 1244, 1256 (11th Cir. 2019)) (internal quotation marks omitted). Second, if the plaintiff could not point to any existing caselaw whatsoever, they could still overcome the qualified immunity defense if the defendant’s conduct “so obviously violate[d] [the] constitution that prior case law is unnecessary.”²⁷⁵Mercado, 407 F.3d at 1159.

In Lee v. Ferraro,²⁷⁶284 F.3d 1188 (11th Cir. 2002). for example, the Eleventh Circuit withheld qualified immunity from a police officer even though the plaintiff was unable to identify any materially similar precedent.²⁷⁷Id. at 1198–1200. In Lee, an officer pulled over an African-American woman for “improper use of her car horn” after she honked her horn at a vehicle stopped at a green light.²⁷⁸Id. at 1190–92. When she asked the officer why he had pulled her over, the officer told her that “he [was] the fucking boss around here” and that “he asks all the questions.”²⁷⁹Id. at 1191. The officer then pulled open the car door, stuck his nightstick in her face, called her “a fucking black bitch,” and threatened to “kick [her] ass.”²⁸⁰Id. The officer eventually pulled the driver from her vehicle, handcuffed her, and “slammed [her] head down onto the trunk” of her car.²⁸¹Id. She remained in jail until the following morning.²⁸²Lee, 284 F.3d at 1192.

The driver subsequently filed a § 1983 excessive-force claim against the officer.²⁸³Id. at 1193. The district court awarded the officer qualified immunity.²⁸⁴Id. It is astonishing that the district court would award this officer immunity given the facts of this case. On appeal, the Eleventh Circuit reversed, holding that the officer’s use of force was “so plainly unnecessary and disproportionate” that “no reasonable officer could have believed that [these] actions were legal.”²⁸⁵Id. at 1199–1200. Although the plaintiff could not point to a “materially similar case” that declared the officer’s specific conduct unlawful,²⁸⁶Id. at 1198 (citing Willingham v. Loughnan, 261 F.3d 1178, 1187 (11th Cir. 2001)). it was nonetheless “abundantly clear” that the officer’s conduct was “plainly excessive” and “wholly unnecessary” under basic Fourth Amendment law.²⁸⁷Id. It is “clear and obvious” to all reasonable police officers that they “cannot employ . . . severe and unnecessary force” on a handcuffed, compliant detainee.²⁸⁸Lee, 284 F.3d at 1200. Because the officer’s force was “so plainly unnecessary,” the Lee court withheld qualified immunity.²⁸⁹Id.

Now compare the Lee decision to Chambers v. Pennycook,²⁹⁰641 F.3d 898 (8th Cir. 2011). where the Eighth Circuit awarded qualified immunity to several sadistic police officers because of minor discrepancies in the available caselaw.²⁹¹Id. at 907–09. In Chambers, several police officers arrested a suspect on drug-related charges.²⁹²Id. at 901–02. After the officers had handcuffed the suspect, they “kicked him several times on both sides of his body, although he was restrained on the ground and offering no resistance.”²⁹³Id. at 907. They “repeatedly choked and kicked him during the trip to the hospital.”²⁹⁴Id. at 907–08. And they “extended the journey [to the hospital] by taking a roundabout route and intentionally driving so erratically that [the suspect] was jerked roughly back and forth in his car seat while his head was positioned adjacent to the dashboard.”²⁹⁵Id. at 908.

Despite these disturbing allegations, the district court dismissed the plaintiff’s excessive-force claims.²⁹⁶Chambers, 641 F.3d at 903. And, on appeal, the Eighth Circuit affirmed, awarding qualified immunity to each of the officers.²⁹⁷Id. at 908–09. “The officers,” the Chambers court reasoned, “knew there was some chance that their actions would cause only de minimis injury [to the plaintiff].”²⁹⁸Id. at 908. Therefore, because the Fourth Amendment prohibits only excessive force, “it was reasonable for the officers to believe that they remained within constitutional bounds if that was the result.”²⁹⁹Id. In other words, because “a reasonable officer could have believed that as long as he did not cause more than de minimis injury to an arrestee, his actions would not run afoul of the Fourth Amendment,” the law was not clearly established and qualified immunity applied.³⁰⁰Id.

The Eleventh Circuit’s opinion in Lee is cogent, persuasive, and practical. The Eighth Circuit’s opinion in Chambers is unconvincing, mechanical, and formalistic.³⁰¹It could very well be that the Chambers court simply did not believe the plaintiff’s allegations. I certainly don’t believe them. The plaintiff alleged that he was “visit[ing] his stepdaughter” in the apartment that was being raided, and that the officers “planted a glass pipe in [his] pocket.” Id. at 902. This seems very unlikely. Nonetheless, at the motion-to-dismiss stage, the plaintiff’s allegations must be assumed to be true, Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 555 (2007), and at the motion-for-summary-judgment stage, the (nonmoving) plaintiff’s allegations must be viewed in the most favorable light possible, Tolan v. Cotton, 572 U.S. 650, 657 (2014). It does not take a constitutional scholar—or even a Westlaw account—to resolve these cases. The police cannot beat up their suspects if they are passive and in handcuffs.³⁰²See, e.g., Brown v. City of Golden Valley, 574 F.3d 491, 496–98 (8th Cir. 2009) (holding that it was unlawful for an officer to use serious physical force against a nonviolent, nonfleeing passenger in a car, even though the passenger had refused to obey the officer’s commands); Casey v. City of Federal Heights, 509 F.3d 1278, 1281–82, 1285 (10th Cir. 2007) (holding that it was unlawful for an officer to use serious physical force against a suspect when the suspect committed only a nonviolent misdemeanor and did not struggle against officers until the officers employed force). This should be obvious to all reasonable police officers. And the courts should not award immunity to officers who engage in aggressive, harmful machismo—regardless of the existing caselaw, or lack thereof.

Letting bad cops off the hook because of a judge-made technicality undermines the public’s trust in the justice system. Section 1983 says that state officials who violate the Constitution “shall be liable” to their victims.³⁰³42 U.S.C. § 1983 (“Every person who, under color of [state law] . . . subjects . . . any citizen of the United States or other person within the jurisdiction thereof to the deprivation of any rights, privileges, or immunities secured by the Constitution and laws, shall be liable to the party injured in an action at law, suit in equity, or other proper proceeding for redress . . . .” (emphasis added)). It does not say that they “shall be liable, so long as someone else was found to have violated the Constitution in a similar way in the past.” The Constitution is meant to bestow actual, meaningful, enforceable rights, not to maintain abstract legal theories.³⁰⁴Faitoute Iron & Steel Co. v. City of Ashbury Park, 316 U.S. 502, 514 (1942) (“The Constitution is ‘intended to preserve practical and substantial rights, not to maintain theories.’”) (quoting Davis v. Mills, 194 U.S. 451, 457 (1904))). But by requiring § 1983 plaintiffs to meet such an “exacting” qualified immunity standard,³⁰⁵City & Cnty. of San Francisco v. Sheehan, 135 S. Ct. 1765, 1768 (2015). the Supreme Court has largely hollowed out the protections afforded in the Bill of Rights and has abdicated its most important function: enforcing the Constitution.³⁰⁶Lindvall, supra note 48; see also Blodgett v. Holden, 275 U.S. 142, 147–48 (1927) (Holmes, J., concurring) (maintaining that the Court’s “gravest and most delicate function” is to enforce the Constitution). By recognizing more “obvious” constitutional violations, the courts would add some much-needed flexibility to the current wooden qualified immunity standard.

Section 1983 was enacted to protect the people from the government.³⁰⁷Jamison v. McClendon, 476 F. Supp. 3d 386, 422 (S.D. Miss. 2020). But that didn’t stop the Supreme Court from adding some “gobbledygook”³⁰⁸Metro. Life Ins. Co. v. Glenn, 554 U.S. 105, 130 n.3 (2008) (Scalia, J., dissenting). and “legalistic argle-bargle”³⁰⁹United States v. Windsor, 570 U.S. 744, 799 (2013) (Scalia, J., dissenting). to the statute, and now the statute has been turned on its head to protect the government from the people.³¹⁰Jamison, 476 F. Supp. 3d at 422. “[E]very hour we spend in a § 1983 case asking if the law was ‘clearly established’ or ‘beyond debate’ is one where we lose sight of why Congress enacted this law those many years ago: to hold state actors accountable for violating federally protected rights.”³¹¹Id. at 423. If the Supreme Court or Congress will not reform qualified immunity, it should at least recognize obvious constitutional violations when they occur. And as Part II of this article illustrates, there are plenty of obvious constitutional violations out there to recognize.

IV.     Counterarguments Considered

A.     Counterargument 1: Qualified Immunity is Necessary Because it Prevents Officers from Being Paralyzed by the Fear of Excessive Personal Liability.³¹²See Pearson v. Callahan, 555 U.S. 223, 231 (2009) (maintaining that qualified immunity is “need[ed] to shield officials from harassment, distraction, and liability when they perform their duties reasonably”); Forrester v. White, 484 U.S. 219, 223 (1988) (maintaining that the goal of qualified immunity has always been to ensure that “the threat of liability” under § 1983 does not “create perverse incentives that operate to inhibit officials in the proper performance of their duties”); Howse v. Hodous, 953 F.3d 402, 407 (6th Cir. 2020) (noting that qualified immunity is meant to avoid officer “paralysis by analysis” (citation omitted)).

Response: This argument fails for two reasons: (1) individual officers are virtually never held personally responsible for the costs of § 1983 suits; and (2) choosing immunity over accountability is the wrong value choice. On the first point, individual government officials almost never pay for the litigation costs, settlements, or damages awards that arise from § 1983 suits.³¹³See generally Joanna C. Schwartz, Police Indemnification, 89 N.Y.U. L. Rev. 885 (2014). In fact, a leading study found that in § 1983 suits, individual law enforcement officers contributed to less than 1% of settlements, paid only 0.02% of the total damages awarded to plaintiffs, and paid $0 in punitive damages.³¹⁴Id. at 890 (examining forty-four large jurisdictions over a six-year period). And among the few officers who did personally contribute to their § 1983 suits, the median contribution was only $2,250—a small price to pay for knowingly violating someone’s constitutional rights.³¹⁵Id. at 939; see also Hunter v. Bryant, 502 U.S. 224, 229 (1991) (noting that qualified immunity protects police officers unless they were “plainly incompetent” or “knowingly violate[d] the law”).

Most officers do not personally contribute to their § 1983 suits because of police indemnification.³¹⁶See Schwartz,supra note 76, at 1806. Most jurisdictions, either because of state law or department policy, choose to indemnify their officers for torts committed within the scope of their employment.³¹⁷See id. And even in the tiny subset of municipalities that do not automatically indemnify their officers, the officers still very rarely contribute to the costs of their § 1983 suits for a variety of reasons.³¹⁸Id. at 1806–07. In short, officers are not paralyzed by the specter of civil liability because there’s about a 0% chance they will actually be forced to contribute toward their § 1983 suits.³¹⁹Schwartz, supra note 313, at 890 (finding that individual officers contributed to less than 1% of settlements and paid only 0.02% of the total damages awarded to plaintiffs in § 1983 suits); see also Owen v. City of Independence, 445 U.S. 622, 654 (1980) (noting that there is little cause for concern about state officials’ ardor and discretion in the field “when the damages award comes not from the official’s pocket, but from the public treasury”).

Second, and perhaps more importantly, the risk of officers being distracted or hesitant is not a sufficient reason to immunize these officers.³²⁰See Richardson v. McKnight, 521 U.S. 399, 411 (1997) (noting that “the risk of distraction alone cannot be sufficient grounds for an immunity” (internal quotation marks omitted) (citation omitted)). Addressing officer distraction, given the municipal indemnity policies mentioned above, the chances of an officer actually being distracted by the idea of a possible § 1983 suit are low. The courts seem to think that if the qualified immunity standard were relaxed, officers would walk around in a constant malaise, always wondering in the back of their minds whether they might ultimately have to pay 0.02% of their potential victim’s damages.³²¹Schwartz, supra note 313, at 890 (finding that individual officers typically paid only 0.02% of the total damages awarded to plaintiffs in § 1983 suits). This is not plausible.

Addressing officer hesitation, the chances of an officer hesitating in the line of duty because of a potential § 1983 suit are also quite low. There seem to be two different kinds of hesitation we might worry about: (a) split-second hesitation, where an officer might hesitate to draw his gun or use physical force because of fear of liability; and (b) general hesitation, where an officer might hesitate in responding to a call because of fear of the § 1983 pitfalls that might await.

On the issue of split-second hesitation, there should not be much concern. For one, police officers often should be at least a little hesitant to pull the trigger of their gun. Because of the Supreme Court’s current “one-sided approach” to qualified immunity, where officers are almost always shielded from suit, officers realize that “they can shoot first and think later.”³²²Kisela v. Hughes, 138 S. Ct. 1148, 1162 (2018) (Sotomayor, J., dissenting). Knowing that their conduct will likely go unpunished, officers often fearlessly commit flagrant constitutional violations,³²³See, e.g., Corbitt v. Vickers, 929 F.3d 1304, 1308, 1318–19 (11th Cir. 2019) (awarding qualified immunity to an officer who, while repeatedly attempting to shoot a pet dog that wasn’t posing any threat, shot a ten‐year‐old child lying on the ground); Baxter v. Bracey, 751 F. App’x 869, 870–71 (6th Cir. 2018) (awarding qualified immunity to two officers who unleashed a police dog on a suspect who had surrendered and with his hands up); Chambers v. Pennycook, 641 F.3d 898, 907–09 (8th Cir. 2011) (awarding qualified immunity to officers who “kicked [an arrestee] several times on both sides of his body, although he was restrained on the ground and offering no resistance,” “repeatedly choked and kicked [the arrestee] during the trip to the hospital,” and “extended the journey [to the hospital] by taking a roundabout route and intentionally driving so erratically that [the arrestee] was jerked roughly back and forth in his car seat while his head was positioned adjacent to the dashboard”); Bryan v. MacPherson, 630 F.3d 805, 809 (9th Cir. 2010) (Wardlaw, J., concurring in the denial of rehearing en banc) (awarding qualified immunity to an officer who used a taser against a suspect who “was obviously and noticeably unarmed, made no threatening statements or gestures, did not resist arrest or attempt to flee, but was standing inert twenty to twenty-five feet away from the officer”). and the courts subsequently broadcast to the public that this “palpably unreasonable conduct will go unpunished” in our courts of law.³²⁴Kisela, 138 S. Ct. at 1162 (Sotomayor, J., dissenting). This erodes confidence in law enforcement and the courts—because, to the public at large (and especially the victims of police misconduct), it appears that the game is rigged and officers can trample on civil rights with impunity. Additionally, it stretches credulity to suggest that adjusting the qualified immunity standard would prevent officers from protecting themselves or others. Imagine any sort of “tense, uncertain, and rapidly evolving”³²⁵Graham v. Connor, 490 U.S. 386, 397 (1989). situation an officer might encounter. An officer is in a standoff with a wild-eyed suspect. Suddenly, the suspect reaches for his waistband, seemingly drawing a gun. But, alas, the officer just stood there and took a bullet to the chest because in the back of his mind he thought, “I’d better not use physical force because there’s a chance I might not be afforded qualified immunity if this guy sues me.” Arguments like this should not be taken seriously. In truly dangerous situations, officers are going to respond appropriately regardless of the qualified immunity standard.

On the issue of general hesitation, are we really expected to believe officers will not do their jobs because of the slim chance they might be sued and denied immunity? For one, officers can be sued under § 1983 only if they violate the Constitution.³²⁶Saucier v. Katz, 533 U.S. 194, 200–01 (2001). So an officer would hesitate to respond to a call to duty only if she thought she was likely going to violate someone’s constitutional rights when she got there. (In which case, fine, don’t respond.) And if an officer really isn’t going to respond to a distress call because she’s worried about being sued, that officer shouldn’t be on the force to begin with. Police officers aren’t feeble, timid creatures; they’re going to respond when called to duty, even if there’s a slim chance they might be sued. We shouldn’t be affording all officers blanket immunity because of speculative fears of distraction and hesitation.

In short, the chances of an officer being distracted or hesitant by potential § 1983 suits are low. In fact, in one study, 87% of state police officers, 95% of municipal officers, and 100% of university police officers surveyed stated that the threat of being sued was not in their “top ten thoughts” when engaging with a suspect.³²⁷Arthur H. Garrison, Law Enforcement Civil Liability Under Federal Law and Attitudes on Civil Liability: A Survey of University, Municipal and State Police Officers, 18 Police Stud. Int’l Rev. Police Dev. 19, 26 (1995). Additionally, multiple studies have also found that a clear majority of police officers believe that lawsuits deter police misconduct and that officers should be subject to civil liability.³²⁸See Schwartz, supra note 76, 1811–13 (citing multiple studies). Qualified immunity erodes the public’s trust in law enforcement. An overwhelming lack of trust in the justice system is what makes a police officer’s job more difficult; the specter of civil liability does not.

B.     Counterargument 2: How are Judges Supposed to Determine Whether a Constitutional Violation Was “Obviously” Unconstitutional?

Response: The same way they determine all close issues—by using their judicial experience, common sense, and established legal principles.³²⁹Cf. Ashcroft v. Iqbal, 556 U.S. 662, 679 (2009) (directing the lower courts to determine whether allegations are “plausible” by “draw[ing] on [their] judicial experience and common sense”). Supreme Court caselaw is full of general rules that can be easily applied to specific situations. The First Amendment, for example, prohibits the government from suppressing particular viewpoints.³³⁰See Rosenberger v. Rector & Visitors of Univ. of Va., 515 U.S. 819, 829 (1995) (“When the government targets not subject matter, but particular views taken by speakers on a subject, the violation of the First Amendment is all the more blatant.”); R.A.V. v. City of St. Paul, 505 U.S. 377, 430 (1992) (Stevens, J., concurring in judgment) (“[In] the matter of content-based regulations, we have implicitly distinguished between restrictions on expression based on subject matter and restrictions based on viewpoint, indicating that the latter are particularly pernicious.”); Erwin Chemerinsky, Content Neutrality as a Central Problem of Freedom of Speech: Problems in the Supreme Court’s Application, 74 S. Cal. L. Rev. 49, 56 (2000) (noting that subject-matter-based restrictions are rarely upheld, but the Court has never upheld a viewpoint-based restriction on speech). Although this is a very general principle, it’s usually easy to see when the government violates it. Suppose a public university allowed its students to engage in “pro-choice” demonstrations but not “pro-life” demonstrations. This would clearly violate the First Amendment’s requirement of viewpoint neutrality—and the pro-life students would not need to cite an already-decided case to prove this point. This would be a blatantly obvious First Amendment violation, and any federal judge would recognize it as such.

Similarly, the Fourth Amendment requires officers to have “probable cause” before they can arrest a suspect.³³¹See, e.g., Tennessee v. Garner, 471 U.S. 1, 7 (1985); United States v. Watson, 423 U.S. 411, 417–18 (1976). Thus, if an officer arrests a suspect without a good reason, the officer has obviously violated the Fourth Amendment, regardless of the specific factual circumstances surrounding the arrest. It doesn’t take a constitutional scholar to recognize basic constitutional violations—and it shouldn’t take a case directly on point to clearly establish basic, well-known constitutional rights. As Judge Posner has illustrated, “[t]here has never been a [§] 1983 case accusing welfare officials of selling foster children into slavery,” but “it does not follow that if such a case arose, the officials would be immune from damages liability because no previous case had found liability in those circumstances.”³³²K.H. ex rel. Murphy v. Morgan, 914 F.2d 846, 851 (7th Cir. 1990). The Constitution’s prohibition of slavery is so obvious that precedent is not needed to prove the point.³³³See U.S. Const. amend. XIII § 1 (“Neither slavery nor involuntary servitude . . . shall exist within the United States, or any place subject to their jurisdiction.”). The same is true of many other constitutional prohibitions. The government can’t silence viewpoints it doesn’t like.³³⁴Police Dep’t of Chi. v. Mosley, 408 U.S. 92, 95 (1972) (“[A]bove all else, the First Amendment means that government has no power to restrict expression because of its message, its ideas, its subject matter, or its content.”). It can’t arrest people without a good reason.³³⁵See Watson, 423 U.S. at 417–18. It can’t discriminate on the basis of race.³³⁶See, e.g., Adarand Constructors, Inc. v. Pena, 515 U.S. 200, 223–24 (1995); Watson, 423 U.S. at 227 (“[A]ll racial classifications, imposed by whatever federal, state, or local governmental actor, must be analyzed by a reviewing court under strict scrutiny.”); Loving v. Virginia, 388 U.S. 1, 8–9, 12 (1967); Strauder v. West Virginia, 100 U.S. 303, 310 (1879). And so on. As long as the plaintiff can persuasively show that the defendant-officer clearly violated the Constitution, analogous precedent is not necessary.

The courts, of course, are often tasked with deciding cases that fall in the “hazy border” between constitutional and unconstitutional.³³⁷See Saucier v. Katz, 533 U.S. 194, 206 (2001). But occasionally they’re given a case that is beyond the pale, where the officer’s unlawful conduct is black-and-white. In such cases, the courts should not hesitate to call a spade a spade and withhold immunity from “the plainly incompetent” officers who are often haled into court.³³⁸See Malley v. Briggs, 475 U.S. 335, 341 (1986).

C.     Counterargument 3: Revamping Qualified Immunity is Unnecessary Because We Can Rely on the Police Departments’ Internal Disciplinary Structures to Reprimand Officers.

Response: The available evidence shows we cannot rely on current police departments’ internal disciplinary structures. As a 2011 study from the Department of Justice observed: “Police disciplinary procedures have long been a source of frustration for nearly everyone involved in the process . . . .”³³⁹Darrel W. Stephens, U.S. Dep’t of Justice, Nat’l Inst. of Justice, Police Discipline: A Case for Change 1 (2011), https://perma.cc/J5Q4-TUL8. Internal disciplinary procedures tend to be unfair to the police and unsatisfying for complainants.³⁴⁰See id. at 1, 5–8. Police feel that the process often devolves into an arbitrary witch hunt, where the outcome is often influenced by the amount of publicity surrounding the incident.³⁴¹See id. at 8. Complainants often feel that they are going up against a “blue wall” and that it is naïve to expect the police to discipline themselves.³⁴²Gary R. Rothwell & J. Norman Baldwin, Whistle-Blowing and the Code of Silence in Police Agencies: Policy and Structural Predictors, 53 Crime & Delinquency 605, 606, 610 (2007).

A 2011 article sponsored by Harvard’s Kennedy School and the National Institute of Justice found roughly a dozen major problems with the current internal police disciplinary structures.³⁴³See Stephens, supra note 339, at 5–10. One major problem is that the current focus of these proceedings is to punish the officers, not to change police behavior.³⁴⁴Id. at 6. Officers frequently complain that these disciplinary proceedings are more of a spectacle than an actual investigation, and that the “powers that be” are more concerned with making an example out of the officer than getting to the bottom of the complaint.³⁴⁵Id.

Additionally, these proceedings often fail to adequately deal with “the small group of officers who are the source of a disproportionate share of complaints.”³⁴⁶Id. According to several studies, “a small number of officers account for an inordinate number of complaints [in] use-of-force situations.”³⁴⁷Id. One study, for example, found that 2% of officers in some departments accounted for as much as 50% of the department’s complaints.³⁴⁸Samuel Walker, Geoffrey P. Alpert & Dennis J. Kenney, U.S. Dep’t of Justice, Nat’l Inst. of Just., Early Warning Systems: Responding to the Problem Police Officer 1 (2001), https://perma.cc/3D6Z-MYSM. The internal systems currently in place, however, fail to deal with these “problem officers.”³⁴⁹Id. They fail in large part because of the “code of silence” that currently permeates through police departments.³⁵⁰Stephens, supra note 339, at 4–5. “Various studies and reports indicate that police are reluctant to inform on one another and that many are willing to commit perjury to protect each other.”³⁵¹Rothwell & Baldwin, supra note 342, at 605–06 (citing multiple studies). Simply put: it is unreasonable to expect the police to police themselves.

Additionally, due to state and local confidentiality laws, these internal proceedings are often confidential and opaque.³⁵²Stephens, supra note 339, at 7. And because of due process requirements and union demands, these proceedings are often very expensive and time-consuming. In large departments, it often takes at least six months to fully resolve a complaint—and it often takes more than a year if the determination is appealed.³⁵³Id. At bottom, current internal police discipline is an opaque, unfair, arduous, and ineffective process. As one report concluded: the internal police disciplinary process “is a frustrating experience that leaves everyone with a sense that it has fallen well short of [its] primary purpose of holding officers accountable for their actions and encouraging behavior that falls within departmental expectations and values.”³⁵⁴Id. at 1–2. If the police are going to be held accountable, the courts must remain open for business, and officers cannot be allowed to skirt responsibility under the current qualified immunity doctrine.

Conclusion

Qualified immunity is broken. As it currently stands, this doctrine shields officials who fabricate evidence,³⁵⁵See Costanich v. Dep’t of Soc. & Health Servs., 627 F.3d 1101, 1108, 1114 (9th Cir. 2010) (awarding qualified immunity to government officials who “deliberately fabricated evidence” in a civil child abuse proceeding because it was not “clearly established” that fabricating evidence in the civil context was unconstitutional). torture detainees,³⁵⁶See Ziglar v. Abbasi, 137 S. Ct. 1843, 1852–53, 1867 (2017); Chambers v. Pennycook, 641 F.3d 898, 907–09 (8th Cir. 2011) (awarding qualified immunity to officers who “kicked [an arrestee] several times on both sides of his body, although he was restrained on the ground and offering no resistance,” “repeatedly choked and kicked [the arrestee] during the trip to the hospital,” and “extended the journey [to the hospital] by taking a roundabout route and intentionally driving so erratically that [the arrestee] was jerked roughly back and forth in his car seat while his head was positioned adjacent to the dashboard”). shoot kids and dogs,³⁵⁷See Corbitt v. Vickers, 929 F.3d 1304, 1308, 1318–19 (11th Cir. 2019) (awarding qualified immunity to an officer who, while repeatedly attempting to shoot a pet dog that wasn’t posing any threat, shot a ten‐year‐old child lying on the ground). and steal property while executing search warrants.³⁵⁸See Jessop v. City of Fresno, 936 F.3d 937, 942 (9th Cir. 2019) (awarding qualified immunity to several officers who stole $225,000 while executing a search warrant on a house). Although the Supreme Court has held that the courts should not award immunity to officials who commit “obvious” constitutional violations,³⁵⁹Hope v. Pelzer, 536 U.S. 730, 739–41 (2002). the courts continue to consistently award immunity to officials who have engaged in egregious, obviously unconstitutional behavior—typically because the plaintiff was unable to identify materially similar precedent declaring that the official’s exact conduct was unlawful.³⁶⁰See, e.g., Jessop, 936 F.3d at 942 (“The lack of ‘any cases of controlling authority’ or a ‘consensus of cases of persuasive authority’ on the constitutional question compels the conclusion that the law was not clearly established at the time of the incident.”) (quoting Wilson v. Layne, 526 U.S. 603, 617 (1999)); Randall v. Scott, 610 F.3d 701, 715–16 (11th Cir. 2010) (awarding qualified immunity because the court was “aware of no precedential case with similar facts”); Stoot v. City of Everett, 582 F.3d 910, 922 (9th Cir. 2009) (awarding an officer qualified immunity because the plaintiffs “ha[d] not cited a single case squarely holding” that the officer’s conduct was unlawful, even though the court ultimately determined that the officer did in fact act unlawfully). The time has come for the courts to (re)recognize the obvious-constitutional-violation argument. If an officer’s conduct was beyond the pale, qualified immunity should be withheld, even if the plaintiff is unable to point to favorable precedent.