Two decisions reflect the justices’ continued desire to shield violent officers from accountability.
BY MARK JOSEPH STERN
OCT 18, 20215:16 PM
Police officers in Portland monitor a Black Lives Matter protest. KATHRYN ELSESSER/Getty Images
The Supreme Court dealt a blow to police reform in two unanimous decisions on Monday shielding officers from lawsuits accusing them of illegal brutality. Both rulings endorse a nearly insurmountable version of qualified immunity, the doctrine that protects police and other state officials from suit, raising the bar even higher for victims of unconstitutional conduct. The rulings are a major setback for the campaign to rein in qualified immunity and a clear signal that a majority of the court remains eager to protect violent officers from accountability.
Each of Monday’s decisions involve claims of unconstitutional force. In the first, Rivas-Villegas v. Cortesluna, officers shot a man with a “bean bag round” (actually a lead shot in cloth) twice at close range because he had a knife pointing face-up in his pants pocket. The officers then kneeled on the man’s back for eight seconds. In the second case, Tahlequah v. Bond, officers fatally shot a man because he refused to drop a hammer that he was allegedly wielding as a weapon. The plaintiffs in both cases accused the officers of violating the Fourth Amendment’s prohibition against excessive force. The officers sought to dismiss the suits by asserting qualified immunity.
Surprisingly, the courts of appeals denied the officers’ requests, allowing both cases to go to a jury. These decisions were unusual because the Supreme Court has imposed a stringent requirement on civil rights plaintiffs suing state officials, including police: They must not only prove that an officer infringed on a constitutional right, but also that this right was “clearly established” at the time. Unless there is precedent explicitly stating that the officer’s conduct was illegal, the victim cannot even take their case to a jury. Instead, a judge must throw the case out by granting the officers qualified immunity.
This rule, which the Supreme Court made up out of whole cloth, has wreaked havoc on Fourth Amendment rights, preventing countless victims of police brutality from getting their day in court. Most lower courts apply the doctrine vigorously, granting qualified immunity unless there is a precedent with virtually identical facts. If a victim cannot point to a past decision in which a court found that the exact same conduct was unconstitutional, they lose immediately.
This approach leads to grotesque results. Consider, for instance, the officer shielded from suit after shooting an innocent man in his own home for no reason, or the officer protected by qualified immunity after allowing his police dog to maul a random homeless man. In both cases, the cops received qualified immunity because the courts could not identify a precedent with indistinguishable facts in which a court found a constitutional violation. As a result, the rights at issue were not “clearly established.” On the rare occasions when lower courts denied qualified immunity, the Supreme Court routinely reversed them in an unsigned summary opinion (called a per curiam) without oral argument or full briefing. In 2020, a Pulitzer Prize–winning Reuters investigation found that courts are granting qualified immunity to cops in a huge and ever-growing number of cases.
Over the last year, however, it appeared that the justices were retreating from their near-absolute position. In November 2020, the Supreme Court issued a per curiam decision in Taylor v. Riojas. The facts of the case were appalling: Correctional officers in Texas forced a man to sleep naked in a cell covered in feces and sewage for six days. Incredibly, the 5th U.S. Circuit Court of Appeals granted qualified immunity to the officers who inflicted this torture, finding that they violated no “clearly established” right. By a 7–1 vote, the Supreme Court summarily reversed the 5th Circuit. The majority held that the victim’s treatment was so “egregious” that “any reasonable officer should have realized” that it violated his constitutional rights. Instead of focusing on whether these rights were “clearly established,” the majority focused on their “obviousness.”
Three months later, the Supreme Court summarily reversed another 5th Circuit decision granting qualified immunity to vicious prison guards, McCoy v. Alamu. The case involved an officer who blasted an incarcerated person in the face with pepper spray for no apparent reason. Initially, the 5th Circuit found that this act violated no “clearly established” right. But the Supreme Court ordered it to reassess that conclusion in light of Taylor.The court dashed any hopes that it would seriously reconsider qualified immunity.
These decisions led observers to speculate that the court was stepping back from its unwavering commitment to qualified immunity. Specifically, the justices seemed to relax the standard for “clearly established” rights, suggesting that officers could lose immunity if they engaged in obviously plainly unreasonable barbarity. The speculation intensified in June when SCOTUS issued a 6–3 decision vacating a grant of quality immunity to correctional officers who held an incarcerated person inmate in a prone position while putting pressure on his chest.
On Monday, though, the court dashed any hopes that it would seriously reconsider the doctrine. Rivas-Villegas and Tahlequah are blunt decisions filled with harsh language toward the lower courts for daring to deny qualified immunity. In both cases, the lower courts cited precedents with roughly similar facts in which they found a violation of a “clearly established” right. Yet SCOTUS retorted that they had defined these rights “at too high a level of generality.” It insisted that these precedents were “materially distinguishable” on the basis of minor differences in fact patterns. For example, in Tahlequah, the officers walked at a normal pace toward the victim; in a past case, the officers sprinted toward him. In Rivas-Villegas, the officer merely placed his knee on the victim; in a past case, the officer “dug his knee into” him. These distinctions, the court concluded, are enough to merit qualified immunity.
The court’s hair-splitting exercise illustrates what one judge called an “Escherian Stairwell.” No two cases are exactly alike; there is always a way to distinguish precedents. If a court wants to grant qualified immunity, it can almost always find some way to differentiate a previous case from the one before it. In Monday’s decisions, SCOTUS sent a message that it will flyspeck lower court decisions granting qualified immunity, scolding them for ruling against cops in all but the most egregious cases. Rivas-Villegas and Tahlequah tell judges that they are on much firmer ground when they shield police from civil suits. The rulings incentivize decisions in favor of the police, even in cases with brutal facts. And so, by extension, they normalize reckless and violent behavior by law enforcement officers, who can remain confident that SCOTUS won’t force them to answer for their misconduct.
No justice dissented from Monday’s rulings—not even Justice Sonia Sotomayor, who is often a lonely voice against police brutality. The odds that the Supreme Court will reform its own qualified immunity jurisprudence are extremely low. Congress could abolish it, but Republicans refuse to weaken the doctrine even slightly, calling reform a “poison pill.” States can end qualified immunity under their own laws, and several already have, granting relief to victims who are locked out of state court. This progress is certainly welcome, but it shouldn’t be necessary in the first place. The Supreme Court invented qualified immunity all by itself. And the court should bear the burden of destroying it.
https://slate.com/news-and-politics/202 ... eform.html
Qualified immunity, better characterized as guaranteed impunity, is a lynch pin of the legal framework of capitalist hegemony in our society. To expect the Supremes to rule against the thugs who are the final defenders of the status quo fails to recognize the function of the Supreme Court, which like the Executive and Senate is to keep the bosses in the driver's seat, forever. A fine illustration of where liberals really stand.
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San Francisco Court’s Racist Denial of the Constitutional Right to a Speedy Trial
Ann Garrison, BAR Contributing Editor 13 Oct 2021
San Francisco Public Defender Manohar Raju speaking at a rally for the right to a speedy trial outside San Francisco Superior Court.
San Francisco Public Defender Manohar Raju spoke to Ann Garrison about why his office is suing San Francisco Superior Court for denying hundreds of Black and Brown people the speedy trial rights guaranteed by the Sixth Amendment to the Constitution.
Ann Garrison: In a press release, your office wrote, “The population of San Francisco is 5.6% Black. As of September 7, 2021, of the people in jail awaiting trial past their last day for trial, approximately 53.5% are Black." That’s even worse than the racially disproportionate incarceration rate. Is that because 53.5% of people charged with crimes in San Francisco are Black, or because more of them are still awaiting trial because of the pandemic?
San Francisco Public Defender Manohar Raju: We believe that this massive racial disparity in the number of people past their last day for trial can be traced to the disparity that already exists in the jail’s population because of biased arrest, charging and pretrial release decisions. The people incarcerated in San Francisco County Jail are approximately 50% Black. The vast majority of them are detained before trial. As a result, Black people make up more than half of the people unfairly deprived of their speedy trial.
AG: Most everything else has fully opened up in San Francisco, albeit with vaccine mandates for indoor spaces. Why haven’t the criminal courts?
MR: That is exactly the point we are raising. The courts have ostensibly re-opened as of this summer, but the criminal courts have remained locked and empty. The court has been citing the pandemic as the reason for this massive backlog, but it doesn’t explain the current situation, which we believe is due to a number of other chronic problems, as is alleged in the lawsuit.
AG: You said in a recent press release that other California counties are managing to meet the deadlines for granting defendants a right to a speedy trial. But this seems to be a problem in other major cities including Washington, DC and Los Angeles . Do you have any idea how widespread this problem is?
MR: It is true that other California counties in and around San Francisco are rising to the challenge. For example, San Mateo County holds jury selection for three trials at once at their spacious County Events Center. The Sonoma County court holds jury selection at their County Fairgrounds. And Sacramento has held court in a college ballroom. Why isn’t there a single written record showing the San Francisco Court made an effort to find alternative locations to hold trials? Neighboring Contra Costa, a county of 1,153,526 people, handled 103 felony and misdemeanor criminal jury trials between May 2020 and April 2021, with no resulting COVID-19 cases. San Francisco held a mere 23 criminal trials from March 2020 to reopening.
Los Angeles is a county of 10 million and the situation there is not great. This humanitarian crisis needs to be addressed everywhere it exists, and with urgency. It is the role and responsibility of each county court’s presiding judge and CEO to manage the court’s proper functioning, allocate resources in compliance with the law and its duties, and alert and raise issues with the Judicial Council, its governing body, especially when it is violating the rights of over 400 people within its jurisdiction, as it is in San Francisco. We have seen no action by the court despite our attorneys filing legal motions and fighting every day for this fundamental, constitutional right to be upheld.
AG: The Sixth Amendment doesn’t specify a timeline for its guarantee of a “speedy trial.” Is there a single deadline or does this vary from state to state or county to county?
MR: California state law requires a trial court to set felony trial dates within 60 days of arraignment, unless the right is waived. It’s shorter, 30 and 45 days for in-custody and out-of-custody misdemeanor cases. It does not vary from county to county because it’s California state law. Other states have codified the speedy trial right in different ways.
AG: If it varies, what is the deadline in San Francisco? And what’s the range of days that defendants awaiting trial have been waiting past the legal deadline?
MR: The range is from a couple of days to close to a year.
AG: In April, US District Judge Cormac J. Carney dismissed at least four criminal cases in Los Angeles because the pandemic had, he ruled, denied them the right to a speedy trial guaranteed by the Sixth Amendment. He said, “Now here in the Constitution is there an exception for times of emergency or crisis.” However, a three-judge panel of the US 9th Circuit Court of Appeals overturned that decision within a manner of weeks. Do you have reason to think that your lawsuit against the San Francisco Superior Court will be more successful?
MR: The San Francisco lawsuit is civil. It alleges, among other causes of action, that the court is violating a specific statute—CA Penal Code section 1050(a), which says that the court must prioritize criminal over civil trials. The lawsuit demands that the SF Superior Court prioritize criminal trials over civil ones, and devote all the resources at their disposal—including Civic Center courtrooms—to restoring the right of the criminally accused to a speedy trial in San Francisco.
AG: What sort of conditions are these defendants jailed in?
MR: Deplorable and inhumane conditions. Our community members have often been caged for 23 hours per day or more because of the COVID pandemic. This solitary-like confinement is even more oppressive than pre-COVID conditions of confinement. The few minutes per day that many of our clients get out of their cells, they need to choose between calling a loved one, taking a shower, and using supplies to clean their cell.
AG: What about those who are out on bail but still awaiting trial? How is this impacting their lives and their families?
MR: Even people who are not in jail, but whose speedy trial rights are being violated, are suffering. This is because they too are suffering oppressive pretrial conditions of release—such as orders that they stay away from their homes, neighborhoods and loved ones, and having the weight of a criminal charge weighing over them for a year or more while they wait to be vindicated in court.
AG: Are there any particular cases you’d like us to know about?
MR: There are countless cases we could highlight. Here are several examples included in the complaint: RAJU v. SUPERIOR COURT OF CALIFORNIA, CITY OF SAN FRANCISCO .
Paragraph 63: Robert Brewer was detained in jail from August 19, 2020 to May 4, 2021, charged with murder. He never waived his right to a speedy trial. He was finally brought to trial in March 2021, three months after his trial deadline had passed. At trial, the jury acquitted him of all homicide offenses. He lost three additional months of his life and was released on the day of the verdict.
Paragraph 64: Emonie Bailey is a San Franciscan detained in jail who never waived his right to a speedy trial. He has been in custody since May 14, 2020, and his original trial deadline was January 19, 2021. His case was not sent to a trial department for trial until August 13, 2021, well over a year since his arrest and incarceration. Once sent out to a trial department, his case resolved. Under the jail’s COVID-19 policy, Mr. Bailey was confined to his cell for a minimum of 23 hours a day. Frequent lockdowns meant that he had only been allowed to leave his cell two or three times a week. In the fourteen months that he had been detained, he had been deprived of in person-visits with his family. Such isolation can cause permanent mental, emotional, and physical harm.
Paragraph 65: Elias Zuniga is another San Franciscan detained in jail who has asserted his right to a speedy trial. He has been in jail since January 19, 2021. He is only allowed to leave his cell one hour per day. He has only had one Zoom visit from his sister, which required the assistance of his public defender to set up. The deadline for his speedy trial was May 4, 2021. Defendant Court has set his trial for November 4, 2021.
AG: Is there anything else you’d like to say?
MR: The criminal legal system in San Francisco is a continuation of the legacy of racial enslavement and colonialism. The court is denying hundreds of Black and Brown people their speedy trial rights and acting like it’s business as usual. We need all of us in their fight, and we should understand that this is not just a legal issue. It goes to the core of the struggle against race and class oppression in this country.
https://www.blackagendareport.com/san-f ... eedy-trial