Word of the Month for November 2017: Qualified Immunity

The longer I work in the business of law, the less I am surprised about things. Things like judges who make law on the bench.  Things like politicians who think they're above the law.  Things like police who think the're above the law (in the video below, the Public Defender is defending her client and is arrested for doing so - and the police go and violate the law messing up the whole process (fruit of the poisonous tree, and all).

Thing is, daily I see or read about instances where the police ignore the rule(s) of law to effectuate an arrest and it makes me wonder whether police get prizes for arresting people?  So, for a jaywalking arrest, you get a whistle; for a misdemeanor, you get a dozen donuts; for a wobbler felony, you get a pony.  Is there some competition to chalk up arrests?  I got to wondering about this after helping this Guy who came into the library for help.  

Seems Guy had been walking through a local public park one day when a police officer ("Cop") approached him and demanded Guy lay face down on the ground.  When Guy asked why, Cop called over his four buddies who proceed to beat the living crap out of Guy until, now unconscious, Guy fell face down on the ground breaking his nose, his left cheek bone, a few teeth, and lost a couple quarts of blood. 

Months later, after getting out of the hospital, Guy filed a lawsuit against the city and the Cops.  Guy loses because the court says Cops are protected under the concept of qualified immunity.  Wait, what?!

According to Black's Law Dictionary, QUALIFIED IMMUNITY is:

Immunity from civil liability for a public official who is performing a discretionary function as long as the conduct does not violate clearly established constitutional or statutory rights. See also Saucier v. Katz, 121 S.Ct. 2151 (2001).

In this case, Guy says he was walking in a public park and was beaten senseless by a four thugs who happened to be wearing blue uniforms.  As far as Guy is concerned, "discretionary function" should not extend to beating a person into unconsciousness.  In any event, having lost his case in Superior Court, Guy filed his Notice of Appeal and was looking for information on how to best argue his case at the appellate level.

In the course of looking for information for Guy, I came across Behrens v. Pelletier, 116 S.Ct. 834 (1996) which noted that the qualified immunity defense shields government agents from liability for civil damages insofar as their conduct does not violate clearly established statutory or constitutional rights of which a reasonable person would have known. 

So, basically, if Cops say they believed Guy was violating the law, and were beating the stuffing out of Guy only because Guy was resisting arrest, they can do whatever they want - since Guy essentially has the burden of proving that he wasn't committing a crime or wasn't resisting arrest.  So, who do you think the court is going to believe?  Four Cops or one Guy?

While the voice in my head said, "face it, Guy is screwed,"  I did my best James Dean and led Guy over to:

• Federal Ninth Circuit Civil Appellate Practice (TR)
• Federal Appellate Practice in the United States (BNA)
• Winning on Appeal: better briefs and oral argument (NITA)
• California Civil Appellate Practice (CEB)

and off Guy went to develop his case.

The thing is there are (at least) four sides to every story there's Guy's story, Cops story, what the judge believes, and what actually happened.  I mean who is to say Guy isn't fudging the facts to elicit sympathy?  Would you?!

The problem is that as long as you have a thing like qualified immunity hanging over the heads of we the people, there is always going to be a hint of impropriety by big government. Get rid of that immunity and come out fighting like everyone else and only then can we freely decide who is (or is not) guilty.