On April 21, 27-year-old Carlos Ingram Lopez drew his last breath as police pinned him against the floor of his grandmother’s garage after placing a “spit hood” over his head. Police body cameras record him telling officers that he could not breathe and calling for his grandmother.
The incident began following a 911 call reporting “unknown trouble.” Police encountered Lopez in his grandmother’s garage and ordered him to get on the ground and lie prone on his stomach, which he did immediately. It is common knowledge that this position causes an increased risk of asphyxia by making it more difficult to draw breath, and an internal report notes that the officers involved were specifically trained to recognize that this risk is particularly acute when the subject is in a state of “excited delirium,” as the report indicates Lopez was when the encounter began. As two officers intermittently applied pressure to his torso and legs, Lopez remained in the facedown position for twelve minutes. Two minutes passed between his last audible sound and when the arresting officers finally began a futile attempt at resuscitation.
Tucson’s Police Chief Chris Magnus had previously championed his department as one of the most progressive in the nation. It had banned choke holds, established cultural-awareness education for officers, and expanded its crisis-intervention training. However, the 25-minute body-camera footage of the Lopez incident provides a poignant and alarming rebuttal to these claims.
As is sadly all too common, the department’s initial reaction was to try to sweep the Lopez killing under the rug. Thus, despite his family’s request for immediate access to body-camera recordings, the department withheld the video for two months. Tucson’s mayor Regina Romero later claimed that a “breakdown” had occurred within the police department and that she had not learned of Lopez’s death at the hands of her officers until the week before the footage was finally released.
Along with the release of that footage the police department provided a detailed internal report of the incident. The report recommended the termination of the three officers who had initially responded to the 911 call. All three officers resigned the day before the investigation of the incident was completed.
Accountability for the death of Lopez appears to end there. The three officers who resigned from the department face scant chance of further repercussions and most likely will not have to answer directly to the Lopez family. That’s because if his family does sue, they will have to surmount a powerful court-create legal defense called qualified immunity that makes it extremely difficult to sue police, even when their misconduct has caused the death of an unarmed and unresisting person, as it appears to have done with Carlos Lopez and the more famous case of George Floyd in Minneapolis.
Qualified immunity shields police officers from civil-rights claims unless the plaintiff can show that the conduct at issue violated “clearly established law.” The police department’s own guidelines on permissible police tactics, such as using a spit hood on a prone subject for an extended period of time even when he complains that he is having trouble breathing, will not suffice. Instead, to defeat qualified immunity, the would-be plaintiff must identify another case in the same jurisdiction where practically identical actions by officers have already been held by a court to be impermissible. This hurdle turns out to be every bit as difficult to surmount as it sounds: In the thirty qualified immunity cases decided by the Supreme Court since 1982, defendants have been found to have violated “clearly established law” in just two. Neither occurred in the past decade.
The Lopez family can only prevail in a civil-rights lawsuit by successfully navigating this muddled legal framework. For decades, victims of civil-rights violations and their families across the country have been shut out of court by qualified immunity. It is time for Congress to repeal or reform this unfair, unworkable judge-made legal doctrine and ensure proper accountability for police and other public officials.
Brandon Beyer from the Cato Center for Constitutional Studies contributed research for this piece.