Over at Reason, they have a story about just how much of an issue this really is.
In 2014, [James] King was walking from one job to the next when [FBI agent Douglas] Brownback and [Grand Rapids detective Todd] Allen, who were not in uniform, accosted him without identifying themselves as law enforcement. “Are you mugging me?” King asked. He then ran. The two officers, who were part of a police task force, responded by tackling him to the ground, beating his face to a pulp, and choking him unconscious. But they were looking for someone named Aaron Davison, who had been accused of stealing alcohol from his former employer’s apartment, and who, perhaps more importantly, looked nothing like King.
Even still, police arrested King and handcuffed him to a hospital bed as he received treatment, despite the fact that the only malfeasance here was committed against, not by, King.
What followed in the proceeding years is a case study in the level of protection given to rogue government actors and the byzantine obstacle course that victims of government misconduct have to navigate should they want the privilege of achieving any sort of recourse. Indeed, King’s case has ricocheted up and down the ladder of the U.S. legal system, from the bottom to the top and back again.
The officers first received qualified immunity, the legal doctrine that blocks victims of government misbehavior from seeking recourse in civil court if the precise way the state violated their rights has not yet been “clearly established” in a prior court precedent. In practice, that means clearly unconstitutional conduct—like, say, beating an innocent person—may not be a sturdy enough basis for a lawsuit unless the court has evaluated a case with near-identical circumstances. It is, for example, why two men in Fresno, California, were not allowed to sue the officers who allegedly stole over $225,000 during the execution of a search warrant. We should all know stealing is wrong, the thinking goes, but without a court precedent scrutinizing a similar situation and expressly spelling that out, can we really expect the government to know for sure?