In Parts I and II, the concept of qualified immunity was discussed, as was the origin of the doctrine. Also noted was the fact that those who wished to remove this “good faith” protection for police officers in the legislative and judicial branches of government were making no efforts to eliminate the immunity that they enjoyed.
Qualified Immunity for law enforcement officers applies currently if the officer acting commits an act not known to be a violation at the time it was committed. For some, it is difficult to imagine a scenario where an act would not known to be wrong at the time it was committed. In order to clarify, I would point to an example from the movies that might make it clearer.
In the 1980 Samuel L. Fuller film “The Big Red One’, the opening scenes take the viewer to the end of the First World War. American doughboy Lee Marvin is seen killing a German who is trying to tell him “Die Krieg ist vorbei”, and then later learns that at the time he dispatched the Hun with his trench knife, the armistice had been in effect for three hours, and he had taken his former enemy’s life after the war was over.
Viewing the fictional act in its most critical light, Marvin’s sergeant character had committed a murder and should have been court martialed for his war crime and held to account for actions. Given the circumstances as portrayed, though, operating under the good faith assumption that he was at war and his victim was an enemy combatant and therefore a threat, the commanding officer conferred this qualified immunity to his subordinate soldier, and is not portrayed burdening the post-war effort with the distraction of unnecessary litigation.
Of course, the family of the dead German soldier would likely derive no comfort from the assertion that their relative was killed by a former enemy that did not know the war was over, and received no opportunity for justice for their aggrieved family member. As avoiding the conditions that were thrust upon Germany a century ago following their loss in the First World War are in the interests of all who wish to avoid a repetition of what followed, it must be asked what purpose is served by denying access to court for the redress of grievances.
It is important to note that while a desire for justice may be infinite, courtrooms, judges and juries are all finite resources on a longer list of other finite resources. Trials are resource-draining activities, and the courts husband their resources by dismissing those that are legally defective and otherwise unlikely to succeed on their merits. Amongst the tools that were developed is the doctrine of qualified immunity, as was discussed in Part I.
Law enforcement activities are also finite resources, and the time officers spend defending themselves in frivolous litigation is time not available for other activities, such as responding to complaints or arresting offenders. Qualified Immunity does not protect actions where officers are engaging in activities that they know are wrong (e.g. seizing or arresting without probable cause), but it does protect them as individuals when they believe they are right but turn out to be wrong.
As an example, I participated in a large scale multi-agency operation nearly 20 years ago where numerous search warrants were executed at several homes more or less simultaneously as part of a drug distribution conspiracy investigation that had involved several telephone surveillances (also know as “wires”). After months of meticulous documentation and painstaking surveillance, the tactical teams assembled to make entry at some locations were not as heavily involved earlier in the investigation. At the moment of execution, one team went to the wrong house, and broke down the door of an elderly couple who were reportedly watching the Stations of the Cross on the Eternal World Television Network, rather than the stash house of a cocaine distribution network.
It is important for law enforcement agencies to understand their obligations under such circumstances, and the agency involved was appropriately responsive to the wrongs they had wrought. They showed up, apologized to the homeowners affected, fixed their door, and took responsibility for their mistake in the press. The story quickly faded in the news as a result, but more importantly, the agency made every effort to make whole those who suffered as a result of their mistake, and litigation was not necessary for redress. They also amended their tactics to ensure future repetition.
Still, it is important to understand that had a lawsuit been filed, that qualified immunity would not relieve the department of its responsibility for its official wrong, but it could be used to prevent the individual officers who participated in their personal capacity from being found liable for the damages. In other words, the officer who broke down the door to make entry and did not realize he was at East Main Street instead of West Main Street would not be forced to pay for the broken door out of his own pocket, but his agency, who had the obligation to know, does not lose their liability for the acts committed on their behalf.
To use the earlier example, had Lee Marvin’s character known the war was over when he killed the German, he would be personally liable for the damages he had wrought. As he was acting under the belief that his actions were proper, he was not personally responsible, but the Army and the government of the United States were not off the hook should damages be sought.
Currently, many states have recreational marijuana laws, and there is legislation not yet approved that would remove the drug from Schedule I by the federal government. As some states consider repealing the laws criminalizing marijuana use, they are adding legislation that would expunge the prior convictions of all of those previously found in violation of the statutes prohibiting its use, possession, cultivation and distribution.
Whether or not one agrees that this is the correct approach to marijuana or drug use and abuse, another implication of such a movement needs to be considered. Where such legislation is passed, does it open up every previously valid marijuana arrest to be considered a civil rights violation, where the officer who made such an arrest within whatever statute of limitations may be applicable can now be sued personally because they should have known that this law would eventually be invalidated and later lead to the case being terminated in favor of the accused?
We will explore that and other implications and remedies in future parts.
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