Onree Norris was nearly 80 years old when, on the evening of February 8, 2018, he heard an explosion go off inside his house in suburban Georgia. A team of more than two dozen police officers had set off stun grenades. They careened through every door of his home with battering rams. The cops thrust Norris—who suffered from bad knees and a heart condition—to the ground. They arrested him and took him out of his house in handcuffs.
The officers were doing a drug raid—but they had the wrong house. The actual suspect, according to the warrant, lived in an off-white house with a black roof; Norris’ house was yellow with a gray roof. And he didn’t resemble the man police were after, who was less than half Norris’ age.
When Norris sued, his lawsuit was thrown out because of qualified immunity, a legal doctrine that makes it difficult for victims to get recourse when government officials violate their constitutional rights.
Qualified immunity was first created by the Supreme Court in 1967. The Court then strengthened it in 1982, when the justices ruled that a victim cannot bring a suit against a state or local government actor unless nearly identical misconduct has been ruled unconstitutional in a prior court decision. It’s the same reason that two police officers in Fresno, California, could not be sued after they allegedly stole over $225,000 during the execution of a search warrant. The U.S. Court of Appeals for the 9th Circuit ruled that those officers did not have “clear notice” that stealing under those circumstances was unlawful, because no court precedent addressed that question.
“I think you could compare it to…a person bringing a lawsuit that they’ve slipped and fallen in a grocery store…and the court says, ‘Have you been able to find a prior court case in which someone slipped and fell on orange juice in the produce aisle?'” says Joanna Schwartz, a law professor at UCLA and author of the recent book Shielded: How the Police Became Untouchable. “Because if it was water in the dairy section, that’s not enough.”
Qualified immunity is supposed to ensure that government employees have proper warning of what conduct violates the Constitution. But government officials can still receive qualified immunity even when they violate their own training. In effect, it assumes that police officers are reading case law in their spare time.
“We as a society, whether we like it or not, are providing these officers with their power, their discretion, their badges, and their guns,” says Schwartz. “And I believe that we as a society also have a responsibility, a shared responsibility, to make those people whole when their rights have been violated under our authority and to try to prevent something from happening again in the future.”
To underscore how difficult it is for victims of police abuse to get recourse, Schwartz writes about Tony Timpa, a man who died during an arrest in Dallas in 2016. When Timpa’s mother, Vicki, received word from police that her son was no longer alive, the government gave her multiple different stories about what had happened to him, none of which implicated the Dallas Police Department. But then she went to the morgue and saw something strange: There was grass in his nose.
It turns out the cops had intervened during a mental health crisis Timpa experienced one evening in August 2016. Officers kneeled on his back for about 14 minutes in violation of department policy, and he subsequently suffered “sudden cardiac death due to the toxic effects of cocaine and [the] physiological stress associated with physical restraint,” according to an autopsy. After Timpa became unresponsive, Officer Dustin Dillard, who was promoted last year, teased that he heard Timpa “snoring,” prompting Cpl. Raymond Dominguez and Officer Danny Vasquez to wise-crack that Timpa was a schoolboy who just needed some “tutti-frutti waffles” and “scrambled eggs” to be enticed out of bed.
But Vicki Timpa didn’t know what happened, because the police wouldn’t tell her. They refused to turn over the body camera footage, which she needed to state what’s called a “plausible” claim—the bare minimum standard to file a federal lawsuit. If she couldn’t get more information on what happened that night, then her suit would be dead on arrival, before a judge could even evaluate whether those officers would get qualified immunity.
“The idea about this plausible pleading standard is to give defendants notice of what is being alleged against them,” notes Schwartz. “Well, the Dallas Police Department had all the notice in the world about what their officers had done right, and yet used this tool to try to get the case dismissed.”
Vicki went through a lengthy legal battle which finally forced the police to turn over the footage in August 2019, three years after her son’s death. Only then did she have enough facts to write that plausible claim. Afterward, those Dallas officers received qualified immunity—which was ultimately overturned on an appeal. The Supreme Court confirmed in 2022 that Timpa’s family could finally sue the police.
But it took almost six years for Vicki Timpa to get there. “The Supreme Court and state and local governments across the country have created barriers to relief in these cases at every level of the litigation process,” says Schwartz.
Justice Clarence Thomas has critiqued qualified immunity as an example of legislating from the bench, while Justice Sonia Sotomayor has said it allows police to “shoot first and think later.” Some maintain it’s necessary, however, to protect relatively low-paid public employees who can’t be too afraid to make mistakes.
“The idea that’s been commonly stated—that officers are going to be bankrupted for split-second mistakes without qualified immunity—bears no relationship to reality, because officers are virtually always indemnified by policy or law, meaning the employer pays for those settlements,” adds Schwartz. “And…the Fourth Amendment protects against those split-second mistakes. So they don’t have those things to be worried about.”
Overcoming qualified immunity doesn’t mean you’ve won your case; it gives you the right to take your claim to trial and ask a jury to determine if damages are deserved. Attorneys who work on such cases receive compensation on a contingency basis, which means they only get paid if they win, another factor that protects against frivolous suits clogging the courts.
While the doctrine applies to state and local actors, federal cops receive an even more robust set of protections and are shielded by what essentially amounts to absolute immunity.
Take the 2016 case of a then-70-year-old retired cop named Jose Oliva, who arrived for a dental appointment at a Veterans Affairs hospital in El Paso, Texas. According to surveillance footage, federal officers placed him in a chokehold, unprovoked, and violently contorted Oliva’s hand behind his back, damaging his shoulder and requiring he receive two surgeries.
Yet Oliva was prohibited from suing because those officers were acting at neither the state nor local level.
These sorts of abuses have put police under intense scrutiny over the last several years. But Schwartz concedes that law enforcement conduct has improved in recent decades. One indication of that: Fatal police shootings are down nationwide. In New York City, for example, officers shot and killed an average of 62 people a year from 1970–74. That declined to nine fatal shootings a year from 2015–21, according to data compiled by Peter Moskos, a professor at the John Jay College of Criminal Justice.
“It may be that people’s rights are violated less frequently now than 10 or 20 years ago…. But it remains true also that our systems for holding police accountable in those circumstances in which they violate the law and people’s rights really fails to offer justice to a meaningful percentage of those people,” says Schwartz. “This is the moment to look at all the information and design a better future.”
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