A police officer may only be sued for violating someone’s constitutional rights if those rights are “clearly established” under the law. (For those who are interested, this is known as “qualified immunity,” meaning that the officer is immune from suit, but that protection is qualified because liability can still attach in cases of violation of clearly established rights.)
For example, one’s right not to have the police in one’s home without a warrant is clearly established. There are some narrow exceptions though. As evidenced by most foot chases in the movies, law enforcement officers may nonetheless run through your home in hot pursuit of a known felon or dangerous fugitive.
The US Supreme Court just ruled on the case of a homeowner who was accidentally injured by an officer running through her property in hot pursuit of a suspect. What took the case to the highest court was that the person being pursued was only suspected of a misdemeanor. Does the same “hot pursuit” exception apply for them as for felons?
The Supreme Court threw the case out. Pointing out that courts throughout the country have come on different sides of the issue, it held that right to be free from police presence on one’s property when the officer was pursuing a misdemeanor suspect could not possibly be clearly established. Therefore, the officer could not be sued.
This raises two problems for me.
First, it shows that any right that is not clearly established does not exist at all. It may be that, some years from now, the Court will clearly establish that the police may not come flying through your home when running after someone they think committed a misdemeanor. But until that time, it will not be possible to obtain relief from officers who do. A right without a remedy may as well be said not to exist at all. Indeed, protected by qualified immunity, officers may continue to give hot pursuit with impunity to anyone running away for any reason, however trivial or silly.
Second, the Supreme Court should be more activist. This is anathema to half of the political class – not always the same half, but half of it every time the Court rules on a prickly topic. For most pundits, an “activist” court is, when all is said and done, one that makes a ruling they disagree with in a high-profile case. Rather, an activist court is one that decides a case more broadly than it needs to. That’s not always a bad thing. Let us return to the case of the homeowner in the path of the pursued misdemeanor suspect. Had the Court decided not only that there was no clearly established right (which is all it needed to do to resolve the case), but gone on to decide once and for all whether that right exists or not (that would make it an activist court, at least in this case), it would have saved much second-guessing, not to mention hours, months, nay, years (and lots of money) spent in litigation.
In the meantime, attorneys – and especially skilled appellate attorneys trying to lead higher courts to rule on those kinds of issues – will continue to be in high demand.