Qualified Immunity Strikes Again

Wednesday, April 4th, 2012

Cop runs license check on a suspicious vehicle. Although they apparently committed no traffic violation, cop insists that his decision to run a check had nothing to do with the fact that the occupants were black, and happened to be driving in an affluent, predominately white neighborhood. The cop’s partner apparently then enters the wrong license number, which returns a car that had been reported stolen. So cop follows car into driveway, which happens to be the home of the driver’s parents, where he lives. Cop approaches driver and occupant with his gun drawn. Driver’s parents come out to see what’s causing the commotion. Cop roughs up driver’s mother. Driver gets up from ground to tell cop to lay off of his mother. Cop shoots driver, a full 32 seconds after pulling into the driveway.

The driver, who was unarmed, will now carry a bullet in his liver for the rest of his life. The cop was charged with first degree aggravated assault. A jury acquitted him. Now this week, U.S. District Judge Melinda Harmon dismissed the driver’s lawsuit against both the cop that fired his gun and the cop who entered the wrong license plate number, citing qualified immunity. According to Harmon, the officer acted “reasonably,” and moreover, wrongly accusing an unarmed man of stealing a car, pointing a gun at him, then shooting him in the liver, “did not violate [his] constitutional rights.”

Both cops are back on the force. The guy with the bullet in his liver? Tough luck. He’ll be paying his own medical bills.

I guess the lesson here is that if you don’t want to get shot in the liver by a police officer in Bellaire, Texas, don’t drive the car you own and haven’t stolen to your parents’ house, where you happen to live. Or maybe the lesson is to not voice your objections when a cop pushes your mother after she asks why he’s pointing a gun at you, who have done nothing wrong. Or maybe the lesson is to avoid having a cop imagine that you’re reaching toward your waistband for a weapon that doesn’t exist.

Or maybe the lesson is just don’t be black in Bellaire, Texas.

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85 Responses to “Qualified Immunity Strikes Again”

  1. #1 |  GreginOz | 

    “When the Law becomes unjust, resistance becomes duty”.

  2. #2 |  C.E. | 

    I don’t know anything about Judge Harmon or her analysis of this case in particular.

    But I can make an observation about federal judges in general: by and large, their primary goal in civil cases is to make them go away as quickly as possible. I’m not suggesting that they willfully refuse to follow the law, or that they are insincere about their conclusions, but federal judges–probably like most judges–don’t like to have cases take up too much of their time. You know, all those annoying lawyers constantly asking for rulings, asking them to make the other side do this or that, appealing their decisions, making objections, submitting motions that require legal research. It’s all a huge pain in the ass. So, if there is any plausible grounds to get rid of a case, it’s gone.

    That doesn’t mean all federal judges are like that. And even the ones who are outright lazy will gladly hold onto cases that seize their fancy. But my experience is that federal judges really don’t like to have to try civil cases, especially civil rights cases.

    Keep that in mind the next time someone on the Supreme Court suggests that illegally-obtained evidence should be admissible, because deterrence of law enforcement abuse is better addressed through civil liability.

  3. #3 |  JOR | 

    “RMV makes a good point. Freedom is inversely proportional to population density.”

    No, it is not.

  4. #4 |  JOR | 

    “As far as the cops being punished, one wonders why they would need to be.”

    If you take for granted that having a privileged class that is entitled to start and escalate violent situations at will, for whatever reason (the usual reason given is to ensure legal finality), then no, you probably have no grounds for wanting these cops punished.

    But to me, cases like this seem like a really good reason to reject such premises, if you haven’t already. It seems more plausible to me that these pigs acted unjustly and ought to be punished for it than the mealymouthed, convoluted handwaving that goes into the arguments in favor of militant aristocratic banditry.

    You may as well say that some klannies were justified in lynching some poor black shmuck because they caught him, and he’s black, and y’know, what else are they supposed to do. Fuck that.

  5. #5 |  rmv | 

    @48 CyniCAl

    My point was more, given a probability of something happening(cops doing evil things), the larger the population that a probability is applied to the more that something will happen. 30 year lawyer’s comment seemed to suggest this type of situation is endemic to Texas or that Texas is special in some way with regards to police misconduct, but I believe as your other comment argues it’s everywhere.

    Now, depending on the metric used, there may in fact be a negative correlation between population density and freedom, but I wouldn’t know how to measure that.

  6. #6 |  Sean | 

    “Also, if you are inclined to be a serial killer, law enforcement would be a perfect career choice. You can kill with impunity (and immunity), and be hailed as hero for it….”

    A while back I saw something about a cop in Las Vegas who has his “kills” tattooed on him — the dates and maybe their names too (either three or four “kills”). And the police just couldn’t understand why anyone would be concerned about that …

  7. #7 |  Chicagojon | 

    Or maybe the lesson is just don’t be black in Bellaire, Texas.


  8. #8 |  NEWS LINKS: Woman calls cops about burglars; cops shoot her dog « David McElroy | 

    […] their mistakes cause them to shoot someone and rough up others? Radley Balko has a story about a federal court dismissing a case against police by a family in Texas. So how can police be held accountable for their […]

  9. #9 |  plutosdad | 

    #43 | Goober:
    there are several main differences:
    1. your friend’s car actually matched a description of a car involved in a bank robbery, In the linked case, there is no evidence the police entered a license plate wrong. We are just supposed to believe them that they entered a wrong plate that magically happened to be the same car make and model.

    2. bank robberies are known for being especially violent, and the cops very well should secure a suspected bank robber first. a car thief? not so much, usually just kids and not violent, and no need to escalate first

    3. Explaining that “that is my car officer, that is my son, it’s not stolen” is “interfering”? I don’t think so.

    While what you say is true, you are arguing that it is OK for us to be so fearful of armed bullies that we should cringe and hide and do nothing to provoke them. That MAY keep you alive when dealing with police, but that does not make it right.

  10. #10 |  matt | 

    Scary. I live in Bellaire, TX.

  11. #11 |  Goober | 

    @ 59 and @ 46

    I read a different account of the story than the one posted by Radley. I hadn’t read the account posted by radley until I saw your responses.

    First – the account that I read had the mother actually physically grabbing the officer in the process of making a felony stop. Right, wrong, or indifferent, if you go up and grab a cop who has his gun out that is in the process of making a felony stop, you are going to get your ass stuffed intot he ground. To make it perfectly clear I DO NOT AGREE WITH THAT. However, as I said before, what I wish for and what is actual reality are totally different things.

    Second – the account that i read didn’t have the guy stand up and protest politely. He assaulted the cop. If you assault a cop who has his gun out, you need to plan on getting shot. This one is not as controversial to me, because I live under the same rule – when I am carrying my pistol, any physical assault is a deadly threat, because as I’m grappling with bad guy, he has the opportunity to get my gun, and if he does, I’m dead.

    ASSUMING that what I read is the true story, that the kid assaulted the cop, then I do not think that the cop did anything wrong in shooting him. He really had to. But that’s only IFthe first article was right and the kid did assault him. If he just stood up – well, the cop is a murderer. or at least an attempted murderer.

    That being said, the article that Radley posted tells an entirely different story than the one I read, and so I can see why you are both telling me I’m fucked up. I would tell me I was fucked up in the same instance.

    My thing is this – you grab cops, you assault cops, you need to plan on getting your ass handed to you. YOu resist cops in any way, plan on losing the battle. I’M NOT SAYING THIS IS RIGHT, I’M SAYING THAT THIS IS REALITY. Bite your lip. Take the screwing. Then sue the crap out of them later. That is your only choice other than risk serious physical injury or death, at worst, and long-term imprisonment for assault on a police officer, at best. No matter what else you can say here, if the people involved had just shut their goddamned mouths and followed orders, they would not have gotten shot. What they did was stupid. It was contrary to the current reality of dealing with police. That’s all I was trying to say.

    Oh, and Glastnost – go fuck yourself.

  12. #12 |  Boyd Durkin | 

    Then sue the crap out of them later.

    I think you missed the main point of the story.

  13. #13 |  NAME REDACTED | 

    How is qualified immunity not a “title of nobility.”

  14. #14 |  BamBam | 

    “That is really the only qualm I take with this, but I wasn’t there, and his gun was already drawn, meaning any physical contact with a suspect once the gun is drawn is life threatening and you have to respodn to that.”

    It is possible for one’s initial reaction (drawing a firearm) to not be the appropriate response, and thus what happens after that can be invalid. One can’t just draw a firearm, circumstance be damned, and then shoot someone because “they were coming right for us!” and justify the shooting. It is possible to CREATE a situation in which one overreacts, and then says they felt threatened by any “furtive” movement/response/breath/wind wisp, but the initial response is what created the hostile situation.

  15. #15 |  Goober | 

    BamBam – Standard operating procedure for felony stops is to go in with guns drawn.

    Whether or not that is a good policy is up for discussion, but at least right now, the officer followed protocol as far as i can tell. The protocol may be totally screwed up, but as long as that is the protocol, I have a hard time holding it against him, personally.

  16. #16 |  Goober | 

    @ #62 – Boyd Durkin;

    No, I didn’t miss the point. I followed it perfectly. If you want to go into a courtroom, and you are 98% right and 2% wrong, you are still wrong. That’s the way it works right now when you are going up against commissioned peace officers.

    Resisting the officer’s actions when they were, at least originally, acting in good faith despite a mistake makes these folks in the wrong in the eyes of most jury members (again, assuming that what they did was actual resistance. There are two stories flitting about, one where they did and one where they didn’t.).

    If they were 100% right, and hadn’t resisted, their chances in court would have been much, much better.

    As for whether it should be that way or not, you can wish in one hand and shit in the other and see which one fills up first. The fact is, right now, the way things currently are, you are risking your own life if you resist in any way, and you’re also givng up your ability to take the high road in a court of law. Most people believe that police officers act in good faith at all times, so a jury isn’t going to feel sorry for you if you resist.

    The same goes for the recent case where cops entered a home illegally and the guy resisted. He was 100% in the right, but he is still going to lose in the end (and I note that he did exactly that). It is the way things are.

    Look at it from the police officer’s point of view, given their training. First and foremost, they want to secure the scene. That means get the people in what you think is a stolen car out of the car and on the ground in handcuffs. Anyone interfering with that effort is drawing out the period of time that you are at risk of the un-handcuffed suspect doing something bad in your direction. They hear “It’s not stolen, officer, really. it’s my car!” all the time, and 9 times out of 10, it is totally bogus, so the idea that they holster their weapons and apologize instantly once the mother comes out claiming it’s her car is naive at best. Once everythign is secure, and the suspects are in handcuffs, then you find the facts. My guess is that the mother could have explained that it was her car, provided proof, and they would have figured out in a handful of minutes that it was a big misunderstanding and everyone goes home without bullets in their liver.

    The entire case hinges on whether the mother came out and interfered, or if she was calmly talking to the officers from a distance. If it was the latter, then the officer did wrong. But what did the jury hear? Who did they believe? What did the film footage from teh dash cam show? Do you know? I don’t. The jury probably did.

    When the same thing happened to my buddy, as previously mentioned, he followed the officer’s orders (at gunpoint, I might add) and it took a grand total of 10 minutes after the incident started for them to let him walk away with an apology for the mix-up. Was he pissed? Yup. Was it messed up? Totally. But what are you going to do about it besides get shot?

  17. #17 |  Goober | 

    I might add one more thing – to those saying that my buddy’s experience is totally different and justified, while this wasn’t – my buddy merely matched the very loose description of a bank robbery suspect. These officers ran a license plate that came back as stolen. To me, the latter of those two incidents warrants police action more than the former. Looking like somebody should not be treated as a felony stop. Actually being in what they had thought was a stolen car warrants that much more.

  18. #18 |  Goober | 

    @ #56 Sean – Jesus H. That guy is a freaking sociopath. It scares the crap out of me that his co-workers haven’t blown the whistle on him yet.

  19. #19 |  Goober | 

    @ #59 – Plutosdad – That MAY keep you alive when dealing with police, but that does not make it right.

    Where in the hell did I say it was right? In fact, i recall numerous times saying it is totally f-ed up beyond recognition, but that it is the situation at hand, and if you don’t want to get your ass shot, then you’d better not resist.

    Is there really that much of a cognitive discord on this forum that there is a huge difference between the way things should be and the way things are?

    No jury will defend you if you resist against a cop. It ain’t happening, unless the planets align and the singularity occurs all at the same time. And that’s if you survive the resistance to begin with.

    We have judges saying that you are required to allow cops to enter your home illegally without resisting them, for chrissakes. How can any of you possibly think that you’ll be able to resist a cop and not get screwed as a result?

  20. #20 |  Burgers Allday | 

    I have been trying like heck to find this story so that we can know what the facts found by the court were. Usually with federal district court cases I can. With this one I cannot. Does anybody know how to work this site:


    I think the opinion may be there.

    Side note: no, it doesn’t seem to be in GOOGLE Scholar, but, yes, I know that will be the good tool for us going fwd.

  21. #21 |  CyniCAl | 

    #53 | JOR

    Shoot a gun in the middle of a desert, nothing happens.

    Shot a gun in a room full of thousands of people, see what happens.


  22. #22 |  John C. Randolph | 

    If I get rich, I’m not going to live in a rich neighborhood. I’m going to live on a ranch, with neighbors that I have to drive half an hour to see.


  23. #23 |  JOR | 

    #71, There’s more to freedom than shooting guns in any direction that strikes your fancy. This is especially true if you use a practical, rather than ideological definition of freedom.

    In actual, real life societies in places with low population density, people band together in close-knit and extremely authoritarian families, bands, tribes, etc.; there is no privacy, everything is everyone else’s business, and you’re only as free as your father/elders/owner/landlord/neighbors want you to be. They wield the power of immediate life and death over you in a way that even the nastiest modern states could only dream of. What’s more, they wield this power largely because of low population density, as there is nowhere else for you to go and still have a good chance of survival; exile is just a drawn-out execution. People historically go to cities, and the like, for freedom (both economic and social, to whatever extent it makes sense to separate those) and relative anonymity.

    That’s quite different from American-bred frontierist fantasies, no doubt. Such is life.

  24. #24 |  JOR | 

    Goober, you protest too much. Like most people who try to insist that they don’t agree with something but understand “that’s just the way it is”, you’re conflating personal approval, moral judgment, and The Way It Is far more stupidly than any of your critics are. Don’t worry though; most people who take lines of argument like yours are doing the same thing, so you’re in company. Of some kind.

    It just does not follow that what a court would decide, or what is SOP for cops, should have any effect on our moral judgments (whether we think cops should be punished for a course of action, for instance). Your whole premise is an especially inane non-sequitur. We all understand that the cops are unlikely to be punished, that the state considers their actions justified, that the courts have their backs. That’s part of what we are complaining about, you fucking tool.

  25. #25 |  CyniCAl | 

    Points well taken JOR.

    I counter that smaller populations are not necessarily more oppressive, though it is possible and even likely that they are. And freedom is not easily quantifiable.

    In my extreme example of solitude, that is the only instance of pure freedom. Every other cohabitation demands a compromise of freedom. Simple logic dictates that increasing population density creates more opportunities for conflict.

    In your example of the hunter-gatherer oppressive society, the population density is high despite the low number of tribesmen, due to the small habitable area of their sovereignty within the surrounding wilderness (you can’t count the wilderness as habitable acreage).

    The population density of a city may actually be lower than the tribal area if the sovereignty of the city covers a proportionally-greater area and there are fewer citizens per acre.

    While correlation is admittedly not causation, I think population density is a strong leading indicator of how much freedom one can expect in a given situation.

  26. #26 |  Some Misc. Items for Good Friday » Scott Lazarowitz's Blog | 

    […] Radley Balko: Qualified Immunity Strikes Again […]

  27. #27 |  CyniCAl | 

    I think Goober is giving some practical advice on how to survive an encounter with an absolute sovereign State agent, nothing more.

    One can’t control an encounter with a State agent, but one can control how one reacts to the encounter. Like it or not, people make decisions, often emotionally and irrationally. Acting on emotion can have disastrous results, as this blog proves daily.

    I agree with Goober that it is foolish to resist a State agent who controls the situation. I agree with JOR that this should not affect moral judgment of the situation, and that State tyranny should be resisted if one so desires. If one were to resist a State agent, one should be the initiator of resistance and control the circumstances of the encounter, not react to an immediate provocation by a State agent.

    BTW, that last course of action is probably suicidal in 21st-Century America.

  28. #28 |  Goober | 

    Thanks, Cynical. There are apparently not many folks on here that keep up with what I’ve written daily on these forums, and think I’m somehow protecting bad cops here. I’m not. I’m merely pointing out that this didn’t start out as a case of police brutality, or police being assholes, or police really knowing that they were doing anything wrong, despite the fact that they were, in fact, wrong.

    If it had been left at that, and the folks had just gritted their teeth and gone along with it, it wouldn’t have taken long for the cops to realize their mistake and move on. The fact that the kid got shot is partially on him, is all I’m trying to say.

    @ #74 JOR – I’m not even sure what you’re trying to say, but you pretty much lost me when you started calling names at the end. I’m not sure how it is that you think I got the morality and the practicality of the situation confused. Maybe you should take some reading comprehension classes or something, because you certainly need some help in drafting a coherent argument. Possibly that is your problem. Oh, and go fuck yourself.

  29. #29 |  Goober | 

    Can anyone – possibly JOR, but he’s going to need to get a whole lot more coherent for me to understand his babbling – explain to me why you all seem to think that it should be okay to resist a cop if he is wrong?

    How, exactly, would that work? Should the cop just take you at your word when you tell him that you didn’t steal the car, turn around and drive off?

    Or are you saying that only in situations where the suspect’s mom says he didn’t break any laws that they should take her at her word and leave?

    They had to investigate this. Does anyone really think that they shouldn’t have?

    What should they have done?

    And your answer should not be “they shouldn’t have called in the wrong license plate in the first place” unless you’ve never once made a mistake in your life.

    Everything beyond that is he said/she said. Did the mother assault the cop? Did the kid assault the cop? If yes to both, then this thing went down about as well as any sane person involved could imagine it went.

    If the answer is “no” then a miscarriage of justice has just occured and you are all correct – the cops did horrible wrong and should be punished.

    Do any of you KNOW what happened? JOR seems to. Anyone else?

    Because the article that I read had witnesses reporting that the mother grabbed the policeman’s gun arm. And that when the kid got up, it wasn’t a polite protest – he rushed the cop. To me, if that is what happened, the result of the situation is pretty much as I would expect. The cop tried to restrain the mother using overpowering physical force (which would be totally legal for him to do even if he was a civilian under similar circumstances if a person assaulted him). When the kid saw this, he rushed the officer. The officer shot him. Again, something he could legally do even as a private citizen under threat of bodily injury.

    How, exaclty, am I wrong?

  30. #30 |  Lorenzo | 

    The cop testified that Tolan’s hand was near the waistband. Tolan also said “Get your fucking hands off my mom.” The cop did not claim that Tolan assaiulted him or even moved towards him. His language was aggressive, his hand was near his waistband as he got up (btw how could it not be if he was getting up from a prone position) and the cop shot him.

  31. #31 |  CyniCAl | 

    Well Goober, you hit the nail on the head. Only the people who were there know what happened. A lot of hand-wringing and gnashing of teeth on forums is a result of jumping to conclusions, admittedly on both sides, but more egregiously on the side of the badgelickers who take a cop’s word as gospel.

    For example, there is serious doubt that the cop who called in the license plate made an honest mistake. It is possible they were looking for an excuse to escalate the situation “legally.”

    At any rate, there will be another Black in Texas story along soon to replace this one. I guarantee it.

  32. #32 |  c andrew | 

    I think CyniCAl is right about where the skepticism lies. Your friend was stopped because of a vague description – an understandable issue where human fallibility is a reasonable defense.

    Where I’m having trouble in NOT crediting the cops with malice is they “mis-entered” a license plate number that “just happens” to coincide with a stolen vehicle of the same make, model, and presumably, color scheme. Now I grant that such an incredible coincidence is possible.

    So why didn’t the police trot out a record of that search? And let the public decide whether or not such a “mis-entry” is anywhere in the realm of probability. And if it is not, then we come to the conclusion that it was deliberately “mis-entered” for the purpose of escalating the situation to a “legitimate” felony stop, and that is illegal detention under color of law. And everything that proceeds from that is also done under color of law. And illegal actions, done under color of law, particularly where physical harm is done, is a Federal crime.

    I hope the appeal is successful, because if anyone deserves to be reduced to penury for the rest of their days in lieu of a prison sentence, it is cops that indulge in these kinds of procedural games.

  33. #33 |  ben tillman | 

    Judge Harmon is arguably the worst judge I have ever appeared before. Hopelessly incompetent.

  34. #34 |  ben tillman | 

    I don’t know anything about Judge Harmon or her analysis of this case in particular.

    But I can make an observation about federal judges in general: by and large, their primary goal in civil cases is to make them go away as quickly as possible.

    That’s not Judge Harmon. I almost had to mandamus her when she refused to default a defendant for 21 months.

  35. #35 |  A License To Spy | Americans for Forfeiture Reform | 

    […] enforcement often frown on dissemination to private corporations. Given today’s climate of pervasive qualified immunity, presumptively state actors might escape liability. That does not mean that it […]