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Michael Brown: The Protests in Ferguson and the Doctrine of Qualified Immunity in Excessive Force Cases

What does the shooting of Michael Brown and subsequent unrest in Ferguson have to do with the doctrine of qualified immunity? When a citizen wants to sue a police officer for excessive force, the first thing that person must overcome is the judicially created doctrine of "qualified immunity." Under that doctrine, local law enforcement personnel can be eligible for qualified immunity if they establish they were acting in their "discretionary capacity" during the alleged violations. 

Once that showing has been made, a citizen seeking to sue must then show both that a constitutional right has been violated and that such right "was clearly established." This prong of the citizen's burden is what typically gets a civil rights case dismissed, because if unable to meet this standard, the citizen's case is dismissed outright by the judge without a jury ever being allowed to consider the issue; qualified immunity is "an immunity from suit rather than a mere defense to liability." Mitchell v. Forsyth, 472 U.S. 511, 526 (1985).

According to the United States Supreme Court, the doctrine of qualified immunity protects government officials "from liability for civil damages insofar as their conduct does not violate clearly established statutory or constitutional rights of which a reasonable person would have known." Harlow v. Fitzgerald, 457 U.S. 800, 818 (1982). But what exactly does "clearly established" mean? This question is the crux of the problem. According to the Court, this inquiry turns on the "objective legal reasonableness of the action, assessed in light of the legal rules that were clearly established at the time it was taken." Wilson v. Layne, 526 U.S. 603, 614 (1999). In other words, if the officer "reasonably believes that his or her conduct complies with the law," the doctrine of qualified immunity protects that officer from a lawsuit. Pearson v. Callahan, 555 U.S. 223 (2009).

Qualified immunity is the first thing raised by defendants in an excessive force case and, if a motion to dismiss is denied, law enforcement defendants have the right to appeal that decision before the case proceeds to trial. Under this doctrine, hundreds, if not thousands, of citizens are routinely denied their day in court for what can be egregious police misconduct. Once an excessive force lawsuit is dismissed, the assumption is the police "didn't do anything wrong" and thus, tacit permission is given to repeat wrongful conduct. Moreover, the wronged citizen is left feeling that the judicial system does not give a damn about constitutional violations.

Of equal concern, when the courtroom doors are locked shut by judicially created fictions, citizens have no choice but to seek redress of the grievances in the street. That is precisely what is happening in Ferguson at this moment. Lacking confidence their grievances will be heard and acted upon, Ferguson's citizens are making their voices known in the only way they know how. Sadly, in seeking to protect police officers from lawsuits seeking monetary damages, the United States Supreme Court has failed to protect them where it matters, in their daily interactions with the community. Perhaps if monetary damages were available when a police officer, even if only mistakenly, wrongfully injures an individual, the people protesting in Ferguson would have confidence that the judicial system is working on their behalf. As it stands now, the courthouse appears to be closed, but the streets remain open for business.

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