Maryland Cop Who Recklessly Shot a 5-Year-Old Boy Got Qualified Immunity

The Cato Institute is urging the Supreme Court to take up the case and reaffirm that the liability shield does not apply to "obvious rights violations."

During an August 2016 standoff with an armed woman at an apartment in Baltimore County, Maryland, a police officer fired his rifle through an interior wall into the kitchen. The bullet struck the woman, Korryn Gaines, in the upper back, then ricocheted off the refrigerator, striking her 5-year-old son, Kodi, in the cheek.

The officer, Baltimore County Cpl. Royce Ruby, later testified that he fired the "head shot" without a clear view of Gaines, saying he could see only her braids and the barrel of the shotgun through his rifle scope. He also said he could not see Kodi but knew that he was in the kitchen and that "there's a possibility" the boy would be hit by the bullet. A witness testified that Gaines, explaining his decision to take the shot, described himself as "hot" and "frustrated."

It was understandable that Ruby was hot. The police had cut off power to the apartment building, which was sweltering without air conditioning. It was also understandable that he was frustrated. At that point, the standoff, during which more than 30 officers surrounded the building, had dragged on for more than six hours. Police had been told that Gaines "had a history of mental illness and that she had been off her medication," as the Maryland Supreme Court later noted. "Officers testified that Ms. Gaines acted erratically, sometimes negotiating with officers, at other times threatening them and cutting off contact."

It is harder to fathom why Ruby decided to fire his rifle even though he recognized that he was endangering a little boy and even though he was not facing an "imminent threat of death or serious bodily injury." The Maryland Supreme Court accepted that Gaines "may have raised her shotgun" but "was not aiming it directly toward officers." It nevertheless ruled that Ruby was entitled to qualified immunity, which shields police officers from federal civil rights claims unless their alleged misconduct violated "clearly established" rights.

Based on that conclusion, the court overturned $32 million in damages that a jury had awarded Kodi. The boy's father, Corey Cunningham, is now asking the U.S. Supreme Court to review the Maryland Supreme Court's decision. "Obviously unlawful conduct alone clearly establishes the law such that qualified immunity does not apply," his petition argues, citing Supreme Court precedents to that effect. "Conduct that is so egregious and obviously unlawful as to shock the conscience necessarily forecloses qualified immunity."

The Supreme Court, the Cato Institute notes in a brief supporting Cunningham's petition, "has held that some rights violations are sufficiently obvious to violate clearly established law even without factually similar precedent." It urges the justices to clarify that a court should not grant qualified immunity to "a police officer who committed a conscience-shocking rights violation simply because it could find no prior decision involving nearly identical facts." In this case, Cato says, "it is self-evident that the officer's conscience-shocking conduct violated the right of Kodi, an innocent bystander, to be free from arbitrary state action."

The deadly encounter with Gaines began after she failed to appear in court for alleged traffic violations. Trying to serve a warrant for her arrest, two Baltimore County police officers knocked on the door of her apartment and announced themselves. Getting no response, they kicked in the door and saw Gaines sitting on the floor with a shotgun in her lap. She remained armed but contained throughout the standoff.

Before he fired his rifle, Ruby claimed, he saw Gaines "raise her shotgun into a firing
position and aim toward the hinge side of the front door, from which she could have hit
officers stationed on the other side." But that account, the Maryland Supreme Court noted, was inconsistent with Ruby's testimony that "all he could see through his scope were Ms. Gaines's braids and the barrel of the gun." Other witnesses "testified that more of her body would have been visible had she been aiming the gun as Corporal Ruby contended."

After Ruby fired his rifle, thereby injuring Kodi as well as his mother, he entered the apartment. Hearing "the shotgun go off and being reloaded," he shot Gaines three more times, killing her. One of his rounds again struck Kodi, who this time was hit in his elbow. Kodi "underwent multiple surgeries to remove bullet fragments from his face" and "required multiple reconstructive surgeries on his elbow."

When Ruby first opened fire, Cato's brief notes, he did so "without any imminent threat to life or limb." Because "he was 'hot and frustrated,'" he "fired his rifle through the wall of a kitchen where he knew a five-year-old child…was present but not visible." Ruby "admitted to knowing that his first shot could hit Kodi."

Despite those facts, the Maryland Supreme Court concluded "it was not clearly established that Corporal Ruby would violate Kodi's right to substantive due process under the Fourteenth Amendment" by firing his rifle in these circumstances. The court conceded that "'clearly established' does not mean that there must be a case with precisely matching facts or that found a violation in the same specific context." But its subsequent analysis seemed to require just that.

"Although it is 'possible' that sufficiently 'reckless and irresponsible' actions like 'shooting into a crowd at close range' could rise to the level of a Fourteenth Amendment violation," the court said, "the parties have cited no case decided by the time of the shooting here that had reached such a conclusion….At the time of the shooting, no decision from any appellate court in the country—much less a controlling decision or 'a robust consensus of persuasive authority,' had held that an officer who took action similar to that of Corporal Ruby violated the Fourteenth Amendment."

Dissenting Justice Michele Hotten saw things differently. "This case is a catastrophic example of poor decision-making and the overzealous exercise of state-sanctioned force," she wrote. "The decision by an officer to shoot through a wall, at a target he could not see, when he knew a child was on the other side of that wall and could be injured or killed, is patently offensive to a 'universal sense of justice.'…As made clear by the facts, the shooting of Ms. Gaines and the injury to Kodi were unnecessary, avoidable, and legally unjustifiable. At best, this decision joins an ever-increasing line of cases in which few, if any, abusive exercises of state power are deemed violative of a person's Substantive Due Process rights. At worst, this case serves to justify future shootings by police, taken in frustration and in disregard to the risk posed to known bystanders."

The majority's position on qualified immunity illustrates a baffling situation that 5th Circuit Judge Don Willett has decried. "To some observers," he wrote in a 2019 case, "qualified immunity smacks of unqualified impunity, letting public officials duck consequences for bad behavior—no matter how palpably unreasonable—as long as they were the first to behave badly."

Justice Neil Gorsuch noted the same danger as a judge on the U.S. Court of Appeals for the 10th Circuit. "Some things are so obviously unlawful that they don't require detailed explanation," Gorsuch wrote in a 2015 case, "and sometimes the most obviously unlawful things happen so rarely that a case on point is itself an unusual thing. Indeed, it would be remarkable if the most obviously unconstitutional conduct should be the most immune from liability only because it is so flagrantly unlawful that few dare its attempt."

Based on similar concerns, the Supreme Court has said that alleging a violation of "clearly established" law does not necessarily require locating a precedent with closely similar facts. The issue, it explained in the 2002 case Hope v. Pelzer, is not whether the "very action in question has previously been held unlawful" but whether officials had "fair warning that their alleged [misconduct] was unconstitutional." In Hope, the Court deemed it "obvious" that handcuffing a shirtless prisoner to a hitching post for seven hours in the hot sun violated the Eighth Amendment's ban on "cruel and unusual" punishment.

The Court reiterated that qualified immunity does not apply to "obvious" constitutional violations in the 2020 case Taylor v. Riojas, which involved a Texas prisoner who was confined in "a pair of shockingly unsanitary cells." One "was covered, nearly floor to ceiling, in 'massive amounts' of feces"; the other was "frigidly cold" and "equipped with only a clogged drain in the floor to dispose of bodily wastes."

Although Hope and Taylor "both involved Eighth Amendment claims, their holdings are general," Cato notes. Yet "persistent confusion about the obviousness exception in qualified immunity doctrine has engendered analytical inconsistency and avoidable
injustices, like the one that occurred in this case."

The Maryland Supreme Court's "erroneous approach—granting qualified immunity simply because there is no case exactly on point, no matter how manifestly unlawful the rights violation—is regrettably common in the lower courts," Cato says. It cites cases where cops or jailers received qualified immunity after shooting a 10-year-old boy in the leg "while attempting to shoot an unthreatening family dog"; after stealing $225,000 in cash and rare coins while executing a search warrant; and after putting a prisoner in solitary confinement for five months "because he asked why he could not visit the commissary." To prevent such outrageous outcomes, Cato says, the Supreme Court "should reaffirm that Hope and Taylor apply to any case involving obvious rights violations."