I’m exceptionally doubtful that clearly established constitutional rights aren’t being violated

Anyone who’s hasn’t lived under a rock the past decade knows clearly established means practical impunity.

Reported in Politico

Some courts have required an extraordinarily precise match between the misconduct alleged in one case and in a prior one in order to find a violation of someone’s constitutional rights.

[…]

When Baxter sued, the 6th Circuit Court of Appeals tossed out his case. It held that while it was well established that a police dog couldn’t be unleashed on a suspect who was lying down, there was no case addressing someone sitting down with their hands up, as Baxter said he was doing.

From Reason

“I have previously expressed my doubts about our qualified immunity jurisprudence,” writes Thomas. “Because our §1983 qualified immunity doctrine appears to stray from the statutory text, I would grant this petition.”

The judge spoke to a point that qualified immunity critics have been making for some time: The framework was concocted by the Supreme Court in spite of court precedent. It’s a perfect example of legislating from the bench—something conservatives typically oppose.

The Civil Rights Act of 1871, otherwise known as Section 1983 of the U.S. Code, explicitly grants you the ability to sue public officials who trample on your constitutional rights. The high court tinkered with that idea in Pierson v. Ray (1967), carving out an exemption for officials who violated your rights in “good faith.” Thus, qualified immunity was born.

That doctrine ballooned to something much larger in Harlow v. Fitzgerald (1982), when the Supreme Court scrubbed the “good faith” exception in favor of the “clearly established” standard, a rule that has become almost impossible to satisfy. Now, public officials cannot be held liable for bad behavior if a near-identical situation has not been outlined and condemned in previous case law.

Though the original idea was to protect public servants from vacuous lawsuits, the practical effects have been alarming. As I wrote last week:

In Howse v. Hodous (2020), the U.S. Court of Appeals for the 6th Circuit gave qualified immunity to two officers who allegedly assaulted and arrested a man on bogus charges for the crime of standing outside of his own house. There was also the sheriff’s deputy in Coffee County, Georgia, who shot a 10-year-old boy while aiming at a non-threatening dog; the cop in Los Angeles who shot a 15-year-old boy on his way to school because the child’s friend had a plastic gun; and two cops in Fresno, California, who allegedly stole $225,000 while executing a search warrant.

In other words, cops need the judiciary to tell them explicitly that stealing is wrong. The aforementioned police officers were thus shielded from legal accountability, leaving the plaintiffs with no recourse to seek damages for medical bills or stolen assets.

Court standards are so strict, nearly any meaningless, incidental difference suffices to grant officials cover of qualified immunity: literally the difference between lying down & sitting is all it takes to violate rights with impunity.