Qualified Immunity

Police Shot a Man Driving Away, Can't Keep Their Stories Straight, Get Qualified Immunity Anyway

A federal court admitted the officers violated the man's rights. It doesn't matter.

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Police violated the constitutional rights of an Alabama man when they repeatedly shot at his car, first as he inched forward in it nonthreateningly and then as he drove away, hitting him either five or six times and requiring that he receive emergency surgery, a federal court ruled last week.

The same panel found that the officers are entitled to qualified immunity and thus cannot be sued in connection with the incident. The legal doctrine allows state actors to violate your rights without fear of civil liability if the exact manner in which they misbehaved has not been declared unconstitutional in a preexisting court precedent. (A practical example: Two cops in Fresno, California, allegedly pocketed $225,000 while executing a search warrant, but the victims were not permitted to sue because no ruling on the books said that stealing under those precise circumstances is a violation of someone's rights.)

On June 14, 2014, Bessemer Police Department (BPD) Officers Daniel Partridge and Christopher Asarisi responded to a complaint from a woman who reported what she thought was a domestic violence dispute somewhere nearby and that she thought she heard two gunshots. When the cops arrived, they found Marcus Underwood and Ray James, who appeared to be arguing.

The men immediately dispersed; Underwood, who got in his car, responded that they were just "clowning." Both officers say they told him to stop, but Underwood inched forward with "the foot off the brake," according to Asarisi. The officers allegedly then began shooting at his vehicle, prompting Underwood to accelerate and collide with Partridge, who was not injured. They fired a total of 20 shots and continued to shoot from behind as Underwood drove away. He ultimately crashed the vehicle into a house and needed immediate medical attention.

Analyzing the case, the U.S. Court of Appeals for the 11th Circuit found that the officers violated Underwood's Fourth Amendment rights. "While Underwood was not obeying orders to stop and was evading talking to the police, Underwood was not driving aggressively or in a threatening way," wrote Circuit Judge Charles R. Wilson. "The car was still eight feet away, [Partridge] did not warn Underwood that he would use deadly force, and there was no critical need to prevent a known dangerous person from escaping and harming others."

The most important bit: "We conclude that under the totality of the circumstances a reasonable jury could find that the Officers' use of deadly force was unreasonable and therefore unconstitutional."

But Underwood won't get that chance. It's not because he doesn't have a plausible case; the court acknowledges the reverse. Rather, he will not have the right to ask a jury of his peers to consider it because neither the 11th Circuit nor the Supreme Court has litigated a case with almost identical facts.

"The Officers are entitled to qualified immunity because Underwood has not demonstrated that his rights were clearly established," wrote Wilson. "As an initial matter, Underwood does not point to a factually similar case, nor does he contend that a broader principle applies here. And probably for good reason, as this case is not directly analogous to other binding qualified immunity cases involving vehicles and the use of deadly force."

It's a prime example of the outsourcing of such matters to a few bigwigs on the federal judiciary as opposed to what the Constitution prescribes: jury trials. Legislated into existence by the Supreme Court, qualified immunity protects government agents from facing accountability even when the courts admit they violated the Constitution—a privilege not bestowed to anyone without government status. It has protected a cop who allegedly beat a subdued man in a brutal fashion, a cop who destroyed a man's vehicle during an illegal search for which he lied to get consent, and more than two dozen cops who blew up an innocent 78-year-old man's home during a SWAT raid that targeted the wrong house. It has shielded cops who have shot children, cops who assaulted and filed bogus charges against a man for standing outside his own home, and corrupt college administrators who flouted a student's First Amendment rights on campus.

Underwood's version of events was corroborated by testimony from Elizabeth Harrington, the woman who called 911 and watched from her porch as it unfolded. Meanwhile, the officers contend that Partridge only began shooting after Underwood accelerated. But the court highlights a problem: Partridge's testimony contradicts itself at certain turns and also fails to line up with Asarisi's statement.

"The district court should have recognized the inconsistencies within Officer Partridge's own testimony and between the Officers' testimony," said Wilson. "Of course, a jury could instead credit some of the Officers' testimony and come to the same conclusion as the district court—that the Officers' actions were reasonable. But these sorts of issues should not be decided [by the judiciary]." They should be up to a jury.

Underwood won't go before one. But could he file a suit against the city? He has to contend with Monell, a legal doctrine that shields municipalities from civil suits unless they had a concrete policy that directly led to the alleged misbehavior. In some ways, it's a standard even more rigorous than qualified immunity.

He lost there too. "Underwood does not provide evidence of either a pattern or knowledge of improper training," noted Wilson. "He only claims that both Officers were in 'cowboy mode' on the night of the incident." Whether or not a jury would have agreed such behavior merited a settlement for Underwood's injuries will remain a mystery.

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  2. Rather, he will not have the right to ask a jury of his peers to consider it because neither the 11th Circuit nor the Supreme Court has litigated a case with almost identical facts.

    This is weird beyond weird.

    1. Ya think? But it’s the reality we are apparently condemned to live in
      until… ?

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    2. That’s how QI law works. The idea is that the police have immunity unless they knew or should have known that what they were doing was unconstitutional as defined by current precedent. If there’s no case providing precedent with ‘almost identical facts’ in a circuit then the idea is they couldn’t have known. I don’t like it (because it’s very exacerbated by GOP nominated judges with that ‘BACK THE BLUE’ mentality) but it’s a longstanding legal idea.

      1. You have that exactly 180 degrees backwards. It came from Democrats sucking up to Police Unions to get their political and financial support. Democrats have both Houses and the White House. Why do we still have it?

    3. Simply put, this is Billy Binion again who has never written a completely honest article in his life, and for the 80th time quoting himself as an expert on a story 2014, 7 years ago like an bored dog with OCD and a bone that no longer resembles a bone. Trump is gone and the TDS is looking silly at this point, so back to the trusty ol standby.

      At this point I’m pretty sure that Billy simply puts his old stories into a word salad machine, slaps a new sentence on it and it’s enough to bypass the Reason requirement for original work.

    4. Sooner or later an injured party who has been denied even the possibility of redress in court is going to extract some extra-judicial justice from his “assailant”. And extra-judicial justice is usually far more severe and less appealable that that handed down by the courts.

      I have an idea for an experiment. Lets take a roughly spherical copper or brass vessel, or if you like you can use a regular pressure cooker. Let’s fill it half-full of water. Then let’s solder or otherwise seal the lid shut, forming a closed system. Then let’s put this vessel on a fire – turn the fire up high – pile on the fuel. Then let’s stand back some distance and watch.

  3. OT they have identified the drone strike victim as an innocent civilian aid worker. Biden lied, the military lied, Psacki lied (no duh). The admin like the Obamas murdered civilians again.

    Impeach Biden, remove all general staff and the joint chiefs, end the drone program. Psacki needs to resign in disgrace.

      1. And here I thought you hated Trump because he was a child killer. Turns out you didn’t actually give a fuck and it’s all just political grandstanding.

        J/K shreek, I never suspected you of having any principles. Also you’re a child fucker who posted hardcore child pornography at Reason.com. Just in case you or anybody else forgot. About that time when you posted hardcore child pornography at Reason.com because you are a child fucker. And by that I mean, a person who fucks children. A pedophile.

    1. Biden’s drone strike is a war crime. He should be extradited to Afghanistan to stand trial.

      1. Love this coming half an hour after my citation. This is not a serious person.

        1. You mean shouting “BUT TRUMP!!!!!!!!!” really loudly didn’t actually absolve Biden of anything? That’s peculiar indeed. You should go indulge in some nice child pornography and contemplate why that might be, shreek.

        2. Biden killed innocent children while botching an exodus that should have gone far better had there been any planning or leadership.
          (1) Who gives a shit about anything you post?
          (2) Who gives a shit when you posted something?

  4. Is the 11th Circuit stepping up to challenge the 5th Circuit’s claim on qualified immunity decisions that are batshit insane even by the standard for qualified immunity decisions?

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  6. Clarifying what exactly Qualified Immunity is and is not would be a big step for media trolling.
    https://www.law.cornell.edu/wex/qualified_immunity

  7. Judges’ campaigns benefit from the Nixon Anti-Libertarian Law that funded the machines that elected the Reagan-Bush-Biden prohibitionist mafia, then Holy War Bush, Slick Willie, Waffen Bush the asset-forfeiture Fetus, Obama, Trump and Grandpa-unsure-of-his-own-name. That law has gone viral wherever “our” prohibition laws are exported at gunpoint. Now the entire hemisphere is besieged by communo-fascist politicians answering to nobody. So yes, bought judges protect murdering cops, and vice-versa.

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  11. The violation of Constitutional Rights under color of authority by a government agent or actor is a felony. It is prosecutable under Federal law. The proper investigative authority IS the FBI (mandated by law). The proper prosecutor IS the federal prosecutors office. This NEVER happens because the FBI unlawfully allows local internal affairs to allow those felony violations with a slap on the wrist.
    This article is WRONG. The perfect storm exists now. The Court has ruled as a matter of FACT AND LAW that the officers violated civil rights under color of authority, a crime under federal law. Taking this ruling to a federal prosecutor should mandate prosecution, the federal court already ruling on fact and law it is a slam dunk.
    Secondary charges are unlawful use of excessive force causing severe bodily injury while committing a felony (the violation of civil rights itself). This brings the federal prison time to in excess of 15 years minimum.
    Once the officers are found guilty, then all immunity does cease, and regardless of that the jurisdiction’s immunity ends and they become liable. This court is a JOKE because they did NOT assess the actual law that makes the officers CRIMINALS for the violation. No one may have immunity when committing a crime.

  12. Another cop shot an unarmed woman dead at point blank range. He got an interview on NBC TeeVee News to tell what a hero he was to do it. It seems he don’t need no stinking immunity, qualified or otherwise.

    i wonder what Reason will say about that incident once the news gets out.

  13. We should probably shut down the Cartman School of Police Officering. The graduates are all really terrible cops.

  14. I shat a man with Beano

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