The Eleventh Circuit’s decision in Corbitt v. Vickers, handed down last week, constitutes one of the most grotesque and indefensible applications of the qualified immunity I’ve ever seen. The case involves a claim of excessive force against Michael Vickers, a deputy sheriff in Coffee County, Georgia, who shot a ten-year-old child lying on the ground, while repeatedly attempting to shoot a pet dog that wasn’t posing any threat. Without even deciding the constitutional question, a majority of the Eleventh Circuit panel granted qualified immunity to Vickers, simply because there was no case on point with this particular set of facts.
The key facts as alleged in the complaint are as follows: Vickers and other officers were pursuing a criminal suspect, Christopher Barnett, when Barnett wandered into the backyard of Amy Corbitt (who had no relation to Barnett). At the time, one adult and six minor children were in the yard, and the officers demanded they all get on the ground. Everyone immediately complied, and the police took Barnett into custody.
But then, the family’s pet dog Bruce walked into the scene. Without provocation or any immediate threat, Vickers fired his weapon at Bruce. His first shot missed, and Bruce retreated under the home. About ten seconds later, Bruce reappeared and approached his owners, and Vickers fired again – missing once more, but this time striking Corbitt’s ten-year-old child, who was at the time still lying on the ground only 18 inches away. The bullet tore through the back of the child’s knee, causing serious injuries. The child suffered severe pain and mental trauma and has to receive ongoing care from an orthopedic surgeon.
Corbitt, individually and on behalf of her child, filed a lawsuit against Vickers under Section 1983, the text of which guarantees that any state actor who violates someone’s constitutional rights “shall be liable to the party injured.” Vickers filed a motion to dismiss, but the district court held that he wasn’t entitled to qualified immunity, emphasizing that the facts as alleged in the complaint indicated that there was no conceivable safety threat or any need to discharge his weapon at the family’s dog.
But in a split decision, the Eleventh Circuit panel reversed, holding that Vickers was entitled to qualified immunity as a matter of law. Judge R. Lanier Anderson, for the majority, said that there was no prior case law involving the “unique facts of this case,” in which a child was accidentally shot while the officer was intending to shoot someone (or something) else. Although the majority dutifully recited Supreme Court precedent purporting to say that overcoming qualified immunity does not require that “the very action in question has previously been held unlawful,” it is clear from the rest of the opinion that the majority was, indeed, requiring this level of specificity:
No case capable of clearly establishing the law for this case holds that a temporarily seized person—as was [the child] in this case—suffers a violation of his Fourth Amendment rights when an officer shoots at a dog—or any other object—and accidentally hits the person.
Given the shockingly reckless nature of Vickers’ actions here, it is of course unsurprising that no prior case involving precisely this sort of misconduct. The majority’s analysis vindicates the stinging criticism of Fifth Circuit Judge Don Willett, who recently stated in another case that “[t]o some observers, qualified immunity smacks of unqualified impunity, letting public officials duck consequences for bad behavior—no matter how palpably unreasonable—as long as they were the first to behave badly.”
To add insult to injury, the majority here took the common but cowardly option of declining even to decide the constitutional question, ensuring that the law will not be “clearly established” going forward either. In other words, Vickers could commit the exact same sort of misconduct tomorrow and receive qualified immunity yet again. Despite the majority’s reluctant finger-wagging that Vickers “could have acted more carefully” (!), the practical bottom line is the federal judiciary green-lighting some of the most reckless police misconduct imaginable.
The case did provoke a powerful dissent from Judge Charles Wilson, who appropriately began his opinion by noting that “[b]ecause no competent officer would fire his weapon in the direction of a nonthreatening pet while that pet was surrounded by children, qualified immunity should not protect Officer Vickers.” The dissent also took the majority to task for dismissing the “conclusory” allegation that the family pet was non-threatening. To the contrary, the complaint specifically alleged that the dog “posed no threat,” that “[no]one appear[ed] to be threatened by its presence,” and that it was merely “approaching his owners” at the time Officer Vickers fired. Of course, if the case had actually been permitted to go to a jury, Vickers would have had the opportunity to dispute these allegations. But by dismissing the case outright on the basis of qualified immunity, the majority short-circuited the exact mechanism — a public jury trial — that is supposed to ensure accountability for public officials.
The result in Corbitt is especially atrocious, but far from unique. As David French has already noted, this case it is not simply an unfortunate outlier, but rather an illustrative example of why “it’s time to rethink qualified immunity entirely.” The doctrine has no legal basis in either the text or history of Section 1983, severely undermines official accountability, and routinely results in morally indefensible decisions. I hope the Supreme Court is listening.