Just before dawn on the morning of December 19, 2019, Ann McLeod awoke to the beam of a flashlight bouncing along her bedroom wall. Her fiancé had left early for work from their home just outside of Mobile, Alabama, and she had just fallen back asleep.
A few nights earlier, the couple had spotted someone lurking in their backyard. Her first thought was that the same person had returned to rob them. McLeod, 19 at the time, grabbed her fiancé’s pistol from the dresser and walked toward the door to the carport in their kitchen. As she reached for the handle, the door flew open. She was quickly blinded by bright flashlights. Someone then yelled “Gun!” several times. Three police officers opened fire.
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The officers shot McLeod five times. They then left her bleeding for thirteen minutes while they shattered windows on the sides of the house before eventually dragging her outside and calling for emergency services. She barely survived.
The officers who shot McLeod were part of a Fugitive Apprehension Regional Task Force overseen by the U.S. Marshals Service. But despite the name, the task force wasn’t looking for a dangerous fugitive. They were looking for a man who would turn out to be the uncle of Ann’s fiancé. And that man wasn’t wanted for a serious federal felony. He was wanted for “attempted possession” of methamphetamine—he had purchased fake drugs from a police informant. It was the state’s lowest level drug crime. Worse, the man the officers were looking for hadn’t lived in the home for several years. The house was owned by the family matriarch, Ann’s future grandmother-in-law, who let her children and grandchildren stay there during hard times, or as they were just getting started in life. The uncle had moved out months before McLeod and her fiancé moved in.
It would get worse. Not only did the man no longer live at the house, he was actually already in police custody. And he had been for several months. The team of raiding officers hadn’t bothered to check.
The police agencies responsible for McLeod’s injuries never bothered to repair the damage to their home. Days after the shooting, the couple’s friends ordered pizzas and threw a “party” to pitch in and clean up the blood in the couple’s home.
McLeod would spend the next five years trying to hold someone accountable for her injuries. She spent weeks in the hospital, and then years in recovery. She accumulated six figures in medical debt.
No one would ever apologize to her for what happened. Nor did they offer to pay her medical bills. Instead, she had to sue. And the officers whose mistakes nearly killed her, along with the agencies that employed them, used the government’s vast resources to fight McLeod’s subsequent lawsuit at every turn, deploying the various immunities afforded to law enforcement and the government in a jurisdictional shell game to keep her from recovering any damages at all.
At the state and local level, police officers (and government employees in general) are protected from lawsuits by a policy called qualified immunity. The policy isn’t in the Constitution, nor was it ever enacted by Congress. It’s a legal fiction that the U.S. Supreme Court invented from whole cloth.
In fact, qualified immunity’s very existence cuts against the clear intent of the Fourteenth Amendment. After the Civil War, white supremacist terrorism ravaged newly freed Black residents of the former Confederate states. Much of that terrorism was carried out, encouraged, or passively allowed by state officials, most notably law enforcement. So in 1871, Congress passed the Ku Klux Klan Act. That law included a provision commonly called Section 1983, which created a path to sue in federal court when state or local government employees violate constitutional rights.
But nearly a century later, the U.S. Supreme Court took the first step in undermining that law. Perversely, it started with a case from a former Confederate state, and which involved the illegal arrests of Freedom Riders attempting to eat at a segregated lunch counter.
In the 1967 case Pierson v. Ray, the Supreme Court court agreed that the arrests of the Freedom Riders were unconstitutional. But it also carved out a loophole to the KKK Act. The Court ruled that a state or local official can’t be sued for “for acting under a statute that he reasonably believed to be valid but that was later held unconstitutional, on its face or as applied.” In this case, the court ruled that the officers who arrested the Freedom Riders reasonably believed that the state law they were enforcing was constitutional, even though it wasn’t. The court claimed that at the time the KKK Act was passed, public officials enjoyed various immunities from civil liability. That was true of judges and legislators, but not of law enforcement officers—the entire point of Section 1983 was to hold them accountable.
In the years since, the Court’s trajectory has generally been to fortify qualified immunity and generally close off the route to the courts that Congress created with the KKK Act. To even get a lawsuit against police officers in front of a jury, a victim of police brutality now must show that (a) the police violated their rights, and (b) there is settled law—typically previous court rulings—showing that the officers’ specific actions are unconstitutional.
That second prong has allowed lower courts to effectively shield police from accountability. For example, despite case law clearly establishing that it is illegal for cops to sic police dogs on suspects after they have surrendered, one federal appeals court threw out a lawsuit from a minor injured by a police dog because, while the injured parties in the previous cases had been standing when they surrendered, the minor in that particular case had surrendered while sitting. Therefore, the U.S. Court of Appeals for the Sixth Circuit ruled, the police couldn’t have known that siccing the police dog on a sitting child is illegal. The Supreme Court declined to review that ruling.
Qualified immunity isn’t merely a legal fiction. In practice, it makes the entire Bill of Rights conditional. We commonly hear that “ignorance of the law is no excuse”—you can’t defend yourself from criminal charges by claiming that you didn’t know that what you did was illegal. Qualified immunity not only provides an excuse for law enforcement officers when they violate someone’s constitutional rights, it’s an incentive for police agencies to keep their officers ignorant of how courts expect officers to treat members of the public.
And the Supreme Court has since added another new barrier to the courthouse door: In 2009, it ruled that federal courts can decide the second prong of the qualified immunity test without ruling on the first. That is, they can decide that there isn’t enough “settled law” for a police officer to have known the constitutional status of his actions, but skip the part where they actually rule whether the actions were unconstitutional in the first place.
The justification for the two-prong test was that it’s unfair to allow police officers to be sued without giving them proper notice (in the form of court opinions) that what they did violated the Constitution. But if the courts decide cases on whether officers had proper notice about the legality of their actions without ever determining if those actions were actually illegal, the courts never end up providing that notice. Going forward, other officers can engage in the same behavior knowing that they can’t be sued.
Worse still, the Supreme Court has justified these decisions limiting the ability to sue police officers by relying on common assumptions about law enforcement that just aren’t true. More and more, rulings have been based on facts that aren’t accurate—pouring legal concrete around errors that should have been corrected at the appellate stage. Unfortunately, the Court has long been hampered by the fact that few of its justices have had any real-world experience in criminal law.
For example, the court has consistently ruled that police officers are often forced to make “split-second,” life-or-death decisions. They shouldn’t have to worry in those traumatic moments about the possibility of getting sued. Seth Stouhgton, a former police officer and law professor at the University of South Carolina, has found that since the Supreme Court first used the “split-second decisions” description in 1989, it has been repeated by lower federal courts more than 2,300 times.
It’s also mostly a myth. In the overwhelming majority of incidents in which police officers use force, they do so aggressively, not defensively. That is, police officers initiate the confrontation. The vast majority of use-of-force incidents are also the product of multiple conscious decisions officers make in the minutes leading up to the confrontation. They’re not adrenaline-fueled, split-second reactions. This isn’t to say that officers are never forced to act suddenly with little time to process, but such incidents are exceedingly rare even among use of force incidents, much less in officers’ day-to-day routines. As Stoughton writes, “the realities of police violence are such that the circumstances in which officers must make a truly split-second decision are highly unusual, which militates against the Supreme Court's generalization.” And yet the split-second myth is so pervasive that scholars like former NYPD James Fyfe have been warning against its application since the 1970s.
The court has also argued that given the perils of policing, it’s unfair to hold officers liable for damages for difficult decisions that could leave them indebted for life. That fear was one of the animating issues in Pierson, the first qualified immunity case. But police officers themselves are almost never held personally liable for damages in abuse cases. The scholar Joanna Schwarz found that 99.98 percent of the awards and settlements in police abuse cases are paid by governments, not individual officers—“even when indemnification was prohibited by law or policy, and even when officers were disciplined, terminated, or prosecuted for their conduct.” Generally speaking, governments only refuse to indemnify police from lawsuits when their actions are so abusive that they fall outside the scope of a law enforcement officer’s duties. Perversely, this also means that in the most egregious abuse cases, the victims are less likely to be made whole.
Finally, in both qualified immunity and other cases involving civil liability for governments and government officials, the justices have often worried that making it easier to sue police officers would open the floodgates to such lawsuits, which would overwhelm the courts with frivolous claims. But not only is this not a persuasive argument, it shouldn’t be a factor at all. The Bill of Rights makes clear that the protections it enumerates are inalienable. There is no caveat that civil rights are contingent on the federal courts’ capacity to accommodate making people whole when their rights are violated. If the courts get overwhelmed, Congress should create more courts. If Congress fails to do so, the Supreme Court should make clear that Congress is failing one of its key constitutional obligations.
Qualified immunity at the state and local level has been the poorly informed creation of the federal court system. Creating it frustrated both the intent of the Constitution and of the KKK Act. Qualified immunity’s growing strength over the years has set up perverse incentives that tend to make law enforcement less accountable and transparent. Part II of this essay will look at how the federalization of law enforcement has made officers even less accountable and transparent, including in the case of Ann McLeod.
