September 20, 2019 3:42PM

“We Give Qualified Immunity to Just About Everybody”

On Wednesday, the U.S. Court of Appeals for the Fourth Circuit heard oral argument for a special appeal in Betton v. Belue (18-1974). The case stems from a federal civil rights lawsuit brought by Julian Betton, who was shot and paralyzed when police officers raided his home on a marijuana charge. Officer David Belue was one of several South Carolinian 15th District Drug Enforcement Unit (DEU) officers who participated in the raid, and this week’s argument was his appeal of the district court’s denial of qualified immunity for his actions.

By now, regular readers know that Cato has been leading a campaign to abolish the qualified immunity doctrine, which unlawfully shields police officers from civil liability for violating individuals’ constitutional rights. Although the oral argument indicates that Officer Belue is going to lose his appeal, the case nevertheless shows that our civil rights laws are essential to curbing the hyperviolent police conduct that can lead to unnecessary deaths and injuries.

The facts of the case, as established by the district court, state that DEU officers used a battering ram to knock-down and enter Mr. Betton’s home without identifying themselves as officers, nor were any of the officers wearing police uniforms or other obvious indications that they were law enforcement. Mr. Betton withdrew a gun from his waistband and had it by his side when he was struck by 9 of 29 rounds fired by the intruding officers. Each of the participating officers falsely claimed that they had knocked and announced their presence before breaking into the home. At least some of the officers also falsely claimed that Mr. Betton had raised his weapon and had shot at the officers before they returned fire. For the use of force from this botched raid, Officer Belue sought qualified immunity.

In the audio file posted on the U.S. Court of Appeals for the Fourth Circuit website, the empaneled judges seemed uniformly outraged by the conduct of the officers during this raid. In particular, Judge Barbara Milano Keenan lamented, “It’s so shocking what happened in this case for a two-bit marijuana deal.”

Unfortunately, this is how our state, federal, and local governments have prosecuted and continue to prosecute the drug war. More than a decade ago, our former colleague Radley Balko wrote about the paramilitarization of American police in his seminal Cato report "Overkill," documenting hundreds of botched raids by police departments, many of which were launched against non-violent drug offenders. He subsequently wrote an excellent book about the widespread use of SWAT teams, Rise of the Warrior Cop.

The police use of “dynamic entry”—the sudden and disorienting SWAT-style raids as in the present case—are dangerous not only for the raid targets, but for the officers themselves who can be shot by individuals who don’t know the police are coming. As the court contemplates during the argument, citing the Supreme Court’s holding in D.C. v. Heller (2008), it is perfectly reasonable for a gun owner to defend himself and his home in a way that Mr. Betton did when faced with unidentified armed intruders. Here is one exchange between the court and the officer’s counsel on Wednesday*:

Counsel: “Where I think the court is drawing concern is that Mr. Betton is in his home…”

Court: “That’s pretty important: He’s in his home.”

Counsel: “Yes, sir.”

Court: “And people break down the door.”

Counsel: “Yes, sir.”

Court: “And they don’t say who they are.”

Counsel: “Yes, sir.”

Court: “And they’re not dressed as police officers. And they come in.”

Counsel: “Yes, sir.”

Court: “[So] What did [Mr. Betton] do that was unreasonable?”

The implication that any gun owner who found himself in Mr. Betton’s situation could be shot for merely possessing his gun in his home was outrageous to the judges. The judges were even more appalled by the unseriousness of marijuana possession as the reason for such over-the-top DEU action. It could only have gone worse for the officer had his counsel said, “But this is how we do our jobs!”

But given what we know about SWAT teams and dynamic entry raids, this probably is how DEU regularly does its job.

Thankfully, there is a case on point in the Fourth Circuit—Cooper v. Sheehan, 735 F.3d 153 (4th Cir. 2013)—that establishes that merely possessing a firearm in one’s home is not sufficient for police to initiate deadly force. Thus, the DEU officers’ actions violated “clearly established” constitutional protections and will not be protected by the qualified immunity doctrine.

But had the facts been just slightly different, the court may have felt its hands were tied to award Officer Belue the immunity for which he appealed. As one judge said toward the end of argument, "We give qualified immunity to [just] about everybody."

So the police continue to enforce bad laws, and they choose to do so in ways that endanger the public and themselves. Shielding officers from legitimate lawsuits not only injure those who have had their rights violated but also protect the bad laws and policies that lead to horrific and predictable tragedies.

You can listen to the argument audio at the Fourth Circuit's website. Check out Cato's work on qualified immunity at our Unlawful Shield website.

*All quotes transcribed by the author in lieu of available transcript. Although not identified in the audio, the judge asking the questions here is likely Judge Joseph R. Goodwin, who previously spoke at Cato on the out-sized role of plea bargaining in the criminal system. Judge Robert B. King is the third judge on the panel.