'Perverse': Minnesota killings traced all the way to Supreme Court by legal experts

A legal expert described Monday how the Supreme Court's previous rulings have led to why ICE agents have acted as they have acted "under the made-up banner of 'absolute immunity'" in the wake of the fatal shootings of Alex Pretti and Renee Good in Minneapolis.

Dahlia Lithwick, host of Slate's Amicus podcast, in a conversation with Alex Reinert, the Max Freund Professor of Litigation and Advocacy at Cardozo School of Law, discussed how the Supreme Court made Alex Pretti's killing at the hands of ICE agents in Minneapolis more likely.

The concept of "qualified immunity," which first originated and was first introduced by the high court in a Freedom Riders case in 1967, evolved into a further doctrine, and under the case Harlow v. Fitzgerald, "the Supreme Court said: We also think there should be an immunity doctrine that applies to federal officials," Reinert explained.

"What it means in practice is that any officer—whether state, local, or federal—who violates the Constitution won’t be held liable unless there is some prior case that makes it clear, from a court’s perspective, that the officer’s conduct was obviously a violation of the Constitution," Reinert said.

The use of qualified immunity doesn't always come into play — but it can — due to the Supreme Court precedent.

"So qualified immunity is only really used, or it really only has an impact, when an officer is violating the Constitution," Reinert added. "If officers don’t violate the Constitution, they don’t need the protection of qualified immunity. It’s only when officers violate the Constitution that they are able to obtain the protection of qualified immunity."

The doctrine of "qualified immunity" has led to more questions.

"It’s probably shocking to the ordinary person that in this country, a country purported to be governed by the rule of law, and where the Constitution is thought of as foundational, it turns out that violations of the Constitution by our highest-level officers and officials aren’t remediable because of this doctrine of qualified immunity," Reinert said.

The Bivens 1971 Supreme Court case considers the Fourth Amendment and what federal officers can do after violating rights under federal authority.

"This is the other part of what is a perverse design of our constitutional scheme. Bivens is special because it applies only to federal officials," Reinert explained. "When state and local officials violate our rights, there’s a statute that goes all the way back to Reconstruction enacted in 1871 that allows us to sue state and local officials for violations of our constitutional rights. Qualified immunity still applies, but at least there’s a right to sue."

Bivens is unlike any other cases and specifically focused on federal law enforcement, setting the stage for legal action today.

"There is no similar statute when federal officials violate the Constitution," Reinert said. "In 1971, in a case by the name of Bivens, the Supreme Court said: We think that we are going to find a right to sue in the Fourth Amendment, for Fourth Amendment violations when federal officials violate someone’s rights. Over the course of the next 10 years, the Supreme Court expanded that doctrine to include Eighth Amendment violations, and claims for sex discrimination. During the 1970s, lower courts were also rapidly expanding the Bivens doctrine."