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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.

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 "ignorance of the law is no excuse for breaking it"?

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, "everyone is equal under the law," is true?

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    "everyone is equal under the law" It is simply not true under a strict interpretation. Many immunity doctrines (the state or the sovereign themselves, diplomats, parliamentarians, judges, witnesses on stand) have developed under statutory and common law nationally and internationally.
    – xngtng
    Jan 9, 2023 at 13:37
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    Are you thinking of qualified immunity in the United States? That’s more complicated.
    – Davislor
    Jan 9, 2023 at 22:34
  • Yes that is what I mean.
    – Neil Meyer
    Jan 9, 2023 at 22:38
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    Could you take back at least the exposition, if not the original Question, and have it re-phrased in clear English? Broadly, police are much less allowed to be ignorant of the law than you or I, but the very wording "Are police allowed to be ignorant of the law?" diminishes the Question. In which jurisdiction is it written that people must prove police should have had a reasonable knowledge of the civil rights in question? Beyond that, what is your case? Jan 10, 2023 at 0:40
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    @RobbieGoodwin "In which jurisdiction is it written that people must prove police should have had a reasonable knowledge of the civil rights in question?" In the United States. This is a paraphrase of the US Supreme Court's opinion in Harlow v. Fitzgerald: "officials performing discretionary functions generally are shielded from liability for civil damages insofar as their conduct does not violate clearly established statutory or constitutional rights of which a reasonable person would have known."
    – phoog
    Jan 10, 2023 at 1:48

3 Answers 3

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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.

This isn't quite right.

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 "well-established" constitutional right.

A rule of law is "well-established" 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.

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.

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.

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.

The key point, however, is that this requirement that a constitutional right be well-established to be enforceable in a civil action is an "objective" 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.

A police officer who acts without actually knowing the law does so at his or her peril.

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    The use of quotation marks in the second paragraph implies that the phrase "well established" appears in 42 USC 1983. It does not. The interpretation that section 1983 applies only to "well-established" rights arose in judicial opinions. On its face, section 1983 applies to "any rights, privileges, or immunities secured by the Constitution and laws."
    – phoog
    Jan 10, 2023 at 1:56
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    It's also controversial because of courts' decisions as to what exactly counts as "factually similar", even in cases where prior case law does exist. I can't remember enough details to find a citation, sadly, but I vaguely recall a case some years ago where a cop loosed a dog at someone they know was unarmed and not resisting, in a ditch. Prior case law was cited where the same thing happened in a creek. The judge ruled it was different, and qualified immunity applied. (Even if I got the details wrong, hopefully it still illustrates the point.)
    – anon
    Jan 10, 2023 at 3:03
  • @phoog The use of quotes is intended to capture the term of art used in the case law. No implication that it was found in the statute was intended.
    – ohwilleke
    Jan 10, 2023 at 5:04
  • @Nic Indeed. Judicial ideology and the closely of factual fit required seems to be closely tied.
    – ohwilleke
    Jan 10, 2023 at 5:05
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    @DanSheppard The decision to rule on qualified immunity first is discretionary so a judge can decide the constitutional question first and then the qualified immunity question, or there can be precedents under existing established rights (and each new case has some factual distinctions from prior ones). But qualified immunity does impede establishing precedents.
    – ohwilleke
    Jan 11, 2023 at 20:10
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The adage "ignorance of the law is no excuse" is simply a reflection that the mens rea (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.

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.

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.

As for the discrepancy in degree of knowledge needed for crimes and the degree of established certainty for civil liability under a section 1983 claim (or Bivens claim), the distinction is because these are different questions: one is about mens rea, one is about certainty of the law. A more apt comparison would be between the qualified immunity standard and the void for vagueness doctrine (whereby no one is punishable if the statute does not define with sufficient clarity what is prohibited).1

The doctrine of qualified immunity shields a state official from civil liability unless either:

  1. the constitutional right that was violated has been clearly established (Pearson v. Callahan, 555 U.S. 223 (2009)), or
  2. the violation is so clear that any officer should have known (see e.g. Taylor v. Rojas, 592 U.S. ___ (2020)).

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 ohwilleke's answer).

There are strong critiques of the doctrine of qualified immunity,2 but the discrepancy with criminal mens rea is not one of them. These are just two wholly different questions.


1. This link is discussed by Donald L. Doernberg in "Betraying the Constitution" (2022). See also United States v. Lanier, 520 U.S. 259 (1997): "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."

2. See e.g. Justice Thomas's statement respecting the denial of a petition for writ of certiori in Hoggard v. Rhodes, 594 U.S. ___ (2020): "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."

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    "ignorance of the law is no excuse", but it often is a mitigating circumstance.
    – vsz
    Jan 9, 2023 at 23:55
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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.

Right, should have known.

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?

It's quite the opposite of what you say. The test is not whether they did know that what they were doing was against the law but whether they should 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 everything that you should have known.

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?

Because it is irrelevant whether they did or did not know the laws. All that matters is whether they should have or could have 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.

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.

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  • Is it a valid defense for an ordinary citizen, that at the time of their action (i.e., prior to them being prosecuted) the legality or otherwise was unsettled?
    – benjimin
    Jan 13, 2023 at 13:13
  • @benjimin I don't know of any jurisdiction where that's a defense in a civil suit. And if you think about it, that wouldn't make very much sense (except when the civil suit is quasi-criminal such as the State suing over a civil penalty statute). It is, at least in theory, a defense in a criminal lawsuit in some jurisdictions. The pattern, at least in the US, has been narrowing this down to only what's Constitutionally required to comport with due process, which in practice isn't very much. You see criminal cases where it's not clear how or if a law should apply all the time. Jan 13, 2023 at 22:42

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