Mike Maharrey untangles the complex web of legal history that has given America the system known as qualified immunity, which in practice shields police officers from just about any civil lawsuit. The doctrine, which has emerged out of the precedents set by repeated federal court rulings, makes it almost impossible to sue state agents for constitutional violations or other damages suffered during the performance of their jobs. This is mainly because the courts have decided that unless there is specific precedent for the situation the officer finds himself in, discretion must be left up to the officer. In the prominent cases this has meant that if a cop shoots a civilian, as long as other cops say that the shooting was reasonable at the time, the officer will walk free. Maharrey calls for a system that doesn’t rely so much on strict interpretation of specific legal precedent, but instead can allow a judge and jury to use some common sense in adjudicating each situation, the way common law systems operated prior to the founding of the United States. However qualified immunity comes to an end, Scott and Maharrey agree that it is the most important first step in creating a more just police system.
Discussed on the show:
- “How Federal Courts Gave Us Qualified Immunity” (Tenth Amendment Center)
- Bivens v. Six Unknown Named Agents of Federal Bureau of Narcotics
- Cop Block
- “Rep. Justin Amash Wants To End Qualified Immunity. Where Are the Republicans?” (Reason)
- “Tamir Rice’s Basically Reasonable Murder” (Simple Justice)
Mike Maharrey is National Communications Coordinator for the Tenth Amendment Center. He is the author of three books on nullification and hosts the Thoughts from Maharrey Head podcast. Find him on Twitter @mmaharrey10th.
This episode of the Scott Horton Show is sponsored by: NoDev NoOps NoIT, by Hussein Badakhchani; The War State, by Mike Swanson; WallStreetWindow.com; Tom Woods’ Liberty Classroom; ExpandDesigns.com/Scott; Listen and Think Audio; TheBumperSticker.com; and LibertyStickers.com.
The following is an automatically generated transcript.
Scott Horton 0:10
All right, y’all welcome it’s Scott Horton Show. I am the director of the Libertarian Institute editorial director of antiwar.com, author of the book Fool’s Errand: Time to End the War in Afghanistan. And I’ve recorded more than 5000 interviews going back to 2003, all of which are available at ScottHorton.org. You can also sign up to the podcast feed. The full archive is also available at youtube.com/ScottHortonShow. Alright you guys introducing the great Mike Maharrey from the 10th amendment center and also from the libertarian Institute where he writes sometimes, but this one’s at the 10th amendment center. And I think we reprinted it too anyway. But yeah, it’s called how federal courts gave us qualified immunity. Welcome back to the show my carry you
Mike Maharrey 0:59
Hey, Scott, I’m doing great. Always happy to be on with you.
Scott Horton 1:03
Great. I hate this subject, but it’s so interesting. But it really is right where the rubber meets the road. So make everyone understand everything there is to know that you know about this subject. Go.
Mike Maharrey 1:19
I’m gonna try to make it as simple as I can because
Scott Horton 1:22
no man make it complicated. I want to know everything, everything.
Mike Maharrey 1:26
Well, I don’t want people to get lost in it.
Scott Horton 1:28
Okay, start with a summary and then tell me everything.
Mike Maharrey 1:32
All right. Well, let’s let’s first off just in case some people don’t know what qualified immunity is that we probably ought to start there. Qualified immunity is a legal doctrine that basically shields cops from liabilities, when they take actions in the line of duty. So, you know, cop shoots your kid while he’s trying to kill your dog. You can’t sue the cop for shooting your kid because he was doing it in the line of duty and the crazy –
Scott Horton 1:57
criminal liability or just civil liability
Mike Maharrey 1:59
This is civil liability. So and really when you get down to violating the Constitution, and that’s really what you get down to, with these with these types of lawsuits, you know, it’s not criminal, it’s always civil. And that’s how you ended up with with this mess in the first place is that people had to sue in order to protect their quote unquote, constitutional rights. So let’s go back kind of to the, to the beginning, where all of this started really kind of started with the passage of the 14th Amendment, which ensured that every citizen is is protected based on their basic privileges and immunities, as they call them. And it was passed, in essence, to make sure that black people who had just been freed from slavery would have the ability to access all of the things in society that any other citizen could access. So, you know, things like being able to buy land or travel across state lines or access the court system. So that’s what the 14th The minimum was really intended to do in the 1870s, they passed this law was one of the Civil Rights acts. And it gave people the right to sue, or to sue a state agent under federal law in the federal courts. And so this was to really kind of put teeth into 14th amendment. So if some state agent somewhere, you know, denied your rights to transfer land or whatever, you could sue in federal court, and it makes sense when you think about it, you know, if it’s the, if it’s, you’re in a southern state, and there’s all these racist, black codes and all this stuff, they wanted to give people a remedy, a way out, in order to hold the government responsible, really no problem up to this point. There was always a presumption of immunity to some degree for a state agent doing their job. And think of it simply Imagine if you know you’re arrested on legitimate probable cause You eventually go to court, you’re proven innocent. You can’t sue the cop for arresting you falsely, you know, he’s trying to do his job. And there’s always there’s always nebulous situations and evidence, new evidence comes to light later. So it was always presumed. But in the early days, the way qualified immunity was handled is basically handled on a case by case basis, under what was known as common law. You know, so going way back to the 17 1800s back into the British court system, the judges would have some discretion in protecting state agents from doing their job. It wasn’t until the Supreme Court got involved in the 1970s that we really started to see this doctrine of qualified immunity grow up to what it is today where virtually every police officer in the entire United States is protected under this, this giant legal umbrella and essentially it allows them to Do whatever the hell they want to, without having to worry about any kind of recourse whatsoever. It started with this case called bivins. And you hear about people suing under bivins. And it was originally just applied to federal agents, it allowed people for the first time to sue federal agents for violating their rights. that’s it in a nutshell, that statute that I talked about under the Civil Rights Act passed in 1870, that only applied to state agents. So bivins was a court case, that kind of stablished this idea that you could sue a federal agent for violating your rights. Then there was this series of court cases that came after bivins that created this idea of qualified immunity. And as these court cases evolved, it got more and more difficult to actually hold a federal agent accountable. And what eventually happened the criteria today is that it has to be A willing violation of an established right that’s already established in law, which means it’s already established in the court system. Well, if it hasn’t happened yet, it can’t be established. So you have this vicious circle, it’s almost impossible to prove that they violated a, an established, right? Because there’s so many, you know, multiple situations that can happen. And a defense attorney can always say, well, that’s never happened before, how could he have known? And so that’s where we are today where we’re ultimately it’s almost impossible to to sue police officers to hold them accountable, to ensure that they are punished for doing things that are, you know, obvious violations of our rights. And all of this was created by the federal court system. Now, the incorporation doctrine which we talked about the last time I was on this show, kind of gets involved here too, because like I said, the ribbons case only apply applied to federal agents, but eventually the took that bivins criteria and through the incorporation doctrine, applied it to state and local agents as well. So you’ll very rarely if ever see a state agent sued a cop sued under that Civil Rights Act, that original statute, it’s always through the bivins cases, which are now just completely a product of the Supreme Court. So that’s that’s kind of the the nutshell of where we are today. The qualified immunity is not anything that’s written into law. It’s something that supreme court justices have created over time. And it’s a it’s a prime example of how government protects its own. You know, we always think, well, then the courts are going to protect our rights. So we’re going to sue in federal court and we’re gonna get our rights protect, it never works, because the federal courts are part of the federal government. They’re part of the government system. These are government employees. They may have, you know, law degrees, but they’re still just government employees. Their bread is buttered by the government. They’re not getting To protect your rights, they never protect your rights. And this is why we’re in a situation today, where you see cops getting away with these egregious horrible things. And nobody can do anything about it because they just plead qualified immunity. And since it has gone through this incorporation doctrine, you can’t sue in state court because it’s going to get bounced to the federal level, the any cop that sued is going to insist that it’s remanded to federal court where he has these protections. So you can’t even have a situation where, you know, maybe some states could do something and, and in qualified immunity, you can’t do it. It has to be done on the federal level, it ultimately is going to have to either be an overturning of the doctrine by the courts, or Congress is going to have to take action and actually pass a law to get rid of qualified immunity. So hold your breath through either one of those things happening but, you know, puts me in a weird situation. I almost always say don’t try to do things through the federal government, but really, Congress is the only the only people that can solve this because just last week, the Supreme Court rejected several cases where they could have actually gone back and rein this in a little bit. But they said, Now, we’re gonna let these stand in. The cases that they turned down are pretty egregious One of them was a police officer who shot a 10 year old kid in the back of the knee. The cop was trying to shoot the pet dog. I mean, this is this is like the this the, the mocking stereotype of cops, right, you know, shoot the dog. Well, you miss the dog and shot the kid. And the federal courts up through the appellate court have held that Yeah, the the COP is not liable for doing that because he has qualified immunity. He was doing it on the job and it doesn’t violate a quote unquote, established right. So the supreme court could have gone into that and, you know, maybe overturned that and reined in this qualified immunity but they said they didn’t want to do that. And then another one of the cases that was there was that a, a cop? Basically sicked his police dog on some poor soul who was already basically in custody live On the ground. And the The court said that the law did not, quote clearly establish that it was unlawful or unlawful for police to deploy a Khaimah canine against the suspect who has surrendered. So it’s not established in law, so therefore the cops can do it, and it can never be established in law because the courts will never hear it. And again, the Supreme Court in its infinite wisdom passed on reviewing this this case, and so, you know, qualified immunity stands. So that’s where we are we have a federal court system that’s supposed to be protecting our rights, and they’re allowing cops to walk all over our rights and and not doing anything about it. So that’s it in a nutshell. So
Scott Horton 10:45
well, you know, it’s interesting because on the dog issue, I mean, cops do have the authority under law to initiate confrontations with people and use force if they have probable cause to take someone into custody and all these kinds of things, but one that seem much more clear cut. I’m not saying it’s right or wrong on that. I’m just saying it is what it is. But the one that was more clear cut was the case where they just outright stole a quarter of a million dollars from these businessmen, and they just stole it. And the Court refused to hear that there’s not a law on the books that says, or there’s not a court precedent anywhere in America that they could cite where cops ever got in trouble for stealing. And so how could a cop know that it’s against the law to steal money?
Mike Maharrey 11:29
Right? Yeah, it’s absurd.
Scott Horton 11:32
And we’re not saying to buy themselves a fancy new police cruiser, but for their own personal they just put in their own accounts. Yeah. bought their wives gifts or whatever with it.
Mike Maharrey 11:42
I mean, even looking at some of the things like you know, like you said, yeah, of course police have the authority to utilize the canine to to, to subdue a suspect. We can grant that and we could debate you know, whether that’s that’s,
Scott Horton 11:57
hey, I was only conceding a kernel of truth to the Aside there just say, you know, at least they have some kind of argument. Whereas when it comes to just putting money in your pocket, there’s no argument for that.
Mike Maharrey 12:07
All right, let’s, let’s, let’s kind of flesh that out a little bit. Think about, you know, let’s think about this in this particular situation. You know, every situation has limits, right? I mean, you know, obviously, cops have the right to detain you, they don’t have the right to detain you under any circumstance. So you could say that the police have the right to utilize these dogs, but not under any circumstances. It seems to me that any person utilizing an ounce of common sense, is going to look at a situation where a police officer deploys a dog on a person who is already lying on the ground who has given up who is not running, not resisting who’s just laying there, that that’s not right, in in a sane judicial system, even in the system as it existed back, you know, say in 1870s, when they passed the Civil Rights Act, in this statute, that statutes number 1983 case anybody wants to look it up. But, you know, under that situation, the courts would have to look at that and make a determination of did he crossed the line? The world we live in now they don’t even look at it. They just say, Oh, well, he was doing his job qualified immunity. We’re not going to examine this. That’s the problem. There’s no discretion anymore. It’s just blanket Oh, the cop was just quote unquote, doing his job. Okay.
Scott Horton 13:23
Mike. So what do they call it, their criminal immunity that they have? Because it’s not just lawsuits. Don’t they cite the qualified immunity doctrine to say that they can’t be prosecuted unless in the most absolutely egregious circumstances?
Mike Maharrey 13:40
I don’t think that that that’s not so much like, like, qualified immunity civilly is a legal doctrine that is cemented into the the statutes. When you get into criminal liability, then it really comes down to the discretion of the prosecutors.
Scott Horton 13:58
So it’s just de facto qualified,
Mike Maharrey 14:00
I was getting ready to say it’s de facto because again, not only do the Supreme Court protect their own, but all government agents tend to protect the government. Think about the the prosecutors work with these cops on a daily basis. They’re not they don’t want to, they want to prosecute their buddies, you know, they hang out and have doughnuts together and stuff, you know, not to play on a stereotype but to play on a stereotype. And, and so yeah, you have a de facto situation. So what happens is you have prosecutors who are reluctant to bring a case. criminally, you have a population who by and large, still respects police officers, I think, you know, despite maybe that’s changing for the good, but, you know, generally in the population people defer to authority. So they think, Well, you know, what did the that’s the first question people ask when you talk about excessive force. Well, what did the guy do? Did he resist you know, so it’s hard to get a jury to prosecute a cop. So what happens is Prosecutors are reluctant to take the case to prosecute it unless there’s a lot of public pressure. I guarantee you that if it had not been videoed, the guy that stomped on George Floyd’s neck would never have been prosecuted, right? That’s just that’s just a given. Right? There’s video. So you know, that changes the equation. So what happens is the only reason not only that
Scott Horton 15:21
the video went viral, right, because there are a lot of times where there’s video and they still skate.
Mike Maharrey 15:27
Well, yeah, that’s true. And it’s interesting, because, you know, I’ve been telling people not to, not to side track with too much here, but I’ve been telling people for years I’ve been talking about police violence, I found an article that I wrote like in 2013, talking about excessive force. The case was actually in New York City, where this poor I think he was Chinese didn’t speak English very well. He’s 84 years old, got nabbed for jaywalking. So the cops are, you know, they’ve got them and they’re trying to write him a ticket for jaywalking. He doesn’t understand what they’re saying why they’re detaining him. He doesn’t speak English. He kind of decides he’s gonna walk away. So they throw them on the ground, they rough them up, they beat the hell out of them. And, you know, I’ve been talking about this for years and years. And people who follow police violence, you know, if you follow some of the the websites cop block different websites, you can find these examples almost every single day. So you right, you have to have this huge upswell of public pressure in order for prosecutors to to take action. So what happens is people think, Okay, well, one remedy I have, I can sue in federal court, and because he violated my rights, and then that’s now blocked, because we have this doctrine of qualified immunity. This has to change this is when you talk about police reforms. This is this should be the number one top of the list is to is to roll this back, because it makes it impossible to hold people accountable. And the basic premise of the justice system is that every individual should be accountable. And just because, you know, I work for Government agency doesn’t let me skate but in the world we live in working for a government agency every single time. Let’s escape. It’s pretty disgusting.
Scott Horton 17:09
Yeah, I was just reading thing this morning. It must have been a reason I guess about how a mosh has a bill to abolish qualified immunity, and the democrats in the house, are wrapping it up in a big bill with a bunch of things that will never pass, right as a poison pill essentially. And then they’re up against john Cornyn and the Republicans in the Senate who’ve already vowed to kill it. And corns excuse is that? Oh, yeah, right. Then From now on, everyone who’s ever arrested, gets to sue the cops who arrested them and put them through all this hell, which as you were explaining, was never the case. before the Supreme Court instituted this, judges love to throw out a lawsuit against a cop on a summary judgment without even glancing at it. It’s set in the most egregious cases anyway. Right.
Mike Maharrey 19:46
Right. And you know, as with a lot of things, the market kind of handles some of that stuff anyway, if you’re an attorney, you’re not going to take some frivolous case and in and try to prosecute, prosecute a cop. You’re not gonna do You’re not going to risk your reputation. You know? And, you know, yeah, you’re gonna get flipped frivolous lawsuits. What would you rather have a few frivolous lawsuits or a situation where, you know, a guy can shoot a kid because he’s trying to shoot the kids dog. And there’s no remedy for that. I mean, I’ll take I’ll take the frivolous lawsuit side of that thing every single time.
Scott Horton 20:22
All right now, here’s my problem. I tried and failed to get Scott H. Greenfield to be a guest on the show. He has a rule. I don’t do interviews, growth, growth growth, he said, and so that was it. But everyone should follow him on twitter at Scott Greenfield on Twitter, and he’s a civil rights lawyer guy. And his blog is called Simple justice, a criminal defense blog. And I tell everybody to read this thing. And I don’t know Mike, because I tell everybody I don’t remember if that includes you. In the past, I tell everyone to read this piece. Tamir Rice’s basically reasonable murder. And this is about of course, this story of the 12 year old boy Who was playing with a toy gun at the park and the cops pulled up and the guy in the passenger seat just jumped out and blew the kid away without a moment’s notice. And they had an independent investigation. And as Greenfield says here, the conclusion was foregone. The murder was reasonable. And then what’s great about this piece, and I’m not sure if you’re familiar with this, and and, you know, I should have gone to law school, but I never did. Okay, I don’t know about this stuff. But um, he kind of takes us through layers of different qualified immunity decisions here. So it’s not just that, well, there’s no explicit precedent for this exact crime. So how was he to know which is part of it? But it’s also that whatever they do, the only kind of question, well, I guess the way to put it would be, whatever the exactly as the wording, the law in your state is, if you kill me, then you have to prove essentially the burden is on You to show that you absolutely had to do it, you had no choice but to but to commit a justifiable homicide. But for them, the only question is whether it was reasonable. And then reasonable, as he writes, and this is, you know, four or five different decisions on down the line kind of anything. reasonable, it turns out can only be defined by other cops because only they know what cops know. And all other cops know is that whenever a cop kills somebody, of course he had to. And so they’re the only ones who can decide it’s not up to the jury to decide what’s reasonable. It’s only up to, you know, the cops, lawyers, experts to say, Oh, yeah, I would have taken the shot to and then you have to go with it like you’re bound by that if they have a witness who will say that, then you have to defer to that perspective of what was reasonable or not rather than your own and all of this kind of thing, and I’m not exactly Fisher, this is the exact same qualified immunity doctrine or this is all parallel, you know, decisions that go along to passing out and essentially licenses to kill to these cops.
Mike Maharrey 23:13
Yeah. Yeah, actually, ironically, I just read that article. Maybe when I was researching researching for the article that I wrote, thank goodness within the last so you
Scott Horton 23:24
can comment on what I just brought up out of the blue then. Thank goodness.
Mike Maharrey 23:29
Yeah, absolutely. So you know, there’s a couple of things that you can that you can pull out of that. And the first thing is that it is such a twisted web of court decisions and I didn’t go to law school either, like working for the 10th amendment center for the last 10 years. I’ve spent a lot of time reading bills I’ve written some model language for legislation so I’m, I’m pretty fluent in legalese, probably like somebody who who is not a native speaker, but lived in another country for a few years. So, you know, I kind of get it. But you have to be a lawyer to really untangle the entire web of things. And, you know, I went through about five or six Supreme Court cases in my article, but he goes through a bunch more. And there’s even more than that. I mean, you, you get into appellate court cases, and it’s this huge, tangled web. And, to me, I think one of the things that it shows a weakness in the legal system as it has evolved over the last hundred years or so. And, you know, it’s kind of evolved along with the whole idea of statute law, that we have to interpret law in the way that some legislator somewhere has written it. So we have statutes now, as opposed to what we used to have, you know, prior to the founding of the United States where law was primarily what was known as common law. And I think a common law system is a much better system than this kind statutory and judicial precedent law that we have today, in a common law case, a judge and jury is going to look at every individual case. And they’re going to rule based on the situation that’s in front of them. And they’ll apply past rulings and past, you know, precedents and whatnot, but they’re not necessarily bound to it. It’s more of a common sense system if that if that’s a good word to use, where you look at it, and it’s it’s the reasonableness in the mind of the juror, as opposed to what we have today where everything has to defer to the court case, we have to defer to Well, this judge said X, Y and Z at this point. So we have to go with what this judge said and the jury doesn’t have any discretion. It’s it’s a horrible system that first off it’s impossible to really untangle it and understand it unless you’re an attorney and second off it pulls common sense out of the equation, it all comes down to how do you interpret these words that are written on paper somewhere? And so you end up in a situation where like you said, the the cop has to decide what is reasonable, because that’s what the precedent says in the in the legal system, and there’s no room for the jury to look at it and go, Wait a minute, maybe gunning down a kid with a toy gun isn’t reasonable, which obviously it’s not. And I think I got it.
Scott Horton 26:30
So that’s where, see I just had the two and the two, but I wouldn’t equal in four here. It’s this is why the clearly established doctrine is there is because otherwise, it’s left up to the cop to decide. And in that case, anything he decides is reasonable. And so the only exception then, would be if there’s a specific ruling that said that the exact same scenario was illegal, which is He said, we’ll never be established because it’s never been established. So it can’t be established.
Mike Maharrey 27:04
Exactly. So you end up with this this weird legal I got Whirlpool that you can never got out yet get out of it’s perfect. And and then the second thing that I think is important to understand about the US legal system is that judges and lawyers put so much weight on precedent, that once something is established in jurisprudence, it’s almost impossible to get rid of it no matter how awful and bad that it is. So this is a prime example of what we’re talking about with the Supreme Court rejecting hearing these other cases because they don’t want to have to go back and say that the court was wrong. They don’t like to undo things that are already done. So when you see an awful court ruling come down from the Supreme Court, you’re almost always stuck with it forever. They might try to finagle out of it someday using a different road. But they’ll never go back and say, Oh, we were About that just doesn’t happen, because precedent is almost set to the level of, you know, Holy Writ handed down on stone tablets from on high. And, again, it’s a horrible system because in a sane world, a court would go back and say, you know, that ruling back there in 1967 was stupid. And Ill, Ill thought, and we shouldn’t have this. So we’re going to overturn it almost never happens. They’re going to defer to the wisdom of the prior courts. And I’ll give you a perfect example. Dred Scott awful decision, effectively said that, that black people, even if they weren’t, even if they were free, black people couldn’t be citizens of the United States because they weren’t part of the compact. Dred Scott stood for ever until the 14th amendment came along and actually changed the Constitution. There was no court that ever overturned Dred Scott. They had to actually amend the constitution to ensure that black people actually had citizenship. Yeah, courts don’t like to own Return precedent. That’s why even today, you know, the Supreme Court has said that it’s perfectly constitutional to locked up Japanese Americans in an internment camp. Because we think they’re a quote unquote security threat or, you know, a threat to national defense or national security. That’s still in effect, there’s no turn that they’re not going to because they don’t like to admit that they made a mistake.
Scott Horton 29:22
Yeah. I’m so sorry that we’re out of time, because I could talk with you for the rest of the afternoon. But I sure appreciate you coming on to address this important subject with us here, Mike.
Mike Maharrey 29:32
Yeah, I appreciate having me. I hope people check out the article because it lays out the court cases, and you can kind of get a better you know, how this came about.
Scott Horton 29:40
I’ll be another minute late for my next guy. Um, it’s important to read because this came up earlier in the show about how this is really a matter of keeping your eye on the ball. And we have this huge cultural shift toward police reform right now what’s it going to look like? And there are a lot of takes Some of them pretty wild. Meanwhile, there are some very clear and narrow things that could be changed that would make a world of difference such as overturning qualified immunity, legalizing cocaine and heroin and methamphetamine and getting rid of, you know, a few other things that really are like flipping switches and changing everything. abolishing the 1033 program and the Department of Homeland Security melts, you know, some of these things. So that’s really the point of me doing this great interview with you who wrote this great article is to show that this is where the rubber really meets the road here. This is the license to kill. Is this a fight immunity?
Mike Maharrey 30:42
I’ll say something here that you’ll very rarely hear me say. But, uh, Matias bill needs to be supported because this is something that has to be done at the congressional level. Normally, I’ve tried to find state solutions. You can’t fix this at the state level because everything gets bounced to federal court. So you know, if you’re inclined To call your congressman which I never had been, this would be a good reason to do it because this needs to go through this needs to be passed.
Scott Horton 31:07
Okay, great. Thank you again so much. My appreciate it. Thank you, buddy, everybody. That is the great Mike meharry. He is at the 10th amendment center. That’s 10thamendmentcenter.com. This one is called how federal courts and gave us qualified immunity a great one. The Scott Horton show anti war radio can be heard on kpfk 90.7 FM in LA, APSradio.com antiwar.com ScottHorton.org and libertarianinstitute.org