Sunday, August 30, 2020

Qualified immunity applied unevenly nationwide

 A Reuters investigation of qualified immunity reveals a new aspect to the problem: Across the United States, judges apply the doctrine unevenly. A plaintiff’s chances of overcoming a cop’s immunity defense depend largely on where the lawsuit is filed.

That finding, lawyers told Reuters, adds to the evidence that the doctrine is unfair. “It’s essential to our system of government that access to justice should be the same in Dallas and Houston as in Phoenix and Las Vegas,” said Paul Hughes, a prominent civil rights attorney who frequently argues before the U.S. Supreme Court.

Reuters examined 529 federal appeals court decisions and another 435 federal district court rulings.

Among the takeaways:

  • On appeal, plaintiffs fared worst in the 5th U.S. Circuit Court of Appeals, which encompasses Louisiana, Mississippi and Texas. There, where judges habitually follow precedents that favor police, the appellate court granted 64% of police requests for immunity in excessive force cases from 2005 to 2019.
  • By contrast, the 9th Circuit — covering 11 Western states and territories, including California — has set a higher bar for police. Appellate judges there granted just 42% of police requests for immunity in excessive force cases over the same years.
  • The regional disparities also exist in federal district courts, where excessive force lawsuits are heard and which must follow precedents set by their respective appellate courts. In an analysis of 435 federal district court rulings in excessive force cases from 2014 to 2018 in California and Texas, America’s two most populous states, Reuters found that judges in Texas granted immunity to police at nearly twice the rate of California judges — 59% of cases, compared to 34%.
  • A plaintiff’s chances of success are far higher in California. A plaintiff in California who was armed in an encounter with police is more likely to overcome a qualified immunity defense than is an unarmed plaintiff in Texas.
  • A 50-year-old creation of the Supreme Court, qualified immunity is meant to protect government employees from frivolous litigation. But as Reuters reported in May, just two weeks before Floyd’s deadly police encounter, courts have been granting cops immunity at increasing rates — even when judges found the police behavior so egregious that it violated a plaintiff’s civil rights.
  • Police won 57% of cases in which they claimed immunity from 2017 through 2019, a Reuters review of appeals court cases showed. That’s up sharply from the three years ending in 2007, when they won 44% of the time. The increase is thanks largely to Supreme Court guidance that favored police.

Amid protests in the wake of George Floyd’s death, expectations ran high that the Supreme Court would move to restrict or end qualified immunity by taking up at least one of several petitions to hear cases backed by opponents of the doctrine. But in early June, it rejected those petitions.

Congress moved swiftly to draft police reform measures, but legislative proposals have stalled, including some that would have ended qualified immunity. President Donald Trump’s White House and some Republicans in Congress called eliminating qualified immunity for police a “non-starter” on the grounds that it would deter police officers from doing their jobs properly.

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