It’s almost impossible to hold them to account.

By Joanna Schwartz

How the Supreme Court Protects Police Officers

JANUARY 31, 2023, 7:12 AM ETSHARE

On the afternoon of February 8, 2018, more than two dozen law-enforcement officers crowded into a conference room in the Henry County Sheriff’s Office, on the outskirts of Atlanta. They were preparing to execute a no-knock warrant at 305 English Road, the home of a suspected drug dealer who had been under investigation for almost two years. The special agent leading the briefing told the team that 305 English Road was a small house with off-white siding and several broken-down cars out front, showed them an aerial photograph of the house, and gave them turn-by-turn directions to get there.

When the officers arrived at their destination, the house described in the warrant—305 English Road, run-down, off-white, with cars strewn across the yard—was right in front of them. But they walked past it to a different house, a tidy yellow one, 40 yards away. The house at 303 English Road looked nothing like the house described in the briefing and in the warrant. Yet, less than a minute after getting out of their cars, the officers set off flash grenades and used battering rams to smash open all three doors of the home.

Shielded: How the Police Became Untouchable JOANNA SCHWARTZ, PENGUINBUY BOOK

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Inside, they found Onree Norris, a 78-year-old Black man who had lived there for more than 50 years, raising his three children while he worked at a nearby rock quarry. Norris was no drug dealer. He had never been in any trouble with the law; he’d never even received a traffic ticket.

Onree Norris was watching the evening news in an armchair in his bedroom when he heard a thunderous sound, as if a bomb had gone off in his house. He got up to see what the commotion was and found a crowd of men in military gear in his hallway. Norris was more than twice as old as the target of the search warrant, but the officers pointed assault rifles at him anyway and yelled at him to raise his hands and get on the ground. When Norris told the officers that his knees were in bad shape, an officer grabbed Norris, pushed him down, and twisted his arm behind his back. Norris’s chest hurt, and he had trouble breathing. He told the officers that he had a heart condition—he’d had bypass surgery and had a pacemaker put in—but they kept him on the ground for several minutes. Norris was eventually led outside in handcuffs. When the officers realized they had blasted their way into the wrong house, they turned their cameras off one by one.

Whatever one believes about the job of policing—whether it’s that well-intentioned officers often must make split-second decisions that are easy to criticize in hindsight, or that the profession is inherently corrupt—there is no doubt that police officers sometimes egregiously abuse their authority. The videos that have filled our screens in recent years—most recently the surveillance footage of officers in Memphis fatally beating Tyre Nichols—offer horrifying evidence of this reality.

People who have lost loved ones or have themselves been harmed by the police often say that they want the officers involved to be punished and an assurance that something similar won’t happen in the future. Yet justice for victims of police misconduct is extremely difficult to achieve.

What happened in Memphis last week—the swift firing and arrest of the five officers who beat Nichols, and the murder charges they face—is highly unusual, a result of immediate public attention to an inconceivably barbaric attack. Although officers can be criminally prosecuted and sent to prison, they seldom are: Police are charged in less than 2 percent of fatal shootings and convicted in less than a third of those cases. Police departments rarely discipline or fire their officers.

Typically, victims’ only recourse is a civil lawsuit seeking money or court-ordered reforms. In 1961, the Supreme Court ruled that people could sue officers who violated their constitutional rights under a federal statute enacted 90 years earlier, during the bloody years of Reconstruction. That statute, known then as the Ku Klux Klan Act and referred to as Section 1983 today, was meant to provide a remedy to Black people across the South who were being tortured and killed by white supremacists while local law enforcement either participated in the violence or stood idly by.

After that 1961 decision, the number of police-misconduct suits filed shot up. But so did concerns about the suits’ potentially ruinous effects. Settlements and judgments would bankrupt officers and cities; no one in their right mind would agree to become a police officer; the very fabric of our society would become unwound. These claims were exaggerated, if not simply false. But they have nevertheless been relied upon by courts, legislatures, and government officials over the past 60 years to justify the creation of multiple overlapping protections for officers and police departments that regularly deny justice to people whose rights have been violated.

The best-known of these protections is “qualified immunity.” When the Supreme Court created qualified immunity, in 1967, it was meant to shield officers from liability only if they were acting in “good faith” when they violated the Constitution. Yet the Court has repeatedly strengthened the doctrine. In 1982, the Court ruled that requiring officers to prove good faith was too much of a burden. Instead, they would be entitled to qualified immunity so long as they did not violate “clearly established law.” Over the years, what constitutes “clearly established law” has constricted. The Roberts Court, invoking the importance of qualified immunity to “society as a whole,” has emphasized that the law is “clearly established” only if a court has previously found nearly identical conduct to be unconstitutional. What began as a protection for officers acting in good faith has turned into a protection for officers with the good fortune to have violated the Constitution in a novel way.

It was qualified immunity that dashed Onree Norris’s hopes of getting justice. In 2018, Norris sued the officers who had raided his home, seeking money to compensate him for his physical and emotional injuries. But in 2020, a federal judge in the Northern District of Georgia granted the officers qualified immunity and dismissed the case; in 2021, a panel of three judges on the Eleventh Circuit Court of Appeals affirmed the ruling.

The three appeals judges recognized that officers who execute a search warrant on the wrong home violate the Fourth Amendment to the U.S. Constitution unless they have made “a reasonable effort to ascertain and identify the place intended to be searched.” In fact, the very same court of appeals that heard Norris’s case in 2021 had ruled five years earlier that it was unconstitutional for an officer who executed a warrant on the wrong house to detain its residents at gunpoint—almost exactly what had happened to Norris. But that earlier court decision was not enough to defeat qualified immunity in Norris’s case, because it was “unpublished”—meaning that it was available online but had not been selected to be printed in the books of decisions that are issued each year—and the Eleventh Circuit is of the view that such unpublished decisions cannot “clearly establish” the law.

Just as george floyd’s murder has come to represent all that is wrong with police violence and overreach, qualified immunity has come to represent all that is wrong with our system of police accountability. But, over the past 60 years, the Supreme Court has created multiple other barriers to holding police to account.

Take, for example, the standard that a plaintiff must meet to file a complaint. For decades, a complaint needed to include only a “short and plain” statement of the facts and why those facts entitled the plaintiff to relief. But in 2007, the Supreme Court did an about-face, requiring that plaintiffs include enough factual detail in their initial complaints to establish a “plausible” entitlement to relief.

This standard does not always pose a problem: Norris and his lawyer knew enough about what had happened during the raid of his home to write a detailed complaint. But sometimes a person whose rights have been violated doesn’t know the crucial details of their case.

Vicki Timpa searched for months for information about how her son, Tony, had died while handcuffed in Dallas police officers’ custody in August 2016. Department officials had body-camera videos that captured Tony’s last moments, but they refused to tell Timpa what had happened to her son or the names of the officers who were on the scene when he died. Timpa sued the city, but the case was dismissed because her complaint did not include enough factual detail about those last moments to establish a “plausible” claim.

When the Court set out the “plausibility” standard, it explained that, if filing a case were too easy, plaintiffs with “a largely groundless claim” could “take up the time” of defendants, and expensive discovery could “push cost-conscious defendants to settle even anemic cases.” But this rule puts people like Timpa in a bind: They are allowed discovery only if their complaints include evidence supporting their claims, but they can’t access that evidence without the tools of discovery.

(Timpa did eventually get the information she sought after she filed a public-records request and sued the city for not complying with it. Only with that information in hand could she defeat the motion to dismiss. But then her case was dismissed on qualified-immunity grounds because she could not point to a prior case with similar facts. That decision was overturned on appeal in December 2021, and Timpas’s case is set to go to trial in March, almost seven years after Tony was killed.)

The Supreme Court has also interpreted the Constitution in ways that deny relief to victims of police violence and overreach. The Fourth Amendment protects against “unreasonable searches and seizures.” But in a series of decisions beginning in the 1960s, the Court has interpreted the “reasonableness” standard in a manner so deferential to police that officers can stop, arrest, search, beat, shoot, or kill people who have done nothing wrong without violating their rights.

On a July night in 2016, David Collie was walking down the street in Fort Worth, Texas, headed to a friend’s house, when two officers jumped out of their patrol car and yelled for Collie to raise his hands. The officers were on the lookout for two Black men who had robbed someone at a gas station. Collie was at least 10 years older, six inches shorter, and 30 pounds lighter than the smaller of the two robbery suspects. But he, like the suspects, was Black and was not wearing a shirt on that warm summer evening. Collie raised his hands. Just seconds later, and while standing more than 30 feet away, one of the officers shot Collie in the back. The hollow-point bullet entered Collie’s lung and punctured his spine. He survived, but was left paralyzed from the waist down.

When Collie sued, his case was dismissed by a district-court judge in Texas, and the decision was affirmed on appeal. The Fifth Circuit Court of Appeals called the case “tragic,” and a prime example of “an individual’s being in the wrong place at the wrong time,” but concluded that the officer had not violated Collie’s Fourth Amendment rights, because he reasonably—though mistakenly—thought he had seen a gun in Collie’s raised hand.

The Supreme Court has undermined the power and potential of civil-rights lawsuits in other ways: It has limited, for example, plaintiffs’ ability to sue local governments for their officers’ conduct and to win court orders requiring that departments change their behavior. Any one of the barriers, in isolation, would limit the power of civil-rights suits. In combination, they have made the police all but untouchable.

Even when people are able to secure a settlement or verdict to compensate them for their losses, police officers and departments rarely suffer any consequences for their wrongdoing.

The Supreme Court has long assumed that officers personally pay settlements and judgments entered against them. That is one of the justifications for qualified immunity. But officers’ bank accounts are protected by a wholly separate set of state laws and local policies requiring or allowing most governments to indemnify their officers when they are sued (meaning that they must pay for the officers’ defense and any award against them). As a result, vanishingly few police officers pay a penny in these cases.

Police departments typically don’t feel the financial sting of settlements or judgments either. Instead, the money is taken from local-government funds. And when money is tight, it tends to get pulled from the crevices of budgets earmarked for the least powerful: the marginalized people whose objections will carry the least political weight—the same people disproportionately likely to be abused by police.

Officers and officials could still learn from lawsuits, even without paying for them. But most make little effort to do so when a lawsuit doesn’t inspire front-page news or meetings with an angry mayor. Instead, government attorneys defend the officers in court, any settlement or judgment is paid out of the government’s budget or by the government’s insurer, and the law-enforcement agency moves on. In many cases, it does not even track the names of the officers, the alleged claims, the evidence revealed, the eventual resolution, or the amount paid.

Fundamental questions remain about what we should empower the police to do, and how to restore trust between law enforcement and the communities it serves. But no matter how governments ultimately answer these questions, they will almost certainly continue to authorize people to protect public safety. And some of those people will almost certainly abuse that authority. We need to get our system of governmental accountability working better than it does, no matter what our system of public safety looks like.

The fact that so many barriers to justice exist means that there is something for officials at every level of government to do.

The Supreme Court should reconsider its standards for qualified immunity, pleading rules, the Fourth Amendment, and municipal liability. But this seems unlikely, because a majority of the justices have demonstrated a durable hostility to plaintiffs in civil-rights cases.

Congress could remove many of the obstacles the Supreme Court has devised. And at least some members of Congress have shown an appetite for doing so. A bill to end qualified immunity, among other reforms, was passed in the House soon after the murder of George Floyd. But following 15 months of negotiations in the Senate, the George Floyd Justice in Policing Act was abandoned. Republican Senator Tim Scott described the bill’s provision ending qualified immunity as a “poison pill” for Republican lawmakers.

In the face of intransigence at the federal level, states have stepped in. Since May 2020, lawmakers in more than half of the states have proposed bills that would effectively do away with qualified immunity; these bills would allow people to bypass Section 1983 claims altogether and, instead, bring state-law claims for constitutional violations where qualified immunity could not be raised as a defense. State legislatures have additionally proposed bills that would limit police officers’ power to use force—prohibiting choke holds and no-knock warrants.

A bill enacted by Colorado in June 2020 is, in many ways, the gold standard. It allows people to sue law-enforcement officers for violations of the state constitution and prohibits officers from raising qualified immunity as a defense. The law also requires local governments to indemnify their officers unless they have been convicted of a crime, but allows cities to make officers contribute up to $25,000 or 5 percent of a settlement or judgment if the city concludes that the officer acted in bad faith. And the law bans officers from using choke holds, creating a bright-line limit on police power. Similar bills have passed in New Mexico and New York City, and are on the legislative agenda in other states. But other police-reform bills have failed in California, Washington, Virginia, and elsewhere.

I’ve testified in legislative hearings for bills in several states, and each has been frustratingly familiar. The people speaking against the bills threaten that if police officers cannot raise qualified immunity as a defense, they will be bankrupted for reasonable mistakes, and frivolous lawsuits will flood the courts. These assertions are just not true. Nevertheless, they have led lawmakers to vote against legislation that would take tentative but important steps toward a better system. Their inaction has left us with a world in which Onree Norris could receive nothing more than a few repairs to his doors after officers busted into his home and forced him to the floor; a world in which the Dallas Police Department could hide information about Tony Timpa’s death and then argue that his mother’s complaint should be dismissed because she did not have that information; a world in which David Collie could be shot and paralyzed from the waist down by a police officer, and require medical care for those injuries for the remainder of his life, but receive nothing, because the officer mistakenly thought Collie had a gun.

We need to stop being scared of unfounded claims about the dangers of too much justice, and start worrying about the people who have their lives shattered by the police—and then again by the courts.

This essay was adapted from the forthcoming Shielded: How the Police Became Untouchable.

Shielded: How the Police Became UntouchableJOANNA SCHWARTZ, PENGUINBUY BOOK