Plenty of people cheered when Florida officials charged Scot Peterson, the “Broward coward,” with felony neglect over his inaction in the Parkland school shooting. They may not be cheering for long, NBC legal analyst Danny Cevallos suggested on Today. “The real question,” Cevallos tells the Today panel about Peterson, “is ultimately: does his conduct even fit within the Florida statute?”

Cevallos makes an intriguing argument about qualified immunity, too:

Cevallos makes two arguments against charging Peterson — three, actually, counting the “incentive” argument that doesn’t get explained above. His first argument is probably his most compelling. Assuming he’s correct about the Supreme Court precedent on neglect and qualified immunity, it is tough to see how prosecutors get over that particular hurdle. Qualified immunity covers law enforcement and other government officials from lawsuits over the normal operation of their jobs, a legal construct that prevents the wheels of governance from grinding to a halt.

The FBI’s legal digest provides a good overview of qualified immunity, and also its limits [see update below]:

While Harlow did not involve a law enforcement officer’s actions, the decision is significant because law enforcement officers are government officials who perform discretionary functions and may be protected by qualified immunity. This shield of immunity is an objective test designed to protect all but “the plainly incompetent or those who knowingly violate the law.”10 Stated differently (but just as comforting to law enforcement officers), officers are not liable for damages “as long as their actions reasonably could have been thought consistent with the rights they are alleged to have violated.”11 As protective as the language in these post-Harlow cases would suggest qualified immunity is, qualified immunity is not appropriate if a law enforcement officer violates a clearly established constitutional right.

For example, in Groh v. Ramirez, a special agent for the Bureau of Alcohol, Tobacco, and Firearms (ATF) applied for and received from a U.S. magistrate judge a search warrant authorizing the search of a home located on a ranch.12 The purpose of the search was to locate and seize a “stockpile of firearms.”13 While the magistrate judge had reviewed a detailed itemization of the firearms in the application for the search warrant, the search warrant itself did not include any such itemization. Rather, the ATF agent inadvertently “typed a description of respondent’s two-story blue house rather than the alleged stockpile of firearms.”14

The homeowner sued the ATF agent for a violation of his Fourth Amendment right to be free from “unreasonable searches and seizures.”15 Of course, the Fourth Amendment also mandates that search warrants “particularly describ[e] the place to be searched, and the persons or things to be seized.”16 Despite this clear mandate, the ATF defendant to the civil lawsuit argued that he was entitled to qualified immunity because even if the improperly written search warrant constituted a Fourth Amendment violation, his failure to include a particular description did not violate a clearly established right at the time. The Court quickly dispatched the notion that the inadequate warrant was simply a “technical mistake or typographical error” that did not rise to the level of a constitutional violation.17 Finding the violation, the Court turned to whether the right was clearly established at the time the violation occurred.

The Supreme Court used decisive language to show that the homeowner’s rights had been clearly established before the violation in this particular case occurred. The Court pointed out that “the particularity requirement is set forth in the text of the Constitution.”18 The Court then referred to a previous decision by the Court in this area, stating, “as we noted nearly 20 years ago in Sheppard: ‘The uniformly applied rule is that a search conducted pursuant to a warrant that fails to conform to the particularity requirement of the Fourth Amendment is unconstitutional.’”19 Accordingly, the request for qualified immunity was rejected.

In other words, a police officer has to have reasonably known that he was violating the clearly established rights of others to lose qualified immunity. That may not translate well to Peterson’s actions, which were cowardly but not unconstitutional.

But what if Peterson was committing a felony? That is, after all, what Florida maintains in Peterson’s refusal to act — that he neglected 34 children to death or serious bodily harm. If that’s the case, then qualified immunity doesn’t apply. Cevallos notes that this statute doesn’t seem to fit, though, as it explicitly applies to “caregivers.” That usually means a parent, a teacher, or an administrator, Cevallos notes, and wonders whether a school resource officer fit that legal role. Prosecutors will no doubt argue that it does, and will likely argue that Peterson was part of an administration that acts in loco parentis — in place of parents with children under their care. If a court agrees, that would moot the Supreme Court precedent of neglect under qualified immunity, but then one has to ask whether prosecutors would charge others acting in loco parentis for not coming to the aid of those children, too.

Cevallos’ first argument is his weakest. Prosecuting Peterson won’t disincentivize law enforcement “away from their duties”; if anything, it will incentivize them to act rather than to wait, which may present other problems depending on the situation. Cevallos seems to be arguing that attacking qualified immunity will make it tougher to find police officers to do those jobs, but qualified immunity isn’t automatic anyway. Supreme Court decisions stretching back decades have made it clear that qualified immunity depends on the situation and the actions or inactions taken. It can be challenged and can be stripped away by courts, so this is not anything new.

Cevallos does raise troubling questions about prosecuting Peterson. Let’s hope prosecutors have good answers for them.

Update: Our friend Hans Bader writes to remind me that qualified immunity is not a defense against criminal prosecutions anyway. It applies to civil consequences, not criminal actions, which makes Cevallos’ argument even weaker.