Can qualified immunity and police accountability coexist? Two experts weigh in

Joanna Schwartz:

That's not the way in which qualified immunity actually works in principle.

It is true that the Constitution does not lay out specific rules, but the Supreme Court in its Fourth Amendment doctrine in the court decisions that it has had do lay out general principles. And what qualified immunity requires is not that law enforcement officers follow those general principles, but that the plaintiff be able to find a prior court decision with virtually identical facts.

As just one quick example, it is well-known and established that a police officer cannot use force against a person who has surrendered and is not posing any harm.

But a man named Alexander Baxter had his case thrown out of court on qualified immunity grounds when he had surrendered to police with his hands in the air, and the officers nevertheless released a police dog on him, even though, in that same court, they had said releasing a police dog on a person who was lying down in surrender was excessive.

To the court's mind, Alexander Baxter's case was not similar enough, because he was sitting up, instead of lying down, when the police dogs were released upon him. This is not a matter of notice. It's a matter of common sense. And officers should be able to understand that it is not appropriate to release a dog or to use force against a person who has surrendered without being able to identify a precise case with virtually identical facts.

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