Moving Goalposts: The Legacy of Qualified Immunity

By: Marques Rice, Esq.

Imagine that I asked you to draw a picture of a tree.  You find a pencil or pen and do your best to transform blank paper into your artistic representation of a tree.  Big leaves, maybe some apples or a nest.  Now, imagine that you show me the picture only to hear me say, “Well, when I think of ‘tree,’ I imagine something that looks like a weeping willow.  Yes, you drew a tree, but it does not fit the exact contours of my idea of a tree.”

Even the least athletically-inclined among us have probably heard a phrase to describe this type of scenario: moving the goalposts.  It is a metaphor that applies when one party, in the process of trying to complete a task, learns there are new requirements that did not exist before.  It is impossible to complete the task because the requirements changed.  Is that unfair?  Absolutely.  No surprise there.  What may be surprising is that that unfairness has wormed its way into a legal doctrine—called qualified immunity—that is now used to shield police from civil liability for horrifying actions.

What is Qualified Immunity?

Qualified immunity protects officials (usually police officers) from liability in civil rights lawsuits (i.e. money judgments, not criminal convictions) as long as their actions do “not violate clearly established statutory or constitutional rights of which a reasonable person would have known.”  If a police officer claims they are protected by qualified immunity, a judge must decide two things: (1) whether the officer’s conduct violated a constitutional right, and (2) whether that right was clearly established.  “Clearly established” means any reasonable official would understand that certain conduct would violate a constitutional right.

Maybe it has been a while since you studied the Constitution or the rights and protections that it affords us.  Still, go with your gut feeling and guess which of the following are types of conduct that a reasonable official would know violate someone else’s constitutional rights:

• A police officer ignores department procedures to engage in a car chase, rams the suspect’s vehicle off of the road, then shoots the suspect three times, point blank, resulting in the suspect’s death.
• Police officers conducting a search of someone’s home steal $270,000 in cash and collectible coins.
• A sheriff detains several innocent family members after a suspect runs onto their property.  Unprovoked and without warning, the sheriff shoots at the family’s dog.  The shot misses the dog, but hits a 10 year-old boy who had been forced to lie on the ground.
• Police unleash a dog to attack a suspect who had surrendered by sitting on the ground and holding his hands up in the air.

How many of those actions clearly violate someone else’s constitutional rights?  If you guessed a number higher than zero, you are wrong (you are probably also confused and upset).  All of those cases were situations where a judge, using the doctrine of qualified immunity, decided that there was no law that clearly established that the officer’s conduct violated someone else’s constitutional rights.  What?  Why?  How?  Those are natural follow-up questions with a simple, but infuriating answer: qualified immunity is an exercise in moving the goalposts.

Let’s use the last case as an example.  There, a man (a) surrendered to police, (b) sat on the ground, and (c) raised his hands above his head.  The man’s attorneys argued that any reasonable police officer would know it was unconstitutional to use a police dog in that situation because, in a different case, the court ruled that it was unconstitutional to use a police dog to apprehend someone who (a) surrendered to police, (b) was lying on the ground, and (c) had his hands at his side.  It was a distinction without a difference.  The court disagreed and dismissed the case.

The court ruled that officers know they cannot use a dog on someone lying down because there is a case that says so.  However, that case did not clearly establish that officers should not use a dog on someone sitting down.  So officers have no way of knowing that is also unconstitutional, bad behavior because those facts are completely different.  This is qualified immunity in all of its goalpost-moving glory.  

George Floyd’s murder was horrifying and disturbing, and the officer deserves to end up in jail.  But the Floyd family’s civil suit for his death, which settled for $27 million, would have faced a tremendous hurdle if it went forward and the officer claimed qualified immunity.  Ironically, because the suit settled, we still do not have a case that says a police officer kneeling on someone’s neck for eight minutes is a constitutional violation.  When the next “George Floyd” happens—and our country’s history says it will happen again—the officer might claim there is no clearly established law prohibiting kneeling on someone’s neck.

“Clearly established” is an almost impossible standard to meet, which makes it a fantastic shield for police misconduct.  Someone fighting against an officer’s claim of qualified immunity must find a prior case with essentially identical facts.  Put another way, don’t show me a picture of any kind of tree; the only one that counts is the one that looks exactly like my singular definition of a tree.

What was new?   Did this help bring clarity about what is qualified immunity?  What will you do with this information?  What reactions do you have?  Had you hear about this prior to reading?  Have you seen bills trying to pass to change this law?