Qualified Immunity

Prison Guard Who Hid While Inmate Raped a Nurse Cannot Be Sued, Federal Court Rules

The 7th Circuit said the guard is protected by qualified immunity.

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A federal court has ruled that a prison guard who flouted protocol and unshackled an inmate, who then terrorized a local hospital, cannot be sued in connection with the incident.

Writing for a unanimous three-judge panel, Judge Frank H. Easterbrook of the U.S. Court of Appeals for the 7th Circuit Court ruled that while the officer, Shawn Loomis, is a "feckless coward," current case law has not "clearly established that permitting a prisoner to escape violates the Constitution." Loomis is thus protected by qualified immunity, a legal doctrine which effectively holds that public servants can only face civil suits if the conduct in question has explicitly been ruled unconstitutional in an earlier case.

On May 8, 2017, Tywon Salters, an inmate at the Kane County Jail, drank hydrogen peroxide and ate a jail-issued sandal in an apparent suicide attempt. He was then transferred to the Delnor Community Hospital and put under Loomis's supervision. Loomis unshackled Salters on multiple occasions, leaving him unsupervised and allowing him to walk around the hospital without restriction. On May 13, during one such instance, Loomis removed Salters's restraints for at least 30 minutes; the inmate then stole Loomis's handgun, which was not holstered. Loomis failed to subdue Salters, and did not alert hospital security personnel of the situation. Instead, Loomis ran and hid in a closet.

Salters then forced a nurse to remove her clothes so he could put them on. He then took another nurse to a hospital decontamination room, where he raped her at gunpoint. After a standoff with a SWAT team, Salters was shot and killed.

Victoria Weiland and Deanna Chrones, who were patients at the hospital at the time of the incident, sued Loomis, arguing that they have suffered post-traumatic stress and anxiety as a result of Loomis' negligence. The U.S. District Court for the Northern District of Illinois, Eastern Division, sided with Weiland and Chrones.

Last month, the 7th Circuit overturned that ruling. In his opinion, Judge Easterbrook rejected Weiland and Chrones' claims that Loomis violated their 14th Amendment rights, observing that "the Due Process Clause generally does not condemn official negligence."

But the bulk of Judge Easterbrook's opinion centered on whether or not Loomis should enjoy qualified immunity. At the heart of the matter is a 7th Circuit precedent known as DeShaney v. Winnebago County Department of Social Services (1988), in which the mother of a four-year-old boy sued the government for failing to remove him from his father's custody. Joshua DeShaney, the child, was rendered mentally retarded after he was repeatedly beaten by his dad. In that case, the 7th Circuit ruled that the government is not required to shield people from private actors.

Yet under the "state-created danger exception," a principle affirmed by the 7th Circuit in Wilson-Trattner v. Campbell (2017), civil servants can be held liable for actively increasing the danger the public faces. That's the principle that led the district court to rule that Loomis should not be granted qualified immunity. According to Judge Amy J. St. Eve, the women suing the prison guard "sufficiently alleged that Defendant Loomis' affirmative actions propelled them into a danger that they would not have otherwise faced" when he carelessly released Salters from restraints, and made no effort to stop his attack.

This is too general, ruled Judge Easterbrook, who countered that qualified immunity must be granted unless constitutional rights have been "defined with specificity." He noted that "other litigants have argued that the Constitution requires guards to prevent escapes," but "every appellate court that has considered the possibility has rejected it as incompatible with DeShaney."

"The search is for an appropriate level of generality, not the most particular conceivable level," Easterbrook wrote. "And the level of generality is appropriate when it establishes the rule in a way that tells a public employee what the Constitution requires in the situation that employee faces."

The 7th Circuit's decision highlights the cyclical nature of qualified immunity, in that it requires near-identical precedent in order to hold civil servants accountable.

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  1. Maybe Trump should demand qualified immunity.

    1. Lest all the feckless blowhards here misconstrue that, I mean that qualified immunity (and absolute immunity too) is one of the more bizarre inventions of courts, and maybe if Trump claimed it, the Supreme Court or Congress would finally get rid of it.

      1. It’s one of the biggest lynchpins in my utter disdain for gun grabbers. Even more than “it violates the Constitution completely” (I doubt they care), relying on somebody who has no legal obligation to protect you and really cannot be punished for not doing so is the dumbest thing I’ve ever heard of.

        I’d like to see a piece DEFENDING qualified immunity because I have never seen an actual defense for it anywhere.

        1. “It is hard to imagine a more stupid or more dangerous way of making decisions than by putting those decisions in the hands of people who pay no price for being wrong.” – Thomas Sowell

        2. Are you serious? I have seen a defense if qualified immunity numerous times, mostly here. It’s just four simple words that warm the hearts of authoritarians everywhere: fuck you, that’s why.

          Now whether that should pass as a legitimate defense is another story.

        3. The only places I’ve ever seen it defended is in the actual QI court decisions, though I’m sure if you ask public employee union bosses, you’ll get chapter and verse about why QI is the greatest thing since Betty White.

      2. one of the more bizarre inventions of courts

        Like congressional subpoena power.

        1. Congress actually requires the subpoena power to execute its constitutional duties of oversight, though. How else would they figure out what hinky shit the government is up to if they can’t drag the dumbasses responsible down to the floor and make them answer pointed questions?

          Now, as to whether or not congress ever uses that power for anything but pointless grandstanding and trying to cover their own asses, well . . .

    2. If there is anyone on the planet that qualifies for the moniker “feckless coward”, it would surely be Donald Trump.

      1. I wonder what it is you think he’s afraid of.

        1. Donald Trump is afraid of ANYTHING and EVERYTHING that does NOT suck His Imperial Dick, and admire and worship HIM as THE Most Superior Being!

          https://www.washingtonpost.com/news/the-fix/wp/2016/10/04/17-issues-that-donald-trump-knows-better-than-anyone-else-according-to-donald-trump/
          Trump:
          “I know more about renewables than any human being on Earth.”
          “I understand social media. I understand the power of Twitter. I understand the power of Facebook maybe better than almost anybody, based on my results, right?”
          “Nobody knows more about debt. I’m like the king. I love debt.”
          “”I understand money better than anybody.”
          “I think nobody knows the system better than I do.”
          “I know more about contributions than anybody.”
          “Nobody knows more about trade than me.”
          “Nobody knows jobs like I do! ”
          “Nobody in the history of this country has ever known so much about infrastructure as Donald Trump.”
          “There’s nobody bigger or better at the military than I am.”
          “I know more about ISIS [the Islamic State militant group] than the generals do. Believe me.”
          “There is nobody who understands the horror of nuclear more than me.”
          “Because nobody knows the system better than me. I know the H1B. I know the H2B. Nobody knows it better than me.”

          Quotes from The Donald in the “Anti Gravity” column in August 2017 “Scientific American” magazine follow:
          “I have great genes and all that stuff, which I’m a believer in”,
          “God helped me by giving me a certain brain”,
          “I have a very, very high aptitude”,
          “Maybe it’s just something you have. You know, you have the winning gene.”
          Google the quotes, they are real…

  2. >>has explicitly been ruled unconstitutional in an earlier case.

    the impossibility of this should make qualified immunity unconstitutional.

    1. Every judge who relies on this is feckless and should be run out of town on a rail, tarred, and feathered.

      1. word. set a precedent.

  3. Salters was just misunderstood, in a world scared of him.

    1. The nurse should hire someone to rape that prison guard. Along the lines of Wesley Pipes, or Mandingo.

      Bigger and blacker.

      1. Like an adult rifle?

  4. Jesus, all the people involved (except the nurses, probably) sound like defective human rejects. Just put another wall around the lot of them.

  5. the inmate then stole Loomis’s handgun, which was not holstered

    File under: Only law enforcement officers are responsible enough to be trusted with guns.

    1. And the irony of that is…in courts, cops are treated like they are borderline incompetent retards who cannot be expected to accurately comprehend a negative situation.

      1. Yet at the same time, expert witnesses beyond reproach…

    2. That line made me curious. What exactly do they mean by saying it was not holstered. Do they mean the cop drew his gun on the guy and the guy snatched it away from him? Or, do they mean the cop left his gun sitting next to his donut on some table?

      1. It was tucked in the back of his waistband, and the prisoner convinced him to turn around and bend over.

      2. I just assumed it meant the prison guard took his gunbelt off when he was taking his turn raping the nurse.

  6. can someone tell me where qualified immunity comes from and how can we get rid of it. this is pretty much saying do what you want we can’t charge you. bull shit

    1. you sue the agency, not the employee.

      1. So, it’s like the Corporate Veil, except it’s bulletproof.

    2. would you rather sue a shit bag with no money, or the agency he represents ?

      1. If I’m the individual that was hurt – the agency. If I’m the general population – the shit bag with no money.

        Until the shit bags with no money are held personally liable, this BS will continue and tax payers will continue to foot the bill for it.

      2. Can’t it be both? Or use the proceeds for the agency to,our chase an appropriate revenge package agains the individual.

    3. There is no precedent for removing qualifed immunity, so qualified immunity cannot be removed.
      QED

    4. Like many powers the government has the court just made it up.

      1. makes sense they know what they are doing. NOT

    5. It helps to remember that, while the judiciary is supposed to maintain a level of independence, in reality, judges consider themselves to be “on the same side” as state actors.

  7. What an awesome justice system.

  8. why would you want to sue a broke civil servant anyhow ? that is why you sue the city or the agency or the secretary of such and such agency or attorney general. also, if every civil servant had a pending lawsuit, instead of the agency, the agency would be pretty fucked with every employee having a lawsuit against them…..hehe.

  9. Why do we even have qualified immunity?

    1. So government employees can feel safe while they kill you and your loved ones.

  10. Wow, this Salters guy was a real jerk.

  11. I’m going to assume the guard was fired? But, you never know.

  12. It’s time qualified immunity gets overturned.

    Judges acting as if it’s the strictest rule on the books is fucking stupid. There’s nothing in the constitution about murder either (it’s a states issue) so does that mean a government employee can murder with impunity?

  13. I’m trying to reconstruct the inmate’s thinking here…”I just pulled off an escape, so instead of getting as far away from this hospital as possible, I’ll stick around and rape a nurse.”

    It’s almost as if that guy is some kind of depraved criminal.

    1. The drinking hydrogen peroxide and trying to eat a sandal was my first clue.

  14. I used to live in that county. Left prior to this incident.

    For some reason that deputy’s name sounds darn familiar. Like he had been involved in some other sort of screw up.

  15. How do the courts think it appropriate to apply the DeShaney precedent to a case like this?

    Presumably the child’s father in DeShaney was not under incarceration and the government officials involved did not break legal procedure in what they were doing with regards to him. Sanders, on the other hand, was in custody under the direct supervision of an agent of the state who did not do his job properly. I do not see how, with a cursory reading, how this is enough alike to DeShaney for that precedent to apply.

    1. DeShaney was the general principle that the people who are supposed to protect you do not in fact have any actual legal duty to protect you.* Which narrowed the question down to whether or not introducing a criminal who was supposed to be under confinement into a non-confinement situation is a violation of Constitutional rights. That’s really all this “qualified immunity” crap is – we’re all agreed that what this state actor did was bad, but did the state actor deliberately do something he knew or should have known was wrong or did he do it just because he’s retarded? As long as he can claim he’s retarded and didn’t know any better, he’s off the hook.

      *In DeShaney, part of the argument was that the teacher and the doctor who reported the child abuse were mandated reporters, yet when the teacher attempted to follow up on further evidence that nothing was being done, she was told it was none of her business and not to attempt to pursue the issue further. The state in this case not only mandated that they be told, but that nobody but them be told. The state claimed a monopoly on child protective services and yet simultaneously claimed not to be responsible for providing said services.

  16. How does this square with the established thinking at Reason that restraining a prisoner undergoing treatment in hospital (as in giving birth) is an obvious violation of rights?

    1. He could have had one wrist handcuffed to the bed, you only need one free hand to eat a sandal.

  17. Number 34. From passage of this amendment, no official shall be exempt from any consequence whatsoever of actions taken as an employee of any government agency, department, division, or any other organizational unit yet to be created.

    1. It would be interesting to see how, following the amendment’s passage, the courts manage to wiggle around “any consequence whatsoever” and “any government agency….” One could say that the text of the amendment leaves no wiggle room, to which the courts will undoubtedly respond with the good old “hold my beer.”

  18. It’s long past time to abolish the travesty that is [un]qualified immunity.

  19. “Prison Guard Who Hid While Inmate Raped a Nurse Cannot Be Sued, Federal Court Rules.’

    Now the nurse gets raped again.
    Isn’t qualified immunity wonderful?

  20. “clearly established that permitting a prisoner to escape violates the Constitution.”

    Is this a constitutional issue? Surely there are statutes against prison guards (or anyone) helping a prisoner to escape.

    1. The original intent of qualified immunity got stretched far beyond its reasonable bounds. (I know, surprising that something to protect the government gets stretched so far.) The original intent was to protect government employees just doing their jobs from being sued for innocent mistakes. The question then became what constituted an innocent mistake and the answer was, well, anything that violates the Constitution surely is not an innocent mistake and that then became the default criteria – as long as it doesn’t violate the Constitution it’s an innocent mistake. Which is kind of like arguing over what constitutes an assault and deciding well, surely smacking somebody 5 times in the face with a baseball bat is an assault and then declaring that we’ve decided that anything less than smacking somebody 5 times in the face with a baseball bat is not an assault. No, that’s not what we decided, we decided what was clearly over the line, we didn’t decide that was the line.

      1. But it doesn’t have to explicitly violate the constitution for the prison guard or the state to be liable. It can just violate some statute. Right?

        1. It can just violate some statute. Right?

          No. State actors normally have unqualified immunity. However, Section 1983 is a carveout that guarantees that any state actor who violates someone’s constitutional rights “shall be liable to the party injured.” ‘Qualified immunity’ applies when it is found that the Constitutional violation occurred but was not clearly established at the time of the incident (i.e., established by precedent). In other words – they violated the Constitution, but hadn’t been put on notice that those actions would be considered a violation.

          There was a case decided this year where a Georgia cop had shot an attendee at a 10-year-old’s birthday party through the back of the leg, destroying the kid’s knee. The cop was not sued for reckless endangerment as he has unlimited immunity for liability as a state actor. He was sued for violating the kid’s right to be free of the use of excessive force under the 4th and 14th amendments.

          The 11th Circuit decided he deserved ‘qualified immunity’ from liability for the injuries he inflicted because he was not actually trying to shoot the boy. He was trying to shoot a dog (that was not even behaving aggressively). The 11th Circuit found that shooting at the dog repeatedly and missing, while children were being held on the ground at gunpoint by his fellow officers within his line of fire was not an established violation of the kid’s Constitutional rights.

          One of the 3 judges did dissent.

        2. Did I miss the sarcasm in your answer? Sigh. I am not good at this.

  21. It’s official—rape is not unconstitutional in the Seventh District.

  22. “patients at the hospital at the time of the incident, sued Loomis, arguing that they have suffered post-traumatic stress and anxiety as a result of Loomis’ negligence”

    So it’s not the nurse who got raped who filed the suit (maybe they settled with her already) – it’s patients who were scared shitless by a criminal being loose in the hospital. I understand how someone might freak out in that situation, when you’re at your most vulnerable and there’s a vicious criminal who might come and attack you, but since that didn’t happen to the patients how much trauma would they have had to prove in order to win the case, even in the absence of qualified immunity?

  23. So, “Do your fucking job” does NOT “establis[h] the rule in a way that tells a public employee what the Constitution requires in the situation that employee faces”? Why do we even bother having government employees then?

  24. you sue the agency, not the employee.

    1. Which punishes the taxpayers rather than the guilty party.

  25. Which is worse, qualified immunity or civil asset forfeiture?

    Both are high fuckery, that’s for certain.

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  27. Can’t these three judges be impeached or defrocked, or whatever they do to completely incompetent judges?

    Can someone point out where in the constitution it mentions qualified immunity? The concept obviates the entire the bill of rights. You have a right not to be harassed by your government unless they decide to do whatever they feel like to you while simply claiming the words “qualified immunity.” Seriously?

  28. It strikes me that there is a place for ‘qualified immunity’ or something like it, provided it only applies to actions taken that can reasonably be construed to be part of the job. Thus; a policeman is called to a stop-and-rob, enters, and shoots the person he sees brandishing a pistol. Wrong person, but the cop gets qualified immunity, because he could reasonably be construed to be doing his job.

    But this cowardly turd? No qualified immunity.

  29. —constitutional rights have been “defined with specificity.”—

    I don’t think that’s the way that the Constitution works… it doesn’t define rights. It limits government overreach… or at least that’s what it is supposed to do.

    CB

  30. What happens when qualified immunity runs up again willful negligence? As someone who works in corrections, I can tell you that if this had happened in my state, this officer would have been fired and charged with willful negligence regardless of “precedent.” It’s all spelled out in policy and in the code of conduct for all those who are P.O.S.T. certified, as many correctional officers are. To say someone who blatantly violated the policies of his organization can’t be sued for the harm caused by his willful disregard is ludicrous. QA shouldn’t even be brought up in this case.

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