Update on the Jefferson County Superintendent Lawsuit

The first of my two clients in the federal civil rights lawsuit filed yesterday against the superintendent of Jefferson County Schools had her disciplinary hearing today, where the “evidence” was presented of her alleged involvement in the violence at the U.S. Capitol last Wednesday. Apparently the only evidence presented was a conspicuously-absent anonymous “report.” According to the attorney at the scene, Bondy Gibson, the superintendent who leveled the accusations, refused to provide a copy of the allegations, the name of the person making the allegation, or any of the social media posts the individual referenced.

Apparently, what actually happened, is that the Board office reviewed Pam McDonald’s social media page and came to the same conclusion that all have, which is that Pam did nothing wrong and broke no laws. Unfortunately, however, the damage has already been done, and our lawsuit will continue. For instance, here’s a screenshot of a TV news story from this morning about my two clients:

Here’s another disgusting media report from WVDM, which was the direct recipient of the leak from the Jefferson County Schools smearing my clients. It announced that my clients “participated in riots in Washington D.C.” Can you imagine, your friendly school bus drivers may have rioted through the Capitol?

In case anyone misunderstood, in the WDVM article above, this was the exact quote:

The statement details that Superintendent Bondy Shay Gibson was made aware on Friday of the staff members’ participation that left the Capitol Building in shambles.

It turns out that no such evidence exists, apparently. But what about the smear letter the superintendent wrote yesterday which was provided to WV Metro News, where she said this:

On Friday, January 8, 2021, I received such a report that two employees had posted threatening and inflammatory posts on their Facebook pages, had been present at the Electoral protest march on Wednesday that erupted in violence, and had violated our leave policy.

Wait, first . . . about the leave policy…. how would one go about reporting whether one of your employees violated your leave policy? Do random people have access to your employee personnel files? Or was this “person” who made the report “a friend” of yours. Sort of like the “friend” prefaced in embarrassing Dear Abby letters? Does this friend happen an office in the school administration building with a sign on the door saying something like, “Superintendent?”

Secondly, about the “threatening and inflammatory posts” my clients supposedly made….. Where are they? I’m sure they were just misplaced….. They must exist, right?

If the goal was to drag these ladies through the mud, merely for their political affiliation and viewpoints, I guess it was a job well-done. They received all sorts of well-wishes from the tolerant and compassionate commenters among us. If only someone saved some sort of record of the ugly comments which were directed at my two innocent clients in the comments section of these defamatory pieces….. That would be a great way, not only to document the ugliness of the situation, but also to hold accountable the nasty individuals behind the keyboards who so recklessly and maliciously love to destroy the lives of their fellow human beings, based only on political disagreement.

It would be a shame if some of them ended up getting sued and held accountable for their online bullying….. Just a thought.

Jefferson County Schools Superintendent Violates First Amendment Rights of Two Employees and We Sue

You may have seen in the national news, and on social media, that the Superintendent of Jefferson County Schools, in Jefferson County, West Virginia, decided to come after school employees who attended the Trump Rally on January 6, 2020. At least two employees, both long-time school bus drivers, who attended the rally, and who never entered any prohibited areas near the Capitol, never witnessed violence, never participated in violence, destruction of property, trespassing, etc., were suspended on January 8, 2020, and remain suspended as of this time.

This afternoon we filed a federal Section 1983 civil rights lawsuit against the Superintendent, individually, for money damages. Here’s the filing:

Here’s a live video filmed just after we filed the lawsuit, going over the Complaint:

Also, I’ll be on the Tom Roton Morning Show Tuesday morning at around 7:30 a.m. It’s always a good discussion on hit show…..

Here’s where the school administrators leaked the false allegations against my clients to the TV News, despite it supposedly being a “personnel matter”:

Here’s an article from the WV Metro News, discussing the letter she released today, at about the same time we filed suit.

And here’s the letter itself, doubling down, essentially:

This is a blatant attack on the core of the First Amendment: the right to assemble and protest in a traditional forum of public speech, such as the U.S. Capitol. These clients did not pass into any prohibited area that day. They committed no crime while in Washington D.C. They’re exercise of free speech had absolutely nothing to do with their employment as school bus drivers for Jefferson County Schools. They just so happened to have a political activist superintendent.

Chicago PD Search Warrant Video and the Law on Wrong Address Search Warrants and Sloppy Police Work

Police officers with the Chicago PD traumatize a nude woman, who was just minding her own business in her home, which is caught on Video via bodycams. Her lawyer then dismisses her case because he misunderstood the law. Oops. You may have seen this case in the news, but I go behind the headlines and examine the incompetence not reported in the news, and explain what the law is for civil rights lawsuits following search warrant cases where there’s a wrong address and plain ‘ole incompetence.

You have to either allege that the warrant was invalid, or if that can’t be done, you have to attack the affidavit supporting the warrant. To succeed, Plaintiffs must prove Defendants “deliberately or with a ‘reckless disregard for the truth’ made material false statements in [their] affidavit” which were necessary to the magistrate’s finding of probable cause. Miller, 475 F.3d at 627 (quoting Franks v. Delaware, 438 U.S. 154, 155–56 (1978). Or, Plaintiffs must show Defendants omitted “material facts with the intent to make, or with reckless disregard of whether they thereby made, the affidavit misleading.’” Id.

“To determine materiality, a court must excise the offending inaccuracies and insert the facts recklessly omitted, and then determine whether or not the ‘corrected’ warrant affidavit would establish probable cause.” Id. (internal quotations removed). “If the ‘corrected’ warrant affidavit establishes probable cause, no civil liability lies against the officer.”

“Reckless disregard can be established by evidence that an officer acted with a high degree of awareness of a statement’s probable falsity,” meaning an officer had “serious doubts as to the truth of his statements or had obvious reasons to doubt the accuracy of the information he reported.” Id. (internal quotations removed). For omissions, “reckless disregard can be established by evidence that a police officer failed to inform the judicial officer of facts [he] knew would negate probable cause.” Id. (internal quotations removed). However, negligence or innocent mistake “will not provide a basis for a constitutional violation.” Id. (quoting Franks, 438 U.S. at 171).

Federal Civil Rights Lawsuit Filed in the Dog-Crawl-Head-Smash Video Case

Yesterday afternoon we filed a federal civil rights lawsuit against the police officers involved in the viral video showing police (without a warrant) forcing my client, James Walkup, to crawl to his own front door, only to have his head smashed with a boot on his front porch. If you haven’t seen the video, here it is:

This happened in the Western end of Greenbrier County, West Virginia. And here’s the filed lawsuit, now pending in the Beckley Division of the Southern District of West Virginia. We made claims for unlawful search and seizure, as well as use of excessive force. The defendants are one Rainelle, WV police officer and two West Virginia State Troopers.

Video update Part 2, providing more background and evidence in the case, and summarizing the lawsuit:

Here’s the damage to Mr. Walkup’s head:

Here’s the Rainelle Police Department officer who smashed Mr. Walkup’s head:

Here’s the West Virginia State Trooper who grabbed the phone and turned it off, and who we allege attempted to delete the video footage (which was retrieved in the trash of the phone’s “cloud”):

THAT MOMENT YOU REALIZE YOUR BUDDY’S BOOT STOMP WAS CAUGHT ON CAMERA……

When you can sue the police for using excessive force – FIS No. 20

The Civil Rights Lawyer explains how and when a citizen can sue the police for excessive force under federal civil rights law. It seems that everyone has an opinion on police use of force in recent months. In this video, I’ll explain the law of excessive force, which dictates when a justified use of force becomes an unlawful use of force and a federal civil rights violation. This has been my primary practice area the past decade or so, so I’ll point out some of the practical lessons I’ve learned along the way.

Streamed LIVE today at noon (well 12:05).

Video showing Rainelle PD and WVSP performing a warrantless search and seizure inside a home and using excessive force

This is a video about an encounter at the home of my client, Matt, in March of 2019, which occurred in Charmco, West Virginia, which is in Greenbrier County. It shows police arriving at his home to arrest a friend who was visiting him, who happened to have an outstanding warrant.

Matt didn’t want to be involved one way or the other. He was afraid, so he turned on his phone and began recording and he laid down. He didn’t want to get shot. But they forced him to crawl to the door on his hands and knees. When he got there, he got head-stomped by the first officer.

They didn’t know he was recording. The second officer, a West Virginia State Police trooper, noticed the phone filming, and he covered it with his hands, and turned the phone off. The officers then deleted the video footage. But it was recovered.

Continued fallout from the Family Court Judge Search Case

Here is some of the recent press and updates on the Family Court Judge Search Case out of Raleigh County, West Virginia. It made the front page there today:

The West Virginia Supreme Court of Appeals has charged a Raleigh County Family Court judge of 26 years with at least seven alleged violations of the Code of Judicial Conduct, after she admitted to visiting the home of litigants to investigate a property dispute.

The SCOA formally charged Judge Louise E. Goldston on Sept. 23 with violations to rules on compliance with the law, confidence in the judiciary, avoiding abuse of prestige of office, impartiality and fairness, external influences, competence, diligence and cooperating and extrajudicial activities, in general.

Goldston hears cases in Raleigh Family Court and Wyoming County Family Court.

https://www.register-herald.com/news/deja-vu-another-county-judge-in-ethics-trouble/article_9952c3b7-29c5-5d9a-8aba-17a6a5604849.html?fbclid=IwAR0UGqXmpoWpwy48dJXuLjgO0XJqd06gwvRmnRY9rzj-ExerRJOuRhQmn80

Another interesting update….. Apparently there was a public admonishment against another Family Court Judge, who was recently elected to the bench, for doing a “home visit” in two instances, though both of those included lawyers who either requested the visit, or failed to object. The judge in that case mentioned that he never would have performed them had someone objected, and blamed Judge Goldston (from the video):

Respondent opined that he believed it was proper to visit litigants’ homes because a colleague had engaged in the same practice for several years. (The colleague, who is also the subject of a judicial disciplinary proceeding, recently engaged in a visit to a litigant ex-husband’s home to search for….

Discussion with my client, Matt Gibson, on having his house searched by a judge:

I did three TV interviews on Monday. I’ve only seen one, this one, which I thought turned out well – brutally honest:

BECKLEY, WV (WVNS) — Impartiality and fairness, complying with the law, avoiding abuse of office. These are only three of the seven rules Judge Louise Goldston is charged with violating during an incident in March.

Goldston oversaw a divorce case involving Matt Gibson. In order to find items Gibson allegedly neglected to maintain or turn over to the court, his attorney, John Bryan, said Goldston reportedly stopped the hearing and ordered all parties to immediately go to Gibson’s house.

“From day one that I looked at that video, I didn’t see any way that that was legal,” Bryan explained.

Here’s another:

UPDATE: Raleigh County Family Court Judge now facing charges from the Judicial Investigation Commission

Even though Gibson is representing himself in the divorce case, he did hire John Bryan for action taken against the judge after the at-home search.

 “Apparently this has been going on for 20 years and at least 10 other times this was done upon the motion of an attorney without the object of the other attorney,” Bryan said. “And what does that tell me? That maybe they were scared to challenge the judge, to challenge the system. I don’t know. I think that there are a lot of questions there that need to be answered.” 

Read the formal statement of charges and my analysis:

WV Supreme Court Releases Formal Statement of Charges against Raleigh County Family Court Judge

Yesterday afternoon, the West Virginia Supreme Court of Appeals clerk’s office released the Formal Statement of Charges against Raleigh County, West Virginia Family Court Judge Louise E. Goldston – a 26 year Family Court judge. This is the judge caught on video searching the home of my client, Matt Gibson – threatening him with arrest if he didn’t allow her in. Here’s the post with the original video, as well as the update video, if you haven’t seen it. The charges state that on March 11, 2020, investigators opened a complaint, and that a subsequently second complaint was filed by my client, Matt Gibson.

For reference, I originally uploaded the video of the judge searching Matt’s property on March 10 – the day before the inception of the opening of the investigation. The video quickly went viral, and by the next day an investigation had essentially opened itself. In other words, the power of Youtube is great. In one day, it found its way into the eyeballs of the Judicial Investigation Commission, the only folks with the power to lodge judicial disciplinary charges against judges in West Virginia.

The Supreme Court of Appeals of West Virginia established the Judicial Investigation Commission to determine whether probable cause exists to formally charge a judge with a violation of the Code of Judicial Conduct, to govern the ethical conduct of judges and to determine if a judge, because of advancing years and attendant physical and mental incapacity, should not continue to serve.

http://www.courtswv.gov/legal-community/judicial-investigation.html

If you want to report what you believe is judicial misconduct, or a civil rights violations committed by a judge, anyone can file a complaint with the JIC. Here’s the complaint form.

Any person may file an ethics complaint against a judge. However, a complaint that is filed more than two (2) years after the complainant knew, or in the exercise of reasonable diligence should have known, of the existence of a violation of the Code of Judicial Conduct may be dismissed for exceeding the statute of limitations.

http://www.courtswv.gov/legal-community/judicial-investigation.html

Then, even though covid hit, the investigation apparently proceeded, and 6 months later the charges dropped (which was yesterday, 10/2/20). I just happened to be traveling when the charges came out, so it wasn’t really until this morning that I was able to digest them.The Formal Statement of Charges alleges that:

FAMILY COURT JUDGE GOLDSTON violated Rule 1.1 (compliance with the law), Rule 1.2 (confidence in the judiciary), Rule 1.3 (avoiding abuse of prestige of office), Rule 2.2 (impartiality and fairness), Rule 2.4(B) (external influences), Rule 2.5 (competence, diligence and cooperation) and Rule 3.1(A), (B), (D) (extrajudicial activities in general) of the Code of Judicial Conduct….

In other words, the JIC concluded that the judge failed to comply with the law, committed actions which undermines confidence in the judiciary, abused the prestige of her office, was impartial and unfair, allowed external influences on her actions, was incompetent, un-diligent (is that a word?) and uncooperative, and engaged in extrajudicial activities. According to the charges, these home “visits” (searches) have been going on “over the past twenty years.”

Over the past twenty years as a Family Court Judge, Respondent has been engaging in the practice of visiting homes of litigants appearing in front of her. Respondent went to the litigants’ homes to either determine if certain disputed marital property was present and/or to supervise the transfer of disputed property. Respondent admitted to conducting these home visits in her capacity as a Family Court Judge on eleven separate occasions in different cases.

In every instance except Mr. Gibson’s case, all of Respondent’s home visits were prompted by a motion by a litigant’s attorney and not objected to by the opposing party and will full knowledge of the purpose therein. Most of the Respondent’s home visits occurred during a court hearing in the case. A party’s attorney would move the Court to leave directly from the bench and accompany the parties to the home. After granting the motion, Respondent would meet the parties at the home.

The JIC interviewed the judge and asked her what authority she had to engage in this practice:

On July 22, 2020, Judicial Disciplinary Counsel took Respondent’s sworn statement. Respondent admitted that she failed to inform Mr. Gibson of the purpose of the home visit while the parties were in the courtroom and that she did not give him any opportunity to object thereto until everyone was at his house.

Respondent opined that she believed it was proper to visit litigants’ homes. Respondent likened the practice to a jury view or similar continuation of the court proceeding and stated that as a finder of fact it was necessary to determine whether a party could be held in contempt for not turning over personal property as previously ordered by the Court.

When asked, Respondent could provide no statute, rule or case that gave her the authority to conduct home visits. Respondent also acknowledged that there was nothing in the contempt powers that gave her the authority to conduct a home visit. Respondent confessed that she never held anyone in contempt prior to going to the home and that she failed to enter any order subsequent to the visit reflecting what had happened at the residence, whether any items had been secured and/or whether or not a party was in contempt.

I was absolutely correct when I first reviewed the video. There was no legal basis upon which a judge could search a home as was portrayed in the video. The fact that this judge had been doing it for the past 20 years, was not itself justification. Instead, this sobering fact proves that many former Family Court litigants are absolutely correct when they rant about corruption and unlawfulness. Over the past 20 years, at least 10 other victims have been subjected to this in this judge’s “courtroom,” subjected to unlawful “home visits” upon the motion of an attorney, and without objection from any other attorney.

I wonder how many of these visits involved this one particular attorney involved in this video? After all, it was this attorney who left a voice message for Mr. Gibson the night before the search, offering $5,000 in exchange for foregoing what would essentially be a Family Court anal probing:

This whole thing reeks to me, and sounds a lot like a “pay to play” style judicial experience. Had he paid 5 grand, he could have avoided being lucky number 11? Time will tell, hopefully. Roots run deep in a 20 year period inside one particular court. Perhaps this had something to do with a local Family Court attorney going on TV following my initial TV appearance with my client, to say that I was wrong, and that “home visits” were a perfectly legal Family Court practice. Yeah, okay…..

BECKLEY, WV (WOAY) – UPDATE: On Thursday, we ran a story about a Raleigh County man involved in a contempt case after a finalized divorce whose recording of a family court judge went viral. Matt Gibson claimed the search of his home was against his 4th Amendment rights. Because the judge and the opposing attorney cannot comment on ongoing litigation, local family attorney [let’s call him JOHN DOE] is speaking out saying Judge Louise Goldston was doing her job and doing it legally

“What I think is most important to know about this is when you see a video on YouTube, when you see a Terry search, when you see something and immediately it doesn’t match what we’ve always seen on television that doesn’t make it wrong,” he said. “Because they didn’t do it that way on Law and Order doesn’t mean that a judge that has decades of experience is breaking the law.”

It looks like I was right, and he was wrong. So, he said the judge wasn’t allowed to respond, so he was responding on her behalf? Why is that, I wonder? That’s a rhetorical question, of course. Is he saying that she asked him to respond and defend her publicly? Another good point that the JIC makes in the statement of charges, is that if the judge, and her local family court lawyers, are going to characterize her actions as a lawful component of a judicial proceeding, then they have some issues to consider:

Respondent admitted that she never had any clear or written procedures for conducting a home visit, including but not limited to, when the proceeding should be utilized and how the process should take place. She also acknowledged that she never took a court reporter to the scene.

Upon reflection, Respondent agreed that the practice could make her a potential witness to a future proceeding which could then result in her disqualification. Respondent further agreed that family court judges run the risk of disqualification if he/she were to become a witness in a subsequent proceeding pertaining thereto.

Respondent also agreed that the burden of proof in a contempt proceeding rests not with the Family Court Judge but with the moving party. She agreed that it is the moving party’s responsibility to provide evidence in support of his/her contention that the other side has failed to produce the items in question. Respondent admitted to improperly putting herself into the role of litigant.

Like I said during the TV interview, the reason I’ve never heard people complain about having their homes searched by judges before, is because that’s not what judge do – judges don’t search homes. This judge was acting in the role of a litigant. So it was basically like Trump debating both Biden and Chris Wallace in the first presidential debate. That’s not how it’s supposed to work. The opposing attorney is supposed to submit evidence and prove his case. Here you had a judge doing both of these things, and then engaging in an unlawful search of one party’s home, on behalf of the other party. Why? That’s yet another rhetorical question of course. If the other 10 victims were represented by lawyers, why didn’t they object?

And then there’s the 800 pound gorilla in the room: the Sheriff’s Department assisting the judge in these actions. On how many of these 10 other searches were they present? The statement of charges also notes that the bailiff (a sheriff’s deputy) forced Mr. Gibson to stop his recording, and that he himself started to record what happened inside the home:

Upon Respondent’s arrival at Mr. Gibson’s property, Mr. Gibson had a bystander video record the initial interactions outside the house between Respondent and the parties. Mr. Gibson also secretly recorded several minutes of audio of the initial interaction on his cell phone.

When the video and audio recording were discovered by Respondent, she ordered both recordings stopped. However, once inside the house, Respondent’s bailiff used his phone to record both video and audio of the separation of marital assets.

Where is this video, and why hasn’t it been produced? I heard through the grapevine, that following my initial uploading of the Youtube video, that the Sheriff of that county sent around a memo to the effect of, “no more going anywhere with a judge….” Of course, the JIC doesn’t investigate law enforcement, nor discipline them. You might find this shocking, but there is no state agency or commission which investigates law enforcement officers in the way that judges, and even lawyers, are investigated (there’s a pending disciplinary complaint against the lawyer who was involved here as well).

The only consistent investigator of law enforcement misconduct in West Virginia is me, sadly. Those who were involved in the search of my client’s house will be explaining their actions. I can’t put people in jail, nor discipline them, so we’ve pretty much come full circle. I have to demand money damages for my client, and they’ll have the opportunity to avoid what’s coming their way. It ain’t pretty, but that’s the relief available. Unless someone wants to deputize me as a special federal prosecutor or something…..

What is Qualified Immunity and why does it fail at life?

Section 1983 lawsuits allow private citizens to sue individual government officials, including police officers, for violations of federal rights performed under color of law.

If a government officer violates a federally protected civil right, the citizen has the legal right to file a civil lawsuit against the officer. 42 USC 1983, passed in 1871, allows citizens to sue state and local government officials – especially police officers – for damages when their rights are violated. Even if they’ve suffered no monetary damages, if they are successful, they’re entitled to an award of reasonable attorney fees and expenses. The same sort of lawsuit is available against federal officials pursuant to the U.S. Supreme Court case, Bivens v. Six Unknown Named Agents of the Federal Bureau of Narcotics (1971). Those are known as “Bivens actions.” But before these lawsuits can be successful, they have to get past the obstacle of the Qualified Immunity defense.

Qualified Immunity is a defense to civil lawsuits alleging the violation of federal rights while acting under color of law. It does not apply as a defense to criminal prosecution.

Qualified Immunity is a civil defense to these lawsuits, provided to government officials by the Supreme Court initially in the case of Pierson v. Ray in 1967, and then again, in its current form, in Harlow v. Fitzgerald, in 1982. It was rearranged yet again in Pearson v. Callahan (2009) giving federal judges more discretion in granting qualified immunity.

Qualified Immunity has been the subject of intense debate in recent years, and especially in recent months. Many commentators have criticized it as an example of the Court creating legislation from the bench, and in so doing having created a significant problem for citizens seeking to hold their government officials accountable for the violations of their civil rights.

As Ninth Circuit Judge Stephen Reinhardt has written, the Supreme Court’s recent qualified immunity decisions have “created such powerful shields for law enforcement that people whose rights are violated, even in egregious ways, often lack any means of enforcing those rights.” Three of the foremost experts on Section 1983 litigation—Karen Blum, Erwin Chemerinsky, and Martin Schwartz—have concluded that recent developments in qualified immunity doctrine leave “not much Hopeless for plaintiffs.” 

Although the concept of qualified immunity was drawn from defenses existing in the common law at the time 42 U.S.C. § 1983 was enacted, the Court has made clear that the contours of qualified immunity’s protections are shaped not by the common law but instead by policy considerations. In particular, the Court seeks to balance “two important interests—the need to hold public officials accountable when they exercise power irresponsibly and the need to shield officials from harassment, distraction, and liability when they perform their duties reasonably.” 

The Supreme Court’s original rationale for qualified immunity was to shield officials from financial liability. The Court first announced that law enforcement officials were entitled to a qualified immunity from suits in the 1967 case of Pierson v. Ray. That decision justified qualified immunity as a means of protecting government defendants from financial burdens when acting in good faith in legally murky areas. Qualified immunity was necessary, according to the Court, because “[a] policeman’s lot is not so unhappy that he must choose between being charged with dereliction of duty if he does not arrest when he had probable cause, and being mulcted in damages if he does.”

How Qualified Immunity Fails, by Joanna C. Schwartz, Yale Law Journal, 127:2 (2017).

The reality of Qualified Immunity, through my eyes, which are the eyes of someone who litigates civil rights lawsuits mostly as a plaintiff, is that it’s more of an annoyance in the usual case litigated by an experienced civil rights attorney, but that it’s often a problem in those unique cases where justice really should be served, but isn’t. The big problem, in my opinion, is the use of an objective standard. Common sense tells us that bad faith conduct by law enforcement should be punished. But the subjective bad faith, or malicious intentions, of a defendant police officer, surprisingly may not even be admissible in court. Because it’s usually irrelevant under the standard.

Qualified Immunity is analyzed using an objective standard, rather than subjective.

At its inception in 1967, there was a subjective component to the qualified immunity analysis. From 1967, when qualified immunity was first announced by the Supreme Court, until 1982 when Harlow was decided, a defendant seeking qualified immunity had to show both that his conduct was objectively reasonable and that he had a “good-faith” belief that his conduct was proper. In 1982, the Court in Harlow dropped the second part, the subjective good faith belief requirement, finding that such a requirement was “incompatible” with the policy goals of qualified immunity, which now not only was to protect law enforcement officers from financial liability, but also now to avoid subjecting them to either the costs and burdens of trial, as well as the burdens of broad-reaching discovery.

Qualified Immunity cannot be justified as a means of reducing civil litigation surrounding allegations of police misconduct.

In a recent study discussed in a Yale Law Journal article, out of a study of 1,183 lawsuits against state and local law enforcement defendants, over a period of two years, in five federal district courts, it was found that qualified immunity was only raised as a defense in 37% of the cases, and out of those, only resulted in dismissal in 3.6% of the casesSee How Qualified Immunity Fails, by Joanna C. Schwartz, Yale Law Journal, 127:2 (2017).

I’ll repeat that: out of 1,183 lawsuits against police officers for civil rights violations, Qualified Immunity was raised as a defense by the officers in only 37% of the cases, and out of those, only 3.6% resulted in dismissals.

Another study by Alexander Reinert, looking at Bivens actions (against federal officials), found that grants of qualified immunity led to just 2% of case dismissals over a three year study period. However, the big difference in those cases from regular Section 1983 cases, is that the defense attorneys are Assistant United States Attorneys – members of the civil branch of each federal district’s federal prosecutor’s office. As such, they may take a different route of defense, as a matter of DOJ policy. So they are somewhat different creatures, though both involve issues of Qualified Immunity.

Therefore, according to the numbers, “Qualified Immunity” itself is rarely the formal reason that civil rights lawsuits against law enforcement end. Moreover, there are certain types of cases where qualified immunity cannot be utilized, such as those against the employers of law enforcement officers (Monell Claims). Out of the 1,183 cases studied, 8.4% fell into this category. 

The Yale study also showed that most of the qualified immunity litigation is taking place at the summary judgment stage, or even the trial stage, rather than at the motion to dismiss stage, as the Supreme Court apparently intended. That means that litigation is not being avoided. It is perhaps being increased. 

As Alan Chen has observed, when considering the deficiencies of qualified immunity, “the costs eliminated by resolving the case prior to trial must be compared to the costs of trying the case . . . . [T]he pretrial litigation costs caused by the invoking of the immunity defense may cancel out the trial costs saved by that defense.”

How Qualified Immunity Fails, by Joanna C. Schwartz, Yale Law Journal, 127:2 (2017).

Moreover, Qualified Immunity likely increases the expense, as well as the delays, associated with federal civil rights litigation.

Although qualified immunity terminated only 3.9% of the 979 cases in my dataset in which qualified immunity could be raised, the defense was in fact raised by defendants in more than 37% of these cases—and was sometimes raised multiple times, at the motion to dismiss stage, at summary judgment, and through interlocutory appeals. Each time qualified immunity is raised, it must be researched, briefed, and argued by the parties and decided by the judge. And litigating qualified immunity is no small feat. John Je ries describes qualified immunity doctrine as “a mare’s nest of complexity and confusion.”155 Lower courts are “hopelessly conflicted both within and among themselves” as a result. One circuit court judge reported that “[w]ading through the doctrine of qualified immunity is one of the most morally and conceptually challenging tasks federal appellate court judges routinely face.”

How Qualified Immunity Fails, by Joanna C. Schwartz, Yale Law Journal, 127:2 (2017).

Qualified Immunity cannot be justified as a means of protecting police officers from personal financial liability.

In the study of 1,183 civil lawsuits, police officer defendants paid little, to none, of settlement or verdict amounts. Out of the 44 largest law enforcement agencies included in the study, which included 70 agencies overall, the individual officers paid just 0.02% of the dollars awarded to the plaintiffs in those suits. In the 37 smaller and midsize law enforcement agencies, no individual officer contributed any amount to any award to a plaintiff during this period. All of the officers were indemnified by the employers, even where they were fired, disciplined, or even criminally prosecuted for their conduct. This has been my experience as well, except in one particular case I’ve personally been involved with. I only know of one other instance in West Virginia where there was a second occurrence.

Qualified Immunity cannot be justified as a means of protecting police officers and government officials from the non-financial burdens of discovery and trial.

Often discussed in Qualified Immunity caselaw is this phrase, and so-called policy objective, of shielding government officials from the burdens of participating in a lawsuit, including the discovery process and the trial itself. For this reason, courts have the discretion to apply Qualified Immunity early in the litigation, including at the motion to dismiss stage, prior to any discovery being conducted. However, the study shows that this policy goal is not being met.

I found that, contrary to judicial and scholarly assumptions, qualified immunity is rarely the formal reason that civil rights damages actions against law enforcement end. Qualified immunity is raised infrequently before discovery begins: across the districts in my study, defendants raised qualified immunity in motions to dismiss in 13.9% of the cases in which they could raise the defense. 

These motions were less frequently granted than one might expect: courts granted motions to dismiss in whole or part on qualified immunity grounds 13.6% of the time.Qualified immunity was raised more often by defendants at summary judgment and was more often granted by courts at that stage. But even when courts granted motions to dismiss and summary judgment motions on qualified immunity grounds, those grants did not always result in the dismissal of the cases—additional claims or defendants regularly remained and continued to expose government officials to the possibility of discovery and trial. Across the five districts in my study, just 3.9% of the cases in which qualified immunity could be raised were dismissed on qualified immunity grounds.

And when one considers all the Section 1983 cases brought against law enforcement defendants—each of which could expose law enforcement officials to whatever burdens are associated with discovery and trial—just 0.6% of cases were dismissed at the motion to dismiss stage and 2.6% were dismissed at summary judgment on qualified immunity grounds.

How Qualified Immunity Fails, by Joanna C. Schwartz, Yale Law Journal, 127:2 (2017).

Thus, Qualified Immunity was the reason for dismissal in only 3.2% of the 1,183 lawsuits in the study. The defendants raised the defense in 37.6% of the cases where the defense was available. Out of these, only 13.9% of these were raised at the earliest point available – that is, the motion to dismiss stage – that being the only method of avoiding the burden of participating in the discovery process. Courts granted less than 18% of those motions raised at the motion to dismiss stage, which includes motions granted “in part,” which means that only some claims were dismissed, and that others were allowed to proceed. 

Therefore, the existence of Qualified Immunity is not serving the alleged policy goal of shielding government officials from the burden of participating in the litigation process. Unless, of course, one considers 3.2% to be a substantial shield from litigation. To the contrary, it arguably has increased the negative public perception of a lack of equal justice in the justice system as a whole.

How to strip a police officer of Qualified Immunity

To strip a police officer of qualified immunity in a civil rights lawsuit, a plaintiff must establish that:

1. the officer’s conduct violated a federal statute or constitutional right; and

2. the right was clearly established at the time of the conduct, such that

3. an objectively reasonable officer would have understood that the conduct

violated that right.

Which comes first? Until recently, the United States Court of Appeals required a court to first determine whether or not a constitutional right had been violated and then determine whether an officer was entitled to qualified immunity. See Saucier v. Katz, 121 S.Ct. 2151 (2001). Courts and attorneys were routinely ignoring this mandate and somewhat recently, the United States Supreme Court in Pearson v. Callahan (2009) reverted back to its initial analysis and now courts are free to evaluate these issues in whatever order the court desires. 

The real world application of Qualified Immunity.

1. There generally tends to be a “grace period “between a change in the law, and then moment it becomes “clearly established” for qualified immunity purposes.

2. Qualified Immunity is generally a poor defense to claims of excessive use of force by a police officer. The reason for this is because this often involves highly contested disputes of fact which make a trial likely. For example, a plaintiff alleges an officer kicked him in the groin while he was handcuffed. The officer responds that the plaintiff is lying, and that he did no such thing. This is most certainly going to require a trial to decide the truth of the matter. It doesn’t really involve a legal analysis of whether a police officer would know it would be a civil rights violation to kick a handcuffed detainee in the groin for no good reason. The primary exception to the excessive force rule is police shooting cases where the plaintiff is dead. Such a case usually involves family members of the decased filing suit. As such, the plaintiff himself/herself cannot tell his/her side of the story. With only one side available in many such cases, the court may grant qualified immunity based on the officers’ un-contradicted affidavits or deposition testimony.

3. Qualified Immunity is a very effective defense when dealing with search and seizure issues, which are rapidly developing and changing (due to commonly being involved in criminal litigation, which occurs in much greater volume and frequency). This creates so-called “grey areas” of the law, for which courts tend to give police officers the benefit of the doubt, so to speak.

4. An officer’s mistaken understanding of the law, or a reasonable misapprehension of the propriety of his conduct, can still provide a defense under Qualified Immunity. See Saucier v. Katz, 533 U.S. 194, 205 (2001) (“The concern of the immunity inquiry is to acknowledge that reasonable mistakes can be made as to the legal constraints on particular police conduct. It is sometimes difficult for an officer to determine how the relevant legal doctrine, here excessive force, will apply to the factual situation the officer confronts. An officer might correctly perceive all of the relevant facts but have a mistaken understanding as to whether a particular amount of force is legal in those circumstances. If the officer’s mistake as to what the law requires is reasonable, however, the officer is entitled to the immunity defense.”).

5. Qualified immunity applies as an effective defense in wrongful arrest cases, where the Court looks at the facts in the record and determines that probable cause exists, or that the officer made a reasonable mistake as to the existence of probable cause.

Therefore, ironically, Qualified Immunity is not much of a bar to a plaintiff seeking to hold a police officer responsible for the use of excessive force, such as in the recent death of George Floyd. Without a doubt, no court in the land would grant Qualified Immunity to the officer involved in Mr. Floyd’s death. There would be, or probably will be, factual issues to be determined at trial. Rather, it mostly is going to apply to those “grey areas” of search and seizure law. Moreover, it’s going to apply usually without regard to the officer’s subjective ignorance, or expertise, regarding the law. It’s an objective, fairly low standard.

For this reason, I agree with the author of the Yale Law Review study, in that rather than calling for the end of Qualified Immunity, it might be best to return to a subjective standard version of Qualified Immunity, where police officers who act in bad faith, as well as those who act in good faith, though objectively unreasonably, can be held accountable. But as for Qualified Immunity itself, whether it exists, or does not exist, it’s not going to apply to any of the officers directly involved in Mr. Floyd’s death. But it will be involved in many other cases, including cases where there certainly was police misconduct, for which the victim will be barred from recovery. That can’t be a good policy, in my opinion.