united-states police qualified-immunity
Are police allowed to be ignorant of the law?
<p>As I understand it, the limited liability that police enjoy requires that people bringing civil cases against police must prove that the police officer should have had a reasonable knowledge of the civil rights that they accuse him of breaking, for the civil case to be successful.</p>
<p>If we excuse the rhetorical gymnastics of not expecting law enforcement to be knowledgeable of the law, how does this excuse of ignorance fit into the adage that &quot;ignorance of the law is no excuse for breaking it&quot;?</p>
<p>If a police officer is allowed to be ignorant of laws in defense of a civil claim, how can it then be said that another law adage, &quot;everyone is equal under the law,&quot; is true?</p>

<blockquote>
<p>As I understand, the limited liability that police enjoy, requires
that people bringing civil cases against police must prove that the
police person should have had a reasonable knowledge of the civil
rights that you accuse him of breaking, for the civil case to be
successful.</p>
</blockquote>
<p>This isn't quite right.</p>
<p>The test you are referencing is the one for qualified immunity from civil liability under 42 U.S.C. § 1983, which imposes liability on government officials only for violating a &quot;well-established&quot; constitutional right.</p>
<p>A rule of law is &quot;well-established&quot; when there is controlling case law in that jurisdiction when a factually similar binding precedent exists in that jurisdiction to show that the alleged conduct is unconstitutional.</p>
<p>This test is employing the legal fiction that police officers are familiar with all of the binding precedents in the jurisdiction regarding what constitutes a violation of a constitutional right, which is held against officers. Of course, in reality, almost no police officers have that exhaustive a level of understanding of the law.</p>
<p>What the test does, however, is to prevent police officers from being held civilly liable for money damages when they take action which, in fact, violates a constitutional right, but which no case law in a factually similar case that was binding precedent established before the incident took place. Thus, police officers are relieved of liability for incidents that they would have to predict that a future court would find violated a constitutional right. This is sometimes phrased as being justified because a reasonable police officer could not have foreseen a new rule of constitutional law or a novel application of an existing rule of constitutional law to a new situation.</p>
<p>One of the reasons that the qualified immunity rule is controversial, however, is that courts have the discretion to decide a case on qualified immunity grounds without determining if the underlying action indeed did violate a constitutional right, and this prevents constitutional law from evolving normally over time to applications in new factually novel situations.</p>
<p>The key point, however, is that this requirement that a constitutional right be well-established to be enforceable in a civil action is an &quot;objective&quot; test in that it is decided without any reference to what the particular individual being sued actually knew about the law in the particular circumstances presented.</p>
<p>A police officer who acts without actually knowing the law does so at his or her peril.</p>

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<p>The adage &quot;ignorance of the law is no excuse&quot; is simply a reflection that the <em>mens rea</em> (mental element) of most crimes does not require you to know that what you are doing is a crime nor that you intend to be violating your jurisdiction's criminal code.</p>
<p>For a crime based on intent, for example, it is enough that you intend to do the prohibited thing, or that you intend the prohibited effect.</p>
<p>This is true no matter whether the person committing the crime is a police officer or not a police officer. In this sense, there is equality under the law.</p>
<p>As for the discrepancy in degree of knowledge needed for crimes and the degree of established certainty for civil liability under a <a href="https://www.law.cornell.edu/uscode/text/42/1983" rel="noreferrer">section 1983</a> claim (or <a href="https://en.wikipedia.org/wiki/Bivens_v._Six_Unknown_Named_Agents" rel="noreferrer"><em>Bivens</em> claim</a>), the distinction is because these are <em>different</em> questions: one is about <em>mens rea</em>, one is about certainty of the law. A more apt comparison would be between the qualified immunity standard and the <a href="https://www.law.cornell.edu/wex/void_for_vagueness" rel="noreferrer"><em>void for vagueness</em></a> doctrine (whereby no one is punishable if the statute does not define with sufficient clarity what is prohibited).<sup>1</sup></p>
<p>The doctrine of qualified immunity shields a state official from civil liability unless either:</p>
<ol>
<li>the constitutional right that was violated has been clearly established (<em>Pearson v. Callahan</em>, <a href="https://supreme.justia.com/cases/federal/us/555/223/" rel="noreferrer">555 U.S. 223</a> (2009)), or</li>
<li>the violation is so clear that any officer should have known (see e.g. <em>Taylor v. Rojas</em>, <a href="https://www.supremecourt.gov/opinions/20pdf/19-1261_bq7c.pdf" rel="noreferrer">592 U.S. ___</a> (2020)).</li>
</ol>
<p>Qualified immunity does not result in courts saying that there was no constitutional violation (although they might not get to that question), nor does an individual officer's ignorance affect the analysis (as explained further in <a href="https://law.stackexchange.com/a/87994/46948">ohwilleke's answer</a>).</p>
<p>There are strong critiques of the doctrine of qualified immunity,<sup>2</sup> but the discrepancy with criminal <em>mens rea</em> is not one of them. These are just two wholly different questions.</p>
<hr />
<p><sup>1. This link is discussed by Donald L. Doernberg in &quot;<a href="https://www.baylor.edu/law/review/doc.php/396694.pdf" rel="noreferrer">Betraying the Constitution</a>&quot; (2022). See also <em>United States v. Lanier</em>, <a href="https://supreme.justia.com/cases/federal/us/520/259/" rel="noreferrer">520 U.S. 259</a> (1997): &quot;<strong>the qualified immunity test is simply the adaptation of the fair warning standard to give officials (and, ultimately, governments) the same protection from civil liability and its consequences that individuals have traditionally possessed in the face of vague criminal statutes</strong>.&quot;</sup></p>
<p><sup>2. See e.g. Justice Thomas's statement respecting the denial of a petition for writ of certiori in <em>Hoggard v. Rhodes</em>, <a href="https://www.supremecourt.gov/orders/courtorders/070221zor_4gc5.pdf#page=30" rel="noreferrer">594 U.S. ___</a> (2020): &quot;As I have noted before, our qualified immunity jurisprudence stands on shaky ground. ... this test cannot be located in §1983’s text and may have little basis in history.&quot;</sup></p>

<blockquote>
<p>As I understand, the limited liability that police enjoy, requires that people bringing civil cases against police must prove that the police person should have had a reasonable knowledge of the civil rights that you accuse him of breaking, for the civil case to be successful.</p>
</blockquote>
<p>Right, <strong>should</strong> have known.</p>
<blockquote>
<p>If we excuse the rhetorical gymnastics of not expecting law enforcement to be knowledgeable of the law. How does this excuse of ignorance feature into the adage of ignorance of the law is no excuse for breaking it?</p>
</blockquote>
<p>It's quite the opposite of what you say. The test is not whether they <em>did</em> know that what they were doing was against the law but whether they <em>should</em> have known that it was. This is the opposite of making ignorance an excuse because in effect, you are treated as if you did in fact know <em>everything</em> that you should have known.</p>
<blockquote>
<p>If a police person is allowed to be ignorant of laws in defense of a civil claim how can it then be said that another law adage, everyone is equal under the law, to be true?</p>
</blockquote>
<p>Because it is irrelevant whether they did or did not know the laws. All that matters is whether they <em>should have</em> or <em>could have</em> known. A version of this same rule applies in all criminal cases -- an available defense is to show that you could not have known that what you did was a crime.</p>
<p>Again, the issue is not what you did or did not know. You cannot use as a defense that you did not know you were violating the law. Ignorance of the law is not an excuse. The defense here is that there is no way that you could have known that what you did was illegal, even if you knew every law and every court case.</p>
