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00:02 Leon: Hey, everyone, this is Leon Neyfakh from Fiasco and Slow Burn. On today's episode of 5-4, Peter, Rhiannon, and Michael are talking about qualified immunity, the Supreme Court doctrine that protects police and other state officials from getting sued when they're operating in legal gray areas. As you'll hear, these gray areas have come to include egregious conduct.

00:23 [Archival]: The courts have interpreted this qualified immunity to almost give complete impunity to the police offices.

00:33 Leon: This is 5-4, a podcast about how much the Supreme Court sucks.

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00:48 Peter: Welcome to 5-4, where we dissect and analyze the Supreme Court cases that have burned through America like a dry season brush fire through a grassland plain.

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01:00 Peter: I am Peter. Twitter's The_Law_Boy. I'm here with Michael.

01:06 Michael: Hey, everybody.

01:07 Peter: And Rhiannon.

01:08 Rhiannon: Hello.

01:09 Peter: And today we are talking about qualified immunity, the doctrine that insulates police and other government officials from liability when they are sued for violating your constitutional rights. Usually, we do one case at a time, but to understand qualified immunity, you really need to understand how it was created and how it has developed since then. Qualified immunity has gotten a lot of public attention recently given that police appear to be on a nationwide rampage of unfettered violence and a corresponding self-pity campaign that is breathtaking to behold.

[laughter]

01:45 Peter: We had originally planned this episode as having a sort of hopeful element because the Supreme Court was considering taking on several qualified immunity cases next year, and both Neil Gorsuch and Clarence Thomas had expressed publicly a willingness to revisit the doctrine, leading some of us to believe that perhaps there was a chance for reform, but last week, the Supreme Court punished us for our naive optimism, denying review to all of the pending qualified immunity cases, in total 13 this year rejected. And, yeah, I mean, we look stupid. What can I say?

02:24 Rhiannon: Yep, yeah.

02:25 Peter: By the way, at the bottom of the episode, we're also going to talk a bit about DACA, the Deferred Action for Childhood Arrivals program initiated by the Obama administration, upheld this week in the Supreme Court. Michael is going to walk you through the details there.

02:44 Michael: Fun stuff.

02:46 Peter: So there are laws that allow you to sue police officers for violating your civil rights, namely 42 USC 1983, Section 1983, a law passed in 1871 as part of the Civil Rights Act of 1871, AKA the Ku Klux Klan Act.

03:07 Rhiannon: Hell, yeah.

03:08 Peter: At the time, Congress was worried about racial violence in the South and it recognized that the problem was not just about rogue actors like the KKK. State officials and police were complicit, and accordingly, citizens needed a mechanism to hold those officials accountable.

03:27 Michael: Right.

03:27 Peter: And 100 years later, the Supreme Court was like, "Actually, maybe we should provide some limitations here." And in the late 1960s, the Supreme Court invented a concept called qualified immunity, which shields government officials such as police from being held liable when they are performing their duties. And when we say they invented it, we mean exactly that.

03:52 Rhiannon: Right.

03:53 Peter: It's not written or implied in the law anywhere, it was never established by Congress in any tangible way, it was simply created by the Court.

04:01 Michael: Right.

04:02 Rhiannon: Exactly.

04:03 Michael: Before we continue, can... I just want to step back really quick 'cause it's something I didn't really think about until just this moment, is that apparently in 1871, when they were concerned about white supremacist Ku Klux Klan violence on black people, they were like, "You gotta be able to fucking sue the cops."

04:18 Peter: Right.

04:19 Rhiannon: Right.

04:19 Michael: And it's nice to know that in 140 years, fucking nothing has changed.

04:26 Rhiannon: Right, right.

04:27 Peter: Right.

[laughter]

04:27 Peter: Well, something has changed. Back then, Congress was willing to understand that police were part of the problem.

04:32 Michael: Right.

04:32 Rhiannon: Yep, yep.

04:33 Michael: Yes.

04:34 Peter: And now they're in their pocket. So...

04:37 Michael: We have moved backwards since Reconstruction.

04:40 Rhiannon: Right, right.

04:40 Michael: Okay.

04:41 Peter: So it's important to know that... So there's this law, this statute, Section 1983, and qualified immunity is not part of that. The Supreme Court invented it in a 1967 case called Pierson v. Ray.

04:53 Rhiannon: Yeah. And in our Terry versus Ohio episode, the episode about stop-and-frisk, we told you that like the entire stop-and-frisk doctrine, that started with a racist cop. So, hey, guess what, everybody, qualified immunity also starts with a racist cop.

05:12 Michael: Wow.

05:12 Rhiannon: What happened was cops in Mississippi were arresting black clergy who were using a segregated bus stop, and a few years later, the law they had violated, the clergy had violated, was found unconstitutional. So the Supreme Court said, look, you can't sue the cops here because they couldn't have known that the law would eventually be found unconstitutional. At the time the cops were enforcing what they thought was a constitutional law.

05:39 Michael: Right.

05:40 Peter: And so the premise is obvious enough, you didn't want police to be held responsible if they're acting in good faith, just because they couldn't predict how a gray area of the law would ultimately be interpreted, and you didn't want... The Court said they didn't want police just avoiding doing their jobs so that they can avoid liability.

05:58 Rhiannon: Right.

05:58 Michael: Right.

06:00 Rhiannon: Yep.

06:00 Peter: And the emphasis, in this case, was on the good faith of the officer, like was the officer in good faith trying to enforce the law. And I said that qualified immunity starts with this case, but it's really more of a precursor to qualified immunity as we understand it, which gets established in a case called Harlow v. Fitzgerald, a 1982 case. In that case, there was a Nixon era whistleblower who, probably due to testifying against the Nixon administration, unfairly lost his job, according to him, contracting for the Air Force, and he says that was due to the interference of certain Nixon administration aides. And the Court held that the aides were immune.

06:42 Peter: And they created a new, much broader standard. Qualified immunity would apply to government officials unless they were violating a "clearly established right or a clearly established law." So the big change here from the prior case is that this completely gets rid of the question of whether the government official was acting in good faith, basically meaning that we're moving from questioning the officer's motives to a circumstance where we're essentially trying to create excuses for the officer. We're saying, "Well, was it really clear that the officer was violating the law?" And the Court in Harlow and subsequent cases stopped talking about the rights being violated and started talking more about how holding government officials liable was disruptive to their work.

07:31 Rhiannon: Exactly.

07:31 Michael: Their busy work of violating your rights.

[laughter]

07:33 Rhiannon: Right.

07:35 Peter: Right.

07:35 Michael: You don't want to disrupt that.

07:36 Peter: Those aides that were wasting time dealing with this lawsuit when they could have been calculating exactly how many Cambodians to annihilate.

[laughter]

07:46 Rhiannon: Right, yeah.

07:47 Michael: Yes.

07:47 Rhiannon: So to put it plainly, qualified immunity is a legal doctrine, and it's meant to keep government officials from being sued for violating an area, say, of the Constitution that's unclear. So to give an example, we're actually going to talk about this case later in this episode, but consider clearly established Fourth Amendment rules, for instance. We know, for example, that the Fourth Amendment clearly establishes that the cops cannot go inside your home without a warrant. And we know also, there are some clearly established exceptions to the warrant requirement. For example, if the cops show up at your house and you give them consent to enter your home, then they don't need a warrant. That's an exception to the warrant requirement.

08:29 Michael: Right.

08:29 Rhiannon: But there are new situations, new constitutional questions coming up all the time because, of course, the pigs get creative with how they violate people's rights. So in one case, the circumstances are that someone gives consent for the cops to enter her home without a warrant, but what the cops do with that consent is fill the house with tear gas instead of going inside. So the question for qualified immunity purposes to see whether the cops can be held liable is whether the cops knew that the tear gas entry was clearly a violation of the Constitution. And what that means is that, essentially, you have to be able to present a case with effectively the exact same facts as a case that happened before in order for your right to be clearly established.

09:19 Michael: Right.

09:19 Peter: Right. So that's what happens over the course of the next several decades following the Harlow v. Fitzgerald in 1982. The courts take this sort of somewhat reasonable limitation on Section 1983, and they turn it into this massive sprawling loophole by leaning on the vagueness of the term "clearly established law." And it's like every case is obviously factually different to some degree, and so they find those little differences and say, "Well, this one's sort of new when you think about it. So the officer wasn't violating a clearly established law." And the result is that we have near complete immunity for police officers when judges feel like giving it to them, frankly.

10:01 Michael: Right.

10:02 Rhiannon: Exactly.

10:02 Peter: For example, in a case called Thompson v. Marr, police were executing a search warrant on a known drug dealer. They saw a pickup truck near his home, and they said that they felt that whoever owned that pickup might have tipped him off to their warrant, despite having absolutely no reason to believe that. Because of that, they execute a no-knock warrant, meaning they do not knock on his door and wait for him to answer. Instead they shout, "Police!" And they immediately knocked down the door with a fucking battering ram. He walks out of the bedroom naked, holding a gun, which by the way, probably not the most irrational reaction to the sound of a battering ram knocking down your front door.

10:41 Rhiannon: Right, exactly.

10:42 Peter: They immediately shoot him dead, and then they hold his girlfriend at gun point while she holds her baby, before making her pass the baby to them through a broken window.

10:53 Rhiannon: Oh, my God. Jesus.

10:55 Peter: The Ninth Circuit Court of Appeals, the famously liberal circuit that Trump likes to complain about, held that the officers were entitled to immunity because it was reasonable for them to believe that they were not violating a clearly established law when they busted in his house because they saw a pickup truck nearby.

[laughter]

11:18 Rhiannon: Cool.

11:18 Michael: What the fuck? It's such garbage.

11:22 Peter: Yeah.

11:22 Rhiannon: It's bad, guys. It's bad.

11:25 Peter: I think it's obvious that we believe that this sort of police conduct violates the Fourth Amendment's prohibition on unreasonable searches and seizures. Shooting someone is technically a seizure under the Fourth Amendment under the law. And I want to clarify my thoughts on this, because police will say, "Look, this guy exited his room with a gun. How can it be a constitutional violation to shoot him?" And in a vacuum, that may seem persuasive, but these situations don't exist in a vacuum. If the actions of police have led to a circumstance where it is completely reasonable for a person to grab their weapon, then you can't just kill them for doing that and claim it's totally constitutional. If the police purposefully create the conditions that lead to a situation where they have no choice but to shoot someone, then that should be just as much of a constitutional violation as a circumstance where they shoot someone for no reason.

12:19 Rhiannon: Right, ridiculous.

12:21 Michael: And so these cases we're talking about how just fucking transparently obvious the rights should be, like the idea that these rights aren't clearly established is absurd. But, obviously, there are going to be cases that are not that transparently obviously a constitutional violation, but nonetheless, resemble earlier cases where the courts have made a ruling and said, "This is what excessive force looks like." But the thing is, if you think that might help the situation, you'd be wrong, because the courts really just don't give a shit.

12:54 Peter: Yeah, they do not clarify what is or is not excessive force or a constitutional violation or whatever you might call it.

13:00 Michael: At all. And so a nice example of that is in the Sixth Circuit back in 2011, there was a man who had a shotgun and he was lowering it, and cops shot and killed him. And the court found that that actually was excessive force because he was lowering the shotgun. He was demonstrating that he was not a threat. So a couple of years later, a 14-year-old boy was holding a BB gun at gunpoint from the cops, he drops the BB gun, he puts his hands up, the cops shoot him in the shoulder. And so you think, well, look, if you shoot someone who's lowering his weapon and that's excessive force, then clearly, that's a clearly established law that shooting a kid who already dropped his BB gun would also be excessive force.

13:47 Rhiannon: Right.

13:47 Michael: But you would be wrong, because the court said, "Well, look, the kid, he drew the BB gun from his waistband first, and there wasn't a similar drawing of weapon in the previous case."

14:00 Rhiannon: What?

14:01 Peter: Yeah.

14:03 Michael: So...

14:04 Peter: You're supposed to just shake it down your pants. You just sort of shake it till it falls out your pant leg. If you don't do that, you're dead, kid.

14:11 Rhiannon: Oh, my God.

14:14 Michael: So it doesn't matter. If the court wants to find a distinction, they can find a distinction, they will.

14:20 Peter: Right.

14:20 Rhiannon: Yeah, exactly. That sort of fine a distinction really highlights what we said up top, which is, this isn't a written law, you don't find this anywhere in the Constitution or in Section 1983, this is judge-made law, and so the cases that come after it are all about judges making these subjective determinations. And so, how the clearly established analysis worked in qualified immunity cases for a while, is that courts would have to decide first, they would have to look at the facts of a case and decide if somebody's constitutional right was violated, and then they would move on to the question of whether or not that right was clearly established at the time the right was violated. But then in 2009, the Supreme Court strengthened qualified immunity even more, in a case called Pearson v. Callahan. And in that case, the Supreme Court basically allowed federal courts to switch the analysis, which is to say that a federal court could decide whether the right was clearly established before deciding if a right had been violated.

15:31 Peter: Right.

15:32 Rhiannon: And so what that means is that in these gray areas of constitutional law, where new situations and circumstances arise of police pushing the boundaries of what is constitutional, in those gray areas, the court can just throw the case out by saying that the law in this area is unclear, instead of doing the work of establishing what the Constitution protects us from.

15:54 Michael: Right.

15:54 Peter: It's important to realize why that's a bad idea, and it's because it's very hard to understand whether something is a "clearly established right," before you really understand what the right is, and this allows them to skip over the question of what the actual right is and whether or not it was violated, before getting to the question of whether it was clearly established.

16:14 Peter: Right. The court can really undertake that important responsibility of saying, "Which of these new situations are violations of clearly established constitutional rights? What does the Constitution protect for all of us?" But instead, this case, Pearson versus Callahan, it gives federal courts the ability to just throw out a case by saying, "Well, whatever the right is, it's not clearly established yet," and this is introducing a procedural, technical rule to make it easier for courts to grant qualified immunity.

16:42 Michael: Right, and that's exactly how they've used it, right? There was a recent Reuters report that sort of did a survey of all the qualified immunity cases from the last decade, and every time, the courts skipped over the question of whether cops actually used excessive force and went directly to the question of whether the right was clearly established in this situation. Every single time they found that the right was not clearly established and that the cops had qualified immunity.

17:13 Rhiannon: Yeah, exactly.

17:13 Michael: It's just a way to cut to the chase and hold cops.

17:15 Peter: It's a way of avoiding the nuance of the actual rights in question.

17:20 Rhiannon: Exactly, right.

17:20 Michael: Right. And this creates a sort of a second order problem, because what happens is these cases don't create precedent for future cases of similar conduct, because the law remains unclear, right?

17:31 Rhiannon: Exactly.

17:32 Michael: So the court doesn't actually make a decision on the merits, so if this situation comes up again, and the court has to face it again, they can't look at their past decision and say, "Well, we decided that was excessive force."

17:42 Peter: Right.

17:43 Michael: And this hasn't happened a lot, but it has happened. So the example that I have here, is in the Eleventh Circuit, which is kind of in the South, dealing with this practice called hogtying, which is where cops handcuff you behind your back, shackle your ankles, and then attach the ankle shackles to the handcuffs. And so what you had in 2009 in Florida, was cops hogtying someone, and that person dying as a result of the stress position their body was in, and cops putting their body weight on them and pinning them to the ground, and the court deciding to skip over the question of whether that was excessive force and just saying, "Well, look, in this case, it's not clearly established law whether that's excessive force, so cops have qualified immunity here, and we're throwing the case out." And so in 2013, cops in Alabama also killed someone after hogtying him, right back up to the Eleventh Circuit, and they, again, found the cops had qualified immunity, because the law was still unclear, it's still not clearly established.

18:48 Rhiannon: Because they didn't answer it in the first case.

18:50 Peter: Right, it's wild. On one hand, they're refusing to clarify and then they're saying, "Well, it's not clear enough, sorry."

18:55 Rhiannon: Right, right.

18:56 Michael: And so in the last decade since Pearson, before this case, when cops tried to claim qualified immunity, they won about 45% of the time, and now, they lose about 45% of the time. So it's been a steady chipping away at your ability to hold them liable.

19:14 Rhiannon: Yeah, yeah.

19:15 Peter: Right. It's time for an ad.

19:20 Peter: So the most recent Supreme Court case directly addressing qualified immunity is Mullenix v. Luna, 2015 case. In that case, there was a high-speed chase. This guy is running from the police, calls them and says he has a gun and will use it if the police don't give up the chase. Police lay out a spike strip to stop the car. One officer wanted to open fire from an overpass with a rifle into the car just before it hit the spike strip.

19:50 Rhiannon: This is insanely dangerous. I know you don't learn a lot at the pig academy. You do learn that shooting into a speeding car, from a bridge, onto the highway, is really fucking dangerous. You do learn that.

20:06 Michael: I didn't even go to pig academy and I can tell.

20:09 Rhiannon: Neither did I, but I'm sure that's in their curriculum. Yeah.

20:12 Peter: Yeah, they cover that in the week and a half that they spend training.

[laughter]

20:15 Rhiannon: Right, that's right.

20:16 Peter: So this guy's boss tells him, "No, don't do that."

20:21 Rhiannon: Right.

20:21 Peter: He does it anyway, opening fire into the car and killing the suspect, and reportedly saying, in reference to a performance review that said he needed to be more proactive, "How about that for proactive?"

20:35 Rhiannon: Fuck.

20:38 Peter: By the way, first name Chadrin, CHADRIN.

20:42 Rhiannon: Oh, my God.

20:44 Peter: You know you're raising a murderer when you name him Chadrin.

20:46 Rhiannon: If you wrote the joke, Peter, that his name was Chadrin Mullenix, it'd be unbelievable.

20:52 Michael: Yeah.

20:54 Rhiannon: God damn, I hate these people.

20:54 Peter: So the Court holds, again, 8-1, that the officer was entitled to qualified immunity. Sotomayor wrote a fairly scathing dissent, saying, "Of course, this would clearly violate the Constitution, you can't use deadly force unless it's necessary." And then she kind of has some asides, saying that the Court is endorsing a "shoot first think later" mentality and stated that it rendered the promises of the Fourth Amendment hollow. One notable thing here is that the officer claims he was aiming for the engine block to disable the car. Keep in mind this story makes no actual sense. Why shoot out the engine of a car that is a split second away from a spike strip?

21:34 Rhiannon: Exactly.

21:34 Peter: Also, he was using a rifle that he was well trained with, he fired six shots and four hit this dude's upper body.

21:42 Michael: Jesus.

21:43 Peter: In other words, the story about aiming for the engine was clearly made up after the fact, and you'd have to be an absolute fucking moron to believe it. But lucky for the police, Antonin Scalia was still on the Supreme Court at the time. And he files a concurrence saying, "Yeah, yeah, the majority is totally right, he deserves qualified immunity." But also, I don't think that this qualifies as, "deadly force, because he was aiming at the engine block." This is not relevant to the case. He just thinks it's unfair to the police to call it deadly force.

22:17 Michael: Jesus.

22:17 Rhiannon: It's insane. We've talked about felony murder. You want to tell me that just not intending deadly force makes it not deadly force, when you have people who were lookouts during a burglary.

22:30 Peter: You can get into a really stupid technical law school discussion of whether shooting near somebody is deadly force, but also, you'd have to be an absolute moron to think that this guy was aiming for the engine. So it's sort of irrelevant and became even more irrelevant in February 2016, when Antonin Scalia's pillow applied deadly force to his face.

[laughter]

22:53 Rhiannon: Got his ass.

[laughter]

23:00 Peter: Where's his grave? We should let our listeners know at one point.

23:02 Michael: Anybody wants to relieve themselves publicly.

[laughter]

23:08 Michael: Yes. And so, we've been going over the doctrine itself, how it works, how courts apply it, and how that can sort of put a thumb on the scale in these cases, but it's not the only way that the Supreme Court helps police here. One of the ways is what cases the Supreme Court hears. And so for example, plaintiffs and cop defendants send qualified immunity cases up to the Supreme Court at roughly the same rate. And despite that, of the 15 qualified immunity cases the Court has heard in the last 15 years, 12 of the 15 have been where cops were appealing the fact that they were denied qualified immunity, which sort of communicates to lower courts what the Supreme Court is concerned about, is lower courts being too aggressive in denying cops qualified immunity.

24:00 Michael: And the courts clearly understand that. We can see that in the decline in successful challenges against cops in these cases. And if those numbers don't sound that meaningful, the Court is three times as likely to take an appeal from a cop who's upset that they didn't get qualified immunity than it is to take literally any other type of appeal. They just take them at a very high rate. And there's all sorts of other little rules. They allow what's called interlocutory appeal, which is where you can appeal a qualified immunity ruling before the case is over. There are other things that are available to that, but it is a special dispensation that says you don't have to go through trial, you don't have to get to a resolution, if the Court decides you don't have qualified immunity, officer, you can appeal that immediately.

24:46 Michael: It also... Cops can get qualified immunity before discovery is complete, which means that you don't even get a full finding of fact on what happened. So all of this operates in a way to keep what the cops do sort of shielded from the public and keep the cops themselves shielded from liability.

25:08 Peter: Right. As we mentioned up top, the Supreme Court could have chosen to revisit the qualified immunity doctrine next term, but instead denied review to each of the 13 pending petitions for certiorari.

25:21 Rhiannon: Yeah, sometimes called a petition for cert.

25:24 Peter: To give you a flavor of just how horrific some of these cases are, we want to go through a couple of them. So Rhiannon mentioned earlier, the case West v. Winfield. In that case, a woman returned home with her kids, to find five police officers outside. They tell her they're looking for her ex-boyfriend. She says she doesn't think he's there, but she gives them permission to go in and she gives them her key. But instead of utilizing the key, they call in SWAT and they bombard her house with tear gas from the outside, essentially laying siege to her house. After many hours, after the house and everything inside has been severely damaged by fucking tear gas, the police determine the house is empty.

26:18 Rhiannon: Whoa. [laughter] I wonder if there was another tool you could have used.

26:22 Peter: Great question and no, the answer is no. [laughter] Also, even though she had given them the key, the way they ultimately got inside after tear gassing the house is they broke a window near the back door and they reached in and unlocked it.

[laughter]

26:36 Rhiannon: Oh, my God.

26:40 Michael: I hate them so much.

26:41 Rhiannon: Oh, God. I hate them.

26:41 Peter: So the famously liberal Ninth Circuit held that the officers were immune from suit because it is not clearly established that gas bombing someone's house is a violation of the Constitution if they give you consent to enter. Alright. Some other cases involve cops who unleashed a police dog on a suspect who had surrendered and was sitting on the ground with his hands up; an officer who parked his patrol car with his sirens on outside a man's house for an hour, knocking and looking into windows, disabling home security cameras, all so he could administer a breathalyzer to a man on probation.

27:24 Rhiannon: God.

27:25 Peter: And an officer who chased a suspect into a yard where children were playing, had the children lay down while they detained the suspect, who was cooperating. Then repeatedly tried to shoot a pet dog, but missed and hit the 10-year-old child who was lying a foot-and-a-half away.

27:45 Rhiannon: My God.

27:47 Peter: So, I'm sorry, but if a prestigious appellate court can see a cop shoot at a family's pet dog for no reason, miss and hit a child, and claim that he did not violate a clearly established constitutional right, then what the fuck are we even talking about here?

28:04 Rhiannon: Right, right.

28:05 Peter: What is this?

28:05 Rhiannon: It's a fucking joke, is what it is.

28:07 Peter: That on its face is enough to make it clear that this doctrine is out of control and has no tangible connection to what we should expect of a legal system that defends our constitutional rights.

28:16 Rhiannon: Yeah, can I just talk like my religious shit again for a minute? This is why I don't believe in an afterlife, because hell, hell, like eternal hell fire, is too nice a place for fucking people who let this shit go. The cops who are just shooting fucking randomly, judges who are like, "That's a-okay. It wasn't clear that that's wrong." Hell is too good a place, so we need justice in this lifetime, is what I'm saying.

28:42 Peter: What's the story that's just, hell being a room with a bunch of other people that you have to talk to?

28:49 Rhiannon: L'enfer, c'est les autres.

28:50 Peter: Yeah.

[laughter]

28:51 Peter: With cops, it's just...

28:52 Michael: There you go.

28:52 Peter: It's having to talk to a minority for 25 minutes.

28:56 Rhiannon: Yeah, yeah.

[laughter]

28:56 Peter: That's the equivalent of an eternity of hell fire.

28:58 Michael: That's their equivalent.

29:00 Peter: They're just like, "Oh, my God, I've gotta shoot a dog. I absolutely have to."

29:05 Michael: And I just want to say, listener, if you're still on the fence, if you're like, "There are some good cops and maybe they deserve some immunity," or if the facts of this case seem very sort of shocking to you, just know that cops kill at least 30 dogs a day, over 10,000 a year...

29:21 Rhiannon: God.

29:22 Michael: There isn't a comprehensive database of it, so we can't be certain, but that's like the fucking floor, that's the minimum.

29:28 Peter: That's the minimum...

29:28 Michael: That's the minimum.

29:31 Peter: Ten thousand dogs a year. This is an extinction level event for dogs.

[laughter]

29:39 Peter: Alright, we should note a couple of things. One is that qualified immunity... A lot of these cases are horrific and egregious, but it's not frequently invoked. I think it's best viewed as sort of part and parcel with this massive system that benefits the police. The way that prosecutors operate, the way that judges operate, the way that juries are biased and designed to be biased towards police officers. This system is like... It's massive and it needs to be hacked at steadily to see any real progress on it.

30:11 Michael: One thing to be aware of is that when qualified immunity is not invoked, that doesn't necessarily mean that there is accountability for the officer. If there's a settlement or if the city loses in court, the vast majority, if not all the time, the people paying for that are the taxpayers. That's not coming out of police budgets, it's not coming out of cops' pay or their pensions, or anything... That's taxpayers paying for that brutality. So accountability, it's not a word that really exists in this space, whether or not qualified immunity is invoked at all, or if it's... Whether or not it's successfully invoked.

30:52 Peter: Right, right. But what's important is that, right now, you can see that its foundational assumptions are shaky in the view of the public. And the sort of assumption that cops need some element of freedom to do their jobs is being questioned, or at least the scope of it is being questioned. In my view, it's not just that qualified immunity needs to be revisited and abolished by the Court because it's bad law. When the Court makes up a rule purely out of its own conception of what is fair or not, and there's a huge growing chorus of people stating that it is in fact unfair, then in my opinion, the Court has a responsibility to address that, because this doctrine isn't predicated on a statute or anything else tangible, it's the pure manifestation of the Court's policy preferences. And in those circumstances, the Court should be particularly quick to revisit and revise the rules it makes.

31:49 Michael: And look, the liberals are just as big a part of the problem here as the conservatives.

31:56 Rhiannon: That's right.

31:57 Michael: And it's not hard to do the math on this. You only need four votes to get one of these cases heard. You don't need five votes, you just need four Justices to say, "I want to hear one of these cases. I want to hear the guy trying to shoot a dog and shooting a kid instead." And you'll hear it. And Justice Thomas, actually, in a very rare move, dissented from the Court deciding not to hear one of these and said, "We should hear it, publicly." He wrote an opinion about it.

32:22 Rhiannon: Yes.

32:22 Michael: That's one vote. And Sotomayor has been very vocal, very open about wanting to revisit qualified immunity, so that's two. You had a minimum of two out of the four votes you needed, which means you couldn't get two more out of Kagan, Breyer and Ginsburg. So max one of those people is not a piece of shit, but my guess is all three of them are garbage, based on their past votes and all three of them were like, "Yeah, fine, fucking sic a dog on a guy who's already surrendered. Why not?"

32:58 Rhiannon: And what's so ridiculous, I... Just to emphasize again, like Michael said, this is judge-made doctrine, and so the solution is also completely judge-made. Congress hasn't acted here, another branch of government has not acted here, that would sort of in other situations counsel hesitation and counsel judicial restraint on the part of the Supreme Court. What's actually happened here is, 50 years ago, the Court came up with this doctrine and they could fix it and they're deciding not to.

33:30 Michael: Right. I think the only conclusion you can draw from what Peter and Rhiannon and I have all said, taken together, is that the state of qualified immunity as it exists now is an accurate representation of the policy preferences of seven Supreme Court Justices.

33:49 Rhiannon: Nailed it. Nailed it. Tell them, king.

33:52 Peter: And one other thing I want to highlight, the qualified immunity petitions were rejected in a week where the Court came down on the liberal side of a couple of big cases, Title 7 and DACA, and the result has been a lot of people who are usually frustrated with the Supreme Courts sort of singing its praises a little bit, and conservatives who are very, very frustrated, and many of those conservatives have started writing articles after the DACA decision, especially, that are essentially like, "Is this the end of the conservative legal project?"

34:30 Peter: You look at the qualified immunity cases and it's like, "How much more fucking control over American jurisprudence do you need, when you've got numerous liberals in the bag on huge contentious issues? What else do you fucking want?" It's just proof that these people will stop at nothing short of total control of the American judiciary.

34:51 Rhiannon: Yeah, and regarding qualified immunity, some Democrats recently have proposed legislation to end qualified immunity. So Ayanna Pressley in the House has proposed the Ending Qualified Immunity Act, which would amend Section 1983 to say that police officers can't use qualified immunity to protect them from liability when they violate people's civil rights. And then some Senate Democrats, Cory Booker, Kamala Harris, among others, have proposed the Justice in Policing Act of 2020, which in addition to banning no-knock warrants in some cases, and banning racial profiling, side note, that's already not allowed.

35:33 Peter: We will be banning all illegal behavior.

35:36 Rhiannon: Right, right. Yeah, so in addition to those things, the Justice and Policing Act would get rid of qualified immunity. Now, these pieces of legislation do not have a clear path to getting passed, Republicans are already saying that ending qualified immunity is a poison pill. John Cornyn, Senator from Texas says that policing is "a tough job under any set of circumstances, and to have lawsuits filed which sort of flies back what you did or didn't do at a time when you didn't know whether you know somebody is trying to kill you or not, I think you need that sort of balancing of interest that qualified immunity provides."

36:15 Peter: Now, the Democratic proposals are, and I think in our view, a good start. I'm just sort of thinking of what the law would look like, if we were in charge. So obviously, you abolish qualified immunity. But in my view, the real concern is that there are a lot of circumstances where police should be held to a higher standard of conduct than the public and not a lower standard. If police engage in something like petty theft, it makes sense that that should be more severely punished than someone who was not leveraging a position of power to do it, which is why I believe that if they engage in petty theft, they should be executed.

36:57 Michael: Capital offense.

36:58 Peter: If they sic a dog on an unarmed person, obviously execution; if they're covering their badge, you're going to want to execute.

37:07 Michael: Qualified immunity for citizens who reasonably, in good faith, believe that they are acting on these laws. Oh, that cop's badge looks like it's covered, execute them. If they were acting in good faith, all good. Turns out that was just a mustard stain on the badge.

37:27 Peter: Yeah. Well, good news, mustard stains on cop uniforms, execution.

[laughter]

37:32 Peter: The 5-4 Police Reform Act of 2020.

[laughter]

37:39 Michael: So one thing that's worth noting about the Democratic legislation that's good, is that it's not a half measure when it comes to qualified immunity for cops, it's like fucking get rid of it, not like go back to the good faith standard, or any of that. It's just like boom, done, it's out. But it is limited to police and I believe corrections officers, and it's worth noting that, as we said at the beginning, at the top of this episode, qualified immunity as we know it now was invented in a case about a whistleblower being punished by the Nixon administration.

38:14 Michael: And you would think maybe that this particular Democratic Congress, dealing with this particular administration and the trouble they've had, getting honest and full, or even any testimony out of them, might be a little more aggressive about like sweeping executive behavior into this as well, in eliminating qualified immunity there, there's definitely at least hints at political retributive firings in the Trump administration, where qualified immunity might come into play in a few years. It's not out of the question.

38:48 Peter: Yeah, no, absolutely. We're talking about this in a police-driven context because the broader public discussion is driven by police brutality issues. But qualified immunity is broad, it applies to government officials broadly, and that covers a lot of ground, and yes, I think the police abuses are the most visceral, but that doesn't mean that they're the only ones, and it doesn't even mean that they're the worst.

39:09 Rhiannon: Yeah.

39:10 Michael: Right.

39:10 Peter: As we wrap up here, I want to note one thing, which is that Section 1983 is a law that allows people to sue the government for violating their constitutional rights, that is the purpose of the law. The doctrine of qualified immunity completely upends and undermines that purpose. The Court has stepped in with a rule saying, "Look, we can't just let people sue every government official who violates their rights, that causes too many problems." But that was the whole point of the statute.

39:37 Rhiannon: Exactly.

39:38 Peter: That's why it exists. Conservatives will very frequently talk about how courts can't interfere with the will of Congress. But is there a more egregious example of that exact phenomenon than this?

39:49 Rhiannon: Exactly.

39:50 Peter: Congress passes a law to allow people to hold government officials accountable, and the Court steps in and says, "Well, no, that actually bothers the government officials too much. Sorry, we can't do it."

40:00 Rhiannon: Yeah. Right.

40:00 Peter: And I know we've talked a lot about conservative hypocrisy on this podcast, but this is why you can't ever stop beating that drum, because this is fucking absurd. A completely made up doctrine meant to limit a statute passed by Congress, 100 years prior to the development of this doctrine, the Court just steps in like, "No, no, no, we don't really like how this is panning out."

40:21 Rhiannon: Right.

40:22 Peter: Not that I think the Court should never be able to do that, but certainly the conservatives on the Court have frequently said that you can't do that.

40:28 Rhiannon: Yeah. And it's important to highlight too, I think, the way that a conservative Court leverages the idea of judicial activism versus judicial restraint. So conservatives will say that stepping in and creating judge-made doctrine, that's judicial activism, we don't do that, we need to let Congress speak, but then they'll turn around here and create qualified immunity and make it so that no government officials are held liable, but they'll say that's restraint too, because they're restraining cases that are coming before the Court.

41:01 Peter: So, the last thing I want to say about qualified immunity is, Section 1983 is a statute about your ability to protect and enforce your own constitutional rights, by suing the government and government officials when they violate them.

41:16 Rhiannon: Yeah.

41:16 Peter: But the way the courts have approached qualified immunity cases, the court barely discusses the civil rights of the person suing; instead, the focus is almost entirely on the officer. "Should they have known that they were violating your rights? Were your rights clearly established?" And these questions are sophistry. They're entirely detached from what should be the central question of whether your rights were actually violated.

41:42 Rhiannon: Yep.

41:42 Peter: The entire inquiry is made up by the court, a completely artificial barrier standing between individuals and the vindication of their constitutional rights. And the result is a regime that places the comfort of government officials over the rights of its citizens. You can see this play out all across the country in all of the prominent public-facing cases that we see. And plenty of the ones that aren't so public-facing, that don't get public attention. The George Floyd case is not yet about qualified immunity, but certainly when it reaches the court it's going to be about what the cops should have known about rights in the Constitution, as opposed to the much more salient fact that some guy who committed a very petty crime, at worst, had his fucking neck leaned on for nine minutes until he died. And any fucking person who's not an absolute psychopath knows that not only is that wrong, but of course it's a violation of the Constitution, what could the Constitution possibly mean if that's not a violation of it? The discussion as courts are having it now is completely separate from the human beings that suffer under the weight of government authority.

43:00 Michael: I don't know that George Floyd is going to have... Be a qualified immunity case, but I feel like that one in Atlanta will be.

43:04 Rhiannon: Yeah. Yeah. I wouldn't... If you just think about what the facts are in these cases, I wouldn't be able to lean on the neck of an animal for nine minutes. What is really happening, even though we're desensitized and the violence that police enact on the people is so normalized that we accept it. But if my boss told me, "No, do not shoot into a speeding car," and then I did it anyway. The facts of these cases are...

43:33 Peter: If my boss told me not to send an email, and I sent it anyway, I would get a fucking warning, a written warning.

43:39 Rhiannon: Right, right, exactly. And what the court turns around and does, and I think we pointed this out in Hernandez v. Mesa, and in that case, it was with... The case is called Bivens, and the doctrines that come out of that, that the court used to abdicate its role in accountability. But here we see that the judge-made doctrine, the courts create their own law to abdicate their responsibility to make itself a weaker institution, where they're not saying, "Yes, institution of government officials, yes, police, we're going to police you, we're going to hold you accountable." They brushed their hands of it using qualified immunity.

44:19 Michael: Right. So, we've been saying here that there's legislation and there's obviously people out in the streets demanding something happen with qualified immunity, and it's really disappointing that the Supreme Court isn't responding to that. It would be the easiest thing in their world for the Supreme Court to do, they don't really have to do anything, they don't even have to write an opinion, they just have to agree to take up a case next term. But that doesn't mean the courts in general aren't sort of tuning into the moment, and there have been some lower courts that seem to be picking up on where society is pushing and moving accordingly.

45:00 Michael: A recent case in the Fourth Circuit I think is particularly worth discussing. And so this is a case about a schizophrenic man who is experiencing homelessness, he's walking in the street rather than on a sidewalk. And a cop stops him and starts asking why is he in the street and asks for his ID. The guy says he doesn't have ID. The cop asks him if he has any weapons, the guy asks what counts as a weapon, and when the cop says that knives count as weapons, he says, "Well, yeah, I'm holding something." It turns out he has a little pen knife, basically, in his sleeve.

45:35 Michael: The cop immediately freaks out, calls for back-up, starts yelling at him to put his hands on the hood of his car. The homeless man is getting agitated, saying, "What did I do? I didn't do anything wrong." Confused, runs away. Cops give chase. The end result is that five cops tased this guy multiple times, beat the shit out of him, put him in a chokehold, and then they get up, and while he's lying motionless on the ground gurgling, trying to get his breath back, they shoot him 22 times and killed him. The district court found that the cops had qualified immunity, and the Fourth Circuit reversed.

46:22 Michael: And this is what they wrote at the end, this guy's name was Wayne Jones, and they say, "Wayne Jones was killed just over one year before the Ferguson, Missouri shooting of Michael Brown would once again draw national scrutiny to police shootings of black people in the United States. Seven years later, we are asked to decide whether it was clearly established that five officers could not shoot a man 22 times as he lay motionless on the ground. Although we recognize that our police officers are often asked to make split-second decisions, we expect them to do so with respect for the dignity and worth of black lives."

46:57 Michael: Before the ink dried on this opinion, the FBI opened an investigation into yet another death of a black man at the hands of police, this time George Floyd in Minneapolis. This has to stop. To award qualified immunity at the summary judgment stage in this case would signal absolute immunity for fear-based use of deadly force, which we cannot accept. District court is reversed.

47:21 Rhiannon: Yeah. And I think it's so important that, even though we talk about the law and concepts that feel really sort of abstract and irrelevant to daily life, that we emphasize that really all of this stuff has such a huge impact on our communities, on real families, on people who have suffered at the hands of police in this country. And so maybe to wrap up, we just want to say, rest in peace and power to Ahmaud Arbery, Breonna Taylor, George Floyd, Rayshard Brooks, Michael Brown, Tony McDade, Philando Castile, Atatiana Jefferson, and so many others who have either had their lives taken too soon, or been really hurt and injured by the police.

48:14 Peter: Hell, yeah, rest in peace.

[music]

48:25 Michael: Okay. So we mentioned the good decisions last week, and obviously we gave you guys an emergency podcast about the LGBTQ Title VII cases. We also want to take just a short minute or two to tell you about the DACA decision. This is a really complicated case, it sits at the intersection of a lot of areas of law, immigration law, the administrative state, equal protection. And we're not going to cover all that. So, the Supreme Court essentially prevented the Trump administration from ending this extremely popular Obama-era program called DACA, the Deferred Action for Childhood Arrivals program.

49:05 Michael: Basically, DACA gives protections to 700,000 or so people who came to the US as young undocumented children and have lived here ever since, and it's basically their entire lives. And the way it works is they apply, as long as they're not like felons and meet some basic requirements, they get this protected status, which means that the government can't deport them for two years and they can work legally, they get social security, they can get driver's licenses and all sorts of stuff, there are a lot of benefits that attach to it. And at the end of the two-year period they can renew it.

49:40 Michael: And it essentially allows them to participate fully in the American civic life. And the majority of these people are undocumented immigrants from Mexico, and Donald Trump fucking hates Mexicans because he's like a vile racist. You may or may not be aware that he wants to build a wall [chuckle] down there, and so he's vowed to end this program. And the thing is, it's not a law. Under Obama, the Department of Homeland Security just announced this policy via executive memorandum. And so Trump unquestionably has the power to end this. But skipping over a lot of the other shit, the basic question here is whether DHS complied with the procedural requirements that it provide a reasoned explanation for its action when it said it was going to end DACA, which was just a weird function of the administrative state that they can't just do stuff arbitrarily.

50:40 Michael: And Roberts is basically telling the Trump administration here in rejecting them, and saying that DACA still stands at least for now, like, "Look, don't make us look like clowns. Don't lie to our faces in such an egregious way that I will look like a fucking idiot for buying it. If you're going to lie to our faces, at least make it look good." And it's a lot like the Muslim ban case that we talked about, Trump v. Hawaii, which was very similar. In both cases you have Trump with these really racist inflammatory statements, and in both cases you have an effort to paper over those with some minimal procedure. In the Muslim ban case, the Court said, they did a good enough job of papering over with procedure. And here they said, "You didn't, you're too lazy, you're too arrogant to do this right, to even go through the basic motions." And honestly, I can't blame Trump, because four out of the five conservative justices were ready to go along with him.

51:38 Peter: Yep.

51:40 Michael: So this is a victory, it's great. There are hundreds of thousands of people who get to sleep a lot easier now, but it doesn't end the issue, it didn't say DACA is constitutional, it didn't say Trump has to keep his hands off it. There's still other litigation about this going through the federal courts, and the Trump administration can now use Roberts' opinion as a roadmap for how to properly go about ending DACA.

52:03 Peter: And it seems like that was his intent, at least with portions of it. He rejected all of the arguments that would have found the Trump administration's efforts to dismantle DACA unconstitutional, and instead basically said, "Yes, you sure can do this, but you just did it wrong."

52:20 Michael: Right. And so all he has to do is look at all the places where Roberts said his procedures and arguments were deficient and fix them.

52:29 Peter: Right.

52:29 Michael: Now, just because of the way administrative law works, they probably do not have enough time to do that in the next few months, so this basically just puts the fate of DACA and DREAMers on the ballot in November. And even then, there's still the outside chance that some of the cases currently making their way through the courts could also end it. And so, the only way to fully protect these people is to pass this as legislation, that's the truth. But that doesn't take away from the fact that, at the very least, these people get to be safer and sleep easier, at least for the next few months, which is a real victory.

53:11 Peter: Until Joe Biden comes and saves them.

[laughter]

53:13 Michael: There you go. There you go.

53:14 Peter: Joe Biden, also a DREAMer, in the sense that he experiences physical life in the same way that you probably experience a dream.

[laughter]

[music]

53:29 Peter: Alright. Next episode is Janus v. American Federation of State, County, and Municipal Employees, Council 31. [chuckle] That is the full name of the case. We will be referring to it as Janus. It's about public sector unions. I'll let you guess how that one shook out.

[laughter]

53:51 Peter: And we've got another guest, Professor Sam Bagenstos is going to join us and he's going to say smart stuff while we make jokes.

[chuckle]

54:00 Rhiannon: Yup. Oh, follow us on Twitter @fivefourpod.

54:05 Michael: Oh. We want to thank Ross.

54:06 Rhiannon: Ross!

54:08 Peter: We do want to thank our buddy and research assistant, Ross, who's been helping us out with legal research for the past few episodes. Ross, we will never pay you.

[laughter]

54:20 Rhiannon: Ross, you are a sweet baby angel and we appreciate it. Follow him on Twitter @rosswaldz with a Z.

54:27 Michael: 5-4 is presented by Westwood One and Prologue Projects. This episode was produced by Katya Kumkova, with editorial oversight by Leon Neyfakh and Andrew Parsons. Our artwork is by Teddy Blanks at CHIPS NY, and our theme song is by Spatial Relations.

[music]

54:53 Leon: From the Westwood One Podcast Network.