The recent Supreme Court decision in Bond v. City of Tahlequah that was informed, in part, by a brief from the National Police Association, speaks to the issue of qualified immunity in several important ways. One regards quantum physics, another politics.
In case you missed it, the case involves a couple of police officers responding to a 911 call from a woman whose ex has shown up causing trouble. When the officers arrived, the suspect retreated further into a garage and subsequently picked up a hammer, refusing all commands from the officers and presenting a lethal threat which the officers met with deadly force.
The officers were sued based on the premise that their presence and actions precipitated the suspect’s behavior and were, therefore, a cause of his aggression that resulted in his death. Although it would seem to be a matter of common sense to hold people accountable for their own behavior, the case worked up to the U.S. Supreme Court from a 10th Circuit decision denying the officers qualified immunity.
So let’s take the physics issue first. There is a theory in quantum physics that says there are infinite universes where every possibility is played out. We’ve seen variations of this idea on television and in movies. What if we had turned left instead of right? What if we wore a sweater instead of a jacket? What if the milk hadn’t spilled? We may have some intuitive sense of this when we ponder whether we made the right decision in marriage, career, finances. I worked at Walmart in college and was eligible to buy shares of stock at store number 63 in 1978. I could have been a millionaire!
Regardless of theories, our reality is that we make decisions in the moment based on what we know and perceive. It’s complicated enough trying to understand what we do, much less to anticipate the universe of possible behaviors in somebody else. This was essentially the affirmation of the Supreme Court. Officers cannot predict what their presence will do.
Predictions or not, making an assumption of danger or an assumption of no danger happens at the speed of neurons in the brain. We are all about cheering for our favorite athletes as they make split-second decisions. Not so much understanding of those milliseconds when life and death are in the balance. For example, when a batter stands with a thin wedge of matter held above his shoulder, he faces a small sphere that will be hurled in his direction and arrive from the pitcher’s hand to the batter’s torso in about a third of a second. Since the batter’s brain takes a quarter of a second to command the arms to begin his swing, there is less than one-tenth of a second to make a decision to swing or not swing. This doesn’t count the milliseconds for the retina to translate a few million inputs, or the micro-adjustments the muscles must intuitively make in order to make the kind of swing most likely to rocket the ball in a certain direction. A quarterback has a luxurious 2.8 seconds to throw the ball.
So, thank you, Supreme Court, for dealing with reality and leaving these decisions to those who are forced to make them.
With the quantum physic theory behind us, we turn our attention to the law and politics. Many politicians and commentators want to do away with qualified immunity (QI). They think that it is a get-out-of-jail-free card that gets cashed in all the time. The Bond decision accomplished two things regarding qualified immunity. First, it validated the legal concept and need for the doctrine. Secondly, it reminded us that qualified immunity is not, in fact, an easy claim to make. One might also note that being granted this immunity does not save officers from other consequences, like losing their career.
If QI were the easy out for law enforcement to keep them from being held accountable for anything, this case would not have come to the attention of the highest court in the land. QI is subject to judicial review. It sees the light of day. It is not automatic, and it is not awarded by police officials or lawyers. QI is raised and allowed only if an officer is faced with a decision that they are mandated by law to make, under circumstances where no clear rule, law, or previous court case has clearly defined the action they should take.
Despite the impassioned rhetoric of anti-law enforcement politicians, such as in my home state of Colorado which has removed QI from judges in state cases, the doctrine does not apply when officers clearly violate existing rules that they should know. To say that officers should behave in a certain way that lawyers and critics and courts will examine for years with varying opinions is, on its face, high irony if not simply ridiculous. The officers in the Bond case made their split-second decision in August of 2016. The case was debated and contested for five years before the Supreme Court rendered its decision. Save the Monday morning quarterbacking for football.