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“There Is Nothing Right or Just under the Law about This”

Qualified immunity is a doctrine that can shield police officers and other public officials from civil suits when they violate individual rights in the course of their official duties. According to the doctrine, courts are supposed to first determine whether an individual’s right was violated and then proceed to determine whether the violation was “clearly established” in the jurisdiction—that is, whether the circumstances had happened before. This can lead to perverse outcomes in which a court can find an officer violated someone’s rights, but if the officer did so in a way completely novel, then the officer cannot be held liable for the violation. In other cases, courts can find that similar sounding circumstances aren’t the same and thus officers may prevail because those differences render the right not “clearly established.”

This morning, the Supreme Court ordered a summary reversal of a Ninth Circuit Court of Appeals opinion that had denied qualified immunity to an officer for shooting and injuring a woman. The woman, Ms. Amy Hughes, had a knife at her side and she posed no immediate threat to the officers or the person she was speaking to at the time she was shot. Other officers on the scene held their fire and were trying to gain Hughes’ cooperation before Officer Andrew Kisela shot at her four times. Unfortunately, such decisions have become all too familiar at SCOTUS.

Justice Sonia Sotomayor, joined by Justice Ruth Bader Ginsburg, wrote a scathing dissent of the per curiam order:

If this account of Kisela’s conduct sounds unreasonable, that is because it was. And yet, the Court today insulates that conduct from liability under the doctrine of qualified immunity, holding that Kisela violated no “clearly established” law. I disagree. Viewing the facts in the light most favorable to Hughes, as the Court must at summary judgment, a jury could find that Kisela violated Hughes’ clearly established Fourth Amendment rights by needlessly resorting to lethal force. In holding otherwise, the Court misapprehends the facts and misapplies the law, effectively treating qualified immunity as an absolute shield.

This Court’s precedents make clear that a police officer may only deploy deadly force against an individual if the officer “has probable cause to believe that the [person] poses a threat of serious physical harm, either to the officer or to others.” It is equally well established that any use of lethal force must be justified by some legitimate governmental interest. Consistent with those clearly established principles, and contrary to the majority’s conclusion, Ninth Circuit precedent predating these events further confirms that Kisela’s conduct was clearly unreasonable. Because Kisela plainly lacked any legitimate interest justifying the use of deadly force against a woman who posed no objective threat of harm to officers or others, had committed no crime, and appeared calm and collected during the police encounter, he was not entitled to qualified immunity.

In sum, precedent existing at the time of the shooting clearly established the unconstitutionality of Kisela’s conduct. The majority’s decision, no matter how much it says otherwise, ultimately rests on a faulty premise: that those cases are not identical to this one. But that is not the law, for our cases have never required a factually identical case to satisfy the “clearly established” standard. It is enough that governing law places “the constitutionality of the officer’s conduct beyond debate.” Because, taking the facts in the light most favorable to Hughes, it is “beyond debate” that Kisela’s use of deadly force was objectively unreasonable, he was not entitled to summary judgment on the basis of qualified immunity.

[The majority’s] decision is not just wrong on the law; it also sends an alarming signal to law enforcement officers and the public. It tells officers that they can shoot first and think later, and it tells the public that palpably unreasonable conduct will go unpunished. Because there is nothing right or just under the law about this, I respectfully dissent. (Citations omitted)

Today’s order was disappointing, but not surprising. Regular readers know that Cato’s Project on Criminal Justice is now dedicating resources to fighting the doctrine of qualified immunity, and it’s clear that most of the sitting justices support the doctrine. But the fight is worth it because qualified immunity effectively guts the best civil rights protection in federal law and, more broadly, police officers must be held accountable for their unconstitutional actions.

If you’re interested in learning more, you can view the launch event of our qualified immunity effort here. You can read our first amicus brief in the effort here. You can also read Will Baude’s excellent law review article that Justice Sotomayor cited in her dissent, “Is Qualified Immunity Unlawful?” here, (spoiler alert: Yes it is!). And more here, here, and here.

Qualified Immunity: The Supreme Court’s Unlawful Assault on Civil Rights and Police Accountability

Our primary federal civil rights statute, colloquially called “Section 1983,” says that any state actor who violates someone’s constitutional rights may be sued in federal court. This remedy is crucial not just to secure relief for individuals whose rights are violated, but also to ensure accountability for government agents. Yet the Supreme Court has crippled the functioning of this statute through the judge-made doctrine of “qualified immunity.” This doctrine, invented by the Court out of whole cloth, immunizes public officials even when they commit illegal misconduct unless they violated “clearly established law.” That standard is incredibly difficult for civil rights plaintiffs to overcome because the courts have required not just a clear legal rule, but a prior case on the books with functionally identical facts.

In Pauly v. White, 874 F.3d 1197 (10th Cir. 2017), the Tenth Circuit used qualified immunity to shield three police officers who brutally killed an innocent man in his home. The officers had no probable cause to think Samuel Pauly had committed any crime, but they stormed his home with guns drawn and shouted that they had him surrounded—yet failed to identify themselves as police. Mr. Pauly and his brother reasonably believed they were in danger and retrieved two guns to defend themselves. After his brother Daniel fired two warning shots to scare away the unidentified attackers, Samuel was shot dead by one of the officers—Ray White—through the front window of his home.

The Tenth Circuit held that Officer White’s use of deadly force was objectively unreasonable and that it “violated Samuel Pauly’s constitutional right to be free from excessive force.” But the court still granted Officer White qualified immunity; there was no prior case with sufficiently similar facts, so the unreasonableness of his conduct was not “clearly established,” in the court’s view. What’s more, the court held that because Officer White had qualified immunity, the other two officers automatically received immunity as well, even though their own reckless conduct caused Officer White to commit the unlawful shooting.

This decision was erroneous even under existing precedent, but it also throws into sharp relief the shaky legal rationales for qualified immunity in general. The text of Section 1983 makes no mention of any sort of immunity, and the common-law background against which it was adopted did not include a freestanding defense for public officials who acted unlawfully; on the contrary, the historical rule was that public officials were strictly liable for constitutional violations. In short, qualified immunity has become nothing more than a “freewheeling policy choice” by the Court, at odds with Congress’s judgment in enacting Section 1983.

The Cato Institute has therefore filed an amicus brief urging the Court to hear Mr. Pauly’s case and to reconsider its misguided qualified immunity jurisprudence. This brief will be the first of many in an ongoing campaign to demonstrate to the courts that this doctrine lacks any legal basis, vitiates the power of individuals to vindicate their constitutional rights, and contributes to a culture of near-zero accountability for law enforcement and other public officials.

Looking Beyond Racist Police Officers

This week I made my debut at In Justice Today, a blog founded by the Fair Punishment Project at Harvard Law School. My first post warns reformers not to focus solely on individual racist officers because color-blind policies can also have terrible impacts on communities of color:

While it is entirely fair to say that more crime justifies a greater police presence in a segment of a city, that crime does not — or, rather, should not obviate the constitutional rights of the people who live in that area. If statistics showed there were more child pornography producers and distributors in white neighborhoods, the police would not be justified going door to door to intimidate presumptively innocent residents to get consent to search their computers to combat child pornography. Residents would be outraged to be treated as criminal suspects and intimidated to surrender their rights. Yet the GRU eviscerates Fourth Amendment protections for young black men walking down the street as policy, irrespective of any racial prejudice by the officers.

If a policy is damaging a community, the good intent in the officers’ heart is functionally irrelevant.

You can read the whole post here.

Statement on President Trump’s Call for Police Brutality on Long Island

In a speech about criminal gangs before police officers on Long Island, New York today, the President of the United States openly encouraged police officers to abuse people they arrest and take into custody. Daniel Dale of the Toronto Star tweeted that President Trump explained that didn’t want officers to protect suspects’ heads when putting them in police cars, saying “You can take the hand away,” which drew the officers’ loud approval. Concurrent reporting from Asawin Suebsaeng of the Daily Beast confirmed that the call for police brutality drew “wild applause.”

The president’s comments are disgraceful and anathema to responsible policing and the Rule of Law. Causing intentional injury to a handcuffed suspect is not only against police procedure, but is a federal crime for which police officers have been sent to prison. What’s worse, the reaction of the crowd of officers should strike fear into the heart of every parent on Long Island, particularly those of black and Hispanic young men who fit the stereotypical description of the gang members President Trump described.

In the name of law and order, the president made a mockery of the Rule of Law in his call for illegal violence against presumptively innocent suspects. It is a shameful day for the presidency and police agencies across the country should condemn the president’s irresponsible and indefensible comments in the strongest possible terms.

Daily Feed on Hiatus

Dearest NPMRP readers,

I wanted to take a moment to say that the daily feed is on indefinite hiatus. We’re not shutting the site down, we’re just taking stock of what we are and what we’re trying to do. Although we are not currently publishing the daily feed, we are continuing to collect misconduct stories.

The goal is to be the best website we can be for you but we’re figuring out how to make that happen. Keep us in your feeds, we’re not going away. Keep an eye on this space for updates.

Sincerely,

Jonathan

National Police Misconduct Newsfeed Daily Recap 7/12/17

Here are the nine reports of police misconduct tracked for Wednesday, July 12, 2017:

  • Bexar County, Texas: An officer was arrested for family violence. ow.ly/RzB730dzcFf
  • Update: Orlando, Florida (First reported 8/23/16): One of two officers fired last August was rehired to avoid an arbitration loss. He has been re-assigned to airport duty, given 25 public complaints on his record. ow.ly/jrst30dzdvV
  • Update: Columbus, Ohio (First reported 4/12/17): An officer was fired for kicking a suspect in the head while the suspect was pinned on the ground by another officer. ow.ly/934L30dzdY3
  • El Paso, Texas: An officer was placed on leave after he was arrested for negligent homicide for the bathtub drowning death of his infant. ow.ly/f9hc30dzep5
  • Newark, New Jersey: Two officers were disciplined for unrelated misconduct. One was suspended after he punched a subdued suspect; the other was reprimanded for causing $300 in damage to a prosecutor’s door in a fit of anger. ow.ly/TSYK30dzn2z
  • Update: Niagara County, New York (First reported 3/8/16): The County will pay the family of a man killed in a crash caused by deputy $2,750,000. The now-former deputy pled guilty to three moving violations and was ordered to pay roughly $500 in fines. ow.ly/2sdZ30dzSPy
  • Dawson, Georgia: An officer was arrested for pulling a gun on someone during an off-duty altercation. ow.ly/ZSNw30dzV7p
  • U.S. Customs and Border Protection: An officer pled guilty to an interstate marijuana smuggling conspiracy. ow.ly/5DTe30dzVVy
  • Update: El Paso County, Colorado (First reported 9/6/16): The now-former sheriff was acquitted of three of seven tampering and misconduct charges. The jury deadlocked on the remaining four charges. ow.ly/WvfS30dA3FD

National Police Misconduct Newsfeed Daily Recap 7/11/17

Here are the eight reports of police misconduct tracked for Tuesday, July 11, 2017:

  • Update: Baton Rouge, Louisiana: The City faces another federal lawsuit filed by protesters who were arrested following the Alton Sterling shooting ow.ly/RDNJ30dxltO
  • St. Johns County, Florida: A deputy was arrested for domestic battery for allegedly punching a woman in the face. ow.ly/iqx330dxqr3
  • Update: Tulsa, Oklahoma (First reported 8/20/14): A now-former officer’s third trial for killing his daughter’s black boyfriend ends in mistrial. ow.ly/UH8d30dxrnY
  • Alachua County, Florida: A deputy had his child abuse charge dropped, but he was fired for the incident. ow.ly/7WmX30dxt9b
  • New York, New York: An officer was arrested for biting and choking his wife. The report notes he has prior arrests including DUI and child endangerment. ow.ly/9adz30dxAb3
  • Update: St. Anthony, Minnesota: Officer Yunez, the officer who fatally shot Philando Castile, has accepted $48,500 severance to leave the department. ow.ly/aL4P30dxT5v
  • Update: Lantana, Florida (First reported 3/6/17): An officer pled guilty to distributing obscene material and resigned after sending pornographic material to teens. ow.ly/eWI130dy42A
  • Chicago, Illinois: The police are being sued by a man who claims he was incorrectly included in a gang database, making him unfairly excluded from getting DACA status. ow.ly/QerR30dyf3Q

National Police Misconduct Newsfeed Daily Recap 7/10/17

Here are the nine reports of police misconduct tracked for Monday, July 10, 2017:

  • Fall River, Massachusetts: An officer was arrested for assaulting a female family member and also charged with six counts of improper storage of firearms ow.ly/o0Ws30dtXJW
  • Update: Horry County, South Carolina (First reported 4/6/16): A detective will reject proposed plea deal for sexually assaulting crime victims. ow.ly/Tl0W30dtY9P
  • McClain County, Oklahoma: A deputy was fired after he was arrested for reckless driving. He was caught drag-racing at 128mph while off duty. ow.ly/WUGR30dtYqG
  • Aurora, Illinois: An officer was suspended and charged with electronic harassment for improperly accessing law enforcement database information. ow.ly/x9IO30dtYE9
  • Update: Lorain, Ohio (First reported 11/16/16): The City agreed to pay $35,000 to a suspect that was punched by a police officer at the home of the officer’s ex-girlfriend. The suspect was acquitted of the charges. The officer was suspended for 10 days. ow.ly/vA6330dtYMv
  • Nogales, Arizona: An officer who was arrested for DUI after a crash remains on duty. Critics allege a double-standard in the case’s handling. ow.ly/sfxD30dtZaS
  • Roswell, Georgia: A detective was suspended 30 days for showing up to firearms training course with alcohol in his system. ow.ly/lBL430dtZom
  • Pasco County, Florida: A deputy who also served as an SRO was fired for sending inappropriate sexual messages to students via social media. The prosecutor does not believe those messages constituted a crime, but the now-former deputy will be charged for illegal access of a law enforcement database. ow.ly/pIxJ30dtZxm
  • Albuquerque, New Mexico: An officer was fired after being charged with DUI after a hit-and-run. ow.ly/yns330dtZFK

National Police Misconduct Newsfeed Daily Recap 7/7/17

Here are the nine reports of police misconduct tracked for Friday, July 7, 2017:

  • Update: Newcomerstown, Ohio (First reported 4/19/17): A now-former officer was indicted for lying about being shot in the line of duty and forging documents for benefits. ow.ly/sFkS30dqZgA
  • Dallas, Texas: The officer who fatally shot Genevive Dawes was among three officers fired for unrelated incidents by the interim chief. One officer was fired for causing an auto accident and failing to stop to render aid and the last officer was fired for beating a child with a surge protector while off duty. ow.ly/K4KJ30dqZH6
  • Vandergrift, Pennsylvania: An officer was charged with assault and harassment for an off-duty incident with a 14-year-old boy ow.ly/Vh1O30dr1Za
  • Update: Pasadena, California (First reported 2/22/17):  An officer is being investigated for illegal firearms dealing. A federal search warrant was served on his home, but no charges have yet been filed. ow.ly/M7Ye30dr2mt
  • Green Bay, Wisconsin: An officer was charged with forgery for signing his ex-wife’s name on a car title without her consent. ow.ly/V7fr30dr2Q8
  • Bellevue, Nebraska: A detective was arrested along with his wife following a domestic dispute. ow.ly/ppB330drN3B
  • Del Rio, Texas: An officer was arrested on a misdemeanor theft charge. ow.ly/mC0130drNls
  • Mahoning County, Ohio: A deputy accepted a plea deal and dropped the appeal of his termination after he was allowed to resign. He plead guilty to misdemeanor OVI and weapons charges. The lesser charges will leave him eligible for future law enforcement employment.  ow.ly/gr9630drTIQ
  • Update: Baltimore, Maryland: Three officers were indicted on additional charges of burglary following February racketeering indictments with several other officers. ow.ly/96WH30ds1Nv

National Police Misconduct Newsfeed Daily Recap 7/6/17

Here are the eight reports of police misconduct tracked for Thursday, July 6, 2017:

  • Update: Utah Department of Public Safety: A now-former officer pled guilty to impaired driving. The weapon and open container charges were dropped. He was fied $1,500. ow.ly/Oak030dotvc
  • Cherokee County, Georgia: A deputy was arrested for DUI. ow.ly/wDEN30dou5M
  • St. Johnsbury, Vermont: The chief resigned after he was suspended for undisclosed allegations of misconduct. ow.ly/Jnyf30douke
  • Purcell, Oklahoma: An officer was arrested for violating a protective order filed by his estranged wife. He had previously been suspended for an unrelated incident. ow.ly/A9aN30douwa
  • Ville Platte, Louisiana: The City is being sued by a woman who claims a marshal deputy forced her to perform sex acts on man while he watched. ow.ly/Z27h30dovp0
  • Carteret, New Jersey: An officer was charged with assault and misconduct for beating a teenage crash victim. ow.ly/AJRY30dovIx
  • Update: Baton Rouge, Louisiana: Two officers were acquitted of being lookouts for a third officer as he raped a woman while all were on duty. The third officer was also acquitted. ow.ly/sZ9v30dowyQ
  • Port Arthur, Texas: An officer was arrested for assaulting a woman in Liberty County. ow.ly/eYp730dozvd