Qualified immunity is basically a blank check for prison abuse. Qualified immunity whitewashes atrocities committed against inmates in jails and prisons throughout the United States. It is without exaggeration a license to kill. The result is that Inmates at every level, local, state and federal, regularly and routinely suffer extreme dehumanizing and tortuous conduct by prisons and jails. Worse, nobody is every held accountability except in very rare instances where the facts can overcome the many hurdles and traps of qualified immunity. Worse still, much of the abuse comes at the hands of prison doctors.
“Clearly Established Law” Requirement
Among the most egregious and unjust requirements to overcome qualified immunity prison (and police) wrongdoing is the “clearly established law” requirement. Basically, the requirement states that the prison official (or other law enforcement officials) violated a constitutional right, and they knew that his action was illegal.
This seems reasonable at first sight but the way the federal courts have interpreted this requirement has made it virtually impossible to hold a law enforcement officer including prison officials and prison doctors accountable for even plainly murderous conduct. Qualified immunity as currently constituted in the federal courts is simply inconsistent with any notion of fairness or justice. It is blight on the courts, on the country and on New Mexico.
The primary culprit driving the cruelty underlying qualified immunity is the United States Supreme Court (SCOTUS). SCOTUS has gone to extraordinary lengths to avoid accountability for law enforcement and prison officials and doctors. In so doing, SCOTUS has distorted and tortured common sense, basic morality and any sense of justice in criminal “justice”.
Illegality Must Be Beyond Debate
SCOTUS, in the 2018 case of D.C. v. Wesby, 138 S. Ct. 577, stated the clearly established law requirement as follows:
“Under our precedents, officers are entitled to qualified immunity under § 1983 unless (1) they violated a federal statutory or constitutional right, and (2) the unlawfulness of their conduct was clearly established at the time. Clearly established means that, at the time of the officer’s conduct, the law was sufficiently clear that every reasonable official would understand that what he is doing is unlawful. In other words, existing law must have placed the constitutionality of the officer’s conduct beyond debate.” [internal quotes omitted].
Again, this seems reasonable until one views all of the abhorrent behavior that this requirement basically condones. “Every reasonable official” and “beyond debate” has been interpreted to mean that the exact behavior in the pending lawsuit has been found unconstitutional and illegal in the past. This is an almost impossible burden to meet.
Example of Clearly Established Law: Police Shooting
The many police shootings of unarmed black men that do not meet the clearly established law standard are good illustrations. Most everyone is now aware of the George murder by police officers. George Floyd was murdered in the plain sight of many onlookers. The murder was captured on video. The video captured the police officer nonchalantly and defiantly, as onlookers pled for him to stop, slowly strangling Mr. Floyd to death with his knee on his neck for 8 minutes and 46 seconds. It was plainly murder. It is anything but certain that the officer’s behavior violated clearly established law as the requirement is currently construed. The reason for this is that there is no prior case that has reached the court with such clear evidence where an officer choked a suspect to death over the course of 8 minutes and 46 seconds with the officer’s knee on the suspect’s neck.
For instance, police officers have escaped personal responsibility for equally atrocious and murderous conduct. In fact, a police officer if recent cases are any indication can shoot someone in a parked car, a moving car, sitting in their living room, sleeping in their beds, sitting on the ground, walking away, walking toward an officer with raised hands, or sitting, standing, kneeling, walking, running, or jogging with raised hands. Police officers can shoot children, they can shoot the elderly, they can shoot mentally ill people pleading for help. They can and do do these things with regularity and they are rarely held accountable. Rarely do they even lose their jobs. That is qualified immunity for police officers. Just imagine how it works for prison and correctional employees.
Clearly Established Law in Prison/Jail Medical Negligence Cases
Police officers engaged in the behavior above are often captured on video. There are more often than not witnesses who provide direct evidence of the circumstance of the shootings. Yet, the officers walk free and suffer no personal accountability even in civil lawsuits. Even in the rare case where their behavior is found to have violated clearly established law, they are fully indemnified by their police departments.
Take the injustice of qualified immunity in the police shooting context and magnify it exponentially and you have the gross injustice of prison medical neglect. Unlike police shootings, there are no videos showing the slow death of inmates through medical neglect.
Doctors are supposed to be governed by the Hippocratic Oath which originally required doctors to swear to the Gods that they would protect their patients from harm. It has over time been restated simply as “First, do no harm”. Unfortunately, the Hippocratic Oath has no role in prison medical care. In fact, it is the medical providers themselves that often do the greatest harm to inmates. Inmates may suffer and survive every manner of abuse, degradation and inhumanity yet many will succumb to the only people in the prison sworn to protect them, the doctors.
Prison medical contractors are paid hundreds of millions of dollars for their services in each state they provide services. Some are multi-billion dollar companies. Profit is the only god they swear to. Despite the hundreds of millions that they are paid for state contracts, they do not provide even basic medical care. Chronic disease goes virtually untreated. Minor infections are allowed to progress to deadly sepsis. Inmates are routinely denied the specialist medical care that they must have to survive. Instead, they are given trivial care for even the deadliest diseases such as cancer, diabetes, heart disease, hepatitis C and sepsis. The result is horrible and permanent injuries or death.
The medical atrocities committed against inmates are much like the slow cavalier murder of George Floyd. Yet in inmate medical neglect cases, the slow killing of inmates can go for months or years all the while with the inmates suffering indescribable pain related slow death that includes amputations, bone infections (osteomyelitis) including slow moving sepsis in the heart, spine, extremities and brain. Yet, these rarely meet the qualified immunity standards. Even trivial clearly ineffective and contra-indicated medical care for serious and/or deadly illnesses will suffice to get a case dismissed on qualified immunity grounds. Like any business, prison medical contractors conduct risk benefit analysis. Inevitably, the calculations fall on the side of medical neglect. Profits outweigh any potential costs of losing in court. Qualified immunity makes sure of this. And so reckless disregard and deliberate indifference to the medical needs goes unabated.
The New Mexico Civil Rights Act: House Bill 4
The New Mexico Civil Rights Act, House Bill 4, will take these cases from the federal courts and place them where they belong in New Mexico state courts. It will effectively end qualified immunity in New Mexico. It passed in the State House 39-19. It now goes to the Senate. Qualified immunity must end in New Mexico. The only way to do this is for people to speak up. Contact your legislators now to voice your support at New Mexico’s Legislative site, Find My Legislator.