Police have QUALIFIED IMMUNITY. What is it?

Qualified immunity shields the police from civil suits for money damages unless certain conditions are met. But with multiple high-profile police shootings in the past few years and increased calls for greater law enforcement accountability, is it time for the Supreme Court to reassess the doctrine? Professor Fred Smith, Jr. of Emory University School of Law explains to Ingrid Bilowich how qualified immunity came to be and whether its justifications still hold up in the post-Ferguson era. For the full interview with Prof. Smith as well as legal explainers and interviews with the titans of law, visit www.talksonlaw.com. ► Patreon: TalksOnLaw is on Patreon! You can support us directly by signing up at: http://www.patreon.com/talksonlaw ► Facebook: http://www.facebook.com/talksonlaw ► Instagram: http://www.instagram.com/talksonlaw ► Twitter: http://www.twitter.com/talksonlaw ____________________ TRANSCRIPT FS: Qualified immunity means that when you sue a government official for violations of the Federal Constitution, you have to demonstrate that that government official violated clearly established law that a reasonable person would have known at the time of the violation. Host: That’s a mouthful right there. FS: Overtime, that’s become a harder and harder standard to meet. Because in some ways it depends on how we define clearly established law. So, if we say it’s clearly established that you can’t unreasonably seize someone or unreasonably shoot someone or— Host: As one would think. FS: Right. So, if we say that that’s clearly established, then you might say, "Well, okay. Well, anytime there’s an instance in which there’s been an unreasonable shooting, then you sue the person"—but no. So one needs to be able to demonstrate one of the following three things. One possibility is that there is a case that has previously been decided that has very similar facts. Host: Precedent on the matter controlling law. FS: Exactly. So, we can look and say, "Well, there’s this other case where the police officer did a shooting or engaged in shooting under the same circumstances essentially." Another possibility is that we can look at a legal rule from some prior case, and the legal rule is just so obvious that someone violated the legal rule that even if the facts were different, it doesn’t even matter. So there’s a case out of Alabama where the prison guards were putting people on what they called hitching posts. So they had these designated places outside where when they wanted to, they would put prisoners in the hot sun, and they would put them there all day sometimes. They would give them occasional sips of water, but just in hundred-degree weather, the prisoners would just hang on the hitching posts. There was no law about hitching posts, so there was no prior case about hitching posts. Host: There was no precedent exclusively stating that you cannot tie someone to a hitching post. FS: Exactly, right. It was an inventive way of violating people’s rights. But there was a precedent that you couldn’t engage in sadistic or malicious violence. And so, what the Supreme Court said in a case called Hope v. Pelzer is even though there’s not a case about hitching posts, there's lots of cases about sadistic and malicious violence, and it’s obvious that this is a violation. Host: That this is what that is. FS: Exactly. And then finally, another way is that the text of the Constitution might be really clear. Very rare that the constitutional text is so clear, right? Like, "The President has to be thirty-five years old." There are a few things that are, but most things are just not.