First of all, the Big Bang wasn’t very big. Second of all, there was no bang. Third, Big Bang Theory doesn’t tell you what banged, when it banged, how it banged. It just said it did bang. So the Big Bang theory in some sense is a total misnomer.

Michio Kaku[1]

No, no! Don’t talk about the big bang! Talk about the bang a gun makes when someone pulls the trigger! That’s your topic!

G. Sallust[2]

OK, this is Larry, and G. Sallust has asked me to talk about guns or, to narrow the focus a bit, about when our police can shoot them at civilians and possibly get away with it. While not common, police shootings are headline events when they occur and the reporting is not always, shall we say, accurate. So I thought this might be a good opportunity to talk about the rules that apply to you and me, and to the police, and how they might differ. This little dissertation is for information only; it’d not for me to decide what the rules ought to be. I leave that to the courts, our legislators, whoever they might be, and the voters. I’m just trying to tell you, as of now, the way things are.

Self Defense

Let’s start with self-defense. As you’ve probably heard, people have a right to defend themselves when they reasonably believe their life is threatened and there’s really no way to escape. This is generally a matter of state law. Some states want you to retreat, if possible, when threatened; others say that you can “stand your ground,” but can react, again, only if you are reasonably afraid for your life. In either case, I think, if an aggressor has you on the ground, and is beating you mercilessly, and you have a gun, probably you can draw it and fire. At least that’s what I think. But this is just my opinion. Check with a local attorney if you want to know how things are where you live.[3]

So what rules do the police follow when they’re enforcing the law? Can they fire only in self-defense, and must they retreat to the wall; or does their job allow them to do more? Good questions all, but the big difference between them and us is that, for the most part, they can’t be sued by grieving relatives, etc., when they make a mistake. Today I’m going to focus on why that’s true, and what the exceptions might be.

Sovereign Immunity

There’s a hoary old rule that says our various governments, federal and state, are sovereigns immune from suit.[4] “Generally, the idea is that the sovereign … is immune from lawsuits or other legal actions except when it consents to them.”[5] The federal government seems to get this immunity through tradition and judicial precedent. The states get theirs in part because their immunity, it’s said, is guaranteed by the 11th Amendment to our Constitution.[6]

But, of course, nothing in the law is quite that simple. The Federal Government, for example, has waived its immunity from suit in a wide range of personal injury and other tort suits.[7] A tort is a civil action, usually for money damages, to remedy a civil wrong. [“A tort is an act or omission that gives rise to injury or harm to another and amounts to a civil wrong for which courts impose liability.”][8]

OK, suppose the Government is, in fact, immune from suit in a specific matter, can a person aggrieved sue the Government employees instead? That’s another good question, and the answer has “evolved” over time. At least that’s what I would call it. At the Federal level it’s always been clear that the President couldn’t be sued; after all, he is the head of the whole shebang, and the closest thing we have to a king. So who else should be privileged against suit, and why should that be?

Well, back in the day the Supreme Court ruled several times on that question. It found that judges acting as judges were privileged[9], as well as others engaged in the judicial process[10]; that the Postmaster General was similarly privileged[11]; and even the Acting Director of the Office of Rent Stabilization, when that entity existed.[12] Why?

The reasons for the recognition of the privilege have been often stated. It has been thought important that officials of government should be free to exercise their duties unembarrassed by the fear of damage suits in respect of acts done in the course of those duties — suits which would consume time and energies which would otherwise be devoted to governmental service and the threat of which might appreciably inhibit the fearless, vigorous, and effective administration of policies of government.[13]

So these people had an “absolute” privilege, i.e., simply couldn’t be sued for performing their duties. They needed to be insulated from civil liability so that they could do their thing in a “fearless, vigorous and effective” way. But what about lower level officials, say law enforcement types? Are they also privileged, to act with impunity? How about if they violate the U.S. Constitution?

The Fourth Amendment

For these purposes let’s treat federal and state law enforcement as the same thing. Both are bound, theoretically at least, by our Constitution. So what part of that document are law enforcement people most likely to infringe upon? My guess is the Fourth Amendment. That’s the one that says:

The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no Warrants shall issue, but upon probable cause, supported by Oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized.[14]

Back in 1971 a very interesting case was decided that stated, apparently for the first time, that a citizen can sue federal agents personally if they violate his [or her] 4th Amendment rights.[15] That is, the Court ruled that citizens have a cause of action under the 4th Amendment; they can raise it in federal court; and the courts have jurisdiction to hear it. That was all well and good, and certainly was ground-breaking at the time. The decision recognized a “constitutional tort”; but the Court didn’t decide whether the defendant agents could assert sovereign immunity as a defense. It remanded that particular issue to the lower courts for further consideration.

Absolute Immunity

So here we are, back with sovereign immunity. Most of the early cases we discussed dealt with the “absolute” immunity enjoyed by government officials who were more or less high up in the bureaucratic food chain. If one is “absolutely” immune, it sounds like there are no exceptions. Hold the job, and get the immunity. These days, however, there’s a new kind of immunity out there – the “qualified”- kind, that the courts seem to prefer.

The recent trend seems to be that even high officials get only qualified immunity. I realized this a few years ago when I read a case involving John Ashcroft, Attorney General under President George W. Bush[16]. Mr. Ashcroft was taken to task for his liberal use of the “material witness” law after the terrorist attack of 9/11; he detained some people even though [apparently] he didn’t intend to use them at a trial, on the mistaken theory that he could do so in an emergency. He argued that he was entitled to absolute immunity, but the Court found he was protected by the “qualified” type, and there was no need to look further.[17] The Court had no opinion as to whether Mr. Ashcroft also had absolute immunity against civil suits.

What standards govern qualified immunity? It just so happens we have some recent new wisdom from the Supreme Court on that very issue.

Qualified Immunity

If an individual is immune from suit, that means he [or she] can’t and shouldn’t be sued. Any suit filed should be dismissed even before a trial. Trials are lengthy and burdensome to the defendant, and if he [or she] is immune from suit, they serve no purpose. The Supreme Court says qualified immunity is important to “society as a whole,” presumably because it helps those who enforce our laws. It’s “effectively lost if a case is erroneously permitted to go to trial.”[18]

No doubt that’s a good thing for the employee, to be immune from suit. Certainly I agree. But if the immunity is only “qualified,” what does that mean? Basically qualified immunity attaches, and the police are immune from prosecution for doing their jobs, so long as (i) they don’t “violate clearly established statutory or constitutional rights” that (ii) a reasonable person would have known about. [19]

  • The test is that the civilian’s rights must be “clearly established,” not debatable; if there is a dispute about the law, “existing precedent must have placed the statutory or constitutional question beyond debate.”[20]
  • In short, the immunity protects “all but the plainly incompetent or those who knowingly violate the law.”[21]

The Court also says that it doesn’t want to get involved with glittering generalities to determine whether this or that asserted right is “clearly established.” Such law should not be defined at a high level of generality.”[22] Rather, it must be “particularized” to the facts of the current situation. I think that means there should be well-known and established precedents applied to similar fact patterns. If they exist, and are relevant, and show a consistent pattern of interpretation, then they pretty much define what’s “clearly established.”

To allow a more generalized analysis, say retreating to first principles, etc., would allow plaintiffs to advance all kinds of new theories. While they are new, and might be accepted someday, such theories are not “clearly established” when it matters, i.e., when whatever happened actually happened. Also, new legal theories probably aren’t the kind of thing the average trooper, etc. would know about.

So the Court wants to see precedents on topic when it looks at whether a government employee has violated a “clearly established. To do otherwise would allow plaintiffs “to convert the rule of qualified immunity . . . into a rule of virtually unqualified liability simply by alleging violation of extremely abstract rights.”[23] Lawyers [and politicians] like to do that kind of thing, but it looks like the courts won’t let them in these cases.

Conclusion

So have I answered your question about how and when law enforcement may be held responsible when they make mistakes in policing your area? When they shoot somebody, for example? I’m afraid not. All I can say is, when you read a story about that kind of thing, you need to ask yourself, or the person reporting it, what law [or Constitutional provision] was violated, and is it “clearly established” in some specific way? And (ii) do the law enforcement types involved look plainly incompetent or willfully violent?

And what about you, as a citizen? What if you defend yourself and shoot somebody? Well, unlike law enforcement, you don’t have any immunity, absolute or qualified. So even if you’re innocent, you’ll probably have to put up with a lengthy [and expensive] legal proceeding. That’s better than being dead, I suppose; but it’s not good.

You don’t like my answers? I told you that you wouldn’t.

 


 

[1] Michio Kaku is a famous theoretical physicist. He has a very nice website at http://mkaku.org/ .The quote is from Brainy Quote at: https://www.brainyquote.com/quotes/keywords/bang.html

[2] G. Sallust is our disreputable founder, who gives orders even when he’s not here.

[3] Wikipedia has an article on this, at https://en.wikipedia.org/wiki/Right_of_self-defense. If you want better information, you might check with the NRA or possibly with your local sheriff, etc.

[4] See The Siren, 74 U.S. (7 Wall.) 152, 154 (1808):  “[i]t is a familiar doctrine of common law that a sovereign cannot be sued in his own court without his consent.”

[5] Thanks to the Cornell Law School, Legal Information Institute for this quote. It’s borrowed from their free online Legal Dictionary and Encyclopedia (“Wex”), available at https://www.law.cornell.edu/wex/Sovereign_immunity

[6] See U.S. Constitution, 11th Amendment, available from the National Archives at https://www.archives.gov/founding-docs/amendments-11-27 “The Judicial power of the United States shall not be construed to extend to any suit in law or equity, commenced or prosecuted against one of the United States by Citizens of another State, or by Citizens or Subjects of any Foreign State.”

[7] That’s under the Federal Tort Claims Act, 28 U.S.C. Ch. 171 & §1346(b). If you want to know why there’s a Federal Tort Claims Act, take a look at a case that deals with the catastrophic 1947 fertilizer explosions in Texas City, TX. See Dalehite v. United States, 346 U.S. 15 (1953).

[8] Again we take our definition from Cornell’s “Wex” definitions, this time from https://www.law.cornell.edu/wex/tort :”A tort is an act or omission that gives rise to injury or harm to another and amounts to a civil wrong for which courts impose liability. In the context of torts, “injury” describes the invasion of any legal right, whereas “harm” describes a loss or detriment in fact that an individual suffers.”

[9] See Bradley v. Fisher, 80 U.S. (13 Wall.) 335 (1826)

[10] See Yaselli v. Goff, 12 F.2d 396, aff’d per curiam, 275 U.S. 503 (1927)

[11] See Spalding v. Vilas, 161 U. S. 483 (1896)

[12] See Barr v. Matteo, 360 U.S. 564 (1959). You can find a good copy of this decision at https://supreme.justia.com/cases/federal/us/360/564/case.htm  but, of course, you should use only the original if you’re filing legal papers.

[13] Id. at p. 571.

[14] We use the National Archives as out source for the wording of those documents. It’s accurate and free. You can find the 4th Amendment there, at https://www.archives.gov/founding-docs/bill-of-rights-transcript .

[15] See Bivens v. Six Unknown Named Agents, 405 U.S. 388 (1971).

[16] See Ashcroft v. al-Kidd, 563 U.S. 731 (2011). We wrote a blog on this case 5 or 6 years ago. See the blog of 09/09/2011, Ashcroft v. al-Kidd, at http://elementalzoo.typepad.com/elemental-zoo/

[17] The Court reached this conclusion in part because of the way al-Kidd pled his case. He didn’t challenge the warrant issued to detain him. “The Government needs only to make an objective case, under the statute, for an arrest warrant. If the warrant was properly issued, by definition it had met that obligation. The Government’s ‘subjective intent’ was irrelevant and a non-issue.”

[18] See Pauly at per curiam, p. 6 (citing Pearson v. Callahan, 555 U. S. 223, 231 (2009)).

[19] See White v. Pauly, 580 U.S. ___ (2017) (per curiam), a slip opinion currently available from the Court at https://www.supremecourt.gov/opinions/16pdf/16-67_2c8f.pdf . The slip opinion will be cited as Pauly at ___; page references will be to the portion of the opinion cited, i.e., to per curiam at __, or Ginsburg at __. See Pauly at per curiam, p. 6. “Qualified immunity attaches when an official’s conduct “‘does not violate clearly established statutory or constitutional rights of which a reasonable person would have known.’’ (citation omitted).

[20] See Pauly at per curiam, p. 6.

[21] Id.

[22] See Pauly at per curiam, p. 6, citing Ashcroft v. al-Kidd, 563 U. S. 731, 742 (2011)

[23] See Pauly at per curiam, p. 6, citing Anderson v. Creighton, 483 U. S. 635, 639 (1987).

Advertisements