We convict a lot of innocent people in Texas. For a lucky few defendants, we figure out they are innocent before we take away years/decades of their life or put them to death. Let’s say you are arrested but it turns out that there was no probable cause and the charges are dropped, can you sue and hold anyone in the government accountable? Sure you can sue, the better question is, can you win? That can be tougher that you’d think, even for blatant constitutional violations, like arrests without probable case.
The reason for this is qualified immunity. Qualified immunity is a monument of police state judicial activism, in which our federal courts invented a doctrine that shifts the costs of wrongful arrests (sitting in jail, bail money, hiring a lawyer etc) to the public. What started as a limited common law defense grew as the court added more and more hurdles for Plaintiffs to clear to bring a case and survive summary judgments.
Again, the federal doctrine of qualified immunity is not a law passed by Congress, federal judges just made it up, and it protects officers who make mistakes on the job. I don’t have immunity in my law practice, you probably don’t have immunity in your job (although negligent doctors in Texas bought practical immunity with the help of TLR), but government actors do.
You may remember that lawsuits against the State government for violations of the US Constitution are called 1983 suits. So if you want to sue the local police, sheriff or jail you would probably use a 1983 suit and file in federal court.
What do you have to prove in a false arrest case? That the police made an arrest without probable cause, and considering the totality of the circumstances, acted unreasonably.
Here’s a nice run down from a recent case.
To demonstrate the inapplicability of the qualified immunity defense, the plaintiff must satisfy a two-prong test: “First, he must claim that the defendants committed a constitutional violation under current law. Second, he must claim that the defendants’ actions were objectively unreasonable in light of the law that was clearly established at the time of the actions complained of.” Atteberry v. Nocona Gen. Hosp., 430 F.3d 245, 253 (5th Cir.2005) (citations omitted); see also Pfannstiel v. City of Marion, 918 F.2d 1178, 1183 (5th Cir.1990), abrogated on other grounds as recognized in Martin v. Thomas, 973 F.2d 449, 455 (5th Cir.1992) (“A defendant is entitled to qualified immunity unless, ‘on an objective basis, it is obvious that no reasonably competent officer would have concluded that a warrant should issue….’ ”) (quoting Malley v. Briggs, 475 U.S. 335, 341, 106 S.Ct. 1092, 89 L.Ed.2d 271 (1986)). The Court may conduct the two-pronged inquiry in any order. See Pearson v. Callahan, 555 U.S. 223, 236, 129 S.Ct. 808, 172 L.Ed.2d 565 (2009).Crostley v. Lamar County, Texas, 717 F.3d 410, 422 (5th Cir. 2013)