Topic: Criminal Law and Civil Liberties

Two Recent en banc Decisions Exemplify the Injustice, Impracticality, and Persistent Confusion Inherent to Qualified Immunity

In the last week, the Fifth and the Eighth Circuits, sitting en banc, have each issued major, fractured decisions on the subject of qualified immunity – the judge-made defense to civil rights claims under Section 1983, which shields state actors from liability for their misconduct, even when they break the law. In Cole v. Hunter, decided yesterday, the Fifth Circuit, in an 11-7 decision, affirmed the denial of summary judgment for two defendant police officers, who shot a teenage boy and then lied about what happened. The lawsuit brought by the victim and his family will therefore be able to go to trial, making this one of the rare instances where a civil rights plaintiff is able to overcome qualified immuniity. But in Kelsay v. Ernst, decided last week, the Eighth Circuit held, 8-4, that a police officer was entitled to qualified immunity, after he had grabbed a small woman in a bear hug and slammed her to ground – because she walked away from him. Although the courts here reached different outcomes, both cases amply illustrate the legal, practical, and moral infirmities with qualified immunity. The fractured decisions and many separate opinions in both cases also make clear that the doctrine is on increasingly shaky footing with both the judiciary and the general public.

I. Cole v. Hunter: A rare but narrow victory for a victim of egregious police misconduct

This Fifth Circuit case arose out of an incident in Garland, Texas in October 2010, when police were looking for Ryan Cole, then a 17-year-old boy, who had reportedly been walking around the neighborhood with a handgun. Ryan was seen by some officers and ordered to stop, but Ryan pointed the gun at his own head and walked away toward a wooded area. When Ryan reemerged, a group of officers observed him for about five seconds and did not announce themselves or give any warning. Then, while Ryan was facing away from them with the gun still pointed at his head, one or more of the officers fired at him, striking him several times and causing him to involuntary discharge his own gun into his skull and brain. When two of the officers were questioned after the shooting, they falsely claimed that Ryan had turned to face them and pointed his gun at them before they fired – an assertion belied by ample forensic and physical evidence (specifically, the location of Ryan’s bullet wounds, and the location of shell casings and Ryan’s blood).

Ryan and his family brought a civil rights suit against these officers, claiming that they used excessive force and fabricated evidence in violation of Ryan’s Fourth and Fourteenth Amendment rights. The district court denied qualified immunity to the defendants at summary judgment, a panel of the Fifth Circuit affirmed, and the Fifth Circuit then agreed to rehear the case en banc. The court then held, 11-7, that a reasonable jury could have found that Ryan posed no threat to the officers, and that it was clearly established that “shooting a mentally disturbed teenager, who was pointing a gun the entire time at his own head and facing away from the officer, in an open outdoor area, and who was unaware of the officer’s presence because no warning was given prior to the officer opening fire, was unlawful.” Although the defendants presented a starkly different view of the facts, the majority correctly recognized – as courts often fail to do in qualified immunity cases! – that it lacked jurisdiction to consider the officers’ competing factual narrative in this appeal. Rather, the disputed facts would have to be resolved by a jury.

Seven judges dissented, however. The principal dissent, by Judge Edith Jones, accused the majority of defining “clearly established law” at too high a level of generality, arguing that even if the facts clearly established that Ryan posed no threat (and thus that shooting him violated the Fourth Amendment) the relevant question for purposes of qualified immunity was “whether every reasonable officer in this factual context would have known he could not use deadly force” – and then arguing that no prior cases involved this precise factual context. This framing in the abstract is dutiful to the Supreme Court’s qualilfied immunity jurisprudence, but in application, it’s clear that the degree of specificity employed by the dissent would be practically impossible to overcome. To wit, the dissent went on to say:

[T[he importance of grounding the inquiry in a specific factual context cannot be overstated. In this case, if Officer Hunter had stood a hundred feet away from Cole, or Cole had not been turning toward the officers, or Cole had put the handgun in his pocket and wasn’t touching it, the analysis of qualified immunity could be quite different.

On the one hand, the dissent is correct that the Supreme Court has insisted that immunity analysis be “particularized” to the facts of individual cases. On the other, the example of factual distinctions used by the dissent here plainly illustrate that there will never be a prior case involving all of the potentially relevant facts – and even the Supreme Court has purported to say that a case exactly on point is unnecessary. Thus, while the dissent’s analysis is not a wholly unreasonable application of existing precedent, it demonstrates how the “clearly established law” standard is inherently amorphous, and incapable of consistent, predictable application.

Most notably, Judge Don Willett filed a separate dissent in this case. Although he would have held that “the Supreme Court’s unflinching, increasingly emphatic application of ‘clearly established law’ compel[led] dismissal,” the bulk of his opinion is devoted to explaining that “[t]he entrenched, judge-invented qualified immunity regime ought not be immune from thoughtful reappraisal.” Judge Willett’s dissent therefore echoes his recent criticisms of qualified immunity in Zadeh v. Robinson, although he did stress that the Supreme Court has “several ‘mend it, don’t end it’ options,” which would substantially revise the doctrine without eliminating it entirely. Also, he again discussed the Cato-organized cross-ideological amicus brief from Doe v. Woodard, noting that “perhaps the most ideologically diverse amici ever assembled” were urging the Supreme Court to reconsider qualified immunity.

II. Kelsay v. Ernst: Greenlighting egregious and unnecessary police violence against the supposed victim of a crime

Melanie Kelsay, her three children, and an adult friend of hers were swimming at a public pool in Wymore, Nebraska. She and her friend were engaged in what she called “horseplay,” but some onlookers thought he might be assaulting her and called the police. The police arrested her friend and put him a patrol vehicle, even though she repeatedly told them he hadn’t assaulted her; they then decided to arrest her, the alleged victim of this non-crime, because she was “getting in the way of the patrol vehicle door.” While talking with Deputy Matt Ernst, Kelsay saw that her daughter had gotten into an argument with a bystander, and tried to go check on her. Ernst grabbed her arm and told her to “get back here,” but released her. Kelsay then said she needed to go check on her daughter, and again began walking toward her. At that point, without giving any further instructions, Ernst ran up behind her, grabbed her, and slammed her to the ground in a “blind body slam” maneuver, knocking her unconscious and breaking her collarbone.

Kelsay then brought a Section 1983 suit against Ernst, and the district court denied qualified immunity, but a panel of the Eighth Circuit reversed, 2-1. The Eighth Circuit then agreed to rehear the case en banc, and affirmed the panel’s grant of qualified immunity, in an 8-4 decision. The majority, of course, relied on the idea that there were no prior cases involving the “particular circumstances” of this case; i.e., no prior cases specifically held that “a deputy was forbidden to use a takedown maneuver to arrest a suspect who ignored the deputy’s instruction to ‘get back here’ and continued to walk away from the officer.” No case exactly on point, qualified immunity, Q.E.D. The principal dissent by Chief Judge Lavenski Smith correctly noted that that the Supreme Court has never required “a case directly at point,” and that here, an ample body of case law would have “put a reasonable officer on notice that the use of force against a non-threatening misdemeanant who was not fleeing, resisting arrest, or ignoring other commands violates that individual’s right to be free from excessive force.”

To make matters worse, the majority refused even to decide whether Ernst’s conduct did, in fact, violate Kelsay’s Fourth Amendment rights. So any officer could engage in exactly the same misconduct tomorrow, and it still would not be “clearly established” that the conduct was unlawful. Judge Steven Grasz wrote a separate dissent taking issue with this particular aspect of the court’s decision. Though acknowledging that courts have discretion under Pearson v. Callahan to grant immunity without deciding the merits, he argued that the exercise of such discretion was  “inappropriate in this case as it perpetuates the very state of affairs used to defeat Ms. Kelsay’s attempt to assert her constitutional rights.” Judge Grasz clearly grasps the circular nature of qualified immunity, noting that the judiciary’s persistent refusal to decide constitutional questions under Section 1983 “imposes a judicially created exception to a federal statute that effectively prevents claimants from vindicating their constitutional rights.”

III. The rising tide of opposition to qualified immunity

Two circuit courts recently decided to take qualified immunity cases en banc, even though neither case involved any new legal questions or suggested reversals of circuit precedent; that fact itself is a testament to how important this issue has become, and how much rising pressure there is to modify or abolish this doctrine. Cole and Kelsay hardly stand alone as examples of recent or ongoing high-profile qualified immunity cases. Just last month, the Eleventh Circuit issued a truly appalling decision in Corbitt v. Vickers, granting immunity to a deputy sheriff 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. The Supreme Court unfortunately denied cert in Doe v. Woodard at the end of its last term, but there’s another outstanding cert petition explicitly calling for the Court to reconsider qualified immunity (Baxter v. Bracey), which will be considered at the long conference on October 1st. And there will probably be additional cert petitions challenging one or more of the decisions in CorbittKelsay, and Cole.

In other words, this issue isn’t going away. Day by day, more and more lower court judges add their voices to the growing chorus calling upon the Supreme Court to reconsider this noxious doctrine, and agitation by public policy groups across the ideological spectrum continues to grow. Some of the Democratic presidential candidates have even started to call for the abolition of qualified immunity. The day of reckoning may well be coming soon.

Why 1619 Matters in 2019

The New York Times Magazine recently released its “1619 Project,” an initiative marking the 400th anniversary of the first African slaves arriving in North America. The project is ambitious, aiming to “reframe the country’s history, understanding 1619 as our true founding.” A collection of pundits have framed this project as an attempt to “delegitimize” the United States. Such commentary provides an opportunity to consider the state of American race relations and the role of slavery in American history. 

Whether or not the foundation of the United States was legitimate is an interesting political, moral,  and historical question. You can spend a career considering questions about when political violence is justified, what fair representation in a democracy looks like, how to measure and secure the consent of the governed, and what political system best secures natural rights. But these aren’t the kinds of questions many 1619 Project critics have in mind when they accuse it of “delegimitizing” the United States. They’re concerned that highlighting America’s brutal history of slavery and its role in forming the United States undermines the American project; an experiment in self-government. 

The relationship between black people and the white institutions that oppressed them is one of the most consequential features of American history. The most prominent of America’s contradictions is that its Founding documents were written by white men who owned black human beings as farm equipment, yet they expressed a commitment to liberty. 

Thomas Jefferson, the man who believed that it was “self-evident” that all men are created equal owned slaves. James Madison, the “Father of the Constitution” and author of many of The Federalist Papers, also owned slaves and was skeptical of free African Americans being a part of the American polity. After leaving the White House Madison served as the president of the American Colonization Society, which urged freed black people to move to Africa. 

During the Revolutionary War, the British frigate HMS Savage sailed up the Potomac River, its troops burning houses in Maryland in view of Mt. Vernon, George Washington’s Virginia estate. The Royal Governor of Virginia John Murray had earlier issued a proclamation, offering freedom to slaves who fought for Britain. A wartime necessity rather an endorsement of full-throated emancipation to be sure, but it’s nonetheless telling that seventeen of Washington’s slaves fled Mt. Vernon and boarded HMS Savage. To a Virginia slave, housing in a British warship was preferable to the slave quarters belonging to the man who would become the first president of the United States.  

Bewilderment at slave owners proclaiming a devotion to liberty is hardly reserved to 21st century. In a 1775 essay on the American colonies the English writer Samuel Johnson asked not unreasonably, “how is it that we hear the loudest yelps for liberty among the drivers of negroes?” The Founding Father John Adams never owned slaves and opposed slavery, though favored gradual erosion of the institution rather than outright and immediate abolition. His wife Abigail understood the contradiction of the American Founding:

I have sometimes been ready to think that the passion for Liberty cannot be Equally Strong in the Breasts of those who have been accustomed to deprive their fellow Creatures of theirs. Of this I am certain that it is not founded upon that generous and Christian principal of doing to others as we would that others should do unto us… .

That the Founding generation included moral hypocrites is hardly surprising. Every collection of human beings has included flawed people. Anyone scouring history books in search of moral perfection will be left disappointed. 

It’s not clear that the moral hypocrisy of some of America’s founders delegitimizes the United States per se. At worst such hypocrisy makes the founding of the United States far from perfect. Even those who think that it’s a stretch to say that the United States was founded “on” racism can hardly deny that it was founded with racist institutions explicitly protected. The evils of slavery don’t in and of themselves negate the colonists’ complaints about a lack of representation in Parliament or the fact that British officials had subjected colonists to needless, intrusive searches and other abuses against their civil rights. But they shouldn’t be overlooked. 

What is clear is that the United States has yet to fully come to terms with its history of racial violence and oppression. In large part this is because we’re accustomed to measuring our race relations progress through the lenses of military, political, and legislative victories. 

Hundreds of thousands of Americans died in the wake of an illegitimate attempt at secession predicated on the preservation of slavery. The Civil War amendments to the Constitution certainly improved the document, but they hardly erased a culture of violence and racism that made them a necessity. 

Will the ABA Endorse An Affirmative-Consent Standard In Sex-Assault Prosecutions?

Many colleges have adopted a principle known as “affirmative consent,” which makes it easier to infer misconduct (and thus impose expulsion or other discipline) when a record is lacking in verbal or physical evidence one way or the other as to whether a student’s sexual encounter with another student was consensual. It might seem unthinkable to apply such a standard in criminal law, where the consequences are not expulsion but imprisonment and the burdens of sex offender registration. 

And yet the American Bar Association is expected to vote as early as today on a resolution sponsored by its Commission on Domestic and Sexual Violence (emphasis added):

RESOLVED, That the American Bar Association urges legislatures and courts to define consent in sexual assault cases as the assent of a person who is competent to give consent to engage in a specific act of sexual penetration, oral sex, or sexual contact, to provide that consent is expressed by words or action in the context of all the circumstances, and to reject any requirement that sexual assault victims have a legal burden of verbal or physical resistance.

The italicized phrase might seem ambiguous, but the chair of the responsible commission, in a Thursday email, spelled out what is intended: “consent to sexual activity must be expressed by words or conduct.” No expression of consent, no consent for legal purposes. 

So while the language of the ABA resolution doesn’t mention burdens of proof or presumptions, it doesn’t need to, as KC Johnson and Stuart Taylor, Jr. argue in today’s Wall Street Journal

State laws in California, Connecticut and New York require educational institutions to find against students or personnel accused of sexual misconduct unless they can prove the accuser gave “affirmative consent,” meaning a positive manifestation by words or actions of consent to each sex act during an encounter. In practice, as Janet Halley of Harvard Law School has noted, these statutes authorize “proceedings in which the decision maker effectively presumes guilt and requires the accused to disprove it.”

(Prof. Halley, incidentally, is among four Harvard law professors with feminist bona fides who have challenged the lack of due process in current Title IX proceedings – the others are Jeannie Suk Gersen, Elizabeth Bartholet, and former federal judge Nancy Gertner – profiled by Wesley Yang in an excellent new piece for the Chronicle of Higher Education). 

What the Galveston Photo Means for Police Accountability

Earlier this week, a photo out of Galveston, Texas went viral across social and traditional media. The photo shows two white Galveston police officers on horseback leading a handcuffed black man down the street with a rope. For many, particularly African Americans, the image evoked collective memories of the bygone era of slavery, when fugitive slaves would be captured by armed patrols and marched back to their white owners in shackles. The Galveston police chief, Vernon Hale, apologized and took blame for the incident, attempting to deflect the massive public outrage at the two officers for exercising what he admitted was “poor judgment.”

Whether or not the two officers were cognizant of the racial implications of their actions at the time, the public parading of any handcuffed individual is degrading and humiliating. Like “perp walks,” warrantless roadside searches, and the gratuitous use of mugshots splashed across local news, presumptive innocence—that all arrestees have until they are convicted—is effectively ignored by law enforcement. The ability of police to impose public shame on individuals is an underappreciated aspect of how officers conduct themselves on a day-to-day basis, even when they are operating within the boundaries of the law. Put another way, just because the police may do something to someone doesn’t mean they should.

In a situation like this, the damage goes beyond this man and his family. Imagine that you are an African American in Galveston and you saw police treat a black man like that. The department said that the officers did this because there was no transport vehicle available to take him for processing. Maybe that’s true, maybe it isn’t. Regardless, you know what you’ve seen in your newspapers and splashed across the internet. You know the message that act sends to the black community, irrespective of the officers’ intent. Is that photo going to increase or decrease your belief that those officers will treat you fairly if you encounter them?

Why Public Schools Can’t Have Nice Values

It’s nearing back-to-school time, and that means in addition to lots of yellow buses, we’ll be seeing the annual spate of education polls. The first one just came out—the 2019 Phi Delta Kappa poll—and it furnishes some interesting information illustrating why it’s so hard for public schools to inculcate values. Short answer: we just don’t agree on them, and a lot of people fear what their kids might be taught.

This edition of the survey—PDK, by the way, is an organization of professional educators—has a special focus on teaching religion, civics, and other values-based subjects, as well as presenting regular fare such as grades for public schools and lists of perceived “biggest problems.” Taken as a whole, it reveals that most people want values taught, but there is major disagreement about what values specifically, and the possible consequences of teaching them. It’s what we see play out in districts nationwide on Cato’s Public Schooling Battle Map, and no doubt in many places not on the Map because conflicts and concerns don’t make it onto reporters’ radars.

Start with civics. A central promise since the earliest days of American public schooling advocacy was that “common” schools would form good citizens. But to the extent that involves things like teaching how government works, it’s not happening. One reason may be that while those who are supposed to govern public schools—“the people”—overwhelmingly agree that civics should be taught, they don’t think it is nearly as important as other things. When asked what “the main goal of a public school education” should be, only 25 percent of respondents replied “to prepare students to be good citizens.” 21 percent said “to prepare students for work” and 53 percent “to prepare students academically.” The results specifically for parents, in the chart below, were similar.

The next problem is, if you do teach civics, what do you include? 27 percent of respondents, and 29 percent of parents, were at least “somewhat” concerned that “civics classes might include political content” with which they would disagree, with 35 percent of Republicans feeling that way. That’s less stark than one might expect if one thinks of such heated showdowns as those in Michigan and Texas over the core word “democracy,” but having more than one in four people fearing political bias means there’s a good chance of polarizing disagreement in lots of schools, making even basic civics something of a minefield to avoid.

Even more precarious is religion, but many Americans are religious, and we have seen several states pushing to include religious content, especially on the Bible, in schools. The PDK poll shows that while almost everyone thinks civics should be taught, if not prioritized, feelings are more mixed on religion. On whether comparative religion classes should be in public schools, only 7 percent of respondents said they should be required, 70 percent supported them as electives, and 23 percent did not want them at all. Bible classes were more polarizing, with 6 percent wanting them to be mandatory, 58 percent electives, and 36 percent nowhere in the schools. (Again, as the chart below shows, parents were similar to the general public.) Tracking with this, about one in four respondents feared comparative religion classes would cause students to question their families’ beliefs or change their faith, and more than one in three feared Bible classes “might improperly promote Judeo-Christian religious beliefs.”

Again, those numbers may feel a little low, but having any sizable share of families potentially object to what is taught is a powerful deterrent against presenting the material. Indeed, while the pollsters found nearly unanimous approval for teaching generic “honesty” and “civility,” nearly 40 percent of respondents said it would not be possible to get people in their community “to agree on a set of basic values.”

All of this points to an inherent problem for public schools in a diverse society: It is very difficult get diverse people to agree on what to teach, especially on highly personal matters such as religion, or highly volatile such as politics. The result is that public schools often spark social conflict, downplay anything potentially controversial, or first do one and then the other, harming social cohesion and academic rigor. Of course, there is an educational arrangement that avoids the zero-sum nature of public schooling, fostering peace and rigor: school choice. This year, PDK did not ask about that.

Disciplinary Court Recommends Termination for Officer in Garner Case

Today, in the disciplinary case against New York City police officer Daniel Pantaleo, an administrative judge found him guilty on one of two counts relating to the death of Eric Garner in 2014. He was found guilty of using a chokehold that was banned by the NYPD at the time of the incident, but he was acquitted of intentionally obstructing Garner’s airway in the process. The verdict came with a recommendation that Pantaleo, who has been working administrative detail during the investigative processes, should be fired.

The now-infamous video taken by a bystander led to two criminal investigations of Pantaleo—one local, one federal—but in neither case were criminal charges brought. With those cases closed, the U.S. Department of Justice announcing just last month that they would not seek an indictment against Pantaleo, the administrative charges were the last open case against the officer.

However, the decision to terminate will ultimately rest with the NYPD commissioner, James O’Neill. The Police Benevolent Association—the police union—is staunchly defending Panteleo and openly threatening internal revolt if the Commissioner follows the judge’s recommendation. From the New York Times report:

On Friday, the city’s largest police union called the verdict “pure political insanity,” and said Mr. O’Neill should reject the judge’s recommendation to fire Officer Pantaleo.

“The only hope for justice now lies with Police Commissioner O’Neill,” said Patrick J. Lynch, the president of the Police Benevolent Association. “He knows that if he affirms this horrendous decision, he will lose his police department.”

This open defiance underscores the political pressures that lead to departments keeping violent and other misbehaving officers on the job.

If you spend time with patrol officers, you’ll often hear of complaints about how people they arrest for violent acts against others are walking out of court without any meaningful consequences. Yet, when one of their own kills a man and failed to provide aid to him as he was dying, their union threatens insubordination and chaos if that officer isn’t protected from consequences. I agree that good officers don’t get enough credit for the service and sacrifices they give to the public, but statements like these are as responsible as any critic or protestor for the sullied reputation of police departments and their officers.

People are fired for mistakes at work all the time, and most people don’t kill anyone while making them. Pantaleo knew he wasn’t supposed to use that chokehold and employing that maneuver led to Eric Garner’s death. If the Commissioner fires Pantaleo, the NYPD rank-and-file should respect that decision.

Police officers need the trust and support of the community to solve crimes and bring criminals to justice. They cannot maintain that trust by neglecting their duty in protest if one of their own is held to account for needlessly killing a man.  

Kamala’s Conundrum

During Wednesday night’s Democratic presidential debate, Tulsi Gabbard tore into Kamala Harris for her track record as a prosecutor in San Francisco and later as California’s Attorney General. The attack was sharp and effective, earning Gabbard an outsize share of the post-debate commentary. Its thrust was entirely fair, too, as any number of articles have demonstrated, including Lara Bazelon’s recent takedown in The New York Times titled Kamala Haris Was Not a Progressive Prosecutor.

The real significance of Gabbard’s critique, however, lies not in the proposition that Harris was a particularly unprofessional or malign prosecutor, but rather in the fact that she seems to have been a rather ordinary prosecutor who simply did her job the way most prosecutors do. And if that makes a former-prosecutor-turned-presidential-candidate look like a monster, then perhaps that says more about prosecutors in general than it does about Kamala Harris in particular.

Gabbard’s gut-punch underscores the difficult position that modern prosecutors find themselves in as the key players in a substantially immoral and increasingly indefensible criminal justice system. A near-universal blind spot of career prosecutors like Harris is their failure to appreciate the fact that law and morality can—and in our system frequently do—diverge.

Is it hypocritical for a person who has used marijuana to prosecute someone for possessing or selling it? Plainly yes, as Gabbard suggested in calling out Harris for doing precisely that. But enforcing bogus laws is not just hypocritical, it can be immoral as well. Consider the Fugitive Slave Act of 1850, a federal law that, among other things, required citizens of free states to assist in the capture and return of escaped slaves. Or eugenics laws adopted by more than half the states during the 20th century that subjected tens of thousands of law-abiding citizens, mostly young women, to forced sterilization and a childless future. Then there’s Shreveport, Louisiana’s ordinance making it a crime to wear saggy pants. Some 726 men, 96 percent of them black, were arrested under that law between its adoption in 2007 and its repeal in June of this year, after a Shreveport officer shot and killed 31-year-old Anthony Childs while trying to arrest him for wearing pants that didn’t come up to his waist. All of those laws were immoral, and participating in their enforcement constitutes a manifestly immoral act.

Pages