We are pleased that legislation has been introduced in Congress to end “qualified immunity“, one of the main judicial theories that has enabled Transportation Security Administration checkpoint staff to violate travelers’ rights with de facto impunity.

H.R. 7085, introduced yesterday in the House of Representatives, is a simple and straightforward bill to end qualified immunity:

The lead sponsor of H.R. 7085, Rep. Justin Amash (Libertarian of Michigan) is also the sponsor of a pending bill, H.R. 4431, to prohibit the TSA or any other DHS component from preventing  a US citizen or permanent resident from boarding a commercial airline flight on the basis of a “no-fly list” or “watchlist” unless that individual has been convicted of a Fderal crime of terrorism. H.R. 7085 has 17 other initial co-sponors.

S. Res. 602, introduced earlier this week in the Senate, is a resolution expressing the “sense of the Senate” that:

Congress should amend section 1979 of the Revised Statutes (42 U.S.C. 1983) to eliminate the qualified immunity defense for law enforcement officers.

A resolution adopted by Congress calling on Congress to take a certain action is, of course, inherently half-hearted.If Congress believes that Congress should amend a law, Congress can and should amend that law, not merely pass a resolution telling itself what it ought to do. Nevertheless, S. Res. 602 is a step toward Senate acknowledgment of the need for action on this issue. Perhaps the introduction of H.R. 7085 in the House will prompt Senators to introduce a similar bill to give meaning to the sentiments expressed in S. Res. 602.

As the preamble to H.R. 7085 explains, “qualified immunity” is a rationale invented by Federal judges as their excuse for absolving law enforcement officers of liability when they have  violated individuals’ rights. Qualified immunity is a judicially created doctrine that does not purport to be derived from anything in the text of the law.

“Qualified immunity” gives police and other government agents “immunity” (i.e. impunity) when they violate individuals’ rights, if they believed in “good faith” that their actions were legal, unless the fact that their actions were illegal was “clearly established”. Judges typically presume good faith on the part of police, and it’s much harder to show evidence of bad faith or malign intent, as a state of mind, than to show evidence of illegal actions.

The existence of any “good faith” defense for police creates an explicit and unjust double standard. Ignorance of the law is no excuse for ordinary individuals accused of violating the law. But ignorance of the law is a defense for law enforcement professionals, who ought to be required to know what the law is before they try to enforce it. “Qualified immunity” creates an incentive for police not to learn about Constitutional rights. Their wilful ignorance allows them to escape liability for violations of rights if they can claim that they believed in good faith (even if wrongly) that what they were doing was legal.

If judges, for their own reasons of policy or opinion rahter than law, want to let police off the hook, thay can almost always find some nuance of difference between the facts in the case before them and those in previously decided cases. On that basis, they can find that the law applicable to the facts in the case at hard was not yet “clearly established”.

The “clearly established” test also created an insidious Catch-22. If the legality of a particular police action in particular circumstances is not yet “clearly established”, courts will typically dismiss the complaint on grounds of qualified immunity, without needing to rule on whether the actions complained of were illegal. So the applicable law never becomes clearly established, and police can persist in the same pattern of action, with continued immunity/impunity,  without the courts ever ruling on whether it is illegal.

Most of the attention paid to “qualified immunity” has focused on its application to police and law enforcement officers in police-like contexts. This week a coalition of almost 500 civil rights, civil liberties, and human rights organizations called for legislation to end qualified immunity for police as part of a larger legislative agenda for police accoubtability.  But qualified immunity has also been applied to TSA checkpoint staff and to a wide range of law enforcement officers and government agents other than “police”.

We saw how qualified immunity for TSA staff works in the case of Mocek v. Albuquerque, in which Philip Mocek sued the city of Albuquerque, the Albuquerque Police Department, TSA checkpoint staff, and Albuquerque police who falsely arrested him at the Albuquerque airport when he tried to document the process of flying without ID.  The First Amendment Project, of which the Identity Project is a component, represented Mr. Mocek in this lawsuit.

Mr. Mocek was falsely accused, based in part on perjured statements by Albuquerque police and TSA staff, of multiple violations of state law, including refusing to identify himself  — which he was not required to do, not asked to do, and didn’t refuse to do.

Mr. Mocek was acquitted by a jury of all charges, largely on the basis of (1) his own video and audio recording of the incident, which the police tried but failed to delete after they seized his camera, and which showed that he hadn’t done what he was accused of, and (2) the testimony of a TSA supervisor, under oath, that air travelers are not required to show any ID. “People fly every day without ID. We have a procedure for that,” the TSA’s own witness testified.

Following his acquittal on the state criminal charges, Mr. Mocek sued the individuals and agencies responsible for falsely arresting him. Mr. Mocek brought this civil lawsuit under 42 U.S. Code § 1983, the Civil Rights Act of 1871:

Every 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 laws, shall be liable to the party injured in an action at law, suit in equity, or other proper proceeding for redress.

The Civil Rights act of 1871 was enacted and used extensively during Reconstruction after the Civil War, and again in the 1950s and 1960s in cases of racial discrimination, before judges — almost a hundred years after the law was enacted — came up with the theory of qualified immunity.

The theory of qualified immunity was developed by judges to limit (and in effect, in many cases, to override) this longstanding provision of Federal civil rights law.

In Mr. Mocek’s case, the Court of Appeals for the 10th Circuit ultimately found that:

We conclude that the individual defendants are entitled to qualified immunity because a reasonable officer could have believed Mocek violated New Mexico law by failing to show identification during an investigative stop…. [W]e doubt that there was probable cause to arrest Mocek merely for failing to show documentation proving his identity in this case. Nonetheless, the officers are entitled to qualified immunity because even assuming they misinterpreted New Mexico law, their mistake was reasonable.

Two things are both noteworthy and typical about the final outcome of this case:

1. The TSA checkpoint staff and police got off scot-free.
2. Even though the appellate judges “doubted” that the actions of the police were legal, they didn’t issue any definitive opinion on the legality of the police actions. The appellate panel upheld the dismisal of the complaint on the basis of qualified immunity, without needing to reach or decide whether the police had actually violated Mr. Mcek’s rights. As a result, the law on this point still may not be clearly established. TSA staff and/or police could do the exact same thing again and again ad infinitum, and could get off scot-free again and again on the basis of qualified immunity, without the legality of their actions ever being reviewed by any court.

Qualified immunity has been the basis for dismissal of many other lawsuits against TSA staff and the local police who provide the muscle for the TSA. Only rarely is a violation of a traveler’s rights so egregious as to overcome a claim of qualified immunity based on a supposedly good-faith belief by police that their actions were legal.

Qualified immunity is wrong, as applied to the TSA or to any other government agents. It is contrary to the letter of the law, the intent of Congress, and the Constitution. The Supreme Court is considering petitions for review of several cases involving qualified immunity, but is more likely to make minor changes to the judicial construct of qualified immunity than to reverse its precedents and entirely eliminate qualified immunity. We welcome efforts to have Congress rein in this judicial creation that has put police and the TSA above the law.

It’s important to recognize, however, that ending qualified immunity won’t be any more of a panacea with respect to the TSA than with respect to beat cops.

Qualified immunity is only one element of a quartet of laws and legal theories that have shielded the TSA and its accomplices from judicial review and liability:

1. Qualified immunity from suit under 42 U.S.C. §1983, as discussed above.
2. 49 U.S.C. § 46110 (currently under challenge in Sai v. Neffenger), which strips Federal trial courts of jurisdiction to consider challenges to TSA “orders” or policies, and allows Courts of Appeals to review TSA orders only under a special standard that requires the courts to take as true, without independent fact-finding, the factual claims made by the TSA itself.
3. The TSA’s claim that although TSA checkpoint staff are “Transportation Security Officers” authorized to conduct searches for purposes of “screening” of air travelers pursuant to Federal law, they are not subject to the liability provisions of the Federal Tort Claims Act applicable to   “officers or employees” of the Federal government who “execute searches… for violations of Federal law”.  (This issue has not yet been addressed in all of the Federal Circuit Courts, but is already the subject of a split between Circuits since the decision of the 3rd Circuit last year in Pellegrino v. TSA.)
4. The judicial theory that human rights treaties signed and ratified by the US are “not self-effectuating” and therefore can’t be invoked as the basis for Federal lawsuits despite the provision of the U.S. Consitution that “all treaties made, or which shall be made, under the authority of the United States, shall be the supreme law of the land”.

Ending qualified immunity would be one step, but only one of the necessary steps, toward bringing the TSA within the rule of law.