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.

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

DC Appeals Court Says Anti-SLAPP Laws Shouldn't Apply In Federal Courts

from the ruh-roh dept

We've discussed for quite some time the importance of anti-SLAPP laws, and how it's ridiculous that we don't have a federal anti-SLAPP law. Once again, anti-SLAPP laws are used to toss out bogus lawsuits that were clearly filed for the sake of silencing someone's speech (SLAPP stands for "Strategic Lawsuit Against Public Participation"). Right now only some states have them, and there are many variations in the various state laws, with some much better than others. Unfortunately, a new ruling in the DC Circuit appeals court may makestate anti-SLAPP laws much less effective. That's because it says, more or less, that state anti-SLAPP laws only apply to cases in state/local courts, and not those that are in federal court (such as any case between two parties in different states).

Under the Federal Rules, a plaintiff is generally entitled to trial if he or she meets the Rules 12 and 56 standards to overcome a motion to dismiss or for summary judgment. But the D.C. Anti-SLAPP Act nullifies that entitlement in certain cases. Under the D.C. Anti-SLAPP Act, the plaintiff is not able to get to trial just by meeting those Rules 12 and 56 standards. The D.C. Anti-SLAPP Act, in other words, conflicts with the Federal Rules by setting up an additional hurdle a plaintiff must jump over to get to trial.

In other words, in the DC Circuit, this finding says that as long as the dispute is between two parties in different jurisdictions, the anti-SLAPP law is basically toothless. Its reasoning is that Federal Rules of Civil Procedure list out the processes under which a court can dismiss a claim before a trial, and it doesn't include the same process as the anti-SLAPP process. And thus, the Federal Rules effectively overrule any local anti-SLAPP law in federal court.

As Paul Levy notes in the link above, this finding goes against findings in the First, Fifth and Ninth Circuits and creates a circuit split that he hopes will be appealed to the Supreme Court (even though the appeals court eventually did dismiss the case on other grounds).

Either way, this really (once again) reinforces the absolute need for a strong federal anti-SLAPP law. Not only would it solve messes like this, but it would protect free speech rights across the country, rather than allowing some states to protect them, while others allow people to be silenced via bogus lawsuits.

Filed Under: anti-slapp, circuit split, dc circuit, diversity, federal courts, free speech