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On The Front Lines

Supreme Court: No Consequences for Police Who Destroy Home, Mistakenly Shoot 10-Year-Old Boy, or Sic Police Dog on Suspect Already Under Arrest

WASHINGTON, DC — Despite growing calls to hold police accountable for using excessive force in non-threatening circumstances, the U.S. Supreme Court refused to review any cases challenging the doctrine of “qualified immunity,” which shields police from liability for official wrongdoing. The nine qualified immunity cases in which the Court denied cert involved a SWAT team’s destruction of a home by bombarding it with tear gas grenades, a police dog that was ordered to attack a man who had already surrendered, and the mistaken shooting of a 10-year-old boy by a cop who was aiming for a non-threatening family dog. The Rutherford Institute and a coalition that included the DKT Liberty Project, the Due Process Institute, and Reason Foundation had asked the Court to reign in police abuses by holding police accountable to the rule of law.

Attorneys Jessica Ring Amunson and Andrew C. Noll of Jenner & Block LLP in Washington, D.C., assisted The Rutherford Institute with its amicus brief in West.

“This refusal by the Supreme Court to hold police accountable for official misconduct is a chilling reminder that in the American police state, ‘we the people’ are at the mercy of law enforcement officers who have almost absolute discretion to decide who is a threat, what constitutes resistance, and how harshly they can deal with the citizens they were appointed to ‘serve and protect,” said constitutional attorney John W. Whitehead, president of The Rutherford Institute and author of Battlefield America: The War on the American People. “In the police state being erected around us, the police and other government agents can probe, poke, pinch, taser, search, seize, strip and generally manhandle anyone they see fit in almost any circumstance, all with the general blessing of the courts, no matter how egregious or in opposition to the Constitution.”

Beginning in the 1970s, the U.S. Supreme Court started carving out legal protections to insulate government employees from civil rights lawsuits, frivolous or otherwise, arising from official misconduct. The most widely applied of these doctrines is “qualified immunity,” which shields police and other government officials from being sued unless it can be shown that the officials’ actions violated “clearly established law.” When applied to police, the “qualified immunity” doctrine establishes a test in which victims of police brutality must prove that excessive force was used and that police were aware their actions were illegal based on prior court rulings. The effect of the “clearly established” test creates a Catch-22 that ensures that agents of the government almost always win and the victims of government abuse almost always lose. The doctrine has indirectly given police a green light to routinely violate the Fourth Amendment’s prohibitions against unreasonable searches and seizures. In recent years, courts across the nation have used “qualified immunity” to dismiss hundreds of Fourth Amendment lawsuits against police accused of using excessive force. For example, in West v. Winfield, a SWAT team in pursuit of a man wanted on firearms charges lobbed tear gas grenades into his former girlfriend’s home, despite the suspect not being in the home and the former girlfriend offering to give police the keys to search the home. The Court’s refusal to revamp or eliminate qualified immunity, leaving any possibility of reform with Congress, comes in the midst of a growing national outcry over police brutality.


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