For years, the Supreme Court has sent a clear message to lower courts: Police officers can’t be sued for violating someone’s constitutional rights unless the specific actions at issue have previously been held unconstitutional. Police, the Court has argued, need “breathing room to make reasonable but mistaken judgments about open legal questions.” But in the past few months, following a summer of protests against police violence, the Supreme Court seems to be quietly changing its message (article available here).
The trouble is that no matter how egregious the conduct might seem, so long as a plaintiff cannot find a prior court decision declaring similar behavior unconstitutional, a court cannot hold officers accountable.
Every year, courts have issued a steady stream of opinions granting qualified immunity to law-enforcement officers who have engaged in egregious behavior. Qualified immunity has been granted to officers who sicced a police dog on a man who had surrendered and had his hands in the air, officers who shot a 10-year-old boy in the leg while trying to hit his unthreatening dog, and officers who stole $225,000 in cash and rare coins when executing a warrant.
Courts dismissed civil suits against all of these officers—not because they hadn’t violated the Constitution, but because there wasn’t a prior case in which officers had violated the Constitution in the same way, leaving no “clearly established” precedent (by the Supreme Court’s definition) that the behavior was wrong.