George Floyd and Beyond: How “Qualified Immunity” Enables Bad Policing

One of the eight cases under consideration this week is West v. Winfield[1], an IJ case in which an Idaho mom handed her keys to local police so they could search for a suspect. Rather than using the keys, officers spent the better part of a day firing tear-gas grenades and other projectiles into the empty home, destroying it and almost everything inside it. (The suspect was not there.) When the mom sued for the warrantless destruction of her home, the government defended itself by saying that no warrant was needed: When she gave the police her consent to get inside the home, that included her consent to destroy it with grenades from outside. The appellate courts did not rule that this was correct—they did not say that inviting someone into your home is the same thing as inviting them to bomb it—but they ruled for the government, nonetheless. No government official had ever made that argument before, and so there was no precise case on point. In the upside-down world of qualified immunity, that meant the government won—and the mom lost.

West is only one case IJ is litigating under its Project on Immunity and Accountability[2], which litigates to remove barriers to meaningful enforcement of constitutional rights. The U.S. Supreme Court has already granted review in another IJ case, Brownback v. King[3], where IJ represents an innocent college student who was mistaken for a non-violent suspect wanted by police for a petty crime. Two plain-clothed police officers who never identified themselves as police mercilessly beat James King and choked him until he was unconscious[4]. Then, in a practice often seen among law enforcement to coverup for the misdeeds of officers, prosecutors charged the student with serious felonies, all with the apparent goal of forcing the student into making a plea deal rather than pursuing justice against the officers who put him in the hospital. Confident he had done nothing wrong, the student successfully fought the charges, earned a unanimous not-guilty verdict, then continued his case to bring the two rogue law enforcement officers to justice for what they had done to him. Citing qualified immunity, the trial court dismissed the student’s case, but he miraculously persuaded the appeals court to reverse the trial court’s qualified immunity ruling. Before the student’s case could proceed, however, the government asked the Supreme Court to take the case and create yet another special protection to shield enforcement from accountability. The Supreme Court has taken up the student’s case and will decide whether to grant the government’s request next term.

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