On January 8, 2014 Alexander Baxter was sitting on the basement floor of a Nashville home with his hands in the air. He had been chased by the police after committing a burglary and now he had surrendered. According to Baxter’s court claims, even though he was not a threat to police, they released a police dog named Iwo on him and the K-9 proceeded to bite him. Availing himself of the protections of the Civil Rights Act of 1871, he sued officers Brad Bracey and Spencer Harris for violating his constitutional rights. But his claim quickly ran into the buzzsaw of qualified immunity, a judicially created principle which protects government agents from being personally sued.

Qualified immunity is not a law passed by Congress and signed by a president, but a doctrine created by the Supreme Court in the 1960s and expanded in the 1980s. It began as an attempt to shield government officials who, acting in good faith, had nonetheless violated someone’s rights. In less than two decades the protection expanded to protect even those who had knowingly violated someone’s rights. Decade after decade the bar that a victim had to clear in order to seek relief got higher and higher, finally culminating with the idea that the constitutional violation had to be “clearly established” by another court in a previous ruling. Courts, including the Supreme Court, interpreted this to mean that in order to sue, a victim would have to point to another very similar case in which a court had ruled that someone’s rights had been violated and could sue the person responsible.

In Baxter’s case it seemed like even that high bar would be cleared: a precedent appeared to be in place that would allow him to sue. In a 2012 decision the Sixth Circuit Court of Appeals had ruled in Campbell v. City of Springboro that a man who had lain down on the ground to surrender to police and was nonetheless attacked by their dog could sue the officers involved for excessive force. In the Campbell and Baxter cases both men had already surrendered to police; both men were on the ground and both men were attacked by police dogs. It seemed clear that these similarities would allow the high bar of qualified immunity to be overcome.

The district court agreed and said that the police officers could be sued. However, a different three-judge panel of Sixth Circuit Court of Appeals, the same court that had ruled previously in the Campbell case, decided the officers involved in Baxter’s case could not be sued, writing in their decision that the “officers’ conduct…did not violate any clearly established right.” Moreover, they wrote “we have held that officers cannot ‘use an inadequately trained canine, without warning, to apprehend two suspects who were not fleeing.’ But just as clearly, we have upheld the use of a well-trained canine to apprehend a fleeing suspect in a dark and unfamiliar location.”

For the three judges of the Sixth Circuit who heard Baxter’s appeal the differences between his case and Campbell’s were significant enough to mean that Baxter did not have a clearly established constitutional right to not be bitten by a properly trained police dog after surrendering while sitting on the floor with his hands in the air.

Rather than decide if the officer’s conduct was constitutional to begin with, when it comes to qualified immunity a court need only consider a different question: whether the constitutional right being violated had previously been clearly established by another court. If the answer is no, then the case is dismissed without ever answering the first question.

Through qualified immunity law enforcement officers and other government employees enjoy a kind of personal legal shield that members of the private sector do not. Even after a year of Black Lives Matter protests the doctrine of qualified immunity remains unknown to most people though it is one of the strongest protections law enforcement officers have.

In August of 2020, Baxter’s case was one of seven involving qualified immunity that the U.S. Supreme Court declined to hear, effectively ending his search for justice. Strikingly, conservative Associate Justice Clarence Thomas dissented, stating that the court should have given Baxter his day in court. Justice Thomas noted the history of the Civil Rights Act of 1871 in his dissent, writing: “Congress sought to respond to ‘the reign of terror imposed by the Klan upon Black citizens and their white sympathizers in the Southern States.’” In his dissent Thomas stated that the law “gave individuals a right to sue state officers for damages to remedy certain violations of their constitutional rights” and that “I continue to have strong doubts about our qualified immunity doctrine.”

“The central problem of qualified immunity is that it allows officers to get away with violating the Constitution,” said Scott Michelman, legal director the ACLU of Washington, D.C., who represented Baxter. “Because the court of appeals held that immunity applies, Mr. Baxter will get no compensation for the vicious dog attack that he experienced and that sent him to the hospital. So qualified immunity is the difference between compensation for constitutional violations leading to serious injuries and completely being shut out of court,” he added.

Ignorance of law excuses no one except perhaps a police officer

It is a concept ancient enough to be enshrined in the Old Testament in Leviticus and have its own Latin catchphrase, “ignorantia juris non excusat.” Just because you don’t know that you are breaking a law doesn’t mean that you won’t be held responsible for your misdeeds. Except, perhaps, if you are a police officer accused of stealing more than $200,000. The U.S. Ninth Circuit Court of Appeals ruled that Fresno, California police officers who were accused of stealing money while serving a search warrant, were protected by qualified immunity.

Judge Milan Smith wrote in his opinion for the three-judge panel that “At the time of the incident, there was no clearly established law holding that officers violate the Fourth or Fourteenth Amendment when they steal property seized pursuant to a warrant. For that reason, the City Officers are entitled to qualified immunity.”

The court found that even though there was a previous case that ruled that theft by police officers was unconstitutional, the facts in this case differed enough that the high bar to overcome qualified immunity was not satisfied. Going further, Judge Smith wrote, “Although the City Officers ought to have recognized that the alleged theft of Appellants’ money and rare coins was morally wrong, they did not have clear notice that it violated the Fourth Amendment…. Not all conduct that is improper or morally wrong, however, violates the Constitution.”

“When it comes to really anybody except for government officials and law enforcement officers there’s an expectation that people will follow the law,” Amir Ali, deputy director of the Supreme Court and Appellate Program at the MacArthur Justice Center, said in an interview. “And you can show that a law enforcement officer violated your constitutional rights, meaning that a police officer did something that no reasonable officer would have done in the circumstances to you… and that’s not going to be good enough. A court will tell you ‘that’s fine, but to overcome the defense of qualified immunity you’ve got to show something more’ and governments have really been handed this powerful defense that allows them to escape accountability for even rather egregious acts,” he added.

A hard fight made harder

Even when someone is allowed to sue, and a jury finds police officers liable, qualified immunity can still be used as grounds to reverse the jurors’ decision.

It was a spring evening in 2015 when Matthew Jones walked down the stairwell of his East Harlem apartment building in New York City. He was meeting his uncle to return a prescription bottle and some cash that he owed him. As he met his uncle, they were stopped by officers Michael Vaccaro and Adam Muniz on suspicion of selling drugs. The officers told Jones and his uncle to step out of the stairwell and into a hallway, which they did. Jones also consented to be searched which is when the officers found the prescription bottle, and they then used this as grounds to arrest him. The uncle fled and the officers tried to handcuff Jones who began asking what he did wrong.

The officers claimed that Jones tried to turn around and swing at them which is why they swept his legs out from under him and pinned him to the ground face down. They called for backup and other officers soon arrived on the scene. At this point Jones was still face down and pinned but not fully cuffed and, according to court records, officers hit him with a metal baton on his arm and used pepper spray on him as well, claiming he was resisting arrest, which Jones claimed during the trial was false.

Sergeant Christopher Treubig (who was later promoted to lieutenant and captain) arrived on the scene and, according to court records, “Lt. Treubig announced that he was going to use his taser” which Jones said he did not hear. The lieutenant used his Taser once for five seconds, sending a powerful electric shock through Jones’s body, which left him lying on the ground, helpless. Still, the lieutenant felt Jones was not sufficiently incapacitated and pressed the trigger on his Taser again, sending more electricity into the suspect. After this Jones was handcuffed but had sustained enough injuries that he was brought to the hospital. According to court documents he was charged with resisting arrest among other things, but the charges were eventually dismissed.

Jones filed a civil rights lawsuit against Lt. Treubig for excessive use of the Taser and a civil jury found in his favor, awarding him $30,000 in punitive damages. During the trial Lt. Treubig’s attorneys tried to get the case dismissed under qualified immunity, but the judge denied that motion and allowed the case to go to the jury. The NYPD lieutenant then challenged the verdict against him, again claiming that he was protected by qualified immunity. The district court at this point found in his favor because, at the time of Jones’ arrest, the court said there was “no clearly established law that using a Taser two times in rapid succession constituted excessive force under the particular circumstances of this case.”

“If any other person had violated Mr. Jones’ rights, if it were a doctor who violated the law or a construction worker who violated the law, the question in court would be: did that person violate Mr. Jones’s rights? And that’s what he would be expected to prove to get relief. But that’s not so when it is a police officer or other public official,” Amir Ali, who is representing Jones in his lawsuit, told the Amsterdam News.

“In that case, it’s not enough to show that the person violated your rights. In fact, in Mr. Jones’s case, a jury specifically found that his constitutional right to be free of excessive force was violated, and neither the District Court nor the city disputed that after the trial. Everybody agreed that this officer, by Tasing Mr. Jones when he was already incapacitated, violated his constitutional rights,” he added.

When Jones appealed, the U.S. Court of Appeals for the Second Circuit did something astonishing: it threw out Lt. Treubig’s claim of qualified immunity and ruled in favor of Jones. The court ruled that before Lt. Treubig used his taser on Jones that “it was clearly established in this Circuit that it is a Fourth Amendment violation for a police officer to use significant force against an arrestee who is no longer resisting and poses no threat to the safety of officers or others.”

The case the court cited involved the excessive use of pepper spray and not a Taser, which other courts could have used as a reason to uphold a qualified immunity defense. But the Second Circuit ruled otherwise writing “notwithstanding that the focus of this appeal is the use of a taser, not pepper spray, we have warned that ‘[a]n officer is not entitled to qualified immunity on the grounds that the law is not clearly established every time a novel method is used to inflict injury.’”

This is significant because the Supreme Court has essentially instructed lower courts that they need to find a nearly identical case that proved an officer’s actions were already considered unconstitutional. But this court ruled that it was not the detail of pepper spray or Taser that was important, it was that excessive force was used even after the suspect was not a threat that was central to the claim.

The high bar the Supreme Court has set has been a huge obstacle to those trying to file civil rights lawsuits.

“Because courts can dismiss cases by saying the violation was not clearly established at the time the officer acted, the courts never actually get around to deciding whether what the officer did was, in fact, a violation,” said Brian T. Fitzpatrick, the Milton R. Underwood chair in Free Enterprise at Vanderbilt Law School, in an interview about the challenges qualified immunity poses.

The courts “never get to the merits of the actual case. They just dismiss it at the beginning by saying ‘Oh, even if this was wrong, it wasn’t clearly established,’ so we never get law that is clearly established that people can use to sue later, because the courts dismiss every new factual case that comes before them on qualified immunity grounds. So, it basically never allows the law to develop and never allows new things to become clearly established, and so it really puts people who have been victims of illegal conduct by government officials in a no-win situation. You can’t sue because it wasn’t clearly established, and you can’t clearly establish it because you’re not allowed to sue,” he added.

In the end Jones, unlike hundreds of others, was able to hold a police officer accountable for violating his civil rights, though he is still waiting for his settlement. Treubig is now a captain in the NYPD and, according to a search of publicly available records, he was not disciplined by the NYPD for actions that a jury found were an unconstitutional violation of Jones’ rights. Without the ability to sue Treubig directly it is possible that Jones would have never found even the small measure of justice his modest jury award will give him.

Cases like these, along with the continued outrage provoked by the unjustified killing of Black and Brown Americans by police officers, has led to a movement to reform or outright abolish qualified immunity as a protection. In part three of this series, we will explore the legislation that has been proposed, and in a few cases already passed, to chip away at this invisible legal shield.

This series was made possible by grants from the Fund for Investigative Journalism and the Solutions Journalism Network