One of the most dubious legal doctrines in the scheme of addressing the harm done by law enforcement officers to others is qualified immunity. It’s entirely judge-made law, appearing nowhere in the statute, making it one of those inexplicable concepts to explain to non-lawyers when we discuss how the law works.

Textualism? Originalism? The canons of statutory interpretation? It all sounds like total crap when one considers that qualified immunity, a monumental impediment to the clear reach of 42 U.S.C. §1983, creating a cause of action for violation of constitutional rights, came out of nowhere. The putative rule is that a police officer enjoys qualified immunity for his actions unless they violate a “clearly established right.” These three words would seem pretty easy to interpret, and yet they’re a nightmare.

Rather than make it clearer, the Supreme Court gave courts a near-total pass on holding that a fact pattern failed to violate a clearly established right in White v. Pauly, Essentially, any variance from a fact pattern held to violate a clearly established right was good enough to justify qualified immunity, no matter how egregious the violation or harm.

Then came the killing of Andrew Scott.

The victim in this case, Andrew Scott, was playing video games with his girlfriend late at night. Then, BOOM, BOOM, BOOM. Someone knocked loudly and threateningly on his front door. Scott was a little freaked out, so he grabbed his pistol. He opened the door with the gun by his side, and when he saw a shadowy, armed figure, he began to back away. Then, six more booms.

Andrew Scott was shot three times. Three more shots missed. He fell back on his couch and died, and his estate sued his killer, Deputy Richard Sylvester.

The implications of this killing are nothing short of spectacular. There was no basis whatsoever for Sylvester to fear when he banged on Scott’s door. He had no warrant. He had no reasonable suspicion, no less probable cause. He was checking on a random motorcycle he was looking for, although there was no basis to connect any of this with Scott.

BOOM. BOOM. BOOM. As Mark Joseph Stern explains:

Qualified immunity, a constitutionally dubious doctrine that bars individuals from suing the government for violating their rights unless those rights were “clearly established.” And what, exactly, constitutes a “clearly established” right? It’s almost always possible to argue the point either way.

Consider that Scott was just a guy in his home minding his own business, doing nothing wrong, nothing to suggest he needed killing, when random loud bangs on his door at night caused him to do what the Constitution says is his right to do. He came to the door with his gun for self-protection.

This is the good guy curve, the perfectly reasonable (and constitutionally protected) actions of a person who has no reason to suspect that a random cop will bang on his door for no good reason. Why would he suspect that there are cops outside, skittish cops, who have inexplicably decided they want to speak with him? Why would he suspect that the otherwise ordinary exercise of his right to protect himself would be a problem? Why?

BOOM.

Anyway, Scott was dead and the District Court had to make a decision. It granted qualified immunity, figuring that the officers were engaged in a “knock and talk” and that there were no cases on point saying that an officer couldn’t shoot under the circumstances, even in the light most favorable to Andrew Scott.

The Eleventh Circuit upheld qualified immunity and, on a motion for rehearing en banc, refused to reconsider. The dissent to the denial of rehearing disagreed.

Judges Martin, Jill Pryor, Rosenbaum and Wilson wrote a dissent, pointing out that every exigency had been created by the officers, not the “suspect.” And even more importantly, pointing out that it’s tough to square the result in this case with the existence of a constitutional right.

Pathetically, these clear and unassailable points don’t necessarily address the the question of qualified immunity. The perspective isn’t ours, isn’t the level of outrageousness or absurdity of the outcome. The question is whether Sylvester’s actions, from his perspective, violated clearly established law. From his point of view, a guy with a gun answered the door and could have shot and killed him. The First Rule of Policing kicked in, and he killed the threat to his cop life.

Stern find this unavailing.

While he’s right that this shouldn’t be reduced to a political dispute, even though the Second Amendment fails to curry any support from some quarters, as we should be able to agree to adherence to the Constitution, no matter how we feel about a right, this isn’t really the core problem with the case.

The dilemma raised between the Second Amendment right and the Reasonably Scared Cop Rule goes far beyond the limited question of qualified immunity. It’s not answered by judicial approval of qualified immunity, which preclude suit for the killing, but the fact of the killing itself. In other words, how does a totally innocent, perfectly reasonable, regular person exercise his Second Amendment right without getting killed for it?

That after he’s killed by a cop, who enjoys the protection of Graham v. Connor and the courts’ endorsement of a cop’s right to protect his life at the expense of everyone else’s, his estate can’t sue adds insult to injury. These are separate issues, separate questions.

That an innocent person killed because of a scared cop can’t recover for the deprivation of his life is bad enough. That he was deprived of his life is even worse. That the law endorses both things, independently, under yet another judge-made exception to both the Constitution and statute reduced the law to a farce that will employ any sophistry necessary to rationalize why cop’s lives matter more than anything else.