When It Comes To Qualified Immunity, Where Your Rights Were Violated Matters More Than The Fact Your Rights Were Violated

from the more-evidence-the-Fifth-Circuit-is-the-worst-circuit dept

Your rights are more protected in some areas of the country than in others. That's the conclusion reached by Reuters and its examination of qualified immunity cases across the country.

Reuters' first report on qualified immunity showed we have the Supreme Court to blame for the high bar plaintiffs must leap to hold police officers accountable for rights violations. The doctrine was created by the court back in 1967. Subsequent decisions have made it easier for cops to escape judgment by limiting the lower courts' ability to hand down precedent on rights violations. Fewer precedential decisions means fewer cops "know" their violation of citizens' rights was wrong, leading to more dismissals at summary judgment where all an officer has to do is raise the qualified immunity defense. If no case is on point, the cop wins and the victim loses.

But courts can interpret Supreme Court precedent differently, leading to some very noticeable variations in qualified immunity cases. This report shows the worst place to sue a police officer is the Fifth Circuit. This circuit covers Texas, Louisiana, and Mississippi. If you're a terrible cop, the best place to work is Texas, where the Appeals Court will side with you more often than in any other state.

Plaintiffs fared worst in [...] the 5th U.S. Circuit Court of Appeals, where judges habitually follow precedents that favor police.

The court granted 64% of police requests for immunity in excessive force cases.

If you're going to get brutalized by a cop, try to do it in California and deal with Ninth Circuit judges who have far less patience and sympathy for bad apples.

By contrast, the 9th Circuit has set a higher bar for police. The appellate judges there granted immunity in just 42% of police requests for immunity in excessive force cases.

But having your rights violated in California is no guarantee you'll ultimately succeed. The Supreme Court appears to have little patience for the Ninth Circuit's above-average defense of citizens and their rights.

The Supreme Court has repeatedly rebuked the 9th Circuit for its willingness to deny cops immunity, and especially for applying, as the high court wrote in a 2011 ruling, “a high level of generality” when analyzing the question of clearly established precedent.

The Fifth Circuit, on the other hand, rarely delivers decisions that will ultimately annoy the Supreme Court justices. And that's despite appeals court judges (well, Judge Don Willett anyway) calling out qualified immunity as the loaded dice in a rigged game plaintiffs almost always seem to lose.

There's more to it than just the qualified immunity doctrine. There's Supreme Court precedent that pretty much lets judges sidestep juries and decide for themselves whether an officer's assertions about "fear for their safety" was "reasonable" under the circumstances. This doctrine is derived from a 1989 decision (Graham v. Connor) where cops decided Graham, who was suffering from a diabetic attack, was drunk and proceeded to beat him into compliance, breaking his bones and bruising his body. All the while, cops ignored Graham's pleas for them to look in his wallet for his diabetes ID card.

The Supreme Court said this was fine because it was objectively reasonable for cops to assume Graham was drunk and possibly involved in a convenience store robbery that never actually occurred. Here's how Jeff Gamso breaks it down at the (sadly defunct) legal blog Fault Lines:

[T]he test is objective, so there’s a correct answer that any observer would know. (Graham wins.) Except, the test is also (you might want to sit down for this) subjective.

"The “reasonableness” of a particular use of force must be judged from the perspective of a reasonable officer on the scene, rather than with the 20/20 vision of hindsight."

So, to be clear, it’s an objective test that’s altogether subjective.

It’s also a test that explains why cops are free to shoot whoever they want. The only question is whether the shooting was reasonable. Whether it was reasonable is determined from the point of view of the cop who did the shooting. He thought it was. That’s all there is to it.

If a cop says their reaction was reasonable, it's taken to be objectively reasonable. The correct way to handle this is to allow the lawsuit to move forward to the trial stage, where members of the public can weigh the evidence and decide what's reasonable. But this step is almost always ignored and qualified immunity cases dismissed long before anyone besides the court weighs in on it.

The disparity in decisions across circuits isn't good for America or the public. This is just more unequal justice. Where your rights are violated matters more than the fact your rights were violated. In more plaintiff-friendly courts, it's the cops who have a higher bar to reach for dismissal.

A cop was denied immunity in Indio, California, after fatally shooting Ernest Foster Jr three times in the back during a foot chase at a shopping plaza, even though police recovered a gun from the scene.

An officer was denied immunity in Denver, Colorado, after shooting Michael Valdez in the back, severely injuring him, though the cop himself had been shot during the preceding car chase.

In other circuits, it's the plaintiff who's asked to surmount a bar set so high it's a wonder anyone can reach it.

[I]n Houston, a cop was granted immunity after fatally shooting Gerrit Perkins in the back while Perkins crouched in a closet holding a cordless phone. Perkins was unarmed.

And in Bradley County, Arkansas, an officer was granted immunity after shooting Davdrin Goffin in the back, partially paralyzing him, even though he had already been patted down for weapons. He, too, was unarmed.

This isn't the way it's supposed to work. Americans should have access to equal justice. The Supreme Court's deference to law enforcement officers has allowed qualified immunity to become the justice-destroying monster it is today. It could start reeling in the long leash it's given cops over the past 50 years by taking up any number of appeals sent its way by plaintiffs following appellate rejection. But it doesn't. It appears to be more interested in reversing lower decisions finding for plaintiffs whose rights have been violated than establishing precedent that might result in fewer rights violations in the future. That's a problem. Here in America, where a person lives matters more than the abuse they've suffered.

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Filed Under: 5th circuit, 9th circuit, circuit split, police accountability, qualified immunity, supreme court


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  • identicon
    Anonymous Coward, 26 Aug 2020 @ 2:10pm

    A different bar for cops versus everyone else

    If a cop shoots someone, the cops get to investigate themselves and control the release of information. If someone else shoots a cop, they are automatically assumed to be guilty of the worst crimes of society and every potential negative is found and aired in the media. Both supposedly having the same rights, but one clearly having more than the other. Until those sides balance, the US is doomed to fall apart into anarchy as we see currently happening.

    reply to this | link to this | view in chronology ]

    • icon
      Bergman (profile), 26 Aug 2020 @ 3:45pm

      Re: A different bar for cops versus everyone else

      The 14th amendment prohibits creating a less privileged class of citizen. The due process rights of police and other officials have been set so high through qualified immunity, that it has created a VERY large less privileged class of citizen.

      reply to this | link to this | view in chronology ]

  • icon
    Anonymous Anonymous Coward (profile), 26 Aug 2020 @ 2:35pm

    Qualified Immunity is unqualified

    I cannot figure out how the courts can reason that proscriptions elucidated in our national operations manual (a.k.a. The Constitution) where certain actions by the government (and police are a part of the government) which are prohibited are then sanctioned by the courts just because the particular circumstances never came up in a previous court case. The rights violation happened, and violate our most basic laws. There is only reason to investigate the rights violations first and the predicate is The Constitution, not some previous court case. If there is some mitigating circumstance, it should impact the offenders sanction, but only impact it, not eliminate it.

    reply to this | link to this | view in chronology ]

  • icon
    Upstream (profile), 26 Aug 2020 @ 4:49pm

    That's a problem.

    The Supreme Court's deference to law enforcement officers has allowed qualified immunity to become the justice-destroying monster it is today. It could start reeling in the long leash it's given cops over the past 50 years by taking up any number of appeals sent its way by plaintiffs following appellate rejection. But it doesn't. It appears to be more interested in reversing lower decisions finding for plaintiffs whose rights have been violated than establishing precedent that might result in fewer rights violations in the future.

    Yeah, when the Supreme Court is clearly on the side of an increasingly violent and increasingly authoritarian government, I would agree that it is a problem. But when both factions of the government that created that problem work together to effectively prohibit any political opposition, I am not sure there is a good solution to that problem.

    reply to this | link to this | view in chronology ]

  • icon
    Sok Puppette (profile), 26 Aug 2020 @ 5:35pm

    So....

    While this QI bullshit in the US is clearly based on egregious judicial activism by the Supremes (and after that a lot of apparently intentional inactivism), let's not forget that Congress could eliminate it at any moment, has had over 50 years to do it, and hasn't done so.

    And I'm not a lawyer, but I suspect that individual states could do at least something about it with respect to those officers who operate under their own authority. They haven't done it either.

    It seems like there's plenty of blame to go around for this.

    Basically everybody in any authority in government is terrified that the world will burn down if cops have to follow rules. Or they think their constituents are. So the dereliction of duty is pretty universal.

    reply to this | link to this | view in chronology ]

    • identicon
      teka, 27 Aug 2020 @ 6:46am

      Re: So....

      Challenging QI is not BACKING THE BLUE or SUPPORTING OUR POLICE. Who would dare be seen not BACKING THE BLUE and SUPPORTING OUR POLICE? that is exactly the same as releasing all the prisoners from all the jails to murder and cannibalize preschoolers! You might as well admit to not being TOUGH ON CRIME like some kind of SOCIALIST and you'll never get re-elected, you thought-criminal scum!

      /s

      reply to this | link to this | view in chronology ]

    • icon
      R.H. (profile), 27 Aug 2020 @ 4:24pm

      Re: So....

      A number of states (here's Colorado) have passed laws altering qualified immunity for officers within their states.

      reply to this | link to this | view in chronology ]

  • identicon
    Anonymous Coward, 26 Aug 2020 @ 7:01pm

    But giving cops Qualified Immunity Makes easier for a Judge act "above the law" and in his own self interest. Remember, QI isn't just for cops, it's for all government officials.

    reply to this | link to this | view in chronology ]

    • identicon
      Anonymous Coward, 27 Aug 2020 @ 4:21am

      Re:

      "QI isn't just for cops, it's for all government officials."

      Yes, this is the other shoe .. waiting to drop.
      Rich assholes waving weapons about, pointing them at protestors, no trigger discipline, and no repercussions - oh wait, you get to appear on tv with da prez - lol.

      If someone of color were to do the same thing ...

      Qualified Immunity == Verified Bigotry

      reply to this | link to this | view in chronology ]

  • identicon
    Anonymous Coward, 26 Aug 2020 @ 9:11pm

    The Supreme Court said this was fine because it was objectively reasonable for cops to assume Graham was drunk and possibly involved in a convenience store robbery that never actually occurred.

    Drunk and possibly involved in a robbery = beatings and broken bones. Seems reasonable.

    Doesn't make the best "PSA" roadside billboard though, even with creepy minimalist propaganda-style orange and blue cop art.

    reply to this | link to this | view in chronology ]

  • identicon
    Carlie Coats, 27 Aug 2020 @ 5:29am

    The Constitution itself

    "No Title of Nobility shall be granted by the United States..." (U.S. Constitution Clause VIII).

    In the context of the times, "Titles of Nobility" constituted immunity to various aspects of the law. This clause should be interpreted in modern language as saying, "No class of persons shall be above the law."

    In imposing their qualified immunity doctrine, the Supreme Court imposed a Constitutional abomination, and severely violated their oaths of office.

    reply to this | link to this | view in chronology ]

    • icon
      Upstream (profile), 27 Aug 2020 @ 11:41am

      Re: The Constitution itself

      Excellent point about "Titles of Nobility" = immunity to various aspects of the law!

      This is a concept that needs to get spread around! We have an entire government class that basically falls into that category, and it needs to stop. "Officer," "Detective," "District Attorney," "County Supervisor," "State Assemblyman," "Representative," "Senator," Secretary," "Director," "President" . . . ad infinitum . . . have all essentially become Titles of Nobility.

      reply to this | link to this | view in chronology ]

  • identicon
    Anonymous Coward, 27 Aug 2020 @ 7:23am

    How is Law 'n Order possible when immunity is a thing?
    Justice? ... that's a joke, right?
    and that justice is blind crapola never gets old

    reply to this | link to this | view in chronology ]


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