An intriguing new report just out called “Shielded” from Reuters says we live in a part of the nation that protects police from excessive force lawsuits more than they are protected anywhere else. Reuters reporters found that courts in Texas, Louisiana, and Mississippi are almost two times more likely to protect police from suit, for example, than courts in Tennessee, Kentucky, Ohio, and Michigan.
If that doesn’t quite jibe with your sense of geography, it’s because the big deciding factor, according to Reuters, isn’t exactly geography, at least not at first. Initially the disparities found by Reuters have more to do with the way the federal appeals court system is laid out.
We fall under the relatively conservative 5th Circuit Court of Appeals in New Orleans, which takes cases from Texas, Louisiana, and Mississippi. Compared to the rest of the nation, Reuters says, “Plaintiffs fared worst in … the 5th U.S. Circuit Court of Appeals, where judges habitually follow precedents that favor police.”
When cases are appealed to the 5th Circuit, Reuters found, the court sides with police 64 percent of the time, upholding their claims to immunity from suit. By contrast, the 6th Circuit Court of Appeals, which hears cases from Tennessee, Kentucky, Ohio, and Michigan, grants immunity in only 35 percent of cases.
Excessive force is viewed by federal law as a civil rights violation “under color of law.” Those cases originate in federal district courts. At the district court level, the greatest divergence was between Texas and California. Federal district judges in Texas grant immunity in almost 59 percent of cases compared to 34 percent in California. Each federal appeals court is bound by precedents within its own region.
Reuters, an international news agency headquartered in London, says its story is based on an analysis of 529 federal circuit court opinions between 2005 and 2019 and on computer analysis and manual review of 2,000 lower court cases.
The principle in play in all of them is called “qualified immunity” and determines whether a person injured by police is allowed to sue for damages. It’s called qualified immunity because it is never absolute — there are times the police can be sued — nor is a court’s refusal to grant it a guaranteed defeat for police. “Denial of immunity,” the Reuters piece points out, “doesn’t necessarily mean a certain loss for police. It means only that a lawsuit can move toward a jury trial or a financial settlement.”
Some federal appeals courts — notably the 9th Circuit Court District on the West Coast — put a high value on letting cases go forward to trial so a jury can decide whether police have used illegal excessive force. The 9th District allows lawsuits against police to proceed to jury trial at almost twice the rate the 5th District does.
The 5th District, where we live, applies a much more stringent set of rules. To overcome qualified immunity and take police to trial in courts under the 5th District, a plaintiff must make a proof at four levels: that the force used by police was excessive; that it was illegal; that there is precedent within the 5th Circuit to support the claim that the force was illegal; that the precedent is based on previous cases that are very close to the facts in the case at hand.
And that, Reuters says, brings us back to real geography. Precedents set by lower court judges in Texas tend to be tougher on plaintiffs and more favorable to police than those set by judges in California, for example. Reuters observes in its piece that judges at the federal district court level come from their local communities and reflect the values of those communities — how the courts were set up originally and for a reason.
The United States Supreme Court does impose a uniform national requirement that all circuit courts of appeals consider certain questions in determining immunity. “But how [lower court] 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,” Reuters says.
In a statement that’s both kind of obvious and kind of interesting, Reuters says: “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.”
Those differences may seem technical in the abstract, but their impact on real-life cases can be dramatic. The Reuters piece, presented in the “smarticle” format of flowing copy blocks, video, and graphics (length warning: 5,600 words), offers four dramatic examples of stunningly different outcomes depending on where in the country a case takes place:
“A cop was denied immunity in Indio, California, after fatally shooting Ernest Foster Jr. three times in the back during a foot chase at a shopping plaza, even though police recovered a gun from the scene.
“An officer was denied immunity in Denver, Colorado, after shooting Michael Valdez in the back, severely injuring him, though the cop himself had been shot during the preceding car chase.
“But in Houston, a cop was granted immunity after fatally shooting Gerrit Perkins in the back while Perkins crouched in a closet holding a cordless phone. Perkins was unarmed.
“And in Bradley County, Arkansas, an officer was granted immunity after shooting Davdrin Goffin in the back, partially paralyzing him, even though he had already been patted down for weapons. He, too, was unarmed.”
Reuters quotes an attorney with a pro-law enforcement foundation in California saying that qualified immunity is a necessary part of providing public safety. “If we expose police officers to these suits on a regular basis,” the lawyer says, “who would ever want to be a police officer?”
But most local governments indemnify police officers against legal damages, absorbing the damages themselves. And in some parts of the country, our own in particular, local governments are well protected, as well, by local legal custom. The example Reuters presents at the top is from Fort Worth.
Four years ago, David Collie was shot in the back while walking away from Fort Worth police officers investigating a theft of sneakers. Collie was unarmed, not involved in the theft, and 30 feet away when police shot him in the back, puncturing his lung, severing his spine, and leaving him paralyzed for life from the waist down.
Federal Judge John H. McBryde of the Northern District of Texas ruled that Collie’s suit for damages did not meet the test required to defeat qualified immunity for the officer who shot him and the city of Fort Worth. Collie was not allowed to go to trial with his suit.
“In the four years since then,” Reuters says, “Collie, now 37 years old, has lived in nursing homes, afflicted with infections, pressure sores, and bouts of crushing depression. As he talked about the July 2016 shooting and what it took from him, wails from an elderly patient echoed down the corridor. The odors of urine and excrement wafted in from the hall. Collie closed his eyes and exhaled. ‘Paralyzed over some tennis shoes? Come on, man,’ he said. ‘You’re playing with a human life here.’”