Context matters in split second use of force decision by police

Marco Poggio of writing at 360.com:

The U.S. Supreme Court on Thursday cleared the way for a civil rights lawsuit against a Houston-area traffic officer who shot and killed a fleeing man, ruling that courts must weigh the full sequence of events — not just the instant a threat arises — when deciding if police used excessive force.

The decision broadens legal protections for civilians and could open new avenues for holding officers accountable for split-second decisions they make during encounters, especially when it was their own actions that put them in danger.

In a unanimous ruling, the Supreme Court concluded that a federal court erred in dismissing a civil suit against Roberto Felix Jr., who fatally shot 24-year-old Ashtian Barnes during a 2016 traffic stop in Houston. The court found the Fifth Circuit erred in upholding that decision.

The majority opinion by Justice Elena Kagan held that the Fourth Amendment requires courts to consider the "totality of circumstances," including whether an officer's actions prior to a shooting helped create the danger they later claim justified deadly force.

Writing for the majority, Justice Kagan said that "by limiting their view to the two seconds before the shooting, the lower courts could not take into account anything preceding that final moment."

The decision reinforces precedent the Supreme Court set in 1989 with the case Graham v. Connor, where the court first embraced the "totality of circumstances" approach. Eight circuit courts have been using such a test when probing excessive force claims, while the Second, Fourth, Fifth and Eighth circuits have only looked at the "moment of threat" arising in a police encounter.

"While the situation at the precise time of the shooting will often matter most, earlier facts and circumstances may bear on how a reasonable officer would have understood and responded to later ones," Justice Kagan wrote.

The ruling sends the case back to the lower courts where Barnes' estate will get a renewed chance to argue that Felix provoked the fatal confrontation.

Katie Wellington of Hogan Lovells — counsel of record for Barnes' mother, Janice Hughes Barnes — told Law360 in an email that she was "incredibly pleased" by the ruling.

"This was a hard-fought victory through three federal courts, and Janice Barnes will continue fighting for the constitutional rights of her son, Ashtian Barnes, when this case returns to the Fifth Circuit," she said.

Craig B. Futterman, a professor at the University of Chicago Law School and expert in civil rights law and police accountability, said in an email that "the court rightly recognized that context matters." The Fifth Circuit could still affirm the district court's dismissal of Barnes' suit as long as it uses the standard the Supreme Court endorsed on Thursday, Futterman said.

Attorneys for Felix did not respond to a request for comment.

The shooting occurred on April 28, 2016, after Felix, a traffic enforcement officer with the Harris County Precinct 5 Constable's Office, pulled Barnes over on a Houston highway, citing unpaid tolls linked to the rental car Barnes was driving. Barnes, who was unarmed, ignored instructions to get out of the car and instead began to slowly drive away.

Felix leapt onto the hood of the moving car and, seconds later, shot Barnes through the windshield. The officer later claimed he fired in self-defense, believing Barnes' erratic driving put his life at risk.

Janice Barnes sued Felix and Harris County in Texas state court under Section 1983 of the federal civil rights statute, alleging excessive force in violation of the Fourth Amendment. Felix invoked qualified immunity, a legal doctrine that shields officers from civil liability unless they violate clearly established constitutional rights.

The case was moved to federal court, where U.S. District Judge Alfred H. Bennett sided with Felix. The court found the shooting was reasonable under the Fifth Circuit's moment-of-threat doctrine, which limits judicial review to the seconds before force is used.

Still, Judge Bennett noted in his decision that the doctrine was too narrow and that by following it the Fifth Circuit "has effectively stifled a more robust examination of the Fourth Amendment's protections when it comes to encounters between the public and the police." The judge ultimately said he was bound to apply the rule.

On appeal, the Fifth Circuit upheld the district court's ruling, calling the moment-of-threat framework "well established" and refusing to consider whether Felix's decision to jump onto the moving car had contributed to the deadly outcome.

"We may only ask whether Officer Felix was in danger at the moment of the threat," the panel wrote. "Any of the officer's actions leading up to the shooting are not relevant."

In a separate concurrence, U.S. Circuit Judge Patrick Errol Higginbotham warned that the doctrine conflicted with Graham v. Connor, and called on the justices to resolve the circuit split.

Attorneys for Barnes' mother saw a path opening. They appealed to the Supreme Court in May, arguing the doctrine was "profoundly wrong" and that Felix had no legitimate reason to kill an unarmed man who posed no imminent threat.

During oral arguments on Jan. 22, several justices signaled unease with adopting a legal standard that narrowly looks at the exact moment a threat arises during a police encounter.

Charles L. McCloud of Williams & Connolly LLP, who argued on behalf of Felix, told the justices that once an officer is in danger, the use of deadly force is presumptively reasonable.

"That conclusion should end this case," he said.

Justice Kagan suggested sending the case back to the lower courts to assess the broader circumstances.

"It seems as though we should kick it back and let you guys fight it out," she told the attorneys.

Justice Brett Kavanaugh appeared less sympathetic toward Barnes' arguments.

"What's an officer supposed to do when at a traffic stop and someone pulls away, just let them go?" he asked.

Arguing for Barnes, Nathaniel Avi Gideon Zelinsky, then an attorney with Hogan Lovells who has since joined Milbank LLP, responded by saying that Felix could have opted to chase Ashtian Barnes in his car or request backup from other police units instead of shooting.

Ultimately, the justices rejected the moment-of-threat doctrine as "improperly narrowing" the Fourth Amendment analysis in excessive force claims.

Still, in Thursday's opinion, Justice Kagan made clear that the high court was not weighing in on whether dangerous situations officers themselves create during stops must be part of the analysis to determine whether use of deadly force is reasonable.

"The courts below never confronted that issue, and it was not the basis of the petition for certiorari," Justice Kagan wrote.

Janice Hughes Barnes and the Estate of Ashtian Barnes are represented by Katie Wellington of Hogan Lovells.

Roberto Felix Jr. and Harris County are represented by Charles Luther McCloud of Williams & Connolly LLP.

The case is Janice Hughes Barnes, Individually and as Representative of the Estate of Ashtian Barnes v. Roberto Felix Jr. et al., case number 23-1239, in the Supreme Court of the United States.

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SCOTUS to decide "unreasonable force" by a police officer

 23-1239 BARNES V. FELIX 

DECISION BELOW: 91 F.4th 393 CERT. 

GRANTED 10/4/2024 

ARGUED: January 22, 2025

FACTS: On April 28, 2016, Officer Roberto Felix Jr. fatally shot Ashtian Barnes during a traffic stop on the Harris County Tollway. After spotting Barnes’s Toyota Corolla, which had been flagged for toll violations, Felix initiated a stop and Barnes pulled over to the median. When Felix requested documentation, Barnes, who was driving a car rented in his girlfriend’s name, could not produce it and began “digging around” in the car. Claiming he smelled marijuana, Felix questioned Barnes, who then turned off the vehicle and suggested checking the trunk for documentation. Dash cam footage shows that after Barnes opened the trunk and exited the vehicle at Felix’s request, the car’s blinker came back on and the vehicle began to move. Felix, with his weapon drawn, stepped onto the moving car and pressed his gun against Barnes’s head. While holding onto the car frame with his head above the roof—leaving him unable to see inside the vehicle—Felix fired two shots. Barnes’s vehicle stopped, and he was pronounced dead at the scene at 2:57 p.m. Though both the Houston Police Department and Harris County Precinct 5 Constable's Office investigated the incident, a grand jury found no probable cause for an indictment.

The district court granted summary judgment to the defendants, focusing exclusively on the two seconds before the shooting when Barnes’s car began moving with Felix holding onto it. The court ruled that because Felix reasonably feared for his life in that moment, his use of deadly force was justified regardless of his previous actions, such as jumping onto the moving vehicle. The U.S. Court of Appeals for the Fifth Circuit affirmed. 

QUESTION PRESENTED: The Fourth Amendment prohibits a police officer from using "unreasonable" force. U.S. Const. amend. IV. In Graham v. Connor, this Court held that reasonableness depends on "the totality of the circumstances." 490 U.S. 386, 396 (1989) (quotation marks omitted). But four circuits-the Second, Fourth, Fifth, and Eighth-cabin Graham. 

Those circuits evaluate whether a Fourth Amendment violation occurred under the "moment of the threat doctrine," which evaluates the reasonableness of an officer's actions only in the narrow window when the officer's safety was threatened, and not based on events that precede the moment of the threat. In contrast, eight circuits-the First, Third, Sixth, Seventh, Ninth, Tenth, Eleventh, and D.C. Circuits-reject the moment of the threat doctrine and follow the totality of the circumstances approach, including evaluating the officer's actions leading up to the use of force. 

In the decision below, Judge Higginbotham concurred in his own majority opinion, explaining that the minority approach "lessens the Fourth Amendment's protection of the American public" and calling on this Court "to resolve the circuit divide over the application of a doctrine deployed daily across this country." Pet. App. 10a-16a (Higginbotham, J., concurring). 

The question presented-which has divided twelve circuits-is: Whether courts should apply the moment of the threat doctrine when evaluating an excessive force claim under the Fourth Amendment.

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SCOTUS rejects case testing the limits of qualified immunity

The U.S. Supreme Court recently rejected a petition from a family whose home was wrongly raided by a SWAT team, despite that law enforcement were found to have violated the victims' Fourth Amendment rights, reported Reason Magazine.

Justices Sonia Sotomayor and Ketanji Brown Jackson would have granted the petition, falling two votes short of the Court's threshold.

In March 2019, Lt. Mike Lewis led police to Karen Jimerson and James Parks' home in Lancaster*, Texas, ultimately ordering SWAT to "break and rake" the house, shattering all the front windows, the shards from which reportedly rained down on their sleeping children. They also set off a flash grenade and broke down the door, guns drawn. But the target structure, a suspected methamphetamine stash house, was located two doors down. Police would not realize until after holding the Jimerson-Parks family—including a half-naked Karen, who had just gotten out of the bath—at gunpoint.

The two houses were differentiable. Most notably, they had different house numbers. But the Jimerson-Parks family home departed from the target in other significant ways: It had a wheelchair ramp and a porch, for example, while the alleged stash house had a fence and no porch, information Lewis was provided prior to the execution of the warrant.

The U.S. District Court for the Northern District of Texas declined to give Lewis qualified immunity, which shields state and local government actors from civil suits if the alleged misconduct was not "clearly established" as unconstitutional in a prior court precedent. "The record in this case contains ample evidence," wrote Judge Sam A. Lindsay, "for a reasonable jury to conclude that [Lewis] acted objectively unreasonable prior to the execution of the search warrant."

But the U.S. Court of Appeals for the 5th Circuit reversed that ruling by a vote of 2–1, concluding that because Lewis had done more than "nothing" to prepare for the raid, he did not violate clearly established law. Under qualified immunity analysis, proving a constitutional violation isn't enough—Jimerson and Parks also had to prove that the relevant case law on the subject sufficiently put Lewis on notice that his conduct was illegal.

In dissent, Judge James L. Dennis said that it did. "Lewis did not even check the number of the house before instructing the SWAT team to execute the warrant on the Jimersons' home," he wrote, adding that "it is undisputed that Lewis violated the Jimersons' Fourth Amendment rights in executing a SWAT-style entry into their home without a warrant."

The Supreme Court previously ruled in Maryland v. Garrison (1987) that the Fourth Amendment requires officers to make "a reasonable effort to ascertain and identify the place intended to be searched." The U.S. Courts of Appeals for the 8th, 9th, and 11th Circuits have held that the ruling clearly established that law enforcement violate the law when they search a house without properly verifying that its conspicuous features match those of the target. The 5th Circuit, however, said that decision was too generalized to put police on notice. The Institute for Justice, the public interest law firm representing Jimerson and Parks, had urged the Supreme Court to take up the case to clarify that split. 

The high court is poised to hear a different case concerning a wrong-house raid, although the issue the justices consider will be different. In October 2017, the FBI detonated a flash grenade inside and ripped the door from the hinges of the house where Curtrina Martin lived with her then-fiancé, Toi Cliatt, and her young son, Gabe. Agents stormed into Martin and Cliatt's bedroom, holding him at gunpoint until they realized their error. The leader of that raid, Lawrence Guerra, was also granted immunity, which the Court will not reevaluate. Instead, the justices will decide if the U.S. Court of Appeals for the 11th Circuit erred when it declined to let Martin sue under the Federal Tort Claims Act—the law that was revised in the 1970s to include a law enforcement proviso for situations almost identical to Martin's.

Still up for debate, however, is whether or not a reasonable law enforcement officer knows he must check the features and address of his target house before raiding it, should he want to stay within the bounds of the Constitution.

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Federal Judge fights back against expansion of qualified immunity

 A Section 1983 claim is a federal law that allows people to sue state and local officials for violating their federal constitutional rights, reported The New Republic. Congress enacted it as part of the Ku Klux Klan Act of 1871, which is also known as the Enforcement Act, to protect the civil rights of Black Southerners during Reconstruction. Section 1983 cases underwent a revival of sorts in the 1950s and 1960s, only to find themselves curtailed again by the court in Pierson.

Qualified Immunity has made 1983 actions less accessible. Its origins can be traced back to the 1967 case Pierson v. Ray, where the Supreme Court established it in ruling against a group of priests who sued Jackson police officers who had arrested them on spurious grounds at a civil rights protest.

Federal District Judge Carlton Reeves Reeves is fighting the trend of Qualified Immunity. He wrote that it was “difficult to see qualified immunity’s creation as anything other than a backlash to the civil rights movement,” given the historical context. “The justices took a law meant to protect freed people exercising their federal rights in Southern states after the Civil War, then flipped its meaning,” he noted. “In creating qualified immunity, the high court protected the Southern officials still violating those federal rights 100 years after the war ended. Southern trees bear strange fruit, indeed.”

The Supreme Court’s current articulation of qualified immunity hinges on whether a police officer violated a “clearly established right.” This is more bizarre in practice than it sounds in theory. What counts as “clearly established”? In many cases, it means that a federal appeals court previously ruled that the officer’s specific acts violated some part of the Constitution. But lower courts often take an extremely narrow view of whether an act was “clearly established,” and appellate courts aren’t obligated to “clearly establish” it for future cases, either.

Reeves noted that this requirement is “unusual in the law” and that no other claims require it. “If a surgeon accidentally leaves a sponge in your abdomen before stitching you up, you do not have to point to an existing appellate decision ‘clearly establishing’ his error before proceeding with your claim,” he observed. “You simply state the facts and explain that the surgeon’s conduct fell below the standard of care.”

To highlight its absurdity, he pointed to a number of surprising instances in other courts where misconduct wasn’t “clearly established.” The Ninth Circuit once ruled, for example, that officers who stole a $225,000 rare coin collection “did not have clear notice that it violated the Fourth Amendment,” essentially ruling that committing the crime of theft did not violate the victim’s rights. The Fifth Circuit held that it was OK to keep a prisoner “in a frigid cell” where he was “covered in other persons’ feces and forced to sleep naked in sewage” for six days because the “clearly established” precedent only barred it for “months.” In another case, a court held that it was not “clearly established” that prison guards who watched a mentally unstable inmate hang himself should have called for paramedics.

I could list more examples, and so could Reeves, but you probably get the point by now. “[Qualified immunity] discourages victims of misconduct from bringing lawsuits, and those who do file suit sometimes recover nothing because of it,” he wrote. “Qualified immunity accomplishes this by preventing victims of government misconduct from using the discovery tools available to other litigants.” He also noted the obvious effects it had on racial inequality, since Black defendants are statistically more likely to face interactions with law enforcement than other Americans.

Reeves, as a federal district court judge, is not free to simply ignore Supreme Court precedent. But he denied qualified immunity to Thomas all the same. He sided with Green on every portion of his claim, rejecting even some plausible defenses that Thomas had raised. When courts consider a defendant’s motion to dismiss, they typically assume that the plaintiff’s allegations are true and interpret any factual disputes in the plaintiff’s favor. The reasoning for this is simple: If a case can’t survive under even the friendliest circumstances, then it shouldn’t.

Reeves leaned heavily on this principle to allow the malicious prosecution and false arrest claims to go forward. He also used to it defeat Thomas’s insistence that the grand jury’s involvement made her less liable for what happened. Reeves noted that, as alleged by Green, the officer had not told the grand jury that the jailhouse informant had serious credibility issues or that they had contradictory evidence about Robinson’s death. “Had she provided the grand jury with full and complete information, Green alleges, he would not have been indicted,” the judge concluded.

Reeves also took aim at some occasional defenses made of the Supreme Court’s current approach to qualified immunity. He rejected an assertion made by the court in 2018 that it was Congress’s responsibility to address the issue, noting that qualified immunity was a creature of the federal courts’ own making. “Qualified immunity does not appear in the text of the Ku Klux Klan Act,” he observed, quoting from precedent. “It is not found in any constitutional provision or other statute. Nor does it ‘help give life and substance’ to the ‘specific guarantees in the Bill of Rights.’ The defense has the opposite effect. It nullifies the guarantees of the Bill of Rights.”

At one point, he also criticized the Supreme Court for its inaction on qualified immunity by pointing to how it abolished a constitutional right to obtain an abortion in Dobbs v. Jackson Women’s Health Organization. As its name suggests, that case also involved Jackson, Mississippi. Reeves had been the trial judge in the case and ruled in favor of the clinic challenging the state’s restrictions.

On appeal, the Supreme Court ruled in favor of the state instead and overturned Roe v. Wade along the way. Reeves noted that qualified immunity opponents and anti-abortion opponents had made similar arguments: The latter had alleged that previous generations of justices had created an atextual rule though “raw judicial power” and had “short-circuited the democratic process” along the way. “The arguments against qualified immunity are stronger than the arguments [Mississippi] presented in Dobbs,” he concluded.

While this type of direct criticism is somewhat unusual for a federal judge, it is pretty standard for Reeves. Over the last few years, he has pointedly criticized the court on other issues, notably in Second Amendment cases. In a 2022 case, he applied the court’s new history-and-tradition text while adding that neither he nor the justices are “trained historians.” Last summer, at a later stage of the case’s proceedings, he aired his concerns about originalism and its role as “the dominant mode of constitutional interpretation” nowadays. “This court is not so sure it should be,” Reeves wrote, referring to himself.

Thomas will undoubtedly appeal the ruling to the Eleventh Circuit, which may take a different view of things. Even if the appeals courts overturn Reeves’s ruling, however, they can’t stop him from pointing out qualified immunity’s deep and inextricable flaws. Nor can they reverse the growing chorus of calls for the Supreme Court to rethink the matter. As Reeves pointedly observed, it is a problem that only they can truly solve.

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Qualified Immunity shields government officials from accountability

Christian Lansinger writes in The Bulwark: 

In the post-George Floyd era, police departments have faced intense public scrutiny, leading to slogans like “defund the police” and “ACAB.” Conservatives recoiled and in turn engineered their own “back the blue” sloganeering. But lost in the shuffle is qualified immunity—a judge-made doctrine that shields all government officials from accountability when they violate one’s constitutional rights. AFPI and others have adopted qualified immunity as their poster child in defending the police and ensuring public safety.

But AFPI’s report leaves out a crucial detail: Qualified immunity does not actually keep Americans safe. Invented by the Supreme Court in 1982 through what conservatives would normally call “judicial activism,” qualified immunity is found nowhere in the Constitution or in federal statutes—judges just made it up. Nonetheless, this powerful doctrine protects government officials when they engage in unreasonable or even malicious acts that violate the Constitution (unless the victim can show their constitutional rights were “clearly established” by an earlier decision involving materially identical facts—a nearly insurmountable legal hurdle). This misconduct can come from anyone in government: a mayor and city attorney who jail a 72-year-old retiree for criticizing the city manager, a child protective services agent who launches a junk investigation against parents after they accuse the county’s employee of sexually abusing their child, or a county road engineer who plays traffic cop and detains a driver for hours. And this misconduct can relate to any constitutional right: the First Amendment right to free speech, the Second Amendment right to bear arms, or the Fourth Amendment right against unreasonable search and seizure.

Good police officers already have other protections under the Constitution—specifically, the Fourth Amendment, which already protects officers who make reasonable mistakes, including in high-stakes situations like arrests or uses of force. As the Supreme Court has recognized, an officer’s mistakes are more likely reasonable when they face “split second decisions—in circumstances that are tense, uncertain, and rapidly evolving.” That is, while the Constitution immunizes good-apple officers from liability, qualified immunity protects the bad apples—the government officials who commit egregious wrongs against American citizens and violate their oaths to uphold and defend the Constitution.

In short, protecting qualified immunity is not necessary to “back the blue,” and AFPI’s own approach reflects this. Earlier this year, AFPI released another report, also written by Erickson, with recommendations for supporting police recruiting and retention. Codifying qualified immunity into federal law was not one of them. Instead, AFPI suggested political and community leaders “reaffirm their commitment to the law enforcement community,” provide “officers with realistic expectations about the job,” and “creat[e] meaningful pathways to career development.” These solutions would help communities retain a proactive police force without needlessly providing an escape hatch to dishonorable government bureaucrats.

Strong, accountable police forces keep Americans safe. But an unchecked, unaccountable government does not. Rather than codify qualified immunity into law, state legislators should pass the “Protecting Everyone’s Constitutional Rights Act”—model legislation from the Institute for Justice (where I work), which Erickson himself cites at the end of his new report. This bill would provide a cause of action against governments—not individual officials—for victims of government abuse. It would allow victims to hold their government accountable for disregarding the Constitution without holding individual officials personally liable. This legislation puts Americans—not government workers—first.

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Ending Qualified Immunity Act reintroduced in Congress

Excerpts from Christina Carrega piece in Capital B: 

In civil court, qualified immunity has blocked families and survivors from holding a police officer, who may have skirted criminal charges, financially accountable. Billions of taxpayer dollars have been spent during a 10-year period to settle civil lawsuits stemming from police violence, The Washington Post reported.

The fight for justice can come in three different forms for families and survivors of police brutality: through criminal court, civil litigation, and demands for systemic overhaul. Some may want all three. Others may feel shortchanged by a monetary payout. And it’s very rare for all three to happen.

In reality, most families and survivors of police brutality cannot afford an attorney’s retainer fee and aren’t on the radar of high-profile civil rights attorneys who can waive their costs. Then there’s a larger bulk of victims of injustice who are left with the pain of losing a loved one, or who live with the trauma of surviving police brutality without any criminal justice or financial recourse.

U.S. Rep. Ayanna Pressley of Massachusetts announced the reintroduction of the Ending Qualified Immunity Act. The same week, after an Ohio grand jury declined to indict any of the eight Akron police officers who killed Jayland Walker last year, ABC News 5 Cleveland reported that the family will likely file a civil lawsuit near the anniversary of his death in June.

The proposed bill to end qualified immunity aims to eliminate the legal doctrine that was created 55 years ago this month by the U.S. Supreme Court. The bill was first introduced by former U.S. Rep. Justin Amash of Michigan following the murder of George Floyd. The legal protection is offered to law enforcement on all levels and professions, such as government officials and school administrators, that relieves them of financial responsibility if they are named as a defendant in a lawsuit.

At a press conference last week to reintroduce the bill, Pressley was joined by one of its co-sponsors — U.S. Sen. Edward Markey of Massachusetts — and by Lewis and other mothers whose children have been killed by police.

The first bill received bipartisan support from 65 House Democrats, including Pressley, and one Republican co-sponsor. Once Amash, a former Republican, left office, Pressley picked up the bill and reintroduced it in 2021, but it didn’t receive the same momentum. It was co-sponsored by 41 House Democrats and no Republicans. The latest effort launched with 39 House co-sponsors and three from the Senate, as well as endorsements from dozens of organizations, including Black Lives Matter Grassroots and the Boston Herald.

Eliminating qualified immunity is also a provision under the George Floyd Justice in Policing Act that has lingered in Congress since 2021. Getting rid of the legal doctrine has given many Republicans pause to get behind the sweeping police reform package, and a standalone bill is expected to get a similar reception. 

“I truly do look forward to the day where people do not have to weaponize or relive their trauma in order to compel action from their government,” Pressley said during the press conference on Capitol Hill. 

“Stories of harm and abuse by law enforcement are not one-offs, or rare incidents. For the Black community, in particular, these stories are not new,” she said. 

“We want to be very clear that the Ending Qualified Immunity Act is meaningful, and it’s common sense. But it’s not radical. It’s a common sense thing that if you kill someone, if you commit harm, you should be held accountable,” said Melina Abdullah, the co-founder of Black Lives Matter Grassroots.

“We cannot and we must not wait in vain for the Supreme Court to fix its own mistake,” Markey said. “There will be no true justice until there is racial justice, and there will be no racial justice until we can end qualified immunity once and for all in the United States of America.” 

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Federal judge attacks qualified immunity as 'ill-founded, court-made doctrine'

Guido Calabresi, a senior judge on the U.S. Second Circuit Court of Appeals and former dean of Yale Law School, argues that Congress and the Supreme Court should end qualified immunity, reports Nick Sibilla for Forbes. 

Calabresi called qualified immunity an “ill-founded, court-made doctrine,” according to The Crime Report.

Qualified immunity shields officers and the government from civil suits unless someone’s clearly established rights were infringed, which is difficult to prove.

The judge mentioned a comprehensive survey by UCLA Law Professor Joanna Schwartz. The survey found that in over 99 percent of civil rights cases, officers paid nothing in damages.

Meanwhile, opinion writers Anya Bidwell and Patrick Jaicomo for USA Today questioned if non officers should receive the same immunity.

In the case of Central Specialties Inc. v. Large, an engineer was granted immunity by a Minnesota court. The engineer had used a government vehicle to stop two trucks belonging to a separate company.

The Supreme Court will have a chance to examine Central Specialties Inc. v. Large and determine whether to grant immunity.

The Supreme Court will have an opportunity to review Central Specialties Inc. v. Large and decide whether that’s a fair deal.

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Capital-Star: We may never see police accountability in the Texas school shooting. This is why | Opinion

Matthew T. Mangino
Pennsylvania Capital-Star
June 8, 2022

The first 911 call from Robb Elementary School in Uvalde, Texas came at 12:03 pm. on May 24. Seventy-eight minutes later, a U.S. Border Patrol tactical team killed the 18-year-old gunman, who had by that time, killed 19 children and two adults.

According to The New York Times, a teacher, Eva Mireles, spoke to her husband, an Uvalde School police officer, while she was barricaded with her students in a classroom. Mireles was killed sometime after that call.

As America collectively shook its head, the obvious question was — why would law enforcement wait 78 minutes to enter the building? The next question — as Americans reach for the proverbial torch and pitchfork—can the police be held accountable criminally, or civilly, for their inaction.

As the police department, police chief and school district continue to revise, amend and disavow their original versions of what happened outside of Robb Elementary School on that fateful day, we may never truly know why the police did not immediately enter the building. We know that Uvalde School District’s policy with regard to active shooters, and the state of Texas policy, were very similar. Their training had units entitled “stop the dying” and “stop the killing”—neither of which happened for 78 minutes.

That brings us to the second question, accountability. The school police in Uvalde will not face criminal or civil liability for failing to confront the shooter who killed 19 students and two teachers. Most people would be surprised to know that the government is not required to protect its citizens — the U.S. Supreme Court has said as much.

The lack of accountability is not unique to Texas. The result would probably no different in Pennsylvania and probably every other state in the union.

Criminal Charges

Experts who spoke to The New York Times said a negligent homicide charge would revolve around whether the officers had a duty to act in that moment and whether the failure to do so amounted to deliberate indifference. The Texas penal code says criminal negligence results when a person “ought to be aware of a substantial and unjustifiable risk that the circumstances exist or the result will occur.”

Uvalde school district’s police force had recently gone through active shooter training. The Texas Commission on Law Enforcement training “Active Shooter Responses for School Base Law Enforcement” warns participants that “first responders to the active shooter scene will usually be required to place themselves in harm’s way and display uncommon acts of courage to save the innocent.”

Initially, some law enforcement officers attempted to confront the shooter but were wounded. At that point the chief of police ordered down the officers on scene.  Apparently, the police command decided to pursue a different tactic. More than an hour passed before a second, and successful, confrontation with the shooter occurred.

Civil Liability

Qualified immunity provides enormous protection from civil liability for police officers when acting in the line of duty. Qualified immunity grants law enforcement officers performing “discretionary functions” immunity from civil liability unless the claimant can prove that the officer violated “clearly established statutory or constitution rights of which a reasonable person would have known”.

The U.S. Supreme Court has said that “Qualified immunity balances two important interests — the need to hold public officials accountable when they exercise power irresponsibly and the need to shield officials from harassment, distraction, and liability when they perform their duties reasonably.”

The discretionary function in the Uvalde shooting was, “Is this an active shooter or a barricaded assailant?”

The U.S. Supreme Court has held that the government has no duty to act to save innocent lives. In 1989, the Supreme Court reviewed a case brought against a Wisconsin child welfare agency by the family of a child beaten so severely he would remain institutionalized for the rest of his life.

The suit was brought under Section 1983 of the Civil Rights Act—the federal statute that allows a claimant to sue state and local officials in federal court for violating federal constitutional rights—alleging the child welfare agency failed to intervene to protect the child.

The lawsuit alleged that the failure to act deprived the child of his liberty in violation of the 14th Amendment’s due process clause. The Supreme Court disagreed.

“Nothing in the language of the due process clause itself requires the state to protect the life, liberty and property of its citizens against invasion by private actors,” the high court found.

Sixteen years later, the U.S. Supreme Court agreed to hear the appeal of Jessica Gonzales against the Castle Rock, Colorado Police Department. Gonzales had a restraining order against her ex-husband.  He kidnaped their children and Gonzales pleaded with the Castle Rock Police to enforce the restraining order.

The officers made no effort to locate or arrest Gonzales’ ex-husband.  He later showed up at the police station and engaged in a gun fight with police resulting in his death.  Tragically, the police found the three children murdered and thrown in the trunk of the ex-husband’s car.

Gonzales also sued the police department under Section 1983. She argued that the Colorado legislature had made enforcement of the restraining orders mandatory and that, as a result, the police had violated the Due Process Clause by not carrying it out.

Again, the Supreme Court disagreed. Justice Antonin Scalia wrote “were a mandate for enforcement to exist, it would not create an individual right to enforcement.”

The Uvalde School District itself will be insulated from liability through the doctrine of sovereign immunity. Other than the scrutiny of a U.S. Justice Department investigation and an investigation by the Texas legislature, there does not appear to be any clear path to accountability in Uvalde, Texas.

Opinion contributor Matthew T. Mangino is of counsel with Luxenberg, Garbett, Kelly and George. P.C. and the former district attorney of Lawrence County, Pa. His work appears frequently on the Capital-Star’s Commentary Page. He is the author of The Executioner’s Toll, 2010.  Readers may follow him on twitter @MatthewTMangino or email him at mmangino@lgkg.com.

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New Mexico looks at limiting qualified immunity

Laurie Roberts writes in the USA Today: 

As America nears the grim milestone of its 3,000th exoneration, the causes of wrongful convictions are well understood. Sometimes a survivor misidentifies their attacker, or an incarcerated person provides false testimony in exchange for leniency. But too often, egregious police misconduct sends innocent people to prison for crimes they didn’t commit. 

From witness tampering and malfeasance in interrogations to fabricating evidence and committing perjury at trial, police misconduct contributed to 35% of known exonerations nationwide. This misconduct stole thousands of years of freedom and a lifetime of priceless memories from its victims. Yet the perpetrators of these injustices rarely face accountability because of the court-created defense of "qualified immunity."

This doctrine lets public officials escape civil liability after engaging in misconduct, unless a previous court decision has ruled that nearly identical conduct violates the Constitution – even when their actions put innocent people behind bars. In practice, this means officers can violate people’s rights with impunity, as long as they do so in sufficiently unique ways. 

That’s why the Innocence Project has redoubled its efforts in state legislatures. Last year, we worked with dozens of organizations and grassroots activists from across the political spectrum to pass the New Mexico Civil Rights Act (NMCRA), which eliminates qualified immunity as a legal defense and allows New Mexicans whose constitutional rights have been violated to sue in state court.

The NMCRA’s impact is bigger than the individual lawsuits it will facilitate. To avoid large civil settlements, the law incentivizes cities and counties to enact training and policies that will prevent misconduct before it happens. And ending qualified immunity won’t impact municipalities where officers are conducting themselves professionally. Litigation will instead reveal civil rights violations going unaddressed. The fiscal impact of the legislation is a feature, not a bug, and it finally puts a price tag on injustice. 

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SCOTUS continues to support qualified immunity

In two unsigned decisions without noted dissents, the U.S. Supreme Court ruled in favor of police officers accused of using excessive force, reported The New York Times. The rulings were a signal that the court continues to support the doctrine of qualified immunity, which can shield police misconduct from lawsuits seeking damages.

The doctrine has been the subject of criticism across the ideological spectrum, and it became a flash point in the nationwide protests last year over police brutality, with activists and lawmakers calling for its reconsideration.

The doctrine requires plaintiffs to overcome a daunting hurdle. They must not only show that the official accused of misconduct violated a constitutional right, but also that the right had been “clearly established” in a previous ruling. The Supreme Court has generally required a tight factual fit between an earlier ruling and challenged conduct.

Critics of the doctrine were heartened by two rulings this year that called on appeals courts to reconsider rulings in favor of corrections officers accused of mistreating prisoners. One prisoner was held in what the court called “shockingly unsanitary cells,” and the other was sprayed in the face with a chemical “for no reason at all.”

Some cases are so egregious, the court suggested, that no precedent directly on point was necessary to allow a plaintiff to sue.

The decisions on Monday, which concerned police officers rather than prison guards, took a different approach. One arose from a 911 call reporting that a woman and her two children were barricaded in a room in Union City, Calif., fearing that Ramon Cortesluna, the woman’s boyfriend, would break in and hurt them.

Five officers responded, ordering Mr. Cortesluna to come outside, raise his hands and get on his knees. He complied at first but later dropped his hands, and the officers noticed a knife in his back pocket. An officer shot him in the stomach and left hip with nonlethal beanbag rounds.

The U.S. Court of Appeals for the Ninth Circuit, in San Francisco, ruled that those shots “were objectively reasonable in the circumstances.”

The appeals court took a different view of what followed. After Mr. Cortesluna was shot, he was ordered to get down. He did, lying prone on his stomach.

Officer Daniel Rivas-Villegas then straddled Mr. Cortesluna, putting his left knee on the left side of Mr. Cortesluna’s back for what the Supreme Court opinion said was “no more than eight seconds.” Another officer removed the knife and handcuffed him.

The Ninth Circuit allowed Mr. Cortesluna’s excessive force lawsuit against Mr. Rivas-Villegas to proceed, saying the officer had been on notice that putting his knee on a prone man’s back with enough force to injure him was unlawful.

The Supreme Court disagreed. “Neither Cortesluna nor the court of appeals identified any Supreme Court case that addresses facts like the ones at issue here,” the court said its unsigned opinion in the case, Rivas-Villegas v. Cortesluna, No. 20-1539. A previous decision by the Ninth Circuit, the justices added, did not address sufficiently similar facts.

That decision concerned a man who was injured after the police responded to a noise complaint. In that case, the Supreme Court opinion said, “the officer deliberately dug his knee into his back when he had no weapon and had made no threat when approached by police.”

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Police violate man's constitutional rights granted qualified immunity

Police violated the constitutional rights of an Alabama man when they repeatedly shot at his car, first as he inched forward in it nonthreateningly and then as he drove away, hitting him either five or six times and requiring that he receive emergency surgery, a federal court ruled last week, reported Reason.

The same panel found that the officers are entitled to qualified immunity and thus cannot be sued in connection with the incident. The legal doctrine allows state actors to violate your rights without fear of civil liability if the exact manner in which they misbehaved has not been declared unconstitutional in a preexisting court precedent. (A practical example: Two cops in Fresno, California, allegedly pocketed $225,000 while executing a search warrant, but the victims were not permitted to sue because no ruling on the books said that stealing under those precise circumstances is a violation of someone's rights.)

On June 14, 2014, Bessemer Police Department (BPD) Officers Daniel Partridge and Christopher Asarisi responded to a complaint from a woman who reported what she thought was a domestic violence dispute somewhere nearby and that she thought she heard two gunshots. When the cops arrived, they found Marcus Underwood and Ray James, who appeared to be arguing.

The men immediately dispersed; Underwood, who got in his car, responded that they were just "clowning." Both officers say they told him to stop, but Underwood inched forward with "the foot off the brake," according to Asarisi. The officers allegedly then began shooting at his vehicle, prompting Underwood to accelerate and collide with Partridge, who was not injured. They fired a total of 20 shots and continued to shoot from behind as Underwood drove away. He ultimately crashed the vehicle into a house and needed immediate medical attention.

Analyzing the case, the U.S. Court of Appeals for the 11th Circuit found that the officers violated Underwood's Fourth Amendment rights. "While Underwood was not obeying orders to stop and was evading talking to the police, Underwood was not driving aggressively or in a threatening way," wrote Circuit Judge Charles R. Wilson. "The car was still eight feet away, [Partridge] did not warn Underwood that he would use deadly force, and there was no critical need to prevent a known dangerous person from escaping and harming others."

The most important bit: "We conclude that under the totality of the circumstances a reasonable jury could find that the Officers' use of deadly force was unreasonable and therefore unconstitutional."

But Underwood won't get that chance. It's not because he doesn't have a plausible case; the court acknowledges the reverse. Rather, he will not have the right to ask a jury of his peers to consider it because neither the 11th Circuit nor the Supreme Court has litigated a case with almost identical facts.

"The Officers are entitled to qualified immunity because Underwood has not demonstrated that his rights were clearly established," wrote Wilson. "As an initial matter, Underwood does not point to a factually similar case, nor does he contend that a broader principle applies here. And probably for good reason, as this case is not directly analogous to other binding qualified immunity cases involving vehicles and the use of deadly force."

It's a prime example of the outsourcing of such matters to a few bigwigs on the federal judiciary as opposed to what the Constitution prescribes: jury trials. Legislated into existence by the Supreme Court, qualified immunity protects government agents from facing accountability even when the courts admit they violated the Constitution—a privilege not bestowed to anyone without government status. It has protected a cop who allegedly beat a subdued man in a brutal fashion, a cop who destroyed a man's vehicle during an illegal search for which he lied to get consent, and more than two dozen cops who blew up an innocent 78-year-old man's home during a SWAT raid that targeted the wrong house. It has shielded cops who have shot children, cops who assaulted and filed bogus charges against a man for standing outside his own home, and corrupt college administrators who flouted a student's First Amendment rights on campus.

Underwood's version of events was corroborated by testimony from Elizabeth Harrington, the woman who called 911 and watched from her porch as it unfolded. Meanwhile, the officers contend that Partridge only began shooting after Underwood accelerated. But the court highlights a problem: Partridge's testimony contradicts itself at certain turns and also fails to line up with Asarisi's statement.

"The district court should have recognized the inconsistencies within Officer Partridge's own testimony and between the Officers' testimony," said Wilson. "Of course, a jury could instead credit some of the Officers' testimony and come to the same conclusion as the district court—that the Officers' actions were reasonable. But these sorts of issues should not be decided [by the judiciary]." They should be up to a jury.

Underwood won't go before one. But could he file a suit against the city? He has to contend with Monell, a legal doctrine that shields municipalities from civil suits unless they had a concrete policy that directly led to the alleged misbehavior. In some ways, it's a standard even more rigorous than qualified immunity.

He lost there too. "Underwood does not provide evidence of either a pattern or knowledge of improper training," noted Wilson. "He only claims that both Officers were in 'cowboy mode' on the night of the incident." Whether or not a jury would have agreed such behavior merited a settlement for Underwood's injuries will remain a mystery.

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MCN/USATODAY NETWORK: ‘Goodbye and good luck’

Matthew T. Mangino
MCN/USATODAY NETWORK
May 24, 2021

Eight years ago I wrote my first column for what was GateHouse Media. Over those years, GateHouse expanded to include More Content Now and many more local newspapers. I have had the pleasure of writing 406 columns.

This is the end of the line - More Content Now ends its run this weekend. In this final column, I’d like to share with you what I’ve learned observing the criminal justice system over the years.

First, the criminal justice system is nuanced and complicated. It is also overused - from our schools to our homes and criminal statutes that don’t even require intent to get a conviction - people today are at the greatest risk in the history of this country to encounter the criminal justice system.

Unfortunately, there is little consistency in policy and lawmaking from jurisdiction to jurisdiction. Unlike the medical profession where diagnostic and treatment procedures are very similar nationwide, no such national consensus exists in the criminal justice system.

This hodge-podge of lawmaking may be best exemplified by the death penalty. More than 23 states have abandoned the death penalty. Ten states never adopted state-sponsored death after 1976 in what has become known as the modern era of the death penalty. Since then, 13 more states have outlawed the death penalty and three states have in place moratoriums on executions.

Yet, the federal government which has the death penalty on the books, and hadn’t carried out and execution in 17 years prior to July 2020, executed 10 people right up to end of President Donald Trump’s term.

There are roughly 2,553 men and women on death row. In the last five years 91 people have been executed. The death penalty has become arbitrary in the way executions are carried out.

The militarization of the police has exploded into a serious problem in the United States. During the process of creating quasi-military police units, law enforcement officers have evolved from peacekeepers to warriors.

The mentality of “us vs. them” has created police officers who believe the end justifies the means. Claims of excessive force continue to rise; racial profiling is a statistical reality and police officers kill on average 1,000 civilians per year.

The murder of George Floyd by a Minneapolis police office ignited the nation, and world for that matter, in a movement to hold bad cops accountable. There are efforts underway in countless states to reform things like limited immunity, monetary bail and mandatory minimum sentences.

Qualified immunity provides the often ridiculous barriers that litigants must get through to bring a civil rights action against a police officer. Monetary bail is a growing problem. Many men and women sit in jail awaiting trial simply because they cannot afford bond. This scenario often puts defendants in the unenviable position of taking a plea or continuing to sit in jail. Finally, mandatory minimum sentences, relics from the “tough on crime” era, don’t reduce recidivism and precludes judges from imposing mitigating sentences based on individual facts and circumstances.

We all need to be vigilant in the fight to abandon the policies of a generation of “lock’em up” politicos whose agenda has had a horrific impact on juveniles - often, underprivileged juveniles of color.

The “lock’em up” crusade of the 1990s has been slowly unraveling. Dating back to 2005, the U.S. Supreme Court decided Roper v. Simmons, outlawing the death penalty for juveniles, the Supreme Court has offered up a series of decisions limiting juvenile culpability. In Graham v. Florida, the court ruled that life without parole can only be imposed for a juvenile convicted of murder.

In Miller v. Alabama, the high court ruled states cannot sentence a juvenile to mandatory life without parole. In Montgomery v. Alabama the court went further and found that a trial judge may not sentence a juvenile to life without parole without a find of “incorrigibility.”

However, this past month, for the first time in 16 years the newly realigned U.S Supreme Court took a step backward on juvenile culpability. The court essentially reversed its finding in Montgomery and ruled that a judge need not find incorrigibility for a life sentence, the court judge need only consider sentences other than life without parole.

My admonishment to you: pay close attention. The tide may be turning in the judiciaries’ view of reform. Emphasizing punishment over rehabilitation will be bad news for those caught up in the criminal justice system and those who have to flip the tab - taxpayers.

Thanks for reading.

Matthew T. Mangino is of counsel with Luxenberg, Garbett, Kelly & George P.C. His book The Executioner’s Toll, 2010 was released by McFarland Publishing. You can reach him at www.mattmangino.com and follow him on Twitter @MatthewTMangino.

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Challenges to qualified immunity continue to build

In September 2013 Trent Taylor was left in a feces filled prison cell. That day sparked a legal odyssey stretching from a state prison outside Lubbock to the U.S. Supreme Court. He fought for the right to sue his guards and lost in two lower courts, only to prevail in the nation’s highest court in November 2020. Though barely known to the public, his case — which centers around a legal doctrine known as qualified immunity — provides new legal avenues to hold law enforcement responsible for the most egregious misconduct, reported The Marshall Project.

Qualified immunity shields government workers from being personally sued for their actions on the job, except in rare circumstances. The idea is that no one would want to work for the government if they were at risk of personal bankruptcy for every good faith mistake. But in recent years, groups across the ideological spectrum have begun to question the doctrine, arguing it made it nearly impossible to hold law enforcement accountable.

After George Floyd’s death, with millions of people taking to the streets calling for police reform, qualified immunity — a concept previously relegated to marble-columned courtrooms and law review articles — was the target of protests and lobbying in state legislatures.

 “The justices are watching the news and know what is going on in the country,” said Kelsi Corkran, a senior fellow at Georgetown Law School who worked on Taylor’s case. “There was a lot of pressure on the court to align the doctrine with realities of today.”

Taylor ultimately spent a total of six days in two fetid cells. At that point, he had been locked up for years, on and off since he was a teenager, including on a previous conviction stemming from an assault. But these were the most disgusting conditions he’d ever encountered, he said. In the first cell, he didn’t eat or drink for days, fearing his food and water would be contaminated. The second had no toilet — he was told to relieve himself into the clogged drain on the floor, despite begging to be brought to the bathroom. The cell also had no bed, so Taylor was forced to sleep naked on the floor in raw sewage.

Prison staff had placed Taylor in the cells in a psychiatric unit after he overdosed on pain medication because they were concerned he might harm himself.

When Taylor sued the officers who put him in those cells and ignored his cries for help, federal judges agreed that the conditions were unconstitutional — but they threw out his lawsuit, citing qualified immunity. The issue has come up again and again as the country grapples with what accountability for law enforcement should look like.

For years, courts upheld this legal shield. The Supreme Court granted qualified immunity to police in Oklahoma who arrived at a hospital to help staff restrain an agitated patient, but instead shocked him with a stun gun and pinned him to the ground until he died. In another case where the court allowed qualified immunity, a Georgia deputy sheriff shot a 10-year-old who was laying face down on the ground. The cop had been aiming at the family dog and missed.

Courts have used qualified immunity “to protect law enforcement officers from having to face any consequences for wrongdoing,” Mississippi District Court Judge Carlton W. Reeves wrote in a ruling last summer. Even when police commit egregious abuse and misconduct, the judge said, “qualified immunity has served as a shield for these officers, protecting them from accountability.”

Then, for the first time in decades, the Supreme Court signaled in Taylor’s case that this shield has gone too far: “Any reasonable officer should have realized that Taylor’s conditions of confinement offended the Constitution,” the justices wrote. Taylor could sue, after all.

“This is a new message,” said Joanna Schwartz, a law professor who studies qualified immunity at UCLA. “This is not a reversal of qualified immunity — it is not a new doctrine,” she said, but it does indicate that courts should start thinking more critically about when officers need protection and when that protection becomes a free pass for abuse.

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MCN/USA TODAY Network: Reconsidering qualified immunity in the wake of George Floyd

Matthew T. Mangino
MCN/USA TODAY Network
April 9, 2021

Derek Chauvin is on trial in Minnesota for murder.  The former Minneapolis police officer was video-taped with his knees on the neck and back of George Floyd as he laid face down on a city street with his hands cuffed behind his back.

In the wake of nationwide protests after Floyd’s at the hands of the police, the doctrine of qualified immunity has come under increasing scrutiny. Qualified immunity shields government officials from liability for their conduct.

According to the American Bar Association, Floyd’s death, and the national turmoil that followed, made qualified immunity—a relatively unknown concept—an issue of national importance.

This obscure legal doctrine, once known only to civil-rights lawyers and legal scholars, is seen on signs at protest and on newspaper headlines across the country.

A federal lawsuit against police misconduct known as a “1983” action (named for the section of the Civil Rights Act 42 U.S.C. 1983), grants civilians the ability to sue state and local police for violating their constitutional rights. Interestingly, the statute does not mention qualified immunity.

Qualified immunity came about in a series of Supreme Court decisions finding that government officials will afraid to do there job if they are worried about getting sued.

Starting in 1967, the Supreme Court carved out a “qualified immunity” exception that provided police officers could not be sued if they were acting in good faith and didn’t know what they were doing was illegal.

Over the years, the court expanded the doctrine to the point that even police officers who knowingly violate someone’s constitutional rights are protected—unless a court has, in a previous case, ruled that the behavior was unconstitutional.

According to Vox, the Supreme Court justified qualified immunity by finding it ensures that the stresses of litigation won’t divert “official energy from pressing public issues,” and that concerns about being sued won’t deter “able citizens from acceptance of public office.”

Last summer, Colorado established a litany of policing reforms, which include banning chokeholds and the use of deadly force for nonviolent offenses.  The Enhance Law Enforcement Integrity Act also eliminates qualified immunity. 

Now police officers in Colorado who violate a person’s civil rights can be held personally responsible in state court.

 “Colorado has passed what is, for the moment, the gold-standard reform,” Robert McNamara, a senior attorney at the Institute for Justice, a libertarian non-profit, told Forbes. “These laws are changing the status quo as to when there are consequences for bad behavior.”

The New Mexico Civil Rights Act, recently signed into law, eliminated qualified immunity. The law is a product of the New Mexico Civil Rights Commission, authorized by Gov. Lujan Grisham in the summer 2020 special session to evaluate potential statutory changes or policy recommendations, again, in the wake George Floyd’s death.

The George Floyd Justice in Policing Act of 2021 is a civil rights and police reform bill passed by Democrats in the U.S. House of Representatives on February 24, 2021. The bill passed the House on a mostly party-line vote of 220–212, and has been sent to the Senate.

The legislation aims to, among other things, enhance accountability for police officers who commit misconduct, by restricting the application of the qualified immunity doctrine for local and state officers.

In Maine, Bill 214, “An Act to Eliminate Qualified Immunity for Police Officers,” is modeled after the Colorado law. The bill would eliminate qualified immunity in the state. A number of other states are taking a close look at qualified immunity. Finally, the time has come to right a wrong.

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Trump judicial appointee takes on qualified immunity

Don Willett, a former justice of the Texas Supreme Court whom Donald Trump placed on the 5th U.S. Circuit Court of Appeals in 2018 has embarked upon an impressive and even courageous crusade for police accountability, challenging Supreme Court precedents that shield both state and federal law enforcement from liability when they brutalize civilians, reports Slate. Traditionally, it’s left-leaning judges who try to bend the law toward justice for victims of police violence. Willett, however, has become arguably the most vocal advocate of reform in this area of law among lower court judges. And there are already subtle signs that the Supreme Court is listening.

The chief target of Willett’s ire is the doctrine of qualified immunity, which limits the scope of federal civil rights law. The actual statute, Section 1983, that grants civilians the ability to sue state and local law enforcement in federal court for violating their constitutional rights, says nothing about qualified immunity. But the Supreme Court has grafted this doctrine onto the statute and used it to immunize most officers from civil suits. Under qualified immunity, a victim of police misconduct must prove two things before their case can proceed to trial: first, that the officer violated a constitutional right, and second, that this right was “clearly established” at the time of the offense. If the victim flunks either test, the officers get qualified immunity, the case is thrown out, and the victim never even gets their day in court.

It is this second test, the requirement that the right at issue be “clearly established,” that wreaks the most havoc. Federal appeals courts demand that the right be “clearly established” by their own precedents, freeing police to violate their own department rules if those rules haven’t been explicitly affirmed by the court. Yet courts don’t even have to decide whether a constitutional right exists in qualified immunity cases; they can simply say that the alleged right is not “clearly established,” denying future plaintiffs a precedent they could use to overcome qualified immunity.

Worse, courts frequently grant qualified immunity because of some minor discrepancy between the precedent establishing a constitutional right and the case at hand. For instance, in Taylor v. Riojas the 5th Circuit extended qualified immunity to the prison guards who locked Trent Taylor in a cell covered in human feces for six days—even though the court had previously held that locking people in feces-covered cells is unconstitutional. In the prior case, the court reasoned, the victim was locked up for months; in this one, he was locked up for six days. Because of this distinction, the court held, Taylor’s right not to be locked in an excrement-coated cell for six days was not “clearly established.”

Willett has consistently criticized both the doctrine of qualified immunity and its perverse consequences. In one opinion, he wrote “to register my disquiet over the kudzu-like creep of the modern immunity regime.” As he summarized it: “No precedent = no clearly established law = no liability. An Escherian Stairwell. Heads defendants win, tails plaintiffs lose.” No wonder that “to some observers, qualified immunity smacks of unqualified impunity.” Willett concluded by adding his “voice to a growing, cross-ideological chorus of jurists and scholars urging recalibration” of the doctrine.

One month later, Willett reiterated his concerns about “the entrenched, judge-invented qualified immunity regime.” By “insulating incaution” from consequence, he wrote, “the doctrine formalizes a rights–remedies gap through which untold constitutional violations slip unchecked.” Victims are left “violated but not vindicated.” But, he added, “as a middle-management circuit judge, I take direction from the Supreme Court.” And “a majority of the Supreme Court,” Willett wrote, “disagrees” with his critique.

Do they, really? On Nov. 2, the Supreme Court issued a surprise 7–1 decision in Taylor v. Riojas reversing the 5th Circuit’s grant of qualified immunity to the prison guards. (Justice Clarence Thomas dissented, and Justice Amy Coney Barrett did not participate.) In its unsigned decision, issued without oral arguments, the court reprimanded the 5th Circuit for ignoring “the obviousness of Taylor’s right.” Because of “the particularly egregious facts of this case,” the court held, “any reasonable officer should have realized that Taylor’s conditions of confinement offended the Constitution.” Then, in February, the Supreme Court ordered the 5th Circuit to reevaluate its decision in another qualified immunity case, McCoy v. Alamu, in light of Taylor v. Riojas.

As University of South Carolina School of Law professor Colin Miller has noted, these decisions indicate a major shift in the Supreme Court’s qualified immunity jurisprudence. The justices appear to be moving away from a “comparative” standard, which requires a precedent directly on point, toward a “no reasonable officer” standard, which would deny qualified immunity to an officer whose behavior was obviously unreasonable. This development would address Willett’s concerns: Victims of police misconduct would no longer need to identify a virtually identical precedent clearly establishing their rights; they could, instead, demonstrate that any reasonable officer would’ve known that the conduct in question was unconstitutional.

Willett seems to have picked up on this trend. Shortly after the Supreme Court’s decision in Riojas, he denied qualified immunity to two police officers who killed a man who posed no clear threat by pinning him to the ground, shocking him with a stun gun, and beating him with a baton. More recently, on Thursday, Willett denied qualified immunity to an officer who repeatedly shot an unarmed, mentally ill man as he stumbled away from the police, killing him. As Willett summed it up: “By 2017, it was clearly established—and possibly even obvious—that an officer violates the Fourth Amendment if he shoots an unarmed, incapacitated suspect who is moving away from everyone present at the scene.”

To his credit, Willett’s distress over law enforcement’s lack of accountability extends beyond qualified immunity. In March, he wrote an impressive opinion criticizing a huge loophole in federal law: While Section 1983 allows lawsuits against state officers, there is no statute that lets victims sue federal officers, like FBI and Border Patrol agents, for damages. In a 1971 case called Bivens, the Supreme Court tried to remedy this problem by authorizing civil suits for excessive force against federal agents. Since 1980, though, an increasingly conservative SCOTUS has slashed away at Bivens, rendering it close to a dead letter.

Bemoaning this trend, Willett highlighted the tragic practical consequences of Bivens’ demise:  “Private citizens who are brutalized—even killed—by rogue federal officers can find little solace in Bivens,” he wrote. In 2021, “redress for a federal officer’s unconstitutional acts is either extremely limited or wholly nonexistent, allowing federal officials to operate in something resembling a Constitution-free zone.” That means that “if you wear a federal badge, you can inflict excessive force on someone with little fear of liability.” Willett questioned the Supreme Court’s abandonment of Bivens, citing recent scholarship providing an originalist justification for the decision. And he implored either Congress or SCOTUS to fix the “rights-without-remedies regime” that they helped to create.

Because Willett was nominated by a lawless con artist, it may be tempting to write off his criminal justice opinions as a disingenuous bid for bipartisan praise. But the consistency and passion with which he has attacked unjust precedents suggests that, at least on police accountability, Willett is the real deal. And given that he might have the Supreme Court’s ear, he’s well-positioned to bend the law in a more just direction. In today’s conservative judiciary, progressives need all the allies they can find.

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