I hear a lot of cops worrying about how politicians might try to get rid of “qualified immunity.” But instead of worrying about a hypothetical, to me there is a much larger issue happening right now that most cops are completely unaware of.

When a court is determining whether to give an officer qualified immunity, they ask the same two questions each time:
1) Was the officer’s conduct potentially a constitutional violation?
2) Was it well established from previous case law that reasonable officers would have known the conduct was a constitutional violation?
If the answer is YES and YES, then the officer is not granted qualified immunity, and the case proceeds to trial.

However, can you spot the problem with question 2? Notice that the court never asks if the officer on trial actually knew the conduct was a constitutional violation. Nor do they ask how the officer was supposed to have been alerted to the previous case that determined the conduct was a constitutional violation?

𝗧𝗵𝗶𝗻𝗸 𝗮𝗯𝗼𝘂𝘁 𝘁𝗵𝗶𝘀 𝗳𝗼𝗿 𝗮 𝗺𝗼𝗺𝗲𝗻𝘁. 𝗗𝗼𝗲𝘀 𝘆𝗼𝘂𝗿 𝗽𝗼𝗹𝗶𝗰𝗲 𝗮𝗴𝗲𝗻𝗰𝘆 𝗯𝗿𝗶𝗲𝗳 𝘆𝗼𝘂 𝗼𝗻 𝗮𝗹𝗹 𝘁𝗵𝗲 𝗹𝗮𝘁𝗲𝘀𝘁 𝗰𝗮𝘀𝗲 𝗹𝗮𝘄 𝗱𝗲𝗰𝗶𝘀𝗶𝗼𝗻𝘀? 𝗠𝘆 𝗮𝗴𝗲𝗻𝗰𝘆 𝗱𝗶𝗱𝗻’𝘁 𝗲𝗶𝘁𝗵𝗲𝗿! 𝗔𝗿𝗲 𝘆𝗼𝘂 𝗿𝗲𝗮𝗱𝗶𝗻𝗴 𝗮𝗹𝗹 𝘁𝗵𝗲 𝗰𝗮𝘀𝗲𝘀 𝘁𝗵𝗮𝘁 𝗮𝗿𝗲 𝗱𝗲𝗰𝗶𝗱𝗲𝗱 𝗲𝗮𝗰𝗵 𝗺𝗼𝗻𝘁𝗵 𝗮𝗻𝗱 𝘁𝗿𝘆𝗶𝗻𝗴 𝘁𝗼 𝗽𝗶𝗰𝗸 𝗼𝘂𝘁 𝘁𝗵𝗲 𝗿𝘂𝗹𝗶𝗻𝗴𝘀 𝗮𝗻𝗱 𝘄𝗵𝗮𝘁 𝘁𝗵𝗲𝘆 𝗺𝗲𝗮𝗻 𝗳𝗼𝗿 𝗰𝗼𝗽𝘀 𝗶𝗻 𝘁𝗵𝗲 𝗳𝗶𝗲𝗹𝗱? 𝗜𝗳 𝗻𝗼𝘁, 𝗵𝗼𝘄 𝗲𝘅𝗮𝗰𝘁𝗹𝘆 𝗮𝗿𝗲 𝘆𝗼𝘂 𝘀𝘂𝗽𝗽𝗼𝘀𝗲𝗱 𝘁𝗼 𝗸𝗻𝗼𝘄 𝘄𝗵𝗮𝘁 𝘁𝗵𝗲 𝗽𝗿𝗲𝘃𝗶𝗼𝘂𝘀 𝗰𝗮𝘀𝗲𝘀 𝗿𝘂𝗹𝗲𝗱?