Qualified Immunity

A Cop Killed a Suicidal Man and Got Qualified Immunity. Justice Sotomayor Isn't Happy About It.

Qualified immunity "does not protect an officer who inflicts deadly force on a person who is only a threat to himself."


Supreme Court Justice Sonia Sotomayor is reiterating her disdain for qualified immunity—a legal doctrine that protects certain government officials from accountability—decades after the high court legislated it into existence.

In the Court's orders released Monday, Sotomayor objected to her colleagues' refusal to hear a plea brought by the family of a man killed by a police officer. The man "never threatened the officer," Sotomayor notes, and in that moment arguably presented a danger only to himself. The cop got qualified immunity anyway.

"I add only that qualified immunity properly shields police officers from liability when they act reasonably to protect themselves and the public," she wrote. "It does not protect an officer who inflicts deadly force on a person who is only a threat to himself."

Though the stereotype is that such decisions are decided along ideological lines, Sotomayor was alone today. She is not alone, however, in her disdain for qualified immunity. Justice Clarence Thomas is the most reliably outspoken detractor.

In April 2011, New Jersey State Police Trooper Noah Bartelt approached Willie Gibbons, who had been diagnosed with schizophrenia, after he'd just been in an argument with his ex-partner, who had a restraining order against him. Gibbons was pointing a gun at his own temple; Bartelt told Gibbons to drop the weapon. Seconds later, the officer shot him twice, ultimately killing him. It is disputed whether Gibbons ever heard his command or whether the officer gave him enough time to comply.

A suit against the officer originally proceeded past the U.S. District Court for the District of New Jersey, which declined to award Bartelt qualified immunity. The U.S. Court of Appeals for the Third Circuit overruled that, concluding that it was not "clearly established" by prior case law that an officer like Bartelt should have known his actions were unreasonable. Qualified immunity requires that a victim of government abuse find a court precedent that almost exactly mirrors the circumstances surrounding the alleged misconduct.

Cops have been awarded qualified immunity for violating people's First Amendment rights, for shooting someone who was driving away, for killing someone who had been sleeping in his car, for ruining an innocent man's home with explosives, and for physically harming suspects who had surrendered or been subdued. It's not that the behavior was appropriate; it's that no prior court had explicitly deemed it so.

The Supreme Court has declined to hear a spate of qualified immunity cases over the years, including that of a cop who shot a 10-year-old, two cops who allegedly stole $225,000 while executing a search warrant, and two cops who arrested a man on bogus charges after assaulting him on his porch.

Though Sotomayor and Thomas may be the most readily willing to rebuke the doctrine, they are not necessarily alone in their skepticism. In two abnormal moves, the Court overturned two qualified immunity rulings over the last year: The first involved a naked inmate who says prison guards forced him into cells filled with feces and sewage; the second involved a prisoner who says a guard pepper-sprayed him for the fun of it.

Those two plaintiffs will get to resolve the questions of their cases before a jury. Gibbons' family will have no such luck.

NEXT: Supreme Court Declines To Hear Louisiana's Defense of a Law That Stamped 'SEX OFFENDER' on Driver's Licenses

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  1. to protect and sever.

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    1. FYI, I recommend you click through, because the attorney arguing for qualified immunity appears to be woefully unprepared. She gets firmly slapped down on various legal points, including not understanding the well-established difference between foster care law vs natural parent law, which have a “huge gap” according to one judge.

      It’s a fun listen.

      1. For those who don’t want to click through, she’s literally arguing that public officials can’t be expected to know that you can’t commit perjury and submit false evidence in a court case. The judges response is… satisfying.

        1. Now if judges would hold police officers to that standard. You know, call them out for testilying. It’s an open secret. Prosecutors, judges, and everyone else know that cops commit perjury literally every time they get on the stand.

          1. “Testilying”

        2. Jesus Christ, this is why lawyers get a bad name. This lady is either dumb as a rock or she’s willing to grasp at the tiniest of straws no matter how much her arguments make her look as dumb as a rock. How these judges kept a straight face is beyond me. (Is Jen Psaki a lawyer perchance? How she can defend Biden’s moronosity indicates either she too is a moron or that she has no shame, no morals, no principles, no integrity and is willing to spout the most blatant bullshit for a buck. Much like this lady was doing.)

          1. Jen Psaki has a degree in English and sociology from William and Mary according to Wikipedia. But if you ask me (with staff like Sullivan and others), the major qualification to be in the Biden administration is the ability to lie claiming everything is fantastic, in spite of the reality.

            I almost feel sorry for Biden he’s so stupid. He could have easily claimed some of his generals said their pullout plan would leave Americans and helpful Afghanis behind, and an airbase for China, while some said otherwise. And now he could just fire the ones who gave him bad info. Instead, it’s all on him, or he can go back on his word that no one told him what would happen, but IMHO the cat is out of the bag that Biden chose the faulty road he took. Maybe Durham can tie him to the Russian Hoax to get rid of him, which would be doing the Democrats a favor, except for the cabal of traitors that pushed that and other fake anti-Trump hoaxes.

      2. Was a fun listen, indeed. Either she was throwing a Hail Mary or her law school needs to have its accreditation revoked.

        1. One legal analysis I saw suggested when the state went to defend its social workers, a defense they’re fully entitled to, she drew the short straw and… essentially reached for any straw she could in a case she probably didn’t want.

          But yeah, the judges were quickly slapping down half her arguments, and with prejudice.

          I thought the “absolute” immunity argument she pressed was pretty damned galling.

    2. I’ve never met a social worker who wasn’t total scum. The job gives them a shitload of power, which they routinely abuse.

      1. It depends on the social worker.

        Disclaimer: My ex-wife is a social worker.

        But there are different types of social workers, who deal with different populations. there are a lot of hard-working, low paid case workers who work with mentally ill people, godawful hopeless cases, etc., they’re very fine people.

        Then there are the Social Worker Special Forces which were closer to what my ex was… she was a clinical social worker in a major hospital ER, sorting through the craziest shit you can imagine. Lot of scenes like Ghostbusters with Annie Potts… two cops bring a crazy guy with underwear on his head and say, “Yeah…so, we took this guy ovah ta Hahbaview… and they didn’t really want him, jail doesn’t seem like the right place and well, we sohta know this is your specialty, so we thought we’d drop him off with yous guys.”

        I think the social workers you want to keep your eye on are the family law, child custody social workers. A lot of them DO come to the job with an agenda and various chips on their shoulders, and they can hold the future of their children in your hands.

        1. The ones I’ve met are the ones in your last paragraph.

        2. My sister was a social worker, worked in the foster care program for years, and she said their were two types of social workers. One were the people like her, born and raised poor with abusive parents who recognized when the parents were doing the best they could. The other were “do-gooders”, usually upper middle class doctor’s or lawyer’s wives who had a vague idea of how people should live but no idea how poorer people actually lived.

          The way she described it, the do-gooder would do a home visit and if they saw dirty dishes in the sink or piles of laundry around, they would ding the parent because obviously the parent didn’t have enough sense to make sure the maid did her job properly. When my sister would do a house visit, if she didn’t see dirty dishes in the sink or piles of laundry around she’d ask when the last time the kids had eaten and whether or not they had sufficient clothes. She realized how terribly traumatic it was for the kids to be removed from the home so there had to be a hell of a good reason to remove the kids from a loving parent no matter how bad a job they were doing as a parent.

  2. My question in these cases is always, was the cop charged with a crime and did the jurisdiction pay a settlement to the family? If not why not. QI is a serious issue but the larger issue is the informal immunity cops enjoy when their actions are criminal as it appears in this case.

    1. On average a dozen cops are prosecuted each year. That’s 2% of the cops involved in deadly shootings. Most of them only because of media attention. That’s just prosecuted. I couldn’t find data on how many result in convictions. I imagine it’s a very small number because it’s always a shock when they are convicted.

    2. From the described article, I don’t think the cop’s conduct is criminal at all. The deceased was in an argument with his former partner, who had a prior restraining order against the deceased. Not only that, but dead guy was holding a handgun while he was doing it. I don’t care if the handgun wasn’t pointed at the cop. As fast as a gun already up and in the hand can be redirected, it doesn’t matter. Cop orders crazy to put the gun down, waits a second for crazy to try to comply…and honestly, that should be enough. I’d perceive an imminent threat of death or serious bodily injury directed at me, if I was that officer. It’s ridiculous that litigation got this far.

      Different facts not stated yet in the story can change all of this, of course.

      1. >>Cop orders crazy to put the gun down, waits a second for crazy to try to comply…and honestly, that should be enough.

        death penalty sans trial?

        1. Yes. Someone holding a gun when they’re crazy is immediately deadly. Don’t continue to hold guns while a cop is ordering you to put it down. Drop the fucking thing.

          It’s what? A quarter second, a half, for someone to change pointing the gun from their head to you instead? Action beats reaction, and I don’t care if the cop (or anyone else) is holding a pistol on the guy. The cop’s still likely going to have to fade a shot or two at him. Even if the cop manages to shoot the guy. Yeah, fuck all that.

          Modern American law enforcement is really, really quick to respond to any perceived threat to their safety with deadly force. That’s often unreasonable, and many times should be criminal. (E.g., Elijah McClain, Daniel Shaver)

          This isn’t reading like one of those situations.

          1. I think you spend too much time reading and not enough time at the range.

      2. A while back there was an article about a guy who served in the Marines who got fired after trying to deescalate a situation with an armed person. He was talking the guy down when another cop arrived on scene and unloaded on the guy. Mister Marine was fired for not immediately killing the guy when he saw a gun.

        You’re saying you agree with shitcanning and blackballing the Marine for not being trigger-happy?

        1. I was going to mention that case, as I recall the gun eventually was found to be an empty gun, but the thing is, the first cop was talking to the guy inside the house when a second team of cops arrived and walked into the situation rather than hanging back and seeing how things were going – the guy was no threat to them until they made him a threat.

      3. If the cop was in danger it’s because he put himself there.

  3. Well, I’ve always believed that if suicide attempts are illegal, then they should be a capital offense…

    1. Wasn’t that true in the Middle Ages?

  4. I’m hardly an expert on people shooting themselves in the head, but couldn’t the cop be legitimately concerned the guy would suddenly take the gun away from his own head and shoot at someone else’s?

  5. He was protecting a man who pointed a gun at himself by killing the guy pointing the gun at him! What more do you people want?

    1. Just trying to wrap my brain around this caused my head to explode.

      1. That just proves brains are a problem.

    2. I could ask that to you – what should the cop have done. Just let a crazy person who had been threatening someone with a gun continue to do so?

      Just because he was pointing the gun at himself at that instant, doesn’t mean it was always going to be pointed in that direction. It takes only an instant to move a gun and fire.

      The article blames the cop for only waiting seconds, but seconds is enough for a skilled shooter to empty the gun and reload and empty it again. (The record for 12 shots out of a revolver is less than 3 seconds.)

      Had the ex shot the guy under the same circumstances, he would be justified. So why wouldn’t the cop? He’s essentially acting as an agent for the ex in this case.

      The fault was the guy starting the aggression in the first place.

      1. So treat everyone as if they were Jerry Miculek?

        Worst case scenario mentalities should be saved for the worst cases. Situations should be treated for what they are, not the worst that could happen.

        1. Just put the gun down.

      2. Just because he was pointing the gun at himself at that instant, doesn’t mean it was always going to be pointed in that direction. It takes only an instant to move a gun and fire.

        It’s called “means and intent”. Cops can’t just shoot him because he was armed.

        1. Really? I thought that, like “Stop Resisting!”, shouting “Gun! Gun! Gun!” was a green light to beat someone to death.

          1. Well, yes, if you shout an official incantation while wearing a talisman of the king’s men on your chest.

      3. I’d like to see a 12 shot revolver…never heard of that.

  6. A cop shooting a guy with a gun who doesn’t drop it when ordered is really not the best case to rail against qualified immunity.

    Police do a lot of bad things. But when you threaten your ex (who had a restraining order) with a gun and then don’t drop it when a cop tells you to, you are the one that put yourself in that position.

    People have some responsibility for their actions. Cops aren’t superheroes meant to save you from yourself. There’s this magical thinking that government will run your life for you, but it’s weird to see alleged libertarians make this argument.

    1. And apparently they’ll end your life for you.

    2. A cop is not judge and jury. His job is to protect all, not to inflect penalty. In this case he failed to failed to do his duty and should not have any immunity for what was a murder plain and simple.

  7. “I add only that qualified immunity properly shields police officers from liability when they act reasonably to protect themselves and the public,”

    That’s not what QI is. Not even close. Wise Latina(x) indeed.

  8. I must say, if I *supported* QI I’d drool at the opportunity to use this case as the vehicle to uphold the doctrine.

    Yes, QI means cops facing gun-wielding maniacs get to make split-second decisions about using deadly force. Perfect.

    As an *opponent* of QI, I say take that case where QI protected thieving cops, or a case where it protected some censorship-happy university administrator. Steer clear of the split-second decision stuff.

    1. What about the situation had changed in the previous split second?

    2. Yeah, this seems like a horrible test case for opponents of QI.

  9. Maybe don’t narrowly tailor rulings on the subject.

  10. Sotomayor is doing good work toward freeing Texas from National Socialism. Libertarians could likewise do some good by persuading the the Associate Justice that enacting Kristallnacht gun laws is not the way to fight fascism. Initiating force against girls is wrong. But stripping girls of the ability to call on Samuel Colt’s equalizer of rights will only make matters worse. Now is the time to impress voters with LP support of the Second Amendment and of the Roe v Wade the LP wrote in 1972–before tribal collectivism pits one right against the other to kill both.

  11. Well, here is a solution.

    Fire all of the eeeeevil cops.
    Instead, have people from REASON do the policing. When faced with a potentially violent offender, you can read them the Non-Aggression Principle.

    Problem solved.

  12. He had a firearm. That firearm could be turned on the officer in a split second. He did not drop the firearm when commanded to do so. We do not know whether or not he heard the command or had time to comply. We also don’t know whether the officer would have reasonably been able to asses whether he heard the command or not. In other words, salient facts about the officer’s conduct are not in evidence and we cannot assess the appropriateness of the outcome. Police officers are also innocent until proven guilty, folks. I will say, if you don’t want an emotionally volatile man with a gun shot you should not call the police. Its unfair to the man. Its unfair to the cop. If I were the cop I would err on the side of going home at night.

  13. To have a reasonable idea of how law-enforcers will perform their job, one must understand what underlying nature/desire motivated them to their profession to start with. Maybe many law enforcers target/acquire such authoritative fields of employment mainly for ‘power’ reasons (though perhaps subconsciously).

    Almost all of us guys, as some gals, have as children fantasized about, and even planned for, a future as law enforcers in some form or another. But almost all of us, probably sooner than later, grew out of that dream, as it wasn’t reflective of our nature. …

    Sometimes law enforcers — be they private-property security, community police, prison guards, heavily-armed rapid-response police units or DEA — must be permitted to relax their nerves on a particularly stressful day by way of playing rough-’em-up and football-tackle with an ‘uncooperative suspect’, though not officially sanctioned. In itself, that may act something like icing on the cake of the primary-pay-and-perks authority-figure job role.

    It is a profession in which, besides the basic tackle and/or handcuffing, adrenalin-pumped employees might storm into suspects’ homes, screaming, with fully-automatic machineguns or handguns drawn, at the homes’ occupants (to “face down!”), all of whom, including infants, can be permanently traumatized from the experience. Occasionally the law-enforcers force their way into the wrong home, altogether; that is when open-fire can and does occur, followed by wrongful deaths to be ‘impartially’ investigated.

    Although that may sound cynical, I believe there is much truth to it. Albeit, it must also be kept in mind that there are people who leave law-enforcement professions after witnessing misconduct within.

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