Appellate Advocacy Blog

Editor: Tessa L. Dysart
The University of Arizona
James E. Rogers College of Law

Sunday, October 24, 2021

Qualifying for Qualifying Immunity

Last week, in two per curiam opinions, the Supreme Court reversed decisions of the Ninth and Tenth Circuits by holding that the police officers accused of exercising excessive force were entitled to qualified immunity. In both decisions, the Court found that no clearly established precedent put the officers on notice that their actions violated the suspect’s rights. Many commentators described the decisions as a blow to police reform and asserted that the Court displayed a tin ear about roiling concerns about racial justice and criticisms of qualified immunity.

That dissatisfaction was poignantly expressed at the end of summer by U.S. district court judge Carlton Reeves where he reluctantly applied qualified immunity to dismiss an action against a Mississippi police officer, who pulled over a Mercedes driven by a black man on the assumption by the officer that the driver had to be involved with drugs to be operating the luxury car. He detained the man for nearly two hours while the car was disassembled (and then left that way) in a fruitless search for contraband. Through simple declarative sentences recalling other similarly wrongheaded incidents,[1] many of which resulted in tragic deaths, Judge Reeves made clear how qualified immunity has served as a “shield” for police abuse and misconduct, even as he followed controlling precedent.

To be sure, the judge-made doctrine of qualified immunity has its most urgent and controversial application in the context of police actions. Even critics of qualified immunity acknowledge that some split-second decisions do not allow the type of reflection necessary to understand why certain conduct crosses a line. Yet, qualified immunity applies not only to pressing life or death situations, but also to circumstances where deliberation is possible and where the offender is not a police officer, but people knowledgeable in the law. Two cases in which I have been involved demonstrate the uneven application of qualified immunity and why the doctrine is overdue for an overhaul.

In Stamps v. Town of Framingham,[2] the First Circuit denied qualified immunity to a police officer, who as a member of a SWAT team, was asked to watch an elderly black man while other members of the team searched the man’s apartment for a stepson wanted in connection with selling crack. SWAT had been briefed that Eurie Stamps, Sr., a 68-year-old retired Metro worker, was no threat. Shortly after midnight, the team executed a raid by throwing a flashbang grenade through the kitchen window as others battered down the front door. When they met Stamps, he complied with an order to get down on the floor on his stomach with his hands and feet in the air. The officer asked to watch Stamps as the search continued, pointed his assault rifle at Stamps’s head with the safety off and his finger on the trigger. Then, the officer unintentionally pulled the trigger, killing Stamps. The stepson was not in the apartment.

 Framingham defended by claiming that qualified immunity should require dismissal of the subsequent lawsuit because it was not “clearly established” that the unintentional discharge of the rifle violated the decedent’s rights. The First Circuit made short work of the claim. Pointing the rifle at a person’s head when he posed no threat and was suspected of no criminal act was the intentional act that put in motion the weapon’s discharge and that type of recklessness was comparable to past precedents, making it clearly established and putting police officers on notice. The “clearly established” requirement was satisfied, largely by reference to federal appellate decisions in other circuits.

 However, in Echols v. Lawton,[3] the “clearly-established” requirement defeated the lawsuit. In Echols, the plaintiff had served seven years in prison for a crime he did not commit and that DNA evidence, examined as a result of work by the Innocence Project, finally exonerated him. Echols lost his family, his military career, and his health as a result of his long, imprisonment. He was released, after the State entered a nolle prosequi on the charges. A bill was introduced in the legislature to compensate him, and the Georgia Claims Advisory Board voted unanimously twice to support the bill. However, the bill was derailed when the prosecutor sent letters to key legislators, asserting the conviction was proper and, falsely, that Echols remained under indictment for the original charges of rape and kidnapping. The bill then died.

Echols sued the prosecutor for violations of his First and Fourteenth Amendment rights. The Eleventh Circuit, while finding the prosecutor’s actions, undertaken with deliberation, highly detestable and likely libel per se, nonetheless found that the violations were not “clearly established” in that circuit. Even if other circuits would have found no qualified immunity based on existing precedent, the Eleventh Circuit requires an on-point in-circuit precedent before qualified immunity can be denied. Echols now serves as a precedent for a future case, clearly establishing that a prosecutor cannot misrepresent to other government officials the case’s status. It is now “clearly established” that the same misconduct would not be immunized in the future. It did not matter that rules of ethics and rules specifically applicable to prosecutors plainly prohibited what occurred here; the court required a precedential decision from within the circuit, something that other circuits do not. Oddly, Supreme Court precedent does not even require a prior ruling on the issue.

Interestingly, the panel included a judge sitting by designation from the Sixth Circuit. He concurred in the decision, only because of the Eleventh Circuit requirement of a prior in-circuit decision, stating that his circuit would have denied qualified immunity.

The many decisions that provide qualified immunity insensibly to a host of situations where the violation is patent and the different standards applied by the circuits at this late date in the doctrine’s existence calls for its reexamination. Reconsideration of the doctrine is coming – sooner is much better than later.

 

[1] See Jameson v. McClendon, No. 3:16-cv-595, https://www.documentcloud.org/documents/7013933-Jamison-v-McClendon.html.

[2] Stamps v. Town of Framingham, 813 F.3d 27, 29 (1st Cir. 2016).

[3] Echols v. Lawton, 913 F.3d 1313 (11th Cir.), cert denied, 139 S.Ct. 2678 (2019).

https://lawprofessors.typepad.com/appellate_advocacy/2021/10/qualifying-for-qualifying-immunity.html

Appellate Justice, Appellate Practice, Federal Appeals Courts, United States Supreme Court | Permalink

Comments