Should It Be This Hard to Sue the Police and Win?
One of the strongest calls for police reform is to end a legal doctrine called qualified immunity. Advocates for change argue it would be one of the most immediate ways to hold officers more accountable for their actions. But critics say it would leave police vulnerable when they’re faced with life-threatening situations.
Qualified immunity protects government officials from some lawsuits if they violate a person’s constitutional rights in the course of their duties. If you’ve heard of police officers getting away with unconstitutional behavior and wondered how, it might have been because they had qualified immunity.
Ordinarily, Congress decides who gets sued and for what — right, that’s where the Schoolhouse Rock, how a bill becomes a law, separation of powers, right? Qualified immunity is an exception to all that. It’s something that courts came up with 100 years later.
And then the second thing I’ll just add is when you talk about clearly established law, you made the point that it’s going to be a case that’s virtually identical. And that’s right. We’ve heard courts say things like, yes, we held that siccing an attack dog on someone who had surrendered, that’s unconstitutional. But in that case, the guy surrendered by lying face down. In this case, the guy surrendered by sitting with his hands in the air, so qualified immunity.
Joanna Schwartz, a professor at UCLA Law, is probably the country’s foremost expert on qualified immunity. She did a study recently, it’s published in an article called “Qualified Immunity’s Boldest Lie.” And she looked at hundreds of police training programs, outlines, briefs.
And here’s what she’s found, which actually not that surprising. She found that police departments, in the vast majority of cases, trained on two cases- - the Supreme Court cases. They’re called Graham and Garner. And they set out the basic principles for using force. Right, you got to balance the danger to the officer and the bystanders against blah blah blah. And she found, that’s what they train on. And then they do a bunch of hypotheticals to try to apply those general principles to different sets of facts.
And that make sense, right? Police officers are going to encounter a huge variety of fact patterns, and you can’t train them on the exact rules for every single one. But given that that’s the case, given that police officers aren’t looking at this clearly established law in the first place, it’s a little bit bizarre to say no liability because no clearly established law, when Joanna Schwartz’s research proves clearly established law has nothing to do with how a police officer is actually trained.
I want to just push back on this notion that we’re talking about novel scenarios. There may be scenarios that haven’t come up in published circuit court opinions before, but they may be novel just because police officers haven’t been so brazen before. So there’s a case where cops raided some homes and businesses. No one’s ever charged with a crime, but the cops confiscate some $275,000 in rare coins and cash.
Investigation ends. Cops lie and say they only confiscated $50,000 in cash. They keep the rest for themselves. So ask anybody, ask someone on the street and they say that’s theft. They only turned $50,000 of the $275,000 they confiscated, and there was no crime? The court said, no actually, I haven’t had a case on that before, no clearly established law. We never had a case on that because no police officers have ever been so brazen, but that’s exactly what protected those officers.
The Timpa vs. Dillard case: In the 1990s, Fifth Circuit has a case where a guy ingests cocaine. He suffered from mental illness. He’s flailing around. Cops handcuff him, they restrain his feet, they tie the leg restraints to the handcuffs, and they put him face down. A few minutes later, death. Total tragedy. In the decades since, police department trains their officers over and over and over again, don’t keep someone face down once they’re handcuffed. They may asphyxiate.
Get them upright as soon as possible. Lenny is nodding because this is something that just about every police officer in the country’s told. So fast forward a few decades. Dallas police officers are trained. They get PowerPoints on this. It’s in their policy six different places. Don’t keep someone face down on the ground any longer than necessary, put them on their side as soon as possible.
But Dallas police officers come across Tony Timpa. And like that guy in the 1990s case, he’s taken cocaine. He’s mentally ill. He in fact calls the police because he is struggling with his mental illness and needs help. He’s flailing around. Handcuffed — so, you know, no threat, just like the ‘90s case. They restrain his legs, just like the ‘90s case. They put him face down, just like the ‘90s case. They kneel on his back, so worse than that ‘90s case, because you’ve also got weight on his back, making it harder for him to breathe.
And they do that for 14 minutes. They’re joking around as he’s calling for help and gasping for breath and he dies. And a court says, qualified immunity, because, yes, there are a bunch of cases about officers dealing with a mentally ill suspect on drugs. And yes, in all of those cases says the suspects were handcuffed and face down. And yes, in all of those cases, suspects’ legs were restrained.
And yes, in all those cases, the suspects suffocated to death. But in those cases, the leg restraints were tied to the handcuffs, and in this case, the leg restraints weren’t. Never mind that Dallas itself says the rule is don’t keep someone face down once they’re restrained. Forget about tying or not tying. Now, of course, we’re arguing that was wrong. That is not how qualified immunity should work. But that’s the level of specific we’re talking about that courts have gone to when they’re dealing with qualified immunity.
