Qualified Immunity

Thanks to Colorado's Reforms, Cops Who Forced Children To Lie on the Pavement at Gunpoint Might Be Held Accountable

A state law eliminated qualified immunity as a defense for abusive officers.

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In Aurora, Colorado, police officers ordered a terrified 6-year-old girl out of a car at gunpoint and then tried to handcuff her, only to find that they couldn't because the girl's wrists were too small. You might think the cops would have second thoughts about the choices that led to such a situation. But according to Police Chief Vanessa Wilson, everything the officers did that day—when they forced the crying girl to lie on the pavement along with her mother, her 17-year-old aunt, and two teenaged cousins even though none of them had done anything wrong and none of them posed any sort of threat—was by the book.

In a lawsuit filed last week, the little girl's mother, Brittney Gilliam, argues that Wilson's attitude exemplifies her tolerance of Fourth Amendment violations, racial profiling, and excessive force. Gilliam's case, which names Wilson, the city, and five officers as defendants, will test the value of a groundbreaking Colorado law that allows people to sue cops who violate rights guaranteed by the state constitution. That 2020 law, which legislators passed along with other reforms in response to the death of George Floyd, does not allow officers to claim "qualified immunity," a court-invented doctrine that shields police from federal civil rights claims unless their alleged misconduct violated "clearly established" law.

The case, which attracted international attention last year because a bystander video of the August 2 incident went viral, began when Gilliam, a 29-year-old food service worker at the Denver County Jail, set out with her daughter (identified as "L.T." in the complaint), Gilliam's 17-year-old sister ("E.G."), and two nieces (12-year-old "N.J." and 14-year-old "T.T.") on a "Sunday funday" outing, a welcome relief from "months of being cooped up due to COVID-19." Since businesses closed by pandemic-related restrictions were reopening, they planned to have their nails done and get ice cream afterward. But when they arrived at the nail salon in Gilliam's SUV, they found it was closed. Gilliam and the girls were sitting in the parked car as she used her smartphone to find an open salon when a police car pulled up behind them and two officers, Darian Dasko and Madisen Moen, got out with their guns drawn.

Pointing their guns at Gilliam's car, Dasko and Moen demanded that she and the girls put their hands out the windows, which they did. Gilliam, alarmed and perplexed by this sudden show of force, asked what was going on. "I will tell you once you get out," Dasko said.

It turned out that the officers had mistaken Gilliam for a car thief because a license plate scanner erroneously identified her vehicle as stolen. Although the numbers matched, the stolen vehicle was a motorcycle registered in Montana, not an SUV registered in Colorado. Gilliam repeatedly offered to show the cops her car registration, which would have shown she was the legal owner, but they were not interested.

Dasko and Moen forced Gilliam and her four minor passengers out of the car at gunpoint and ordered them to lie on their stomachs with their arms stretched in front of them and their palms against the pavement. Two more cruisers carrying several more officers arrived. The officers handcuffed Gilliam, N.J., and E.G. They tried unsuccessfully to handcuff L.T., the little girl in the pink tiara who can be seen in the picture above. Since her wrists were too small, they kept her on the pavement, along with T.T. The officers patted down Gilliam and all of the girls, because you can never be too safe.

During this ordeal, L.T. was sobbing and asking for her mother while clinging to her cousin's hand. A crowd of about 15 bystanders gathered, amazed and appalled by the officers' behavior. One of them, who captured the scene on her cellphone, exclaimed, "They have guns drawn on kids!"

More squad cars arrived, the complaint says, and "as many as fourteen" officers were ultimately present. The cops eventually let L.T. and T.T. sit up, but they kept them on the pavement for about 15 minutes. N.J. and E.G. were kept in handcuffs for about the same amount of time. Gilliam was similarly restrained in the back of a patrol car for more than 10 minutes. She was detained for more than two hours, until several sergeants arrived.

Since that traumatic experience, the lawsuit says, "T.T. cannot get the terrified screams of her cousins out of her mind. The girls struggle to sleep and eat. All are in therapy to attempt to help them deal with what happened that day." The complaint adds that "all of the Plaintiffs now fear police officers, and the minor Plaintiffs would be afraid to contact the police in the future, even if they were in danger and in need of assistance."

The sergeants who arrived at the scene the day of the encounter explained that the officers had followed department policy throughout the incident. Wilson concurred in a statement she issued after local prosecutors declined to bring charges against Dasko and Moen.

"Despite the disturbing fact that terrified children were ordered out of a vehicle at
gunpoint and placed face-down on the ground, our conclusion is that there is not evidence beyond a reasonable doubt that the APD [Aurora Police Department] officers involved unlawfully, intentionally, knowingly, or negligently violated any Colorado criminal law," Chief Deputy District Attorney Clinton McKinzie said in a January 8 letter to Wilson. "What happened to the innocent occupants is unacceptable and preventable, but that alone is an insufficient basis to affix criminal culpability to the two officers involved in the initial contact."

McKinzie's boss, District Attorney George Brauchler, nevertheless urged Wilson to reconsider the department's policies and practices. "The errors in information-sharing, training, and procedure that led to these innocent people being subjected to this police encounter must be investigated further and prevented from happening again," Brauchler said. "These kinds of things should not be taking place on the streets in our community. I'm still of that mind. But my conclusion doesn't make it criminal. We just don't have enough to prosecute them for a crime."

Wilson apologized to the family and offered to cover the children's psychotherapy bills. "This was a horrible mistake and one that I hope we can at least correct for the kids," she said last month. "We must allow our officers to have discretion and to deviate from this process when different scenarios present themselves. I have already directed my team to look at new practices and training."

The implication, of course, is that the officers did nothing wrong under the policies in force at the time. That fact, Gilliam's lawsuit argues, reflects a broader pattern of policies, customs, and practices that invite police abuse, including unconstitutional searches, illegal detention, trumped-up arrests, and excessive force. "APD officers have a history of committing police brutality, especially against Black victims, and racially profiling Black individuals," says the complaint, which describes about 30 examples, including the 2019 death of Elijah McClain. Several of those cases led to monetary settlements.

From 2013 through 2019, the complaint notes, "APD ranked 8th out of the 100 largest cities in the United States for most police killings per capita." The lawsuit also cites statistics suggesting that black people are disproportionately likely to be mistreated by Aurora police.

The fact that Brauchler declined to prosecute the officers who detained Gilliam and the four girls does not mean they cannot be held civilly liable for the incident. The lawsuit argues that the cops violated Article II, Section 7 of the Colorado Constitution—which, like the Fourth Amendment, prohibits "unreasonable searches and seizures"—by detaining and searching the family without probable cause or reasonable suspicion. It says they violated the same provision by using excessive force. The complaint also argues that the cops violated the plaintiffs' right to equal protection of the laws because they treated Gilliam and the girls differently than they would have treated similarly situated white citizens.

Under the reforms that the Colorado legislature enacted last summer, the officers are not protected by qualified immunity, meaning that Gilliam need not prove the rights they violated were "clearly established" at the time. In practice, that requirement means plaintiffs cannot bring federal civil rights claims unless they can locate precedents with nearly identical facts. The upshot is that police officers can get away with outrageous conduct as long as they find novel ways to abuse people.

Even if Gilliam wins damages, however, the officers she sued probably will not have to pay a dime. To address the concern that personal liability would have a chilling effect on law enforcement, legislators included a provision that requires municipalities to indemnify cops in such cases unless "the peace officer's employer determines that the officer did not act on a good faith and reasonable belief that the action was lawful." If local officials make that determination, officers are personally liable for up to $25,000 each. But that seems unlikely, since Wilson already has determined that her officers terrorized Gilliam and the four girls in accordance with her department's policies.

NEXT: SCOTUS To Decide if Cops Need More ‘Elbow Room’ To Conduct Certain Warrantless Home Searches

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  1. Well as long as policy was followed, and all of the heroes went home safe, that’s all that counts.

    Fuck the police

    1. When you try to handcuff children, do you not think you might be the bad guy?

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    8. How fucking stupid do these cops have to be to not click that a motorcycle license plate is NOT the same size as the full size plate on the SUV? Seriously!

  2. all of the Plaintiffs now fear police officers

    Mission accomplished, I would say.

    1. End the War on Drugs.
      End qualified immunity.
      End civil asset forfeiture.
      Convert law enforcement officers into peace officers.

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      2. Or like I did, they simple learned to hate police which is a wildly powerful force for any successful career in crime.

  3. I will be watching this lawsuit closely, because the Colorado ‘qualified immunity workaround’ has so many holes in it, Swiss Cheese is jealous.

  4. So they couldn’t be bothered to actually check the license and registration. Seems like that would be the first thing on the list in this situation Disgusting.

    1. Yeah, how is that not part of the SOP, or at least not a step before “throw everyone on the pavement and point guns at them”.

      1. Look man, you ever try to pull over a woman in a car with four kids in the dead of mid-afternoon? You never know how that might go down. Cops have to be extra careful in such situations. For the safety of everyone involved.

        1. For the safety of everyone officer involved.

          FTFY. They couldn’t give two shits about anyone else’s safety.

          1. I think you missed the sarcasm that some guy was writing with.

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        2. You’re right, and Reason totally buried the lede that all of the cops went home safely that night.

    2. This, exactly. All cops have a terminal in their car, how could they not take the few seconds it would take to type the plate number and state in before going all whiskey balls super cop?

      Worse, once half the department was there how can any of them not check the registration? I know, but sometimes “we thought they did it” just doesn’t cut it when the prime suspect is clearly a 6 year old criminal mastermind.

    3. They screwed themselves, not checking the registration makes it a slam dunk they lacked probable cause. The fact they didn’t match the state of the plates, make and model of the vehicle, not check the registration to see if the woman was the vehicle owner clearly deprives them of claiming probable cause.

      Just a hit on a computer scanning a license plate does not probable cause make.

      1. Well, police dogs, that are documented as giving 50% false positives, are still considered probably cause if they hit on your car.
        So faulty computer system / record keeping probably OK.
        That being said, a friend (white guy) was in a similar situation, but because he was on his way to work the cop 1) Never even pulled him out of the car and 2) let him go (already had his license). and trusted him to help clear it up THE NEXT DAY.
        Meanwhile, I have neighbors (not white) that get pulled over MONTHLY for suspected equipment violations.
        As long as the playing field is level…

        1. Yeah, I know a guy who was in a situation that was actually far more reasonable, cop let him go.

          Recently acquired used BMW, dealer plates, which the BOLO actually matched, down to the color of the car. Still, same thing, cop was relatively polite, buddy showed the recent paperwork with his name, matched the license, cop just let him take off. No fun, no handcuffs. And my buddy, quite frankly, looks like the sort of white dude that the cops would pay attention to. Tweaker skinny (though, natural build), scruffy, lots of tattoos.

    4. Only if the suspects are white….

  5. Ashli Babbitt
    Douglass Mackey

    Also

    Michael Flynn
    Roger Stone

  6. Aurora is a basket case because of the notorious movie theater shooting a few years ago. Their security is hyper vigilant and militarized. These kinds of abuses are bound to happen. There is no solution other than to learn from their mistakes and refine policies. Suing officers will not help. It will only make them less effective when we need them.

    And I agree we don’t need them as much as we used to. But the solution is to end the wars on drugs and guns and reduce law enforcement budgets accordingly. Ending QI will only create unintended, harmful consequences.

    1. Aurora was a shithole long before that.

    2. “Gilliam repeatedly offered to show the cops her car registration, which would have shown she was the legal owner, but they were not interested.”

      Requiring officers to actually check the driver’s vehicle registration, particularly if the crime is car theft, is also a solution. Along with firing or actually reprimanding police officers who commit this sort of bad policing.

      1. Last time I got a speeding ticket the officer didn’t ask for registration or insurance forms. Only my identification. He got the rest off the plate.

        In the case of this article the plate matched that of a stolen vehicle. A totally different kind of vehicle. Registered in a different state. But they don’t care.

        In my youth I was cruising around on a bicycle while wearing a denim jacket and was suddenly surrounded by cops. This was in Colorado actually. They demanded ID and searched me because they said they had a report that someone on foot dressed in camo was breaking car windows.

        I’m on a bike dressed in blue (actual blue, not the black that our security forces call blue) not camo, and on a bike not on foot.

        But they detained me anyway because…

        That helped to set me on the road to concluding that cops are disingenuous morons.

        1. My local cops only ask for that shit so they can ticket anyone who doesn’t have it on them.

          Because, yeah, you can get the registration status (at a minimum) from the onboard computer system. Many states (maybe all now) also track insurance – if you cancel or let your policy lapse the insurance company will notify the DMV.

          1. In my state you can’t cancel insurance on a car you own unless you can prove that the car’s on blocks and surrounded by weeds. Seriously. Though they will cancel if you refuse to pay. But that goes on your credit…

        2. “That helped to set me on the road to concluding that cops are disingenuous morons.”

          Many of them certainly are. This situation suggests to me a problem with Police training and competency. Particularly if there is an unwillingness to investigate contradictory evidence. Including in a situation where the plate number matched the stolen vehicle, but the vehicle itself didn’t match and it was registered in a different state. Further investigation was obviously required here before drawing weapons on everyone.

          1. Bull. This isn’t something that can be fixed with training and such. These are people who have an entire system built around shielding them from consequences for their actions. As a result bad actors go unpunished, incompetency is overlooked, and good people get forced out.

            Show me a good cop, as in an officer who would turn in a bad cop, and I’ll show you someone who got fired and will in law enforcement again.

            1. and will *never work in* law enforcement again.

              Dang edit function doesn’t work.

            2. I’m not suggesting the system doesn’t need to be changed. I would prefer more dramatic changes such as requiring police officers carry liability insurance or the entire police department. Along with ending qualified immunity, perhaps targeting police pensions you suggested. I’ve even suggested in the past that we should reconsider the whole idea of government monopoly of policing, and consider switching to a model of private competitive policing where firms compete with each other for contracts to serve the community.

              In this particular situation I’m more questioning the competency and training of these particular police officers. That doesn’t mean I’m opposed to perhaps “radical” solutions to solve the widespread problems within policing.

              1. I think it’s a mistake to think this is an isolated incident. More likely this is standard practice that just happened to be caught on video.

          2. And the cops should have hit pause when they read that it was a motorcycle license plate which is sooooo much smaller than the large license plate that was affixed to the rear of the SUV.

        3. When I was in high school, a friend and I were TP’ing the house of a girl who was in a spat with his girlfriend. The pigs rolled in hot with no lights, 4 cars, blasted us with spotlights and guns drawn, threatening us with dogs. Not much action at 2am on a Tuesday. We were then cuffed and made to lay face down on the pavement for 46 minutes (I looked at my watch when they instructed me into the prone position) while Our Finest investigated the crime of the century. The little twat had the nerve to deny knowing either of us, until I directed them to my school ID and the matching sticker on her car.

          They then demanded that we remove “every stitch” of toilet paper and supervised us until it started to sprinkle and the novelty of the game wore thin.

          Joke’s on them though–the cops, the girl, the parents and the brother did not notice that we had smeared her windshield with a jumbo jar of vaseline and scrawled “LATE 4 SCHOOL” backwards in it.

      2. I sorta remember another lawsuit in which the judge ruled that failure to do basic investigation invalidated probably cause.
        Basically, same attitude by the police – something easily verified – and they lost the protection of probable cause….

    3. But the solution is to end the wars on drugs and guns and reduce law enforcement budgets accordingly.

      That and make traffic laws about safety, not revenue. Otherwise you’ll still have dickheads hiding under bridges with radar guns issuing tickets to people who dare to disobey signs.

      1. Catching actual unsafe driving is difficult, though. You can’t do while listening to the radio and munching on shitty food.

        1. Just a few weeks ago I was cruising on the highway in the far left, doing 85 with the rest of the traffic. I was going to start moving towards the right since my exit was coming up so I checked my mirrors. Good thing. This little red car caught my eye because it was doing a good 30 faster than me, weaving through traffic. A moment later a black truck came through following it. Must have been racing or something. I considered alerting the authorities but I knew they wouldn’t do a damn thing. Catching criminals is tough. Issuing tickets to innocent people is easy.

          1. I’ll be your next proposal will be to limit speeds to 5 over the speed limit and automatically governed by gps. Because that is the type of person you are, and the people you voted for. GFY.

            1. The IHS has recently published a video that showed damage at speeds or 40 mph, 50mph and 56mph.
              The implication is that 1mph over the 55mph is super dangerous while the 40mph is significantly safer. Therefor you are a monster if you advocate for anything other than 40mph speed limit (strictly enforced of course).

    4. One may learn something from mistakes, but unless one is held accountable there is no incentive to change behavior. I’m not saying suing the officers and having someone else pay damages is the best way to assure accountability, just that “learning” alone is not sufficient.

      1. As many have said, take the damages out of the pension fund. That’ll teach ’em real quick.

        1. Maybe pay it out of the overtime fund, or just eliminate overtime pay altogether. That would get their attention too.

          1. Good point. Because that’s where they make their money. They literally double their salaries between time and a half, double time, and of course lying about the hours they work which they get away with because they have no supervision.

    5. There is no solution other than to learn from their mistakes and refine policies.

      Suing officers will not help. It will only make them less effective when we need them.

      So you’re saying that we should leave them alone and they’ll figure out the right thing?

      Except that we left them alone and they did this – and were openly saying they had done nothing wrong. Until the lawsuits forced their hand.

    6. Aurora’s been a shithole since at least 2004, when I first moved to Colorado. The theater shooting was in 2012. So no, this shit has nothing to do with it.

    7. It strikes me as 100% horse shit that any of this behavior is attributable to the 2012 shooting. They didn’t even try to do their job. No guns were involved other than the ones the cops had, no drugs were involved other than the ones the cops took, nothing had anything to do with police budgets. The only thing here is that some large fraction of the police force fucked the dog mightily and someone needs to throw a handfull of sand into the cops Vaseline because swatting them on the nose with a newspaper isn’t going to cut it.

  7. Gilliam’s case, which names Wilson, the city, and five officers as defendants, will test the value of a groundbreaking Colorado law that allows people to sue cops who violate rights guaranteed by the state constitution. That 2020 law, which legislators passed along with other reforms in response to the death of George Floyd…

    Dammit, Colorado, that’s not how you do things. You don’t pass actual reforms. You “defund the police” and then sit back while antifa thugs burn, loot, riot, and murder all summer long just so you can get rid of the bad orange man. Sheesh, it’s like our state government doesn’t even understand how to correctly progtard.

    1. “Sheesh, it’s like our state government doesn’t even understand how to correctly progtard.”

      I wouldn’t go that far, look what they did to our Electoral College votes after the last ballot initiatives.

      There’s also homeless people everywhere, which is a hallmark of progtard management.

      1. Fair point. Perhaps a better choice of words would have been “fully progtard?” We definitely have more than our fair share of progtard bullshit to put up with here, but we’re not quite all the way to full progtard. We’re not California… yet.

        look what they did to our Electoral College votes after the last ballot initiatives.

        I’m curious, what ballot initiatives are you referring to? I don’t keep up with every thing politics because I have more than enough rage built up already, so I’m curious what I missed.

        1. Essentially, our Electoral College votes go to whoever wins the national popular vote. This of course defeats the entire purpose of the Electoral College and basically means California and New York get to determine who Colorado voted for.

          1. Oh right, that one. I didn’t realize that piece of shit passed. I remember progtards were pushing that in multiple states ever since Queen Hillary was denied her rightful throne.

            1. Yeah, sadly it passed. I don’t know that it really changes the end result all that much, the state is solidly blue and only getting worse in that regard, but the principle of it pisses me off.

              On the plus side, no reason to ever vote major party for President ever again. Since my vote doesn’t count no matter what I do, might as well get weird with it.

              1. New Mexico got that one too. I hope the legislature at least got their traditional thirty pieces of silver.

          2. Check your email.

            1. Boulder. Stupid autocorrect.

  8. “…Police Chief Vanessa Wilson…”

    Just another lazy, corrupt, dumb, dishonest, us-versus-them police chief who should be fired but won’t be. You want better results? Then hold people accountable, from the cop on the scene to the police chief and the mayor and everybody in between.

    1. Yeah, so true. A friend of mine was a cop but took early retirement when they got a new chief who was a lifelong politician and didn’t give a shit about anything than his career. No control or discipline other than to demand cops look the other way should a patron do something wrong. Basically just let the inmates run the asylum because the next step up the ladder depended on not making waves.

  9. “The sergeants who arrived at the scene the day of the encounter explained that the officers had followed official policy throughout the incident.”

    Root cause analysis complete.

    If your official policy is to consider a local SUV as an out of state motorcycle, it’s time to get back to beat cops and call boxes.
    I hope the suit includes the manufacturer of the license plate scanner.

  10. Or might not be held accountable.

    1. That’s where my bet is safely placed.

  11. “Standard police policy” = We can terrorize anyone, anytime, and get away with it, ’cause that’s how we “protect & serve”.
    Don’t like it? Stop supporting the police, i.e., institutionalized violence. Govern and protect yourself, like people did for the first 200+ years in “the new world”.

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