Today on The Argument, why is it so hard to sue a police officer and win? I’m Jane Coaston, and if you follow me on Twitter, you know that I have very strong feelings about qualified immunity. Qualified immunity is what protected four cops from a lawsuit after they assaulted a man they pulled over for a broken tail light. It protected officers who allegedly stole more than $200,000 while executing a search warrant, and it protected the officers who pinned a man face down for nearly 14 minutes. He later died.
It’s a legal doctrine, and it comes from the fact that under federal law, you’re allowed to sue government officials who violate your constitutional rights, including police officers, which seems good. But it’s actually a lot harder to do than it sounds, because to sue and win, you have to show that there was a previous example of a cop doing essentially the exact same bad thing.
I think that kind of legal shield is outrageous, especially when we’re talking about police reform. We can talk about changing police training all we want, but courts are supposed to be the last backstop that ensures bad actors get punished. And with qualified immunity in place, many don’t. Those high stakes are the reason qualified immunity is one of the biggest sticking points in the congressional battle over police reform legislation.
And my guests today strongly disagree on the subject. Lenny Kesten is the leading defender of police officers with Brody, Hardoon, Perkins, and Kesten, and Easha Anand is the Supreme Court and Appellate Counsel for the MacArthur Justice Center, a nationwide group of attorneys focused on social justice. She also represents the family of Tony Timpa.
Here’s my admittedly biased takeaway on what qualified immunity is. Qualified immunity is a legal doctrine that gives public employees immunity from civil liability if the thing that they did — in many cases, very bad, obviously bad thing — was not clearly established to be unconstitutional, as in if there was not a prior case published that featured a sufficiently close set of circumstances as this case, anyone attempting to sue the police officer or the public employee would be told, sorry, they get qualified immunity, go away.
What am I getting wrong, Easha?
Nothing, Jane. I think that’s exactly right. I’ll just add kind of two pieces to that puzzle. Ordinarily, Congress decides who gets sued and for what — right, that’s where the Schoolhouse Rock, how a bill becomes a law, separation of powers, right? Qualified immunity is an exception to all that. It’s something that courts came up with 100 years later.
And then the second thing I’ll just add is when you talk about clearly established law, you made the point that it’s going to be a case that’s virtually identical. And that’s right. We’ve heard courts say things like, yes, we held that siccing an attack dog on someone who had surrendered, that’s unconstitutional. But in that case, the guy surrendered by lying face down. In this case, the guy surrendered by sitting with his hands in the air, so qualified immunity.
But the other thing I wanted to flag about published precedent is sort of how random it is whether a piece becomes published precedent. And to even get to court, the victim’s family has to have the wherewithal to hire a lawyer, which takes resources. The case can’t settle, right? So George Floyd’s killing, even though I guarantee every police officer in this country knows that that happened and it was wrong, his family settled, right? So it’s never going to become clearly established law. It never makes its way to an appellate court.
And so you have all these filters that really have nothing to do with the merits of the case, have nothing to do with whether officers know about the case, that limit the body of what you can even look to for clearly established law.
Lenny, I know that you have a different view on qualified immunity. What am I getting wrong here with my definition that I’ve offered of qualified immunity?
Virtually everything. So the guidance — let’s say we’re talking typically about excessive force. The legislature passes a law. No. What we’re interpreting is the Constitution when it comes to excessive force. And the guidance it gives law enforcement is it should be reasonable. That’s all it says. We know about summary judgment. The judges are gatekeepers. Not every use of force gets to a jury.
Forget qualified immunity for the moment. It’s just a fact. You can’t let everything get to a jury.
Can we back up for just a second?
Just for people like me who didn’t go to law school — as of right now — what does summary judgment mean? I mean, essentially, it’s when a judge decides a civil case without a trial and a jury, but can you explain in this case?
So somebody accuses a police officer of excessive force. You take the facts at the outset of the trial. If you believe everything that person says, have they articulated a violation of the Constitution? So that’s the first question. And there are cases that get knocked out because we don’t let every case get to a jury. Just because somebody says, I think what you did is unreasonable, if that’s all the guidance we have, then every case will be decided by jury, every case will go to trial.
And you could have totally inconsistent verdicts. So that’s the way the law works.
So I just want to push back on that a little bit, because what is reasonable, that’s actually a really high standard. So the Fourth Amendment prohibits unreasonable police conduct. And the Supreme Court has said in deciding what’s unreasonable you have to look at the danger’s the officers in, not just the danger the officer might have perceived correctly or not. You to look at what the person who you’re using force against was accused, have to look at what — they’re resisting arrest.
And critically, the Supreme Court has said that what’s, quote, reasonable, you have to account for the fact that police officers are often making split second life or death decisions. So this notion that officers are going to just be left to the mercy of juries without qualified immunity, it’s frankly not right, because the Supreme Court has explained that reasonableness allows a fair amount of deference for officers. Did that make sense, Jane? I couldn’t tell if that was —
Does it make sense to somebody who’s going to go to law school soon?
Yeah, that’s the next debate is whether Jane should go to law school. Could we have that debate?
Oh, man, the argument should Jane go to law school, we can bring in my parents. It’ll be great.
So just to clarify before Lenny jumps in here — so we have the reasonable standard. Then we have the second layer, so a court can say — and courts often do say — this behavior was unreasonable, but there is the second standard that says, like, there was not a previous case in which the court said it was unconstitutional, therefore you get qualified immunity. Is that correct?
That’s how I understand it.
Here’s the thing. Look at it the other way. We have statutes that are struck down because they’re vague, because you’re allowed — us as citizens cannot be held criminally liable for something if the statute isn’t clear, if the rule isn’t clear that’s criminal. That’s part of our jurisprudence, that it’s unfair to hold people responsible for things that they couldn’t have known was illegal.
That is what qualified immunity talks about. At the time the officer acted, if there’s no way that officer could have known that her conduct might be found unreasonable, how can you hold that officer liable? These cases come up on new weapons, new uses of force. The case that I was involved with involved the question of whether you could release a dog on a fleeing misdemeanant. That issue had not been decided at the time it happened.
So the officer didn’t know, can I do this or not? The policy of the town allowed him to do it. And they decided it was constitutional. The defendant just wins, it is constitutional to do it. And then we sent it out to everyone in the country, saying these are now the rules. They set out the rules for the first time on the criteria for releasing a dog.
So this concept of fair warning, it sort of has nothing to do with qualified immunity. I’ll tell you why. So Joanna Schwartz, who’s a professor at UCLA Law, she’s probably the country’s foremost expert on qualified immunity. She did a study recently, it’s published in an article called “Qualified Immunity’s Boldest Lie.” And she looked at hundreds of police training programs, outlines, briefs.
And here’s what she’s found, which actually not that surprising. She found that police departments, in the vast majority of cases, trained on two cases- – the Supreme Court cases. They’re called Graham and Garner. And they set out the basic principles for using force. Right, you got to balance the danger to the officer and the bystanders against blah blah blah. And she found, that’s what they train on. And then they do a bunch of hypotheticals to try to apply those general principles to different sets of facts.
And that make sense, right? Police officers are going to encounter a huge variety of fact patterns, and you can’t train them on the exact rules for every single one. But given that that’s the case, given that police officers aren’t looking at this clearly established law in the first place, it’s a little bit bizarre to say no liability because no clearly established law, when Joanna Schwartz’s research proves clearly established law has nothing to do with how a police officer is actually trained.
I want to just push back on this notion that we’re talking about novel scenarios. There may be scenarios that haven’t come up in published circuit court opinions before, but they may be novel just because police officers haven’t been so brazen before. So there’s a case where cops raided some homes and businesses. No one’s ever charged with a crime, but the cops confiscate some $275,000 in rare coins and cash.
Investigation ends. Cops lie and say they only confiscated $50,000 in cash. They keep the rest for themselves. So ask anybody, ask someone on the street and they say that’s theft. They only turned $50,000 of the $275,000 they confiscated, and there was no crime? The court said, no actually, I haven’t had a case on that before, no clearly established law. We never had a case on that because no police officers have ever been so brazen, but that’s exactly what protected those officers.
I mean, this is one of those moments — I keep joking about this on the internet — like, how could they possibly know this is unconstitutional. Like, that just seems pretty general knowledge. So it seems to me that if I were to attempt to be held liable in civil court because I had done something of the same ilk, no one would be saying, oh, how could Jane possibly know it was unconstitutional to steal money.
But a lot of these cases are, like, you just can’t do that. You shouldn’t tase someone while they’re lying down, or steal money from some — like, these just seem like pretty general things that if I did it, people would be understandably upset with me. What does it say about the fact that for police officers, or for this particular role, they are able to argue otherwise.
I believe that that’s still a crime what they did. The question is whether it’s unconstitutional. Your quarrel is with the courts. You have people in black robes who have decided it’s OK. You know, I’ve had people that decided it’s not unconstitutional. If this theft case was so clearly unconstitutional, I’m sure the court would have said it’s unconstitutional. They might have still given qualified immunity, maybe, but they would have decided it.
There’s very few cases that I’ve ever seen where the courts really think it’s unconstitutional, but they get qualified immunity anyway. I don’t like it. I’ve always said it’s an easy way out for a court.
So I’m agreeing with you, that in a lot of cases what officers did is reasonable under the Constitution, but in that 10% of cases where it is unreasonable, where despite allowing all of this leeway for split second decision making, we say it’s unreasonable, why in those cases do you get qualified immunity? There are cases where officers are trained not to do some things.
There was a recent Tenth Circuit case where Denver police trained their officers. They say, recording the police protected by the First Amendment, don’t interfere. Officers go ahead and interfere. And the Tenth Circuit, says, yeah, you were trained on that but it wasn’t in clearly established law, so no constitutional problem.
There are all of these settings where what an officer did is really unreasonable and they really should’ve known better, where we just interpose qualified immunity, in a way we don’t do for doctors or construction workers, or as Jane said, for Jane herself when she steals some money.
I am not going to steal money. Easha, you worked on a case that I’ve cited many times. I think that that’s kind of how we came into communication, which was the case of Timpa vs. Dillard. You have a pretty close understanding of how this works in real time. Can you talk about that case and what happened?
So here’s the backdrop of the Timpa vs. Dillard case. In the 1990s, Fifth Circuit has a case where a guy ingests cocaine. He suffered from mental illness. He’s flailing around. Cops handcuff him, they restrain his feet, they tie the leg restraints to the handcuffs, and they put him face down. A few minutes later, death. Total tragedy. In the decades since, police department trains their officers over and over and over again, don’t keep someone face down once they’re handcuffed. They may asphyxiate.
Get them upright as soon as possible. Lenny is nodding because this is something that just about every police officer in the country’s told. So fast forward a few decades. Dallas police officers are trained. They get PowerPoints on this. It’s in their policy six different places. Don’t keep someone face down on the ground any longer than necessary, put them on their side as soon as possible.
But Dallas police officers come across Tony Timpa. And like that guy in the 1990s case, he’s taken cocaine. He’s mentally ill. He in fact calls the police because he is struggling with his mental illness and needs help. He’s flailing around. Handcuffed — so, you know, no threat, just like the ‘90s case. They restrain his legs, just like the ‘90s case. They put him face down, just like the ‘90s case. They kneel on his back, so worse than that ‘90s case, because you’ve also got weight on his back, making it harder for him to breathe.
And they do that for 14 minutes. They’re joking around as he’s calling for help and gasping for breath and he dies. And a court says, qualified immunity, because, yes, there are a bunch of cases about officers dealing with a mentally ill suspect on drugs. And yes, in all of those cases says the suspects were handcuffed and face down. And yes, in all of those cases, suspects’ legs were restrained.
And yes, in all those cases, the suspects suffocated to death. But in those cases, the leg restraints were tied to the handcuffs, and in this case, the leg restraints weren’t. Never mind that Dallas itself says the rule is don’t keep someone face down once they’re restrained. Forget about tying or not tying. Now, of course, we’re arguing that was wrong. That is not how qualified immunity should work. But that’s the level of specific we’re talking about that courts have gone to when they’re dealing with qualified immunity.
And I want to add in that — something that struck me specifically about the Timpa case is that Timpa called 911. He was having a psychotic episode and was off of his medications. And Timpa had already been restrained by a security guard. So Lenny, I think that you will agree that this is an egregious case, but if you had been representing the police in this case, would you have done something differently? And what needs to happen if we keep qualified immunity so that officers in this case don’t get qualified immunity.
I read that case. And the court would have given summary judgment to those officers.
And again, just to be clear, what would that have meant?
That the case would have been thrown out without qualified immunity. That’s saying that —
How on earth could that have justified the use of deadly force?
There wasn’t deadly force. First of all, it wasn’t deadly —
Kneeling on someone — kneeling —
Hang on. Hang on. That is a term of art and you know that. And this is not deadly force. There is force they use that can kill you.
So tell me why that is, Lenny?
Because that’s how the courts look at it.
— that not only can kill you, can have a substantial risk of killing you — right. A bunch of courts have held that prone asphyxiation falls into that category.
All force can be deadly. There was a national debate on whether police dogs in the so-called bite and hold that they used — because when you release a police dog to catch somebody, they don’t have arms. The only way they can catch you is with their teeth. And there was a case where somebody died from being grabbed by a police dog. So there was a debate as to whether or not this kind of dog should be considered deadly force.
And the courts ruled no, it’s not deadly force, even though it may kill.
In the Fifth Circuit, where we’re litigating the Timpa case, what is deadly force is a question of fact. That means it depends on what you put in the record. And so the technical term is deadly force is something that has a substantial risk of causing serious bodily harm.
And the presentation in the evidence in the Timpa case features a number of experts saying just that, that keeping someone prone and restrained, particularly where they’ve ingested cocaine, particularly where they have mental illness, and especially when you put weight on their back, there is a substantial risk of death, particularly when you go into the double digit number of minutes.
So we’re arguing that this is deadly force. And indeed, the 1990s case I talked about, where someone had been hogtied — leg restraints tied to the handcuffs — found that was deadly force. And so it’s not as though there’s some blanket rule that says prone asphyxiation can never be deadly force. It depends on the circumstances of the case.
We have always argued that in considering whether or not something is unconstitutional, the court should not look to the policies and procedures of the police department. Because if you do, if the courts say that we’re going to consider that as a factor in deciding whether something is unconstitutional, this will encourage police organizations to let officers do whatever they want.
For example, there’s something known as the Lenny Kesten pursuit policy in Massachusetts, which is just don’t. Pursuits are so dangerous. You know — and just, it’s just best not to. But the court, the Supreme Court, has authorized all kinds of pursuits, which are hair raising to me, some of them. They say it’s OK. So a lot of police departments tell police officers we don’t want you to pursue with certain criteria other than that, tighter than the Fourth Amendment rules so far.
And if the courts say, if they violate the policy, we’re going to consider that, then we’re going to take the policy and say, well, why should we make the policy. The policy will only reflect clearly established law. And they’ll be able to do more things which we may not want them to do. So that’s why using the policy — to say that if they violate the policy, that violates the Fourth Amendment, then you’re going to see policies that you’re not going to be as happy with.
Hi, Jane. This is Connor from San Diego. The argument that I have been having is that essentially college sports should be banned. And by that, I mean the money making sports should essentially become minor leagues, and the Olympic style sports should become club sports. I think that would be a better situation for everybody, though I grew up in North Carolina so all of my Duke and UNC friends have very different opinions about this one.
I know you are a big college sports fan and I’m sure that you would bring a lot to an argument on that.
OK, Connor, you’re definitely not the first person to have this idea. But here’s why this is wrong. First and foremost, the money making sports are in most cases just one sport, football. The average Division I school will generate more revenue from their football team than they will from the next 35 sports combined, basketball included. Revenues from football subsidize Olympic sports.
And sponsoring a wide swath of Olympic sports without football revenue or full time coaching, like you see in club sports, would take away college opportunities from tons of people, particularly since those college opportunities come with scholarships that club teams don’t generally offer.
Given that many of these universities already have club sports, which again, aren’t regulated by the NCAA, and crucially often receive very little money from the University — i.e. no scholarships — it doesn’t make sense to me what would be better about having athletes who have received a scholarship to compete in NCAA Olympic sports be turned into club sports athletes who wouldn’t get scholarships. Perhaps a better option would be to allow athletes to benefit financially from their images.
In 2019, 2020 the UCLA women’s gymnastics team — the team you think should be a club sport — would have generated more than a million dollars were they able to accept endorsements. But even though I don’t agree with you, Connor, thanks for telling me what you think and giving me something to argue about.
What are you arguing about with your family, your friends, your frenemies? Tell me about the big debate you’re having in a voicemail by calling 347-915-4324, and we might play an excerpt of it on a future episode.
Lenny, you want, and I want, and I think many people would want the training to be reflective of not permitting a lot of these actions that police are then conducting, but I think Easha — and I would argue I also — make the point that if the training says don’t do this thing, and the police do this thing. And then the justice system says, well, you shouldn’t have done this thing, but we’re going to give you qualified immunity. Yes, the training says don’t do the thing, but there’s no means by which they are punished for doing the thing.
No, they’re punished internally. If you violate policy, you are disciplined and you can be fired. And we have a police reform bill in Massachusetts, which has tightened it all up We now have a commission, an independent commission that looks at all this stuff and makes a decision where somebody’s going to stay to be a cop. And it’s not related to the Constitution. In some ways it is. It’s related to their view of the conduct.
So if you’re told not to do something by a police department and you do it, you will be punished.
In Massachusetts, we’ve seen that. But in the case of Tony Timpa, I think four of the officers present at the scenes of his death are on active duty, and the fifth retired at the age of 50. So I know that part of this has to do with how policing is a local issue and a lot of these issues differ by states, but we have seen instances in which police officers who receive qualified immunity, even if they have violated standards that their policies states, don’t get punished by those requisite police departments.
Can I point out a large flaw in this whole debate, about how this is — how eliminating qualified immunity is going to change everything.
It’s just about money. We’re talking about civil suits. The only thing civil suits accomplish, almost, is money. And the money is going to come from the taxpayers. The officers do not pay the money. There’s been a study done — what is it 98%, 99% of the funds come from the taxpayers. So it’s not about, oh they’ll be held accountable. They’re going to go to jail. They’re going to be fired. No, all that’s going to happen is that the taxpayers will have to pay more money.
Now the thought is maybe that’ll change behavior. Let me tell you what are the actual guardrails on the behavior of people that have the color of state law. It’s called punitive damages. And that means if the officer, if she does something so outrageous, that outrages the jury — Jane is on the jury, and Jane said this is the worst thing I’ve ever seen. You can award punitive damages. The whole qualified immunity debate is about paying more money.
So Lenny and I agree on a couple of key points. First, officers never pay. Joanna Schwartz, the UCLA law expert I mentioned, did a study where she looked at some $9 million in punitive damages that were awarded against officers, and found that they didn’t pay a penny toward that. On the other side of the ledger, you’ve got a family that has lost a child, a parent, sibling, a loved one.
Nothing’s going to make them whole, but in this country we’ve decided the way that we redress those harms, the way that we acknowledge that something bad has happened, is we pay damages. And so to say this is just about money is to say this is just about the way that the court system holds people accountable for wrongs that have happened. What Lenny’s saying I think actually tips the equitable balance against qualified immunity, because if you compare that officer who’s not paying a penny out of pocket against the grieving family, it sure feels tough to justify qualified immunity.
I think that for me this issue is, like, getting money is still a big deal. And even if it is just money, that’s still saying that this was wrong. This is how much money to say this was wrong.
But here’s your problem. People have come across this idea, that if we eliminate qualified immunity it will change policing. I note these movements around the country — I’ve only been participating the Massachusetts movement for police reform and statutorily — so the biggest item that’s happened here is creating a commission to oversee internal affairs, to look at officer behavior. And they have the power to decertify officers. That’s meaningful change.
If you want officers held accountable, that’s a real change. But focusing on qualified immunity, which will not achieve it — it will not — it’s just about money. It’s not going to change policing.
But I think there are a lot of different pieces to this debate. If I were in charge of everything, I want to change police training. I want to change the both simultaneous overpolicing and underpolicing — how police respond to people in the midst of mental health crises. Like, there’s a lot here to do. Qualified immunity represents a piece of how this works. This is a part of the overall police reform conversation.
I certainly don’t feel like, and I don’t think anyone feels like, police reform is going to happen just by eliminating qualified immunity. There’s all kinds of other things that need to go, that need to change. But eliminating qualified immunity does these two things, right? The first is it provides redress to families.
And the second thing is it creates some incentive not for individual officers, because as we say, this money doesn’t come out of individual officers’ pockets, but for the municipalities that vet officers, that train them, that discipline them, that fire them. And so having some incentives for those actors, knowing they’re going to pay a lot of money if an officer goes rogue and shoots someone when they’re not supposed to — Lenny, I think you and I also agree that the scope of training should never define the scope of liability.
And I don’t think under the Fourth Amendment’s reasonableness standard it does. You can’t just say, we didn’t give our police officers any training, so they can’t possibly ever violate the Constitution.
On policies and procedures, the law right now, according to the Supreme Court’s interpretation of the Constitution, the law allows police pursuits in many types of scenarios. A lot of police departments have much tighter rules, would say even though the Fourth Amendment allows you to do it, we’d rather you didn’t. If the courts say that a violation of policy is some evidence of violation of the Fourth Amendment, why would any police department make policies that are more restrictive in their behavior, which you should want the police departments to do.
You know, I don’t think anyone is saying that if you train someone on something that is narrower than the Fourth Amendment, the Fourth Amendment protection’s suddenly become broader. I don’t think anyone think if a police department trains you to do something and the Fourth Amendment doesn’t ban it, you’re suddenly constitutionally liable.
What we are saying is where you do violate the Constitution, in that where a police chase that violates the Fourth Amendment, it should matter that you were told not to do that. This idea of notice doesn’t come from clearly established law. It comes from a bunch of places. It comes from police training, comes from police officers seeing their colleagues getting fired, or disciplined, or something. There are all kinds of ways police officers get notice.
So even if we buy the officers need fair warning in a way that often ordinary citizens don’t get the benefit of — criminal defendant can’t say no clearly established law.
I disagree with that. And I used to be in law enforcement believe it or not. I wasn’t a police officer. I was in corrections. And I was a counselor, primarily. Trying to talk down somebody in a psychotic break is very hard, trust me. When there’s trouble on the street and something insane is going on, we call 911 and go hide under the bed. They don’t have that luxury. It is a very difficult and dangerous job. And they are making those split second decisions all the time.
And they should not be held liable for something that they could not know was illegal. And Graham doesn’t say much either. But we have specific things we train them on. So for example, in the canine case, we now told them these are the things which can release of canine, these are where you can’t, because they Court finally the outlined it, made a decision. So the courts make a decision. You can do this, you can’t do that. But there’s never been any way for them to know they should not be held constitutionally liable. They could be held liable for violating the rules. There’s a difference. And everybody’s in favor of improving policing.
Well, I’m glad that we are agreed on improving policing, though we still disagree on the best way to do it and on qualified immunity. Easha, Lenny, thank you so much. That was so informative. I will let you both know if I decide to go to law school. And when I’m in the midst of like torts and contracts, I will email you both to say, why did you do this to me. Thank you both so much.
Thank you, Jane.
Thank you. [MUSIC PLAYING]
Lenny Kesten is a leading defender of police officers with Brody, Hardoon, Perkins, and Kesten. And Easha Anand is the Supreme Court and Appellate Counsel for the MacArthur Justice Center. I obviously have a lot of thoughts about qualified immunity. One of the pieces that has really stuck with me is by the Cato Institute, a libertarian think tank. It’s called “The Cops Who Killed Tony Timpa Are Unfit To Serve, But Courts Ensure They Keep Their Jobs.”
And for the full story of what happened to Tony Timpa, I think The Dallas Morning News’ investigation is excellent. It’s titled “Police Responded To His 911 Call For Help, He Died: What Happened To Tony Timpa.” I also watched another debate, in preparation for this debate, hosted by the Federalist Society. It’s just called, “Qualified Immunity: A Debate.” The roundtable has lawyers, a policy analyst, and a columnist discussing the pros and cons of qualified immunity.
Finally, this podcast is all about hearing and being open to ideas you disagree with. So I think it’s also worth reading the National Police Support Fundd’s defense of qualified immunity. It’s called “Why We Need Qualified Immunity.” You can find links to all of these in our episode notes.
The Argument is a production of New York Times Opinion. It’s produced by Phoebe Lett, Elisa Gutierrez, and Vishakha Darbha, edited by Allison Bruzek and Paula Szchuman, with original music and sound design by Isaac Jones, fact checking by Kate Sinclair, and audience strategy by Shannon Busta.