Suppose a cop punches a suspect in the face, whips him with a chain, and releases a police dog on him—all after that suspect had been subdued. Should a reasonable officer know that violates someone's rights?
Such was the query recently before the U.S. Court of Appeals for the Tenth Circuit. This time, fortunately, the panel agreed that the officer should be expected to know this. Things must be bad when this is even at question.
On December 31, 2017, Eric Tyler Vette alleges that he was apprehended by Sgt. Keith Sanders of the Montrose County Sheriff's Office, who had attempted to pull him over for a warrant check. Vette initially fled. After being subdued by two other officers, Vette claims, Sanders took out his frustration on the arrestee, beating Vette and siccing his police dog, Oxx, on him. Oxx then bit Vette's shoulder, leaving teeth marks and injuries seen in photos provided to the court.
Sanders claimed qualified immunity, a legal doctrine that makes it difficult to hold state actors accountable when they infringe on your constitutional rights.
"I think that shows how disconnected [qualified immunity] has become from our common understandings of justice and constitutional policing," says Ashok Chandran, assistant counsel with the Legal Defense Fund, the firm representing Vette. "Anyone that you'd ask on the street would have a gut reaction that that is something the Constitution doesn't permit. And yet the protections of qualified immunity have grown so expansive that I think officers in many cases feel like they have a decent shot—and they're not wrong."
The Supreme Court conjured qualified immunity decades ago when it decided that government officials can avoid civil rights suits if their alleged misconduct was not "clearly established" in prior case law. In practice, that means plaintiffs lose the ability to bring their cases before juries if they cannot point to a pre-existing court precedent that outlines the details of their case with meticulous exactitude.
It's supposed to serve as a bulwark against frivolous lawsuits. In fact, it stops a lot more than that. The doctrine has protected two officers who allegedly stole $225,000 while carrying out a search warrant, a cop who left lasting physical damage after kneeing a subdued suspect in the eye 20 to 30 times, a prison guard who hid while an escaped inmate raped a nurse, a cop who ruined a man's car after conducting a bogus drug search, a cop who shot a 15-year-old, and a cop who shot a 10-year-old, among other cases.
So it's not difficult to see why Sanders thought he had a chance.
"This court's precedent…would make it clear to every reasonable officer that punching an arrestee, hitting him in the face with a dog chain, and allowing a police dog to attack him, all after he is subdued, violates the Fourth Amendment," wrote Circuit Judge Carolyn B. McHugh.
Sanders also sought to dismiss Vette's claim on factual grounds, highlighting that the plaintiff's verified complaint went against Sanders' incident report and affidavit. That is, of course, the sort of he-said/he-said question that we have juries to adjudicate. The photographs were the only pieces of hard evidence before the court, which Sanders said vindicated him. The Tenth Circuit disagreed.
"Although Sergeant Sanders quibbles with the severity of Oxx's encounter with Mr. Vette, the photographs do not blatantly contradict—and indeed, serve to corroborate—Mr. Vette's account that Oxx attacked and bit his right shoulder," writes McHugh. "Sergeant Sanders's contention that the photographs 'visibly demonstrate' that Oxx's attack was 'accidental,' rather than intended by Sergeant Sanders, is even less persuasive."
In any case, the judge continues, Sanders "will be free to make these arguments to a jury." Remember: The question at this stage isn't whether Sanders is guilty; it's whether his alleged offenses should go to court at all. Rejecting a qualified immunity defense does not ensure a state actor is held accountable, nor does it render any sort of civil judgment on a plaintiff's behalf. It merely gives that plaintiff the right to file a suit.
Sanders apparently thinks his word alone should have been sufficient evidence of his innocence. Should he wish, he is free to present that argument at trial. "People can be credible if they don't have corroboration. People can not be credible even if there is corroboration," says Chandran. "That's the kind of call that we leave in the American justice system to a jury."