No Good Deed Goes Unpunished

Well, it appears I’ve missed an intriguing element of those abysmal “ad wars” being waged among candidates for the Republican gubernatorial nomination.

Apparently, Eric Doden’s most recent weird ad–in which he highlights his support for qualified immunity (and anything police might ever do) is based upon the only position Braun took during his six years as a Senator with which I actually agree–he sponsored a bill that would narrow the application of that doctrine. In the current primary contest, that’s a vulnerability.

What’s that old saying? No good deed goes unpunished.

I’ve addressed qualified immunity previously. To recap: The Ku Klux Klan Act of 1871 was a Reconstruction era-effort to address what one court termed the “reign of terror imposed by the Klan upon black citizens and their white sympathizers in the Southern States.” That law is now  known to practicing lawyers–especially civil rights lawyers– as Section 1983. It  gives citizens the right to sue state and local officials for depriving them of their constitutional rights, and to collect damages and legal fees if they prevail.

That’s great, except for the fact that the Supreme Court began to eviscerate the law more than 50 years ago with a doctrine it dubbed “qualified immunity.” As a judge in one case noted, it might just as well be called “absolute immunity.” Ruth Marcus explained it in a Washngton Post article a few years ago:

Nothing in the text of the 1871 statute provides for immunity — not a single word — but the court imported common-law protections in 1967 to shield officials operating in good faith.

Then, in 1982, it went further. To be held liable, it’s not enough to prove that a police officer violated someone’s constitutional rights; the right must be so “clearly established” that “every reasonable official would have understood that what he is doing violates that right.” There must be a case on point, except that how can there be a case on point if there wasn’t one already in existence. This is Catch-22 meets Section 1983.

Numerous justices across the ideological spectrum — Anthony M. Kennedy, Antonin Scalia, Clarence Thomas, Sonia Sotomayor — have criticized the doctrine. But the court has appeared unwilling to do anything about it. As its term concluded, the court refused to hear any of the eight cases offering it the opportunity to reconsider the doctrine.

 Lawsuits for damages are a crucial method for protecting everyone’s constitutional rights. Qualified immunity–protection against a damages verdict– is what lawyers call “an affirmative defense”–it can prevent the court from assessing damages even if the officer clearly committed unlawful acts.

In 1982, in a case called Harlow v. Fitzgerald, the Court established the modern application of the doctrine. Ignoring precedents that examined the “subjective good faith” of the officer being sued, the court adopted a new “objective” test. After Harlow, a plaintiff had to show that the defendant’s conduct “violate[d] clearly established statutory or constitutional rights of which a reasonable person would have known.” Ever since Harlow, the court has required plaintiffs to cite to an already existing judicial decision with substantially similar facts.

As a result, the first person to litigate a specific harm is out of luck, since the “first time around, the right violated won’t be ‘clearly established.’” A post on Lawfare gave an example.

A recent decision by the U.S. Court of Appeals for the Ninth Circuit illustrates this point. In that case, a SWAT team fired tear gas grenades into a plaintiff’s home, causing extensive damage. And while the divided three-judge panel assumed that the SWAT officers had in fact violated the plaintiff’s Fourth Amendment rights, it nonetheless granted qualified immunity to the officers because it determined that the precedents the plaintiff relied on did not clearly establish a violation “at the appropriate level of specificity.”

Justice Sonia Sotomayor called qualified immunity a “one-sided approach” that “transforms the doctrine into an absolute shield for law enforcement officers.” The doctrine “sends an alarming signal to law enforcement officers and the public. It tells officers that they can shoot first and think later, and it tells the public that palpably unreasonable conduct will go unpunished.”

One legal scholar has characterized the doctrine as a “through-the-looking-glass” example of jurisprudence that doesn’t simply excuse police violations of constitutional rights, doesn’t just grant police an exception to the axiom that “ignorance of the law is no excuse,” but that actually incentivizes law enforcement to remain oblivious to the rights of the people they serve.

I will admit to surprise–shock, really–that Braun understood the pernicious effects of this judge-made doctrine, and the way it encourages reckless police behavior. It is beyond ironic that his one bit of sensible behavior has become his biggest vulnerability in this primary. 

But no problem! His recent ads–showing slavish support for police and “law and order”– confirm that Braun is always about politics and never about integrity.


  1. Wait a minute. They SUPPORT the police. and they support the Jan 6 rioters that beat and killed the Police in DC. And they support their would be king who plans to pardon the cop killing rioters. It all seems a bit odd.

  2. Doden is not the only Republican candidate for governor attacking Braun, the poll leader in the field. Chambers has an ad slamming policy-makers in D.C. and in the middle of the photos of those failures there’s Braun!

  3. Not odd at all, Patmcc. Republican “law and order” means lawlessness and orderlessness. They want US citizens to abide by their laws and their orders.

    This is just another example of statehouses and Washington losing its way in pandering to Police Unions, which aren’t unions at all. Cops find politicians bending over backward to get their support because minorities don’t donate money and support to the cops. US citizens suffer from this oligarchic arrangement.

    We have had many bad cops try to take advantage of this law, but the Feds took the citizen’s complaints away from local jurisdiction. The angry and alcoholic cops lost their jobs. With racism prevalent in police forces across the country, SCOTUS needs to eliminate “absolute immunity.”

  4. Isn’t it interesting that SCOTUS continues to require precedent in this matter, while it overturns precedent whenever the majority feels the need to get some draconian measures implemented? For example, they have ignored standing and stare decisis in just one session.

  5. “It is institutions that help to preserve democracy. They need our help as well. Do not speak pot ‘our institutions’ unload you make them yours by acting on their behalf. Institutions do not proy=tect themselves. They fallen after the other unless each is defended from the beginning. So choose an institution you care about-a court, a newspaper, a law, a labor union- and take its side.” p.23 “On Tyranny- Twenty Lessons from the Twentieth Century.”

  6. Ruth Marcus and Justice Sotomayor are on to something. Judicial interpretation of the Act is clearly one-sided.

    I am always suspicious of judicial decisions that employ fuzzy terms such as “a violation at the appropriate level of specificity” without telling us what such level is, and ditto as to “what a reasonable person would have known” without telling us what a reasonable person would have known given the fact situation of the case under appeal. I hesitate to call such language judicial copouts when logic falters, but I think one could argue that they are.

    The doctrine of “qualified immunity” should be ended. Why should a badge be a license to deprive us of our constitutional rights?

  7. As a candidate for Governor, will Braun find that northern Indiana does exist?? He sure didn’t know where it was when he was our Senator.

Comments are closed.