police
Credit: MGN Online

On August 11, 2014, officers from the Caldwell, Idaho Police Department asked for Shaniz Westโ€™s permission to enter and search her home. They were looking for her ex-boyfriend. West authorized the search and handed over her keys.

Instead of entering and searching the home, though, the police brought in a SWAT team, surrounding the building. โ€œ[P]olice repeatedly exceeded the authority Ms. West had given them,โ€ a lawsuit she filed complains, โ€œbreaking windows, crashing through ceilings, and riddling the home with holes from shooting canisters of tear gas, destroying most of Ms. West and her childrenโ€™s personal belongings.โ€

The โ€œstandoffโ€ lasted 10 hours. But it wasnโ€™t really a standoff. The only mammal in the home larger than a mouse was Westโ€™s dog.

Then the cops went on their merry way, leaving West homeless for two months, with three weeks in a hotel as her only compensation.

She wants more, including the costs of repairing and replacing her ruined personal property, damages for pain, suffering and emotional distress, and punitive damages for the assault on a home she gladly authorized a search of, not an attack on. She deserves all of that.

She isnโ€™t getting it โ€” yet, at least โ€” due to a loophole baked into a vile judicial doctrine called โ€œqualified immunity.โ€

Qualified immunity protects government employees from liability for things they willfully decide to do while on duty unless those actions violateย โ€œclearly established statutory or constitutional rights of which a reasonable person would have known.โ€

The loophole is the phrase โ€œclearly established.โ€

The Ninth Circuit U.S. Court of Appeals ruled that โ€œno Supreme Court or Ninth Circuit case clearly established, as of August 2014, that Defendants exceeded the scope of consent.โ€

Howโ€™s that for circular reasoning? โ€œYou can only sue over X if someone else has previously successfully sued for X.โ€ And no one can have successfully sue for X, at least since the loophole was introduced in 1982, because they would have been turned away on the same grounds!

The Institute for Justice wants the U.S. Supreme Court to take up Westโ€™s case.

It should do so, and when it rules it should go beyond nixing the โ€œclearly establishedโ€ loophole and do away with the doctrine of โ€œqualified immunityโ€ entirely.

42 US Code ยงโ€ฏ1983 provides that โ€œEvery person who, under color of any statute, ordinance, regulation, custom, or usage, of any State or Territory or the District of Columbia, subjects, or causes to be subjected, any citizen of the United States or other person within the jurisdiction thereof to the deprivation of any rights, privileges, or immunities secured by the Constitution and lawsโ€ may be sued for damages.

Not just if someone has successfully sued on the same grounds before.

And not just if a โ€œreasonable personโ€ would have known better.

Government employees are supposed to know their jobs, including the limits on their authority. If they donโ€™t, they shouldnโ€™t be given guns and badges, let alone protection from liability when they exceed those limits.

โ€œQualified immunityโ€ is the opposite of โ€œequality under the law.โ€

Thomas L. Knapp (Twitter:ย @thomaslknapp) is director and senior news analyst at the William Lloyd Garrison Center for Libertarian Advocacy Journalism (thegarrisoncenter.org). He lives and works in north-central Florida.