Biden Administration Embraces Democrats' Least Favorite Legal Defense

Qualified immunity is nearly impossible for plaintiffs to surmount

Portland police on April 20 / Getty Images
June 1, 2021

The Biden administration frequently relies on a controversial legal tool to defend law enforcement officers accused of misconduct, even as the president’s congressional allies work to abolish it.

Democrats behind a major criminal justice reform bill named for George Floyd want to put limits on qualified immunity, a defense available to law enforcement that is very difficult for plaintiffs to surmount. Though President Joe Biden supports the bill, administration lawyers are arguing for qualified immunity in civil rights cases from Massachusetts to Texas to the Supreme Court.

The pattern suggests the Biden administration is as much a barrier to reform-minded activists as police unions and Republican lawmakers. The administration has not implemented policy changes that could significantly curtail police immunity or hinted that such changes are in the offing. And while the decision whether to assert qualified immunity rests with the officer-defendant, government lawyers long accustomed to qualified immunity and its benefits will find nothing challenging about Biden’s approach.

Overcoming qualified immunity requires a plaintiff to show an officer’s misconduct violated "clearly established law." It's a hard test to pass. As the rule operates today, plaintiffs must point to an earlier decision with near-identical facts that makes clear the misconduct alleged in their case is indeed unlawful.

The most striking example of the government’s continued reliance on qualified immunity came in a February lawsuit arising from the 2020 Floyd riots. The case involves the Washington, D.C., chapter of Black Lives Matter, which is suing police officers and government officials who cleared Lafayette Square of demonstrators ahead of former president Donald Trump’s visit to St. John’s Episcopal Church.

The day after Biden took office, the government joined a motion to delay those proceedings to give new Justice Department officials "sufficient time to become familiar with the issues." But there was no sign of a course correction in its next filing. The government on Feb. 16 filed a motion to dismiss the case, arguing that the line-level officers are entitled to qualified immunity, among other things.

"Almost without exception, members of law enforcement who have been sued for rights violations are represented by government lawyers," the Cato Institute’s Clark Neily told the Washington Free Beacon. "And government lawyers, like any other lawyers, will assert any defense they feel they can ethically argue for in court. That’s most often what happens in these cases."

In another case the Supreme Court decided this spring, the Justice Department argued that three police officers who committed a Rhode Island man to mental health authorities and seized his guns without a warrant were entitled to qualified immunity. The justices unanimously ruled for the Rhode Island man on May 17 without addressing the immunity issue.

And in a Massachusetts case, the Justice Department is representing an FBI agent in the shooting death of an ISIS suspect, Usaamah Abdullah Rahim. A federal trial judge denied for the time being the agent’s assertion of qualified immunity, which the government is now appealing.

Biden called on the Senate to enact criminal justice reform "in Floyd’s name" by May 25. This appears to put rhetorical space between his views and a House bill, the George Floyd Justice in Policing Act, that significantly limits qualified immunity. That concession and the Justice Department’s continued reliance on qualified immunity suggest the president is amenable to compromise with Republican lawmakers, who broadly support police immunity. The White House declined to comment for this story.

There are policy changes or tactical legal moves the administration could take without Congress. For example, the president could direct the solicitor general to find appropriate cases for attacking qualified immunity in the Supreme Court. Several members of the Court have sounded skeptical about the legal basis for qualified immunity in recent years, including Justices Clarence Thomas and Sonia Sotomayor. But the president has yet to nominate a solicitor general.

Cato’s Neily suggested another far-reaching move.

"You could imagine an institution making it a condition of employment that employees of the agency not assert qualified immunity," he told the Free Beacon. "It’s very difficult to envision, but I think it’s important to point out that it could be done, just so we know the extent of the cop out here."

Even if the Justice Department is obliged to defend law enforcement, especially tragic cases will try the patience of reform-minded activists and take a toll on the administration. One such case involves an unnamed FBI agent who shot and killed Ulises Valladares during a botched rescue operation in January 2018.

Two assailants kidnapped Valladares from his home. Valladares’s brother Ernesto received a ransom call from gunmen boasting of connections to the Gulf Cartel, a violent drug-trafficking syndicate based in Matamoros, Mexico. Law enforcement traced the call to a house in northeast Houston. The agent at the center of the case approached the house with a rescue team in the predawn darkness, broke a rear window, and pointed his M4 rifle into the house.

The agent and Valladares’s family dispute what happened in the next few seconds. The agent told investigators that Valladares grabbed his weapon, and he fired thinking Valladares was one of the assailants. The victim’s widow alleges that the agent fired into the house indiscriminately while her husband was tied up and blindfolded inside, killing him.

Valladares’s family sued the agent for wrongful death and violating his Fourth Amendment right against unreasonable seizure. The Fifth U.S. Circuit Court of Appeals tossed the Fourth Amendment claim in a March 9 ruling and said the plaintiffs’ allegations "have not come close" to overcoming the agent’s entitlement to qualified immunity. The family is appealing that decision.

"We have officers shooting and killing bound, blindfolded, unarmed people by themselves and they get qualified immunity? That’s not right," the family’s lawyer, Randall Kallinen, said at a May 4 news conference.