If you’re hoping recent high-profile cases of police misconduct will spur federal courts to roll back qualified immunity, you’re going to be disappointed.

I recently reported on a federal district court judge in Mississippi who blasted qualified immunity, calling it an “invented doctrine” to protect law enforcement officers from having to face any consequences for wrongdoing. He then proceeded to grant qualified immunity to a Mississippi cop who engaged in an illegal search, saying “this Court is required to apply the law as stated by the Supreme Court.”

Today I bring you yet another example of qualified immunity in action and an abusive cop walking away without any repercussions.

According to court documents, Butler County, Iowa, Sheriff’s Office Deputy Bruce Tierney kneed Charles McManemy in the face 20 to 30 times after he was already restrained by four other officers. McManemy claims the incident caused permanent damage to his eye.

This case went to the U.S. Court of Appeals Eighth Circuit. The majority of the judges on the panel agreed that Tierney violated  McManemy’s rights, but his suit “fails for a different reason: the absence of a clearly established right.”

“McManemy must point to a case that ‘squarely governs the specific facts at issue'” Circuit Judge David R. Stras wrote.

This is the standard necessary to overcome qualified immunity. And it’s nearly impossible to meet.

In qualified immunity analysis, judges must determine if it is “clearly established” that the specific use of force in a specific instance was unconstitutional. If not, the officer escapes liability.

Ilan Wurman explained the test in a paper titled Qualified Immunity and Statutory Interpretation published by the Seattle Law Review. He wrote that the “clearly established” test erects an almost insurmountable hurdle to those trying to prove excessive force or a violation of their rights.

“The qualified immunity test poses an almost insurmountable analytical problem—the permutations are infinite. A given situation is rarely exactly like another. There will always be sufficient distinguishing facts to decide that there was no clearly established law.”

Federal Courts, Qualified Immunity and the Incorporation Doctrine

This is yet another example of a case that should never have gone to federal court in the first place. Were it not for the dubious “incorporation doctrine” made up by the Supreme Crout based on the 14th Amendment that purportedly empowers the federal government to apply the Bill of Rights to the states, this case would have been litigated in state court under the bill of rights in the Iowa Constitution.
Furthermore, were it not for the 14th Amendment and the incorporation doctrine, there would be no federal qualified immunity to shield cops like McClendon from the legal consequences of their actions.

Because Americans are conditioned to make everything into a federal case, people typically sue police for using excessive force or other types of misconduct through the federal court system under the U.S. Bill of Rights. But through a series of Supreme Court opinions, federal courts created a qualified immunity defense out of thin air. As we have seen over and over, the qualified immunity makes it nearly impossible to hold police officers accountable for their actions.

Through the incorporation doctrine and the application of the federal Bill of Rights to state and local governments, this system protects police officers in every city, county and state in the U.S. — from Honolulu, Hawaii to West Quoddy Head, Maine.

A decentralized system where cases were heard under state law and state constitutions would undoubtedly have problems. Some states would probably extend almost complete protection to law enforcement officers just like the federalized system. But surely some would be better. In fact, Colorado recently passed a law creating a state cause of action in state courts to sue police officers when they infringe on “any constitutional right secured by the bill of rights of the Colorado constitution.” The law specifically states that qualified immunity “is not a defense” to such civil action.

Since federal judges always defer to precedent, victims of police abuse have virtually no chance of prevailing in court. Even in the clearest cases of misconduct, federal judges will defer to the qualified immunity defense. It’s a prime example of government protecting its own.

Mike Maharrey

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