From what I've seen, it has to have been "clearly established" before meaning that unless there is an incident already labeling the act unconstitutional, no dice for the poor lady. It's how you make it so that as society evolves, officers can't be held accountable for new acts.
> Jessop v. City of Fresno: The Ninth Circuit granted immunity to the officers. The court noted that while “the theft” of “personal property by police officers sworn to uphold the law” may be “morally wrong,” the officers could not be sued for the theft because the Ninth Circuit had never issued a decision specifically involving the question of “whether the theft of property covered by the terms of a search warrant, and seized pursuant to that warrant, violates the Fourth Amendment.”
> Corbitt v. Vickers: ... the court went on to say that “[n]o case capable of clearly establishing the law for this case holds that a temporarily seized person—as was [the child] in this case—suffers a violation of his Fourth Amendment rights when an officer shoots at a dog—or any other object—and accidentally hits the person.”
> Kelsay v. Ernst: The majority noted that there were no prior cases involving the “particular circumstances” of this case; that is, no prior cases specifically held that “a deputy was forbidden to use a takedown maneuver to arrest a suspect who ignored the deputy’s instruction to ‘get back here’ and continued to walk away from the officer.”
> Allah v. Milling: The appellate court agreed that the prison guards violated Allah’s rights, specifically holding that this treatment was unlawful punishment because Allah’s treatment “cannot be said to be reasonably related to institutional security, and Defendants have identified no other legitimate governmental purpose justifying the placement.” Nevertheless, the court said the guards were entitled to immunity because there was no prior case concerning the particular disciplinary practice employed by the prison.
It's basically judicial Calvinball. "Oh, established case law says you can't kill an innocent person at 6:35pm, but it's not clearly established you can't kill an innocent person at 6:36pm!"
Nope, because the standard is not "Everybody knows it's wrong to do that", the standard is "A previous case exists where an officer did EXACTLY THE SAME THINGS in EXACTLY THE SAME SCENARIO that established that officer CLEARLY VIOLATED THEIR CONSTITUTIONAL RIGHTS"
For us mere mortals to be punished, we don't even have to know the law. For a cop to be punished, there has to be precedent. The funny part is that this situation basically means the first cop to do any illegal act will always get away with it.
This is the trick that courts use in qualified immunity cases. You can't just say "well obviously this is a violation of 4th amendment rights by any person's plain reading." You need a prior case where a judge found this specifically. And that prior case needs to match the facts of the current case basically exactly. Any minor difference can be leveraged to argue that this case is a new set of facts and that there is no prior case that would inform a cop that what they are doing is in fact a violation of rights and so they are immune from civil action.
The outcome of each one of these cases is that the cop gets off scot free and the court says "the next time this specific thing happens under our jurisdiction you can sue" but that specific thing never happens again for the rest of time because the boundaries of that specific thing are so tight.
That's insane. I was vaguely aware that the American system that has grown over the 250-year old foundation was getting rusty, but I never knew it has taken such a dark turn.
How far can you take the "precise case" thing then? Does it just apply to the specific action that was done? How far can they legally stretch what's considered to be "novel"?
