The Double Down On Qualified Immunity

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?


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.

Citing the Supreme Court’s decision in D.C. v. Heller, which affirmed an individual right to handgun ownership under the Second Amendment, Martin wrote:

If Mr. Scott was subject to being shot and killed, simply because (as the District Court put it) he made the “fateful decision” to answer a late-night disturbance at the door to his house, and did so while holding his firearm pointed safely at the ground, then the Second Amendment (and Heller) had little effect.

That seems exactly right to me—and it raises an important point: The 11th Circuit has now effectively found an individual’s Fourth Amendment rights are diminished whenever he chooses to exercise his Second Amendment right to possess a firearm. Unfortunately, the 4th Circuit reached the same conclusion in a dreadful ruling handed down in January. The Supreme Court should step in soon to remedy the contradiction by clarifying that the exercise of one constitutional right cannot diminish the protection of another. This is an area where liberals and conservatives should be in agreement.

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.

5 thoughts on “The Double Down On Qualified Immunity

  1. Billy Bob

    It’s unusual for an essay to go unnoticed by the readership for 24 hours, but not “unprecedented.” We will give it a shot: This qualified immunity thing is just another example of the judiciary jamming two unrelated words together and making something out of nothing. Activist judges take note! Let’s call it another enigma wrapped in a conundrum emanating from the judicial arena. You would not really know it exists until you run headstrong into. How many people encounter this in their daily lives?

    Here at BB Headquarters, we discovered the hard way. Without going into details which are so tedious and troublesome. We always wondered where QI came from and why? Now we know. Hey look, it’s an easy way to dispose of those pesty little complaints and/or court cases which take up so much of the courts’ time and resources. Not to worry, the new cast of conservative judges who are about to be appointed and/or nominated will solve all of these problems. See today’s N.Y. Times article, re: Federalist Society’s Leonard Leo and Judicial Crisis Network’s chief counsel, Carrie Severino. The animals are getting restless again. We hate it when that happens.

    1. SHG Post author

      Whenever anybody points at conservatives and FedSoc, it only serves to remind me that prison sucks just as bad when a defendant gets screwed by a progressive prosecutor and sentenced to life plus cancer by a Democrat judge. Talk is cheap. The differences are mostly bullshit, a lie the unduly empathetic tell themselves to pretend they’re on the side of the angels when they’re just as full of shit as anyone else.

      1. Billy Bob

        Agreed, Captain!
        Nothing changes, except some personnel and some of the wording. In real life, you get slammed either way. It would be nice if some “think tank” could figure this out. However, if that should happen, nobody would pay them no nevermind. These things have a life of their own, it seems.
        You cannot fight city hall? Sure you can, but you still lose. Chicago comes to mind, I wonder why?

        1. SHG Post author

          I enjoy you, Bill, but then, I see what’s inside you that others miss because they can’t see past your shenanigans. But I enjoy you.

          1. Wild Bill

            What’s a shenanigan? Just asking!
            You know how to hurt a guy. Thanx for the compliment; now you can hit my Donate button. It’s red-hot,… not orange like yours. Should be green like St. Patty’s clover. I may be bipolar, but not AC/DC. That’s real baaad.

            It’s a tedious job you have; we “feel” for you, yes we do. We often wonder, how long can this show go on?!? Ten years is a long time in the blawgosphere, for real.

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