Officer Durbin’s atrocious and inhuman conduct violated Ms. Jenkins’ constitutional rights, and Ms. Jenkins’ son brought a Section 1983 claim on her behalf. But a divided panel of the Ninth Circuit held that Officer Durbin was entitled to qualified immunity, in large part by crediting his patently unreasonable belief that Ms. Jenkins was “faking.” Judge Watford, in dissent, explained in detail how this decision conflicts with longstanding Ninth Circuit case law holding that “[a]n unreasonable mistake of fact does not provide the basis for qualified immunity.” Demuth v. Cnty. of Los Angeles, 798 F.3d 837, 839 (9th Cir. 2015).
Ms. Jenkins’ son therefore filed a petition for rehearing en banc, and Cato filed a brief in support of that petition to elaborate on two major points. First, the panel’s holding that Officer Durbin was entitled to qualified immunity was no mere technical error—it is also reinforces a dangerous but widespread misunderstanding of how the doctrine of qualified immunity should apply in cases of obvious constitutional violations. In its recent decision in Taylor v. Riojas, 141 S. Ct. 52 (2020), the Supreme Court reaffirmed the basic principle that qualified immunity should turn on whether a defendant had “fair warning” that their conduct was unlawful, and that in cases with “particularly egregious facts,” it is unnecessary for plaintiffs to identify a prior case involving the same factual scenario. Id. at 54. Second, persistent misunderstanding of qualified immunity not only gets the law wrong, but its application to police officers exacerbates a growing crisis of accountability in law enforcement. In light of the difficulties posed to public officials by deteriorating public trust, courts should be especially vigilant in identifying and correcting such errors.