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Hold rogue police accountable: Supreme Court needs to be clear about qualified immunity

Our View: Taking the justices' signal, a federal appeals court has launched a new era of holding police officers and prison guards accountable. But other lower courts aren't getting the message.

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For decades, the Supreme Court has shielded police and prison guards from accountability even when they violate people’s rights in the most outrageous ways. 

But in recent rulings, the court signaled it may finally have had enough of the bizarre shield it created for cops and corrections officers – a doctrine known as qualified immunity.

In August, a federal appeals court in Denver took the Supreme Court’s signal and ran with it. A three-judge panel of the 10th Circuit Court of Appeals ruled that qualified immunity did not protect a corrections officer who violated a Muslim inmate’s First Amendment right to obey the dictates of his religion. A sergeant at a Denver intake center forced the inmate to shave his beard, grown for religious reasons, threatening him with solitary confinement if he refused. 

This violated the prison’s own policy, which exempts religiously required beards. It also singled out a Muslim inmate while inmates of other religions were allowed to keep objects, such as Bibles and crosses, important to their faith.

From false arrests to fatal shootings

By overturning that lower court decision, the10th Circuit not only opened the way for the inmate to sue, but also launched what would be a welcome new era of accountability for victims of everything from false arrests to fatal shootings.

The Circuit Court took its cue from recent Supreme Court rulings that departed from decades of warnings by the justices that lower courts had to grant qualified immunity, unless plaintiffs could cite a prior case where the exact same conduct was held unconstitutional by the Supreme Court or an appeals court in their circuit. (The United States is divided into 12 federal circuits.)

In many cases, that was an impossible task and let police and prison guards off the hook for all sorts of appalling behavior.

Ignoring recent Supreme Court rulings

For example, the 11th Circuit Court of Appeals in Atlanta granted immunity to a deputy who wounded a child lying near him while shooting at a nonthreatening family dog.

And two months ago, the 5th Circuit Court of Appeals in New Orleans refused to rehear a case in which a panel of its judges granted qualified immunity to two officers who tased a suicidal man soaked in gasoline, despite a desperate warning from a fellow officer: “If we tase him, he’s going to light on fire!”  The taser’s electric charge set the man ablaze, and he later died.

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Fifth Circuit Judge Don Willett, a Trump appointee and critic of qualified immunity, excoriated his fellow judges in a dissent for ignoring the two recent Supreme Court rulings, both from their circuit, that signaled a change of course on holding police accountable.

The first came in a case brought by Texas prisoner Trent Taylor, who was held for six days in filthy cells, one "covered nearly floor to ceiling, in massive amounts of feces.” The Supreme Court overturned the 5th Circuit grant of qualified immunity in November, ruling that “any reasonable officer should have realized that Taylor’s conditions of confinement offended the Constitution.”

In March, the Supreme Court reversed another absurd grant of immunity in a Texas prison case involving an inmate with asthma pepper-sprayed for no reason by a guard angry at someone else. A video taken after the incident shows the inmate having trouble breathing.

The reversal demonstrates that the justices may finally be waking up to how damaging their doctrine has become. Perhaps they’ve heard the protests across the country calling for more police accountability after George Floyd’s murder last year.

10th Circuit Court of Appeals leads

The key question now is whether lower courts will follow.

So far, the 10th Circuit is leading the charge. It has followed the high court’s signal in three recent cases, including reversing a grant of qualified immunity to an Oklahoma state trooper who shot an innocent bank robbery hostage who had her hands up and posed no threat.

The 5th Circuit clearly hasn’t taken the hint, and several other circuits are also reticent.

Advocates for change from across the ideological spectrum are pressing the Senate to approve a police reform measure, passed by the House, that would eliminate qualified immunity for law enforcement officers. But Republican opposition has dimmed its prospects.

The best hope is for the Supreme Court to stop hinting and make it clear that it has changed course on qualified immunity. Until then, citizens across huge parts of the nation will have no way to seek a remedy when rogue officers violate their rights.

This editorial is part of a series by the USA TODAY Opinion team examining the issue of qualified immunity. The project is made possible in part by a grant from Stand Together. The opinions offered are those of the USA TODAY Editorial Board. Stand Together does not provide editorial input.

USA TODAY's editorial opinions are decided by its Editorial Board, separate from the news staff and the USA TODAY Network. Most editorials are coupled with an Opposing View, a unique USA TODAY feature.

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