By Andrew Chung, Lawrence Hurley, Jackie Botts, Andrea Januta and Guillermo Gomez
Erma Aldaba sits in her home, wearing a T-shirt emblazoned with the image of her son Johnny Leija, who died in hospital after a deadly encounter with the police, in Madill, Oklahoma, U.S. April 11, 2019. REUTERS/Andrew Chung
MADILL, Oklahoma (Reuters) – Sick with pneumonia, agitated and confused, Johnny Leija refused to return to his hospital room.
Moments later, with three police officers pinning him on the floor, Leija was dead at age 34.
Staff at the local hospital in tiny Madill, Oklahoma, had called the police in the early evening of March 24, 2011, for help giving Leija an injection to calm him. Security cameras captured much of the ensuing encounter.
The officers, after shooting Leija with a stun gun, follow him down a corridor, shock him again, and wrestle him to the floor. One officer then straddles Leija’s back, trying to handcuff him as the others struggle to pull back his arms. They get one handcuff on. Leija goes limp. The officers step back. Hospital staff drop to Leija’s side and begin a futile effort to resuscitate him.
The Oklahoma Chief Medical Examiner’s Office determined that Leija, his lungs already compromised by pneumonia, was starved for oxygen in his struggle with the police and died from “respiratory insufficiency.”
The county sheriff and the Madill police chief defended the officers’ actions as appropriate to the situation. The cops were not charged with any wrongdoing.
Erma Aldaba, however, blamed the officers for her son’s death. “My son wasn’t a criminal, my son was sick,” she said in an interview.
So Aldaba took the only other route open to people in her situation: She sued. Her lawsuit in federal district court in Muskogee, Oklahoma, alleged that the three officers used excessive force, violating her son’s civil rights under the Fourth Amendment to the U.S. Constitution, which protects against unreasonable search and seizure.
But almost immediately, her case hit a formidable obstacle: a little-known legal doctrine called qualified immunity. This 50-year-old creation of the U.S. Supreme Court is meant to protect government employees from frivolous litigation. In recent years, however, it has become a highly effective shield in thousands of lawsuits seeking to hold cops accountable when they are accused of using excessive force.
At first, it looked like Aldaba would clear the hurdle. The judge hearing her case, and then a federal appeals court, rejected the officers’ claim of qualified immunity.
The appeals panel based its decision on a two-question test courts use to weigh police requests for immunity. The first is whether the evidence shows or could convince a jury that the officers used excessive force in violation of the Fourth Amendment. The second question is whether the officers should have known they were breaking “clearly established” law – a Supreme Court coinage for a court precedent that had already found similar police actions to have been illegal.
To both questions, the court determined, the answer was yes.
Then, at the officers’ request, the Supreme Court intervened. The justices ordered the appeals court to reconsider its ruling, indicating that they disagreed with the lower court.
Back at the appeals court, Aldaba’s lawyer argued, as he had the first time around, that the cops’ treatment of Leija was “clearly established” as illegal. To support his argument, he cited earlier cases in which police were held liable for using excessive force on unarmed, mentally compromised people. Not similar enough, the court now said, so the cops had no reason to think they were breaking the law. The police got immunity. Aldaba’s case was dead.
“It makes me feel that there was a mistake, but we can’t win,” Aldaba, 60, said. “We can’t win fighting the cops.”
EFFECTIVE BARRIER
Aldaba’s lament has become an increasingly common one. Even as the proliferation of police body cameras and bystander cellphone video has turned a national spotlight on extreme police tactics, qualified immunity, under the careful stewardship of the Supreme Court, is making it easier for officers to kill or injure civilians with impunity.
The Supreme Court’s role is evident in how the federal appeals courts, which take their cue from the high court, treat qualified immunity. In an unprecedented analysis of appellate court records, Reuters found that since 2005, the courts have shown an increasing tendency to grant immunity in excessive force cases – rulings that the district courts below them must follow. The trend has accelerated in recent years. It is even more pronounced in cases like Leija’s – when civilians were unarmed in their encounters with police, and when courts concluded that the facts could convince a jury that police actually did use excessive force.
Reuters found among the cases it analyzed more than three dozen in which qualified immunity protected officers whose actions had been deemed unlawful. Outside of Dallas, Texas, five officers fired 17 shots at a bicyclist who was 100 yards away, killing him, in a case of mistaken identity. In Heber City, Utah, an officer threw to the ground an unarmed man he had pulled over for a cracked windshield, leaving the man with brain damage. In Prince George’s County, Maryland, an officer shot a man in a mental health crisis who was stabbing himself and trying to slit his own throat.
The increasing frequency of such cases has prompted a growing chorus of criticism from lawyers, legal scholars, civil rights groups, politicians and even judges that qualified immunity, as applied, is unjust. Spanning the political spectrum, this broad coalition says the doctrine has become a nearly failsafe tool to let police brutality go unpunished and deny victims their constitutional rights.
The high court has indicated it is aware of the mounting criticism of its treatment of qualified immunity. After letting multiple appeals backed by the doctrine’s critics pile up, the justices are scheduled to discuss privately as soon as May 15 which, if any, of 11 such cases they could hear later this year.
Justice Sonia Sotomayor, one of the court’s most liberal members, and Clarence Thomas, its most conservative, have in recent opinions sharply criticized qualified immunity and the court’s role in expanding it.
In a dissent to a 2018 ruling, Sotomayor, joined by fellow liberal Justice Ruth Bader Ginsburg, wrote that the majority’s decision favoring the cops tells police that “they can shoot first and think later, and it tells the public that palpably unreasonable conduct will go unpunished.”
In that case, Kisela v. Hughes, the justices threw out a lower court’s ruling that denied immunity to a Tucson, Arizona, cop who shot a mentally ill woman four times as she walked down her driveway while holding a large kitchen knife.
A year earlier, Sotomayor in another dissent called out her fellow justices for a “disturbing trend” of favoring police. “We have not hesitated to summarily reverse courts for wrongly denying officers the protection of qualified immunity,” Sotomayor wrote, citing several recent rulings. “But we rarely intervene where courts wrongly afford officers the benefit of qualified immunity.”
Sotomayor was responding to the majority’s decision not to hear an appeal brought by Ricardo Salazar-Limon, who was unarmed when a Houston police officer shot him in the back, leaving him paralyzed. A lower court had granted the officer immunity.
The Reuters analysis supports Sotomayor’s assertion that the Supreme Court has built qualified immunity into an often insurmountable police defense by intervening in cases mostly to favor the police. Over the past 15 years, the high court took up 12 appeals of qualified immunity decisions from police, but only three from plaintiffs, even though plaintiffs asked the court to