The Supreme Court declines to review two cases of qualified immunity awarded to cops who killed citizens

The Supreme Court ended its 2022-2023 term last week with a crescendo of injustice, issuing rulings that harm racial minorities, gender/sexual minorities, and the working class. In Students for Fair Admissions v. Harvard, the conservative majority ruled that considering race in order to help minorities is illegal discrimination, but, in 303 Creative v. Elenis, considering gender and sexual identity in order to harm LGBTQ+ people is legal discrimination. Finally, in Biden v. Nebraska, the conservative majority used the major questions doctrine—code for “we don’t like this executive policy so we’ll overrule it on made-up grounds”—to block President Biden from permanently canceling up to $20,000 in student loans for borrowers who qualify.

Much has been written about these rulings by people far more talented than myself. Buried beneath the heaps of media coverage of the blockbuster cases, though, are two cases that the Supreme Court declined to hear which are just as deserving of attention. For that reason, I will link out to the best articles on the big cases and instead focus this post on the Supreme Court orders you might have missed.

  • Affirmative action: “The Supreme Court Just Bulldozed Affirmative Action—With Two Bizarre Loopholes,” Slate.
  • LGBTQ+ discrimination: “The Supreme Court’s Blessing of Anti-LGBTQ+ Discrimination Will Haunt Gay Couples,” Slate.
  • Student loans: “The Supreme Court’s lawless, completely partisan student loans decision, explained,” Vox.

Qualified immunity

The Supreme Court declined to hear two cases last week involving qualified immunity for police officers who killed citizens.

Qualified immunity is a legal principle that shields government officials, including police officers, from being held accountable in civil court when they violate a person’s constitutional rights. The doctrine, which was invented by the Supreme Court itself in 1967, was originally used to protect police officers from financial liability after they arrested 15 clergy members for breaching the peace by using a segregated waiting room at a Mississippi bus station.

To overcome qualified immunity, a person must prove both (1) that the officer’s conduct was unlawful and (2) that the officer should have known they were violating “clearly established” law, because a prior court case had already deemed similar police actions to be illegal. The second requirement is often the most difficult to overcome due to many judges’ tacit requirement that the prior case have functionally identical facts to the situation in question. Any slight variation can be used by judges to grant qualified immunity.

For example, a Georgia officer shot at a family’s dog without provocation, missed, and hit a child instead. The family sued but since there wasn’t a prior court case where an officer shot at a harmless dog, missed, and hit a child, the cop was granted qualified immunity.

Kansas City

The first case the Supreme Court refused to hear, N.S. and Brittany Lee v. Kansas City Board of Police Commissioners, involves the police shooting of a Black man wrongly accused of theft. Ryan Stokes, 24 years old, was out with friends around 2 a.m. in the Kansas City Power & Light District on July 28, 2013. A group of white men emerged from a nearby bar, “hammered,” and accused Stokes’ friend of taking his cell phone.

At 2:30 a.m. when the bars closed, patrons poured out onto the sidewalks. Stokes stood with Outley and others, all of whom are African-American, at the corner of 13th Street and Grand Blvd.

A group of five white males, including Jordan Miller, 21, emerged from a nearby bar at Power & Light.

Miller would later tell police he and his friends were extremely intoxicated.

“Hammered,” a friend told police.

They looked for a taxi cab big enough for all five, when Miller realized he had lost his cell phone. He accused Outley of taking it.

While Miller acknowledged later that he thought he must have dropped the phone on the sidewalk– and that he had never physically seen Outley holding his phone–he accused Outley at the time of taking it.

An altercation ensues, attracting police attention. When the groups scattered, officers were wrongly told that Stokes stole the cell phone, which may not have even been stolen in the first place. Officers chased Stokes to the parking lot where his friend’s car was located. A nearby cop, William Thompson, claimed to have seen Stokes running with a gun to the car, where Stokes allegedly stashed it. As other officers approached, Stokes turned towards them to surrender. Thompson said he assumed Stokes still had a gun and shot him multiple times in the back without warning. In actuality, Stokes was unarmed when he was shot. He died before he reached the hospital.

According to Stokes’ friends, he didn’t have a gun to stash to begin with. The firearm that was found in the car belonged to the vehicle’s owner, who said it was legally in the car all night long. No other officers claimed to have seen Stokes carrying a gun and surveillance video appears to show Stokes running with empty hands. Furthermore, investigators never tested the weapon for DNA and fingerprints.

The Kansas City Police Department (KCPD) initially tried to spin the shooting in their favor, but one of the officers on scene testified that Stokes was, in fact, surrendering.

At the time of the shooting, KCPD promoted a story that Ryan Stokes was a thief with a gun who had engaged in a standoff with police when he refused to drop his weapon. But [former KCPD officer Daniel] Straub testified in depositions in June 2017 for a lawsuit filed by Narene Stokes, Ryan’s mother, that in fact, Ryan Stokes didn’t have a gun and was complying with his orders.

Straub, who was a Kansas City police officer for 14 years, says he was pushed out of the department in September 2019 for reasons that still mystify him, though he wonders if it’s in retaliation for his testimony in the Stokes case. He reached out to Narene Stokes via Facebook last November and met with her just before Thanksgiving…Straub told Narene Stokes: “I am truly sorry for what happened to Ryan.”

The 8th Circuit Court of Appeals granted Thompson, the officer who fatally shot Stokes, qualified immunity. Last week, the Supreme Court upheld that decision by refusing to hear the case.

Justice Sonya Sotomayor dissented, writing that the federal courts’ “purportedly ‘qualified’ immunity [has become] an absolute shield for unjustified killings, serious bodily harm, and other grave constitutional violations.”

The evidence in this case, taken in the light required at this stage of litigation, tells a disturbing story. Ryan Stokes was an unarmed Black man in the process of surrendering to the police when Officer Thompson, without warning, shot him in the back and killed him. Stokes was only suspected of cell phone theft, there had been no reports he was violent or threatening, and the unarmed Stokes was peacefully surrendering to a different officer after a brief foot chase. This arresting officer, Officer Straub, had already holstered his gun because he could tell that Stokes did not present a risk. Indeed, Stokes was facing Straub and lifting his hands to surrender. Straub was therefore “shocked” when, without any warning, Stokes was shot from behind by Thompson.

Stokes’ daughter sued over her father’s killing and sought a jury trial. The Court of Appeals for the Eighth Circuit, however, ensured that this case never made it to a jury. At the summary judgment stage, the court granted Thompson qualified immunity on the ground that it was not clearly established that Thompson had used excessive force when he shot and killed Stokes…

[The 8th Circuit’s] dual mistakes—resolving factual disputes or drawing inferences in favor of the police, then using those inferences to distinguish otherwise governing precedent—have become the calling card of many courts’ qualified immunity jurisprudence.

The result is that a purportedly “qualified” immunity becomes an absolute shield for unjustified killings, serious bodily harm, and other grave constitutional violations. Officers are told “that they can shoot first and think later,” because a court will find some detail to excuse their conduct after the fact. The public is told “that palpably unreasonable conduct will go unpunished.” And surviving family members like Stokes’ daughter are told that their losses are not worthy of remedy. I would summarily reverse the court below to break this trend. It is time to restore some reason to a doctrine that is becoming increasingly unreasonable. If this Court is unwilling to do so, then it should reexamine its judge-made doctrine of qualified immunity writ large.

St. Louis

The Supreme Court also declined to hear the case of a homeless man, arrested for trespassing, who was killed by police officers in a jail cell.

Nicholas Gilbert, 27 years old, was booked by the St. Louis Metropolitan Police Department in December 2015 for trespassing in a condemned building and failing to appear in court for a traffic violation. According to officers, Gilbert began exhibiting “mental issues” while in a jail cell and “tie[d] a piece of clothing around the bars of his cell and put it around his neck.” A group of officers entered his cell, ostensibly to stop him from harming himself. However, a person in a nearby cell told the court that officers went into Gilbert’s cell “to make him be quiet.”

At least six officers rushed into Gilbert’s cell, handcuffing him and placing him in leg shackles. They then moved Gilbert to a prone position and used their body weight to press Gilbert onto the floor. He attempted to lift up his chest, telling them, “It hurts. Stop.”

After 15 minutes of six officers pushing into “various parts of [Gilbert’s] body, including [his] back,” Gilbert succumbed to the pressure and stopped breathing. The officers finally let up, and a short time later EMS arrived. But it was too late. Gilbert had died. An autopsy revealed that he had a “fractured sternum” and contusions and abrasions on his shoulders and upper body. A medical report said that the “cause of death was forcible restraint inducing asphyxia,” while methamphetamine and heart disease were “underlying factors.”

Gilbert’s family sued the department for using excessive force. Officers argued that the force was justified because Gilbert was actively resisting even when handcuffed and shackled. The 8th Circuit sided with the police, granting them qualified immunity. However, the Supreme Court intervened in 2021, remanding the case back to the 8th Circuit due to insufficient analysis.

The [Supreme] Court then identified evidence that the Eighth Circuit improperly “failed to analyze” or “characterized” “as insignificant”: “the duration of the restraint”; “the fact that Gilbert was handcuffed and leg shackled at the time”; the fact “that officers placed pressure on Gilbert’s back even though St. Louis instructs its officers that pressing down on the back of a prone subject can cause suffocation”; “well-known police guidance recommending that officers get a subject off his stomach as soon as he is handcuffed because of that risk”; and the fact that such “guidance further indicates that the struggles of a prone subject may be due to oxygen deficiency, rather than a desire to disobey officers’ commands.” This evidence, the Court said, was “pertinent to the relationship between the need for the use of force and the amount of force used, the security problem at issue, and the threat—to both Gilbert and others—reasonably perceived by the officers.”

After considering the case again, the 8th Circuit reaffirmed its grant of qualified immunity and Gilbert’s parents brought a new appeal to the Supreme Court. This time, a majority of justices voted not to hear the case or send it back to the lower courts.

Justice Sotomayor dissented:

On remand, the Eighth Circuit did not attend to these facts in deciding whether the officers used excessive force. Instead the court simply decided that, even if Gilbert had a constitutional right to be free from excessive force in such circumstances, that right was not “clearly established.” In reaching that conclusion, the Eighth Circuit, once again, focused myopically on Gilbert’s perceived resistance. The court also ignored that a jury could determine that any actions by Gilbert did not warrant the use of deadly force. The St. Louis police were well aware that prolonged prone restraint with chest compression can cause suffocation.* Yet the officers applied such force to Gilbert anyway, even though he was handcuffed and shackled, and even though six officers were present to hold his limbs down. The Eighth Circuit assumed Gilbert’s subsequent movements amounted to “ongoing resistance,” rather than efforts to breathe, and the court therefore analogized his case to Circuit precedent in which the subject was actively resisting. On that basis, the Court of Appeals concluded that whatever Gilbert’s constitutional rights were in this situation, they were not clearly established.

Respectfully, I would not let this Court’s mandate be so easily avoided. Instead, I would again vacate the decision of the Eighth Circuit and remand for that court to resolve the question of qualified immunity without assuming that Gilbert’s final movements were those of a dangerously noncompliant person posing a threat, rather than of a dying man struggling to breathe while adequately restrained by handcuffs and leg shackles and surrounded by six officers in a secure cell. That factual determination, between resistance or desperation, belongs to the jury. It should not be assumed by a court in assessing whether clearly established law exists. By usurping the jury’s role, the courts below guaranteed that Gilbert’s parents will never obtain the trial they have long sought.

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