Photo by Sora Shimazaki from Pexels
By Mark Mamerow
“That’s some catch, that Catch-22,’ Yossarian observed.
“It’s the best there is,” Doc Daneeka agreed.
—Catch-22, by Joseph Heller
Readers of Joseph Heller’s brilliant World War II black comedy Catch-22 see the war from the bemused and frustrated perspective of Captain Yossarian, a bombardier. Throughout the novel, Yossarian’s desire is straightforward. He needs the flight surgeon, Doc Daneeka, to disqualify him from flying. Yossarian know that if he isn’t removed from the flight roster soon, he’ll be killed on a combat mission. Colonel Cathcart, the flight squadron’s commanding officer, keeps increasing the number of missions that each airman must fly. Grounding via disqualification seems to be the only escape.
What would be the grounds for flight disqualification? The most obvious is insanity. An insane man cannot be allowed to fly. So, if Doc Daneeka declares Yossarian insane, he can no longer be allowed to fly.
But there’s a catch, of course. If Yossarian is insane, he must be grounded. All Yossarian needs to do is ask. But this is where Catch-22 kicks in. As Doc Daneeka explains, “Anyone who wants to get out of combat duty isn’t really crazy.” By asking to be grounded, Yossarian has proved his sanity. Therefore, he must continue to fly missions! There’s no escape.
We run up against Catch-22 in all manner of real-life situations. For example: You can’t get a good job without the proper experience. But you can’t get the experience—without having a job.
Try applying for a loan at the bank. Without a credit history, there’s no way you’ll get a loan. But unless you can take out a loan, you won’t have a credit history.
Or consider the case of the single mom on public assistance. She dare not leave her kids alone unsupervised. That’s the kind of poor parenting we see in the welfare underclass. But if she works, she still can’t afford child care, so she is forced to leave her kids alone so she can go to work.
In the US, there is an amazing logical paradox at work in the criminal justice system. Erected by the United States Supreme Court, it is a monumental obstacle to justice for victims of abusive police behavior and excessive force. It’s in the form of a diabolical Catch-22: the doctrine of “qualified immunity”.
The federal civil rights statute known as Section 1983, which dates back to the nineteenth century, clearly states that government representatives “shall be liable” to injured parties whose rights have been violated. But in 1967, the Court established qualified immunity as a defense against claims brought under Section 1983. The currently used test for this doctrine, established in 1982, holds that qualified immunity is available to the defendant, as long as the law violated by the government official is not “clearly established”.
In practice, this means that unless a police officer (or other government official) is sued for behavior that has been already been clearly established as a constitutional violation, that officer has qualified immunity, and cannot be sued.
This embeds a monstrous Catch-22 into the common law. If a cop’s illegal act has not been previously identified as unconstitutional, that cop cannot be sued. And since the cop cannot be sued, that illegal action can never be found unconstitutional by the Court! Under the doctrine of qualified immunity, there is no way for the universe of unconstitutional acts to be defined, much less expanded. This is a magnificent Catch-22, and it has been upheld multiple times by the Supreme Court. As Doc Daneeka, would describe it, this catch “is the best there is”.
Qualified immunity has led to many nonsensical rulings over the decades. One of the most egregious comes from Caldwell, Idaho. In 2014, renter Shaniz West, standing on the sidewalk outside her apartment, was asked by police for permission to enter her apartment. The cops were searching for Shaniz’s ex-boyfriend, a known meth user with a felony warrant for his arrest. Shaniz assented and handed over her keys to the police officer. Rather than using said keys however, the cops called in the SWAT team, which proceeded to lay siege to the apartment for 90 minutes, blasting in tear gas grenades via 12-gauge shotgun. The apartment was heavily damaged, with holes in doors, walls, and windows, and rendered uninhabitable by the gas. Shaniz’s possessions, including children’s toys, were covered in tear gas residue. As it turned out, the cops had been misinformed, and the apartment was unoccupied at the time of the siege. (Somehow, her dog survived!)
Shaniz West was minimally compensated by the city of Caldwell, so she filed a federal lawsuit, claiming unreasonable search, unreasonable seizure, and “conversion” (intentional interference with the personal property of another). The federal court, however, ruled against her claims, citing qualified immunity. The Forbes Magazine account of the case quotes an attorney from the Institute of Justice, who sums it up succinctly: “Qualified immunity means that government officials can get away with violating your rights as long as they violate them in a way nobody thought of before.”
Other qualified immunity cases shock the conscience. In each of these cases, because a similar precedent had not been clearly established, the authorities were held harmless by the courts:
- A corrections officer pepper-sprayed an inmate in the eyes, through cell bars, because another inmate had splashed him with water (Prince McCoy Sr. vs. Mr. Alamu, Fifth Circuit, 2020).
- Cops confiscated a bystander’s video of a violent arrest and detained the photographer (Levi Frazier vs. Denver Police Officers, Tenth Circuit, 2021).
- Cops stole thousands of dollars in cash and rare coins from a couple in an illegal gambling investigation (Micah Jessop, Brittan Ashjian vs. City of Fresno and police officers, Ninth Circuit, 2019).
- A cop shot at a non-threatening dog, but hit a child instead (Amy Corbitt vs Michael Vickers, 11th Circuit, 2019).
There’s little doubt that the doctrine of qualified immunity has undermined police accountability. That lack of accountability was plainly a contributor to the reckless and criminal behavior of George Floyd’s police officer murderer, Derek Chauvin. It’s fitting, then, that the George Floyd Justice in Policing Act, currently working its way through Congress, addresses qualified immunity. The Act explicitly eliminates qualified immunity for police officers, and would presumably overturn the Supreme Court doctrine.
The George Floyd Act is not a slam dunk for passage, of course. It passed on a party line vote in the House of Representatives, and pro-police Republicans are hesitant to support any legislation that might undermine the police. Their strategy has been to wrap the cops in the American flag, lumping the elimination of qualified immunity in with the unpopular “defund the police” movement.
It’s hard to eliminate a good catch. As Joseph Heller put it simply and elegantly, describing the situation of Yossarian’s bete noir, Clevinger: “The case against Clevinger was open and shut. The only thing missing was something to charge him with.”