For the longest time, many police officers who abuse ordinary people during their interactions with the public have been shielded from repercussions under what is known as ‘qualified immunity‘ for their actions.

Qualified immunity is a type of legal immunity that protects a government official from lawsuits alleging that the official violated a plaintiff’s rights, only allowing suits where officials violated a “clearly established” statutory or constitutional right.
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When determining whether a right was “clearly established,” courts consider whether a hypothetical reasonable official would have known that the defendant’s conduct violated the plaintiff’s rights. Courts conducting this analysis apply the law that was in force at the time of the alleged violation, not the law in effect when the court considers the case.
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Although qualified immunity frequently appears in cases involving police officers, it also applies to most other executive branch officials. While judges, prosecutors, legislators, and some other government officials do not receive qualified immunity, most are protected by other immunity doctrines.

The article goes on to describe various cases where police officers have claimed qualified immunity. In general, judges have given great deference to this defense that a reasonable officer could have believed that their conduct was lawful at the time it was committed. To be denied the presumption that they had a reasonable belief that it was lawful, it seemed as if the same officer, or someone working fairly close to them, had to have been involved in a very similar situation in the past that had been ruled unlawful. Since every case differs in many details, this has resulted in wide latitude being given to police officers who could point to differences from previous instances.

This abuse of the doctrine has resulted in calls for the abolition of qualified immunity.

Qualified immunity is a judicial doctrine that shields public officials, like police officers, from liability when they break the law. Cato’s Project on Criminal Justice chose to make the elimination of qualified immunity one of its top priorities nearly three years ago for the simple reason that civil society is impossible without a well‐functioning criminal justice system.

The doctrine was invented by the Supreme Court in the 1960s, with no basis statutory text, legislative intent, or sound public policy. While established civil rights laws direct that any government official who violates someone’s constitutional rights “shall be liable” to the person they injured, the Supreme Court’s muddling of the law with qualified immunity has allowed police officers to avoid responsibility. Law enforcement officials are now routinely excused from bad behavior—even actions that cause harm or death to innocent victims, and even when they knowingly violate a person’s rights.

A recent case provides a welcome sign that the qualified immunity defense has limits, because the Supreme Court denied the claim when an 83-year old woman was forced to her knees during a traffic stop.

Elise Brown was a little over 5 feet tall and weighed all of 117 pounds when she was ordered out of her blue Oldsmobile by police in California in 2019.

She was also 83 years old.

The officers who pulled Brown over thought the car she was driving had been stolen – mistakenly, it turns out – and, following their protocol, they drew their handguns, handcuffed Brown and forced her to her knees.

A federal appeals court this year ruled that Brown could sue the police for excessive force, waiving a legal doctrine known as qualified immunity that protects police from liability for civil rights violations in many circumstances.

The Supreme Court on Monday let that lower court ruling stand, keeping Brown’s lawsuit alive.

The police defense is that such actions are necessary for safety.

At a time when the nation is grappling with fatal police confrontations, the Supreme Court has mostly balked at lawsuits questioning the legal immunity extended officers. Police organizations have long countered that officers need immunity in cases when they must defend themselves and split-second decisions can lead to unforeseen tragedy. 

The Chino Police Department officers argue they were simply following protocols: Traffic stops for potentially stolen vehicles are “high-risk” under city and state standards, they said. Brown was required to kneel for no more than 20 seconds and was in handcuffs for about three minutes, they said.

The officers “deployed firearms in states of readiness consistent with their responsibilities on the scene of a high risk stop,” the police told the Supreme Court. Brown, police said, appeared to “be in her 50s or early 60s” and “appeared not to need any accommodation due to health or frailty.”

Police stops may be considered ‘high risk’ initially but once you have seen who the driver was and she was out of her car, surely the possibility of her posing any threat reduces considerably?

This reminds me of the case where 95-year old woman in a nursing home who was using a walker was zapped with a Taser by a police officer because she had a steak knife in her hand that she had taken from the kitchen. That happened in Australia, though. If it had happened in the US, the police officer might well have been exonerated under the qualified immunity rule because there probably was not another case encountered by police officer where an elderly woman with a walker had a knife.

Brown’s was clearly an egregious case that stretched credulity that such treatment of her was defensible. Most of the time the court upholds the qualified immunity defense.