UCLA Law Prof. Civil procedure/civil rights litigation/police accountability. Author of Shielded: How the Police Became Untouchable (
@VikingBooks
2023)
✨I am over the moon that my book, Shielded: How the Police Became Untouchable, has won the American Bar Association's Silver Gavel award! ✨
The award is meant to recognize works “exemplary in fostering the American public’s understanding of law and the legal system"...1/5
The Supreme Court just made an important and promising shift on qualified immunity in a case called McCoy v. Alamu- although they did it so quietly that you wouldn't notice if you didn't look closely. Here's the scoop, in a thread...
The 10th circuit just recognized a 1st A right to record the police, reversing the district court’s decision granting qualified immunity because the right wasn’t clearly established. Congrats to the legal team, especially my former student,
@natashababz
!
The Supreme Court issued no decision in McCoy. But I think they're sending a message that lower courts can deny QI if the officer's misconduct was clear, even if there's no case with identical facts - not only in prison conditions cases, but in excessive force cases as well.
280 characters aren’t nearly enough to explain what is wrong with this article that suggests the officers in Uvalde might have hesitated because qualified immunity protections in the Fifth Circuit are too weak. So that’s why I have written this 🧵…
As a gunman approached Robb Elementary School in Uvalde, Texas, one police officer had an AR-15 trained on the suspect. Why didn't he take the shot?
Maybe because cops who pulled the trigger under similar circumstances have ended up in court.🧵
This may be how the Supremes take action on qualified immunity in the near future-not with a sweeping opinion doing away with QI, but with a quieter message, heard by the lawyers and judges who are listening, that it's stepping back from its most robust depictions of QI's power.
@lawlibertarian
, I am a lawyer too, and a law professor who has studied qualified immunity for a decade. Steal a quarter million dollars while executing a search warrant? QI. Throw a petite woman on the ground and break her collar bone even though she wasnt a threat? QI.
But the Supreme Court granted cert, reversed, and remanded, instructing the 5th Circuit to reconsider its decision in light of Taylor v. Riojas, a SCT decision from 11/2020 ruling no prior factually similar case was necessary when any officer would know what they did was wrong.
The 9th Circuit today granted qualified immunity to an officer who shot a man six times. The decision nicely illustrates why the justifications for qualified immunity doctrine bear scant relationship to reality, and why it is brutally unjust. 🧵 1/10
This is a jaw dropping story. NYC’s attorneys, obligated to report settlements and judgments against the NYPD, failed to report $1.2 billion in payouts over a 10 year period. Approximately half of the total payouts during that period.
We don’t have specifics, but sounds like Republican Senator Tim Scott is proposing to end qualified immunity and make cities, not officers, liable. This is HUGE folks. Let me explain why.
Today’s summary reversal in Taylor v. Riojas is a big deal. In it, SCOTUS breathed new life into the notion that qualified immunity should be denied if the constitutional violation is obvious - a ruling the Court made almost 20 years ago but has ignored until today. 1/8
In a case brought by
@RightsBehind
, a Texas corrections officer beat a prisoner without provocation. The district court granted the officer QI and the 5th Circuit Court of Appeals affirmed.
In the opinion, the 5th relied heavily on Supreme Court QI precedent, saying “[t]he pages of the United States Reports teem with warnings about the difficulty of” showing that the law was clearly established and ruling that no prior court decision had sufficiently similar facts.
Today, Judge Carleton Reeves issued Green v. Thomas, a decision denying defendants qualified immunity and explaining why qi has no justification in history, text, or policy--and that any stare decisis concerns ring hollow after Dobbs. Tremendous decision.
My book, Shielded: How the Police Became Untouchable, is now available for preorder! Coming out February 2023.
@VikingBooks
. I can't wait to share this with you.
Arizona passed a law restricting the ability to record the police. It was so bad that no one wanted to defend it in court, and now a federal judge has struck it down via
@reason
The notion that the Uvalde officers were worried about the threat of being sued when deciding whether to confront the shooter has no basis in reality. Studies have repeatedly found that the threat of suit is not on most officers’ minds when doing their jobs…
This is must-read, stomach churning, shoe-leather reporting about a brutal cop, a police department that looked the other way AGAIN and AGAIN and AGAIN, and barriers like qualified immunity that make justice in even the most egregious cases difficult to find.
THREAD: Dallas police ignored a decade of warning signs about Officer Christopher Hess' brutality.
Then he killed someone.
My latest investigation with
@milesmoffeit
@danachewy
:
There is a lot to hate about qualified immunity. But here’s one reason that often escapes notice: in some parts of the country, only “published” decisions can clearly establish the law. And in those same parts of the country, more than 90% of decisions are “unpublished.” A 🧵1/9
Qualified immunity has gotten most of the attention in recent debates about police accountability, but I argue in an article now out in
@WMLawReview
that a bigger problem is the lack of experienced civil rights attorneys - especially outside the cities of the Great Migration.🧵
Here’s a little something I wrote about qualified immunity, in
@politico
- an essay adapted from my book, Shielded: How the Police Became Untouchable.
If you’ve ever wondered what all the fuss is about qualified immunity, give it a read!
East Cleveland's made news because 16 of its 40 police officers were indicted for excessive force captured on video btw 2018-22. In response,
@SIfill_
tweeted: "Not. Bad. Apples." She's so right. Especially because egregious misconduct by E. Cleveland officers is nothing new.🧵
I appreciate
@danepps
reference to my research in his
@nytimes
oped. I agree that abolishing qi is not a cure-all. But I disagree with the conclusion that eliminating qi is "unlikely to alter police behavior." Here's why. 1/7
Defenders of qualified immunity argue officers would be bankrupted without it. That is absolutely untrue, as I’ve shown.
Instead, qualified immunity can actually bankrupt people who have had their rights violated. One more reason to hate QI.
🧵👇🏻💥
🧵on another way
#QualifiedImmunity
hurts victims of abuse.
Can you help Anthony Novak?👇
On 2/21,
#SCOTUS
declined to hear
@IJ
's cert petition in Novak v. Parma, challenging
#QualifiedImmunity
for cops who arrested Anthony for parodying them online. 1/
Thrilled that my newest article, "Qualified Immunity's Boldest Lie" is now in print. Many many thanks to the fabulous
@UChiLRev
editors who worked on the article.
What IS qualified immunity's boldest lie? Glad you asked. (Thread.)
I’m so thrilled to be able to share my essay in The Atlantic adapted from my forthcoming book
#Shielded
. Give it a read!
Why Police Officers Almost Never Get Punished - The Atlantic
@VikingBooks
@TheAtlantic
Qualified immunity strikes again. In this case, there actually was a prior court decision holding similar conduct unconstitutional - but the court hadn’t “published” the opinion - even tho it was publicly available - so it couldn’t clearly establish the law.
The California State Assembly is considering
#SB731
to make it easier for victims of police misconduct to sue. Opponents say officers will be bankrupted if it passes. But officers are more likely to be struck by lightning than they are to pay $ when they are sued. Call your reps!
Jury selection starts this morning in the suit brought by Vicki Timpa against the officers who killed her son, Tony after he called 911, seeking their help. Vicki - and her lawyer, Geoff Henley - have fought more than seven years to get to this day.
This was Tony Timpa. At 32, he died after cops kneeled on him for 14 min & taunted that he just needed some "tutti-frutti" waffles.
You may not have heard his name. But his mom's 7-year, ongoing fight for justice epitomizes how hard it is to hold police accountable. A thread.
Terrific and important thread about a terrific and important decision by
@AmerMedicalAssn
to adopt a resolution calling for an end to qualified immunity - in recognition of the harms caused by police misconduct without accountability.
big update.
comprehensive policing reform & greater accountability requires us to address qualified immunity.
@AmerMedicalAssn
, nation’s largest professional med assn & physician lobby, did just that at
#AMAmtg
w adoption of res 431 - qi reform in a voice vote by the hod.
🧵
I am all for discussion and debate what the future of qualified immunity should be. But that discussion and debate needs to rely on facts, not fearmongering.
Here’s my latest for
@usatodayopinion
about Tony Timpa, who was killed beneath the knee of a Dallas police officer in 2016. His family’s case was dismissed on qualified immunity grounds - but they just got good news from the 5th circuit.
@aaronsibarium
acknowledges some of these points, but argues that lawsuits can still diminish morale, and then points to several 5th circuit cases that, he says, show the circuit has been “fairly stingy” about granting qualified immunity. Problem is…
…encountered his colleague.” In reality, spike strips had been set up to stop Luna, Mullenix had asked for and was denied permission to shoot from the overpass by his supervisor (but did it anyway). The only danger to Mullenix’s colleagues was from Mullrnix’s own gun.
…misrepresentations abound in the descriptions of cases used to show the 5th Cir’s supposed lenience in qualified immunity cases. The officer in Mullenix v. Luna is painted as a hero who shot at a dangerous suspect from an overpass “With seconds to go before the suspect…
…the Fifth Circuit granted the officers in Winzer qualified immunity! None of these cases encourage officers to hesitate in life and death situations, as the article suggests…
2020 was a super productive year for me, and now I have a super silly number of reprints gathering dust in my office. Let me know if you want some summer reading about
#qualifiedimmunity
,
#civilrightsecosystems
and/or
#bivens
.
More than 300 law professors are calling on Congress to
#EndQualifiedImmunity
and make local governments liable when their officers violate constitutional rights. See the letter here:
And sign on here:
@aar718
has written an article that blows open Supreme Court claims about the origins of qualified immunity. Don Willett, a 5th circuit Trump-appointee, has taken notice.
Terrific article by
@adamliptak
@NYTimes
Terrific 3rd Circuit decision with a concurrence that goes after qualified immunity, citing my research () showing that police officers don't actually learn the facts & holdings of cases that clearly establish the law. Opinion at .
One of the most damaging aspects of qualified immunity is the notion that plaintiff must find a prior court decision with virtually identical facts to establish officers were on notice of their misconduct. It’s a nearly impossible standard to meet - and ridiculous to boot...2/8
…shot Gabriel Winzer, who was NOT the suspect they were looking for, within six seconds of seeing him on his bike. Winzer was wearing a blue jacket when the officers were looking for someone wearing a brown shirt. And although this case supposedly chills officers…
Why would ending qualified immunity harm “character-driven, highly competent law enforcement officers”? There’s no 4thA violation for good faith errors, and cities-not officers-pay 99.9% of the time. Reporters, pls ask this of
@TimScottSC
ASAP.
Cities/counties hire the officers who violate the Constitution, and give them badges and guns. They should pay for the harms officers cause. We also need to hold officers accountable. Tim Scott’s proposal addresses the first concern. We can find other ways to address the second.
The description of the facts in Cole v. Carson is equally off base, claiming police told Cole to drop his weapon and he refused, then fled into a bush, emerged with his gun to his head and turned toward police. That wasthe officers’ story, but was contradicted by a body mic…
Civil rights litigators should bookmark
@IJ
's Constitutional GPA project. If you're looking to find caselaw to defeat a QI motion you can search by circuit, type of claim, and scenario for clearly established law. Super valuable resource.
Officers’ bank accounts are protected not by qualified immunity, but by indemnification statutes and policies that require local governments to pay for attorneys for their officers and any settlements or judgments entered against them.
Almost 400 law professors have joined a letter calling on Congress to
#EndQualifiedImmunity
. Congress is headed back into session Monday. Wouldn't it be great if 500 professors signed on by then? The letter's here. … Sign on here:
…that revealed the officers gave Cole no warning before shooting him, and forensic evidence that showed Cole’s gun was at his own temple when he was shot. And in Winzer, described as a case where “police shot a suspect who was bicycling toward them with a gun,” police actually…
AG Barr echoes the dominant defense of qualified immunity: ending QI would bankrupt officers for good faith mistakes. But indemnification rules, not QI, shield officers from financial liability. 4th Amendment law, not QI, shields officers from liability for good faith errors.
Here's Attorney General Barr in a speech today to a police conference in New Orleans, talking about how great qualified immunity is, and how the real solution to excessive force is STOP RESISTING
I've got a new qualified immunity working paper, showing that the Supreme Court's insistence on factually similar precedent to "clearly establish" the law misunderstands the role of court opinions in police training and decisionmaking. Comments welcome! .
Much has been written about the need to reconsider qualified immunity. I'm working on a paper offering another reason to do so: Plaintiffs can only defeat qi with cases holding almost identical conduct unconstitutional. But officers don't read or rely on these types of cases.1/6
Terrific piece by
@kimberlykindy
about failed efforts in many state legislatures to end qualified immunity. A key point, though, that can’t be overlooked: claims that officers will be bankrupted for good faith mistakes that have been used to kill these bills…ARE NOT TRUE.
After George Floyd's death, state legislators pushed to end qualified immunity, which largely protects officers from civil rights lawsuits. But bills in at least 35 states have now died under pressure from police and unions.
Someone please explain to me why the top paid and third-highest paid police officials in the state of California are employees of the Vallejo Police Department.
(Read Chapter 6 of
@ShieldedBook
or years’ worth of coverage in
@OpenVallejo
if you need context for this request.)
OK I deleted the screen grab I took of the top police salaries from California in 2022. It feels weird to have a big list of the names of cops making like $900k.
But you can get that list yourself at
And it looks like this
Defenders of qualified immunity always say eliminating it will hurt good cops. But they ignore the 4thA - which protects reasonable mistakes - and indemnification agreements - which almost always shield officers from financial liability. Saying something doesn't make it true.
To be clear, this is nonsense. Qualified immunity only matters when an officer *has* violated someone's rights. Which basically means, by definition, that the officer did not "act reasonably." And QI absolutely protects "bad cops," so long as they're bad in a new way.
But there was a SCOTUS decision in 2002, Hope v. Pelzer, in which the Court said a prior decision was unnecessary when the violation was obvious. This decision has been largely ignored by the Court until today, in its decision in Taylor v. Riojas. 4/8
Here are slides I've used when testifying in favor of state bills creating a cause of action for civil rights violations without qualified immunity - to counter arguments that officers will be bankrupted for good faith mistakes and that frivolous lawsuits will flood the courts.
I've written a short primer on qualified immunity and why the Supreme Court or Congress should
#EndQualifiedImmunity
. Now.
Perspective | Suing police for abuse is nearly impossible. The Supreme Court can fix that.
Anyone interested in qualified immunity must pay close attention to New Mexico, which passed an act effectively ending qi in 2021. New Mexico L. Rev. held a terrific symposium about the statute, and the symposium issue (with my keynote) is out now 👇
Also..
This story makes my blood boil. It’s a perfect, horrifying complement to
@strawburriez
’s extraordinary book, We Were Once a Family. Both tell of white, privileged monsters allowed to abuse black and brown children for years without consequence.
I'm reviewing & coding police misconduct case dockets for a new project and, whew. Our system far too regularly makes people shoulder the costs of devastating harms inflicted by government. Not a new insight, but reading 100s of dismissal decisions really drives the point home.
Read why twelve scholars across the ideological and methodological spectrum - myself included - believe it’s time for the Supreme Court to reconsider qualified immunity. Arguments against the doctrine - and the number of courts and scholars opposed to it - are steadily growing.
I can't tell you how many people have relied my research--finding that fewer than 4% of police misconduct cases are dismissed on qualified immunity--to argue qi doesn't matter & ending it wouldn't matter. I DISAGREE & have explained many times why this conclusion is wrong. A 🧵
I've got a new draft, "Municipal Immunity," examining how § 1983 municipal liability claims fare in almost 1200 cases & comparing those outcomes with qualified immunity challenges. Available for 👀 at . In a nutshell: As bad as QI is, Monell is worse.
👇🏻🔥 Terrific, must-read story about an unconscionable practice by California law enforcement, promoted by
@Lexipol
, a private company that provides policies and trainings to thousands of agencies across the country, and almost all CA agencies. Also…
After police killings, law enforcement agencies across California have been trained to keep news of the death from family members while collecting information that is used to protect the involved officers and their department.
For
@latimes
:
You should take the time you need to read every word of this thread, if you can't read every word of the DOJ's report about the Minneapolis police department. Absolutely devastating.
DOJ just released the report from its two-year investigation of the Minneapolis police department.
Here's a thread of notable excerpts.
This first one happened *while a DOJ investigator was on a ride-along.*
Here's the thing, though. Police officers don't read court decisions. They learn about general legal standards of and then get comfortable applying those standards. So requiring plaintiffs to find identical prior facts makes no sense. 6/10
Solutions? Joseph Mattis writes that judges have an ethical obligation to publish decisions that find constitutional violations. I would be fine allowing unpublished decisions to clearly established law. Either would improve-though hardly fix-the current state of affairs. 9/9
It’s amazing to have a galley of
#Shielded
in my hands! Preorder yours at and you’ll have it on 2/14/23. Nothing says ❤️’s Day like a book showing how the Supreme Court & local gov’ts have erected a phalanx of shields protecting police from accountability.
Here’s a quick primer on how qualified immunity and indemnification relate: QI protects by requiring cases be dismissed if no prior court decision “clearly establishes” the law. Indemnification protects by requiring local governments to pay if their officers are found liable.1/5
Experts say it is unlikely that many police officers will have to empty their bank accounts to pay for bad behavior. Insurance companies and taxpayers are more likely to be on the hook.
Qualified immunity currently slams the courthouse doors against plaintiffs unless they can find a prior court case with virtually identical facts. It increases the costs and complexity of civil rights litigation. It obscures the contours of the Constitution. It is bad bad bad.
Six other circuits - every circuit to have weighed in on the issue - have concluded that there is a First Amendment right to record, and the 10th Circuit relied on those decisions in ruling the right is clearly established today. But this victory is proof of the harms of qi…
Limiting police power to use force is key to reform. But Lexipol-a private company writing police policies for 1/5th of U.S. agencies-is undermining these efforts. Read all about it in Lexipol's Fight Against Police Reform, forthcoming
@IndianaLJ
, by me & the great
@Ingrid_Eagly
California police often question loved ones of those killed by police-before revealing their loved one is dead-to try to get incriminating information. The CA Assembly will consider a bill this week to put an end to this practice. Learn abt the bill 👇:
Some may oppose Sen. Scott’s proposal because it means individual officers won’t be held accountable. We absolutely need to find ways to increase officer accountability - by, for example, changing union protections that make it difficult to fire bad officers.
It's high time to
#EndQualifiedImmunity
. But what impact would ending qi have? Some say qi is responsible for the horrors of the past weeks, some say other barriers to accountability mean little would change. I say both are somewhat right. This thread explains why. 1/6
Defenders of qualified immunity often argue we don’t need more power to sue officers because departments uncover wrongdoing in internal affairs investigations and discipline/fire officers who violate law/policy.
Those who espouse this view have to contend with this thread 👇🏻.
Police investigations into police killings are usually a black box
But
@michaelhayes
& I found how NYPD investigated itself after an officer killed a man, Kawaski Trawick, who was home alone
We got audio interviews w/ the officers
Listen as the blue wall of silence is built
👇🏻
Taylor v. Riojas is a shocking case - a prisoner was kept in a cell covered with feces for six days. It may feel like a small victory to have SCOTUS reverse dismissal. But the Court also makes clear in its decision that Hope is still good law. 5/8
PS Justice Alito’s dissent in Taylor - arguing that the Court shouldn’t have summarily reversed because that’s not what SCOTUS does (when that is precisely how the Court has decided most of its QI cases) deserves its own thread. 7/8
When settlements and judgments come from the central budget - as they do in NYC - there is no financial incentive for police departments or city attorneys to do the right thing. And apparently no moral one either.
#Shielded
Sen. Tim Scott’s proposal - requiring the city to bear the costs of these suits, instead of officers - would make transparent what already happens in over 99% of cases, while avoiding strategic use of the threat indemnification might be denied.
The 139-page complaint in Tyre Nichols's family's lawsuit is unusually detailed in its allegations against the chief and the Memphis police department. A few possible explanations why:
Breaking news: Lawyers for Tyre Nichols’s family filed a civil lawsuit against the city of Memphis, its police department, Police Chief Cerelyn Davis and the officers involved in the brutal beating of the 29-year-old following a traffic stop in January.