On July 28, 2016, a group of Cleveland police officers dressed in plain clothes and driving in an unmarked car idled up to a house, where they spotted a man on the front porch. The man was named Shase Howse, and he lived in that house with his mother. The police proceeded to beat and arrest him.
Last year a federal court ruled that those two cops were protected by the legal doctrine known as qualified immunity. And this morning, buried in the Supreme Court order, came the news that SCOTUS will not hear the case.
On the day he was arrested, Howse says, he was searching for his keys when the officers—who he didn't realize were officers, since they were dressed normally—appeared. They asked if Howse lived at the residence. Howse replied yes, and the cops drove away. They soon doubled back. As I wrote in June:
After Howse answered in the affirmative, Officer Brian Middaugh of the Cleveland Police Department (CPD) pressed Howse on if he was sure he lived there. "Yes, what the fuck?" Howse allegedly responded, still unaware Middaugh was a cop. Middaugh, commenting on Howse's bad attitude, then exited the unmarked vehicle and approached him on the porch, asking him once again if he lived there. Howse said he did.
Following that exchange, Howse alleges that Middaugh commanded him to put his hands behind his back because he was going to jail. Howse did not oblige, telling Middaugh that he lived at the residence and that he'd done nothing wrong. Middaugh then threw him to the ground, and with the help of CPD Officer Thomas Hodous, handcuffed him while Howse resisted. It was after he was tackled that Howse realized the men were police officers.
As he lay on the porch, Howse's mother, who heard the noise from inside, exited the residence, where she says she saw one man straddling her son while another punched his head with a closed fist, causing Howse's head to hit the porch. She, too, did not initially realize they were officers.
Howse was charged with two counts of assault and one count of obstructing official business. He then sat in jail for several days. The charges were eventually dropped.
Howse countered with his suit, arguing the officers had violated his Fourth Amendment rights with excessive force and malicious prosecution. The U.S. Court of Appeals for the 6th Circuit rejected this, saying that the cops were protected by qualified immunity. That doctrine shields public officials from certain sorts of civil rights suits if their alleged misbehavior was not "clearly established" in case law.
In other words, for a plaintiff to have the right to bring a case before a jury, he must pinpoint a precedent that outlines the factual circumstances of his case almost identically. A few choice examples: Qualified immunity has protected two cops who stole $225,000 while executing a search warrant, a cop who ruined a man's car during a bogus drug search, a cop who shot a 10-year-old, and two cops who sicced a police dog on a surrendered suspect. Howse can now add his case to that list, as he will not have another chance at appeal.
In awarding the officers qualified immunity last year, Circuit Judge Amul Thapar wrote: "'Clearly established' means that the law is so clear at the time of the incident that every reasonable officer would understand the unlawfulness of his conduct. To avoid 'paralysis by analysis,' qualified immunity protects all but plainly incompetent officers or those who knowingly violate the law."
That's what the "clearly established" standard is supposed to do. But that's not what it does in practice. What public official does not know stealing is wrong? Should an officer have to study case law texts in advance to know that beating and arresting someone on bogus charges is a constitutional violation? Thapar has unintentionally explained why the doctrine is so obscene.
"It requires a certain amount of effort to write an exceptionally bad qualified immunity opinion, but this is, by any standard, an exceptionally bad one," Clark Neily, vice president for criminal justice at the Cato Institute, told me last summer. "Simply refusing to interact with police, and even being rude to them, does not provide probable cause for them to make an arrest, which is really what this case boils down to."
Howse's attorneys asked the high court to consider two issues: "whether the law is clearly established that an officer cannot arrest a person whom the officer has no reason to believe committed a crime, tackle him to effect the arrest, and then strike him in the neck when he poses no threat to anyone's safety," and "whether a Fourth Amendment malicious prosecution claim must be dismissed simply because one of the underlying charges is supported by probable cause."
They will hear neither. Although Howse committed no crime by standing outside his own home, he stiffened his body and screamed while being arrested, which the majority thought was enough to void the entire malicious prosecution claim.
The Supreme Court's announcement adds to its mixed legacy on qualified immunity. It has refused many other chances to fundamentally reassess the legal doctrine. But in this recent session, it has been willing to reshape its application. In November, it overturned a federal court decision giving qualified immunity to a group of prison guards who locked a naked inmate in a cell filled with "massive amounts" of human feces and another cell overflowing with raw sewage. And last month, the Court reversed another federal ruling—which granted qualified immunity to a correctional officer who pepper-sprayed an inmate without provocation—and told the 5th Circuit Court of Appeals to reconsider.
It's progress. And it's true that it's the legislature, not the Supreme Court, that is supposed to create policy. But then again, qualified immunity itself was not created by legislature. It was created by the Supreme Court.
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