By now we’ve all seen the footage of the train in Colorado hitting the police car stopped on the tracks, severely injuring a woman in police custody who was placed handcuffed in the rear of the police cruiser. My immediate thought was qualified immunity. There can be no doubt that the police officer was directly at fault in causing the severe injuries to the woman in his custody. No doubt about it. But unlike a doctor who negligently injures someone, a police officer get to assert qualified immunity.
Here’s the 8 minute clip showing the train hit the cruiser:
Qualified immunity is unfair and needs to be abolished. A lawyer representing this woman, if a lawsuit is filed, is going to have the legal requirement to point to some past clearly established case law describing the officer’s conduct as a civil rights violation. Well, how many cases have there been in any particular jurisdiction where police officers let people in their custody get hit by trains? Moreover, as I’ve explained before, to establish section 1983 liability, you have to allege intentional conduct – not negligence or incompetence. Some intentional or purposeful conduct. For this reason, when one police officer accidentally shoots their partner, there’s generally no liability. I did a video on that one already.
I took a quick look at the case law in the jurisdiction where this train incident happened, which is Colorado, which is in the Tenth Circuit Court of Appeals. So that’s where you want to look first for federal civil rights case law. I have a theory of liability here. First, take a look at some of the new footage released, from another angle.
There’s a legal doctrine under section 1983 called the state-created danger theory. Basically, it allows a pathway for a plaintiff to establish section 1983 liability for a civil rights violation where the government may not have directly or intentionally caused the injury to the plaintiff, but created the possibility or likelihood that it would occur. This theory has been adopted in the 10th Circuit. Here’s what a plaintiff would have to prove:
- the charged state … actor[ ] created the danger or increased plaintiff’s vulnerability to the danger in some way;
- plaintiff was a member of a limited and specifically definable group;
- defendant[‘s] conduct put plaintiff at substantial risk of serious, immediate, and proximate harm;
- the risk was obvious or known;
- defendants acted recklessly in conscious disregard of that risk; and
- such conduct, when viewed in total, is conscience shocking.
Estate of Reat v. Rodriguez, 824 F.3d 960 (10th Cir. 2016)
But to defeat qualified immunity, you still have to point to a prior case with a similar fact pattern. Again, a non-exhaustive review of 10th Circuit case law shows that the state-created danger doctrine has been applied:
Off-duty police officer on personal business who crashed his police vehicle;
On-duty police officer who engaged in a high-speed chase;
Firefighter who crashed his truck into a car;
Police officer who caused the death of a bystander by instructing him to help physically subdue a suspect, who then shot the civilian;
Social worker who removed a child from his mother’s home and placed him with his father, who killed him;
School official who suspended and sent home a special education student who subsequently killed himself;
State mental health administrators who eliminated a special unit for the criminally insane, causing the transfer of a murderer to the general hospital, where he killed his therapist.
The common theme for liability in the 10th Circuit under the state-created danger theory is that the victims were unable to care for themselves or had limitations imposed on their freedom by state actors. This is very much like the deliberate indifference standard imposed on correctional officers entrusted with the care of inmates. The arrestee is unable to act herself. She can’t get out of the way of the train. Likewise, if a prison catches fire, inmates locked in their cells can’t get out on their own.
I can think of a few other arguments and theories for liability. But this is an often-overlooked one, and popped into my head first. It seems to match our facts here. Watching the footage establishes, without much potential for dispute, that the arresting officer created the danger; that he rendered the victim incapable of helping herself; that he put her into harm’s way, and that the risk was obvious. You can see the fact that he had parked on the train tracks. No doubt the evidence would show that he was aware of the fact that these tracks were frequented by trains. You can actually hear the train coming in the body cam footage.
If this woman is left with no justice due to qualified immunity, hopefully people will start paying attention. Qualified immunity serves no legitimate purpose. It’s the very definition of judicial activism. I’ll be watching this one to see what happens.
I also will be watching this, Thank You.
In the 1970’s I worked in Weld County for the county ambulance service. I have a pretty good idea of about where this occurred. I too was stopped by a moving train while enroute with a 12 yr old male in critical condition from a tracker accident. We were stopped by a long slow moving train and had an airway established and an IV in. He coded on us about the time we got stopped. He didn’t make it; pronounced DOA 30 mins after we got to the ER. This is inexcusable by this County Sheriff. I see things haven’t changed much in the incompetent department with this SO. This is a stupid, senseless criminal act by these LEO’s.
We have two federal lawsuits in Maine that went to the first circuit court on “ Doctrine of State Created the Danger “
Both suits were upheld in the first circuit in favor of the plaintiffs.
One case was “ Ireland , last name of plaintiff “
And the other case was out of Biddeford Maine on a landlord tenant dispute, where the landlord came back after threatening the tenant’s I. Front of police with deadly force, and killed them.
The cop did nothing in regards to the threat.
The Ireland case was against the Maine State Police for failure to respond to a domestic that resulted in death.
I don’t know anything about law, but there should not be qualified ammunity for the officer that put her in the cruiser.
Colorado SENATE BILL 20-217 challenges qualified immunity in Colorado.
Good morning John, I sent your video to Dr. Good Grande, because he also did a story on this incident. He’s a psychologist, with over one million subscribers. It’s interesting to hear a point of view from a lawyer and a Dr. Point of views on this matter are very far apart. You may want to look him up.
Take care, see you on the next one. Red Flower