Public Interest

Is Sharper Scrutiny Of Qualified Immunity On The Horizon?

Even conservative jurists are starting to question police tactics.

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2000px-Police_brutality.svgRecently the eminent appellate law blog How Appealing linked to a fascinating piece by Harvard Law professor Noah Feldman with a rather flat but promising title: “Judges Are Thinking More About Excessive Force.” The piece focused on the now two-week-old case Pratt v. Harris County, in which a divided panel of the Fifth Circuit shot down an excessive force claim on grounds of qualified immunity. That’s a common enough result. So, whither the “thinking?”

Before we get to Feldman’s point, let’s take a quick spin through Pratt. Wayne Pratt had acted erratically when stopped by the police, was taken down by taser, was then hogtied (a violation of county policy), and, in that state, stopped breathing. He later died in a nearby hospital. Pratt’s mother brought suit, alleging several claims, of which I’m going to focus only on the claim that his death was the result of officers’ use of excessive force in violation of the Fourth Amendment. The officers asserted the defense of qualified immunity, meaning that if their actions were not violations of a narrowly drawn, clearly established right, then they win.

The majority opinion by Judge E. Grady Jolly went the way one might expect an excessive force claim to go in the Fifth Circuit: Judge Jolly drew Pratt’s Fourth Amendment rights narrowly, separately examining the minutiae of the officers’ use of tasers and hog-tying. Under the circumstances, he wrote, Pratt’s mother did not show that the officers’ “use of tasers was ‘clearly excessive’ or ‘unreasonable.’” And, “in the factual context of this case, the use of the hog-tie restraint was not unconstitutionally excessive, or unreasonable.” Never mind that there was Fifth Circuit case law finding hog-tying unconstitutional under similar circumstances, and never mind that the county had a policy against hog-tying, and never mind that one of the officers believed that the hog-tying was unconstitutional — there simply wasn’t a Fifth Circuit case whose facts were exactly like Pratt’s.

Judge Gregg Costa concurred. He wrote that his “colleagues’ differing opinions on whether the force applied in this tragic case was excessive” indicated that Pratt’s case was “precisely” the sort of case for which “qualified immunity provides a defense.” After all, one can’t expect “an officer making split second decisions in the field” to get the call right when federal judges can “spend days parsing the fine points of case law” and still disagree.

Judge Catharina Haynes, however, wrote that qualified immunity had no place in Pratt (at least given the case’s summary-judgment posture). Her lede was strong: “Wayne Pratt received the death penalty at the hands of three police officers for the misdemeanor crime of failing to stop and give information.” Her analysis was strong: two cases decided prior to Pratt’s death laid out guidelines about the use of hog-tying, and Pratt clearly lined up with the one that found excessive force. And her rebuttals to her colleagues were strong: the distinctions they drew were ones without differences, and there weren’t any “split second decisions” happening in Pratt’s case. Instead, Pratt posed no real threat but was nevertheless subdued by tasers and hogtied until he stopped breathing.

Now back to Feldman’s article. It’s Judge Haynes’s dissent that displays what Feldman characterizes as “thinking more about excessive force.” Indeed, Feldman writes, Judge Haynes is a George W. Bush appointee who’s “not known as a leftist of any kind” — but she wrote a dissent whose framing “makes sense only in the light of the Black Lives Matter protest movement drawing public attention to the use of excessive force in arrest and detention.” And, he suggests, that’s a good thing: “Maybe, as time passes, other judges will get the message too — and maybe that will save the lives of more arrestees, whether black or white.”

I hope Feldman is right. Last fall I wrote that reforming qualified immunity is a key — perhaps the key — to achieving real reform that stops police from killing civilians quite so often. I suggested an act of Congress to eliminate the “clearly established” element of a qualified immunity defense. But if more judges follow in Judge Haynes’s footsteps and recognize that qualified immunity has gone too far in the direction of protecting bad police acts — if her position in dissent can gradually become a consistent majority nationwide — well, maybe that’s even better than going the political route. In any event, a strong, smart dissent that garners attention from the likes of Noah Feldman and Howard Bashman is a nice start.

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Wednesday, May 4, 2016 [How Appealing]
Judges Are Thinking More About Excessive Force. [Bloomberg]

Earlier: Want To Fight Police Misconduct, Reform Qualified Immunity

Sam Wright is a dyed-in-the-wool, bleeding-heart public interest lawyer who has spent his career exclusively in nonprofits and government. If you have ideas, questions, kudos, or complaints about his column or public interest law in general, send him an email at PublicInterestATL@gmail.com.

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