Criminal Justice

Which appeals court is most likely to grant qualified immunity to police?

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An analysis of qualified immunity cases in federal appeals courts shows significant disparities in grants of qualified immunity to police officers in excessive force cases.

Most likely to grant qualified immunity was the 5th U.S. Circuit Court of Appeals at New Orleans, which granted 64% of police requests for immunity, according to a Reuters investigation of 529 appellate rulings since 2005.

The 9th Circuit at San Francisco, on the other hand, granted just 42% of police requests for qualified immunity.

Reuters also analyzed 435 federal district court rulings in excessive force cases in California and Texas from 2014 to 2018. Texas federal judges found that police were protected by qualified immunity in 59% of the cases, while California federal judges granted qualified immunity in 34% of the cases.

A previous Reuters investigation found that courts recently have been granting qualified immunity to officers at increasing rates.

The concept of qualified immunity is being debated following the death of George Floyd while taking a knee to the neck by a Minneapolis police officer.

Critics say qualified immunity makes it difficult to discourage excessive force by police. The doctrine “leaves many victims violated but not vindicated,” wrote 5th Circuit Judge Don Willett, an appointee of President Donald Trump, in an opinion last year. Supporters say the doctrine is needed to protect officers who must make split-second decisions in life-and-death situations.

The doctrine, created by the U.S. Supreme Court in 1967, allows police to escape civil liability for violating a person’s rights under Section 1983 of the Civil Rights Act when those rights are not “clearly established.” Courts first ask whether police force was reasonable or excessive. If it was excessive, courts then consider whether the type of force used has been found to be illegal under clearly established precedent.

“But how judges answer those questions is influenced by their personal views on police authority and individuals’ rights, and their views often reflect the cultural and political landscapes they inhabit,” according to the Reuters article. “In typically conservative areas, judges tend to favor police, while in more liberal parts of the country, they tend to favor plaintiffs. Those tendencies get baked into circuit court precedents that all judges in that circuit must follow.”

Reuters highlighted the impact of differing court decisions in two cases in which men shot by police did not have a gun.

In Texas, a Fort Worth police officer shot and paralyzed David Collie when he pulled his hand out of his pocket while walking away from police who were shouting commands at him. Police had spotted Collie, who wasn’t wearing a shirt, outside an apartment complex while searching for two shirtless Black men who took two pairs of tennis shoes in an armed robbery. Collie was shot in the back. When Collie sued, the 5th Circuit upheld a finding of qualified immunity.

“You shoot me, paralyze me, put me in a nursing home, ruin everything, and I can’t get no type of compensation?” Collie said in an interview with Reuters from the nursing home. “This ain’t justice.”

But in California, courts denied qualified immunity to a Tustin officer who shot and killed Benny Herrera in a similar incident. His family received a $1.4 million settlement. Police were searching for Herrera after his former girlfriend reported that he had assaulted her.

See also: “Calls for police reform and racial justice spur a flurry of resolutions before the ABA House “Supreme Court rejects cases on qualified immunity used to shield police officers”

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