What is qualified immunity, and why does it make prosecuting police officers hard?

As the debate over how to achieve police reform continues in the United States following the in-custody death of Minneapolis man George Floyd, a little-known legal defense known as qualified immunity has come to light, adding another element to an already-vibrant national dialogue.

Qualified immunity is a strong civil defense for law enforcement officers and other government agents that protects them from civil lawsuits and other types of litigation for a decision that officer or agent made through their position or job.

While there are some exceptions, including for gross misconduct, qualified immunity is generally a broad defense that for years has successfully prevented officers and agents from being sued because something happened in connection with their job.

The Federal Law Enforcement Training Centers (FLETC), a government agency within the federal U.S. Department of Homeland Security, says the rationale behind qualified immunity “permits officers to perform their duties without fear of constantly defending themselves against insubstantial claims for damages” while allowing members of the public to “recover damages when a reasonable officer would know that the officer unreasonably violated a plaintiff’s constitutional or federal civil rights.”

But proving that violation of a person’s civil rights has proven to be exceptionally hard in court as prior lawsuits have shown.

Take the case of Shaniz West, an Idaho woman who sued after allowing officers to enter her home so they could arrest her ex-boyfriend. Instead of just walking into the home and taking her ex-boyfriend into custody, police lobbed tear gas canisters through the home’s window and other points of entry.

Despite Shaniz giving officers the keys to her home, they never tried it. And when they eventually did make entry, they realized the ex-boyfriend, who was wanted on firearms charges, wasn’t inside. They destroyed Shaniz’s property, coating the inside of her home’s walls with toxic residue left over from the tear gas and making her home inhabitable.

Shaniz sued the police chief, a police sergeant and the town of Caldwell, Idaho in what became known as West v. Winfield. The lawsuit sought to make Shaniz whole by forcing the town to pay for the damage done to her home.

But the town and the officers said they weren’t responsible for the damage because, even though Shaniz had given them the keys to her home and invited them in, their force was justifiable and they were protected through qualified immunity.

“If you sue (to hold an officer accountable in civil court,) you have to prove that there’s a case, on point, in your jurisdiction of an appellate court that’s supervising it all — not just a trial court decision, but a higher-level appellate court that says those exact facts are illegal to do to someone,” Sacramento criminal defense attorney told ABC10 during a recent interview.

Shaniz appealed to the federal Ninth Circuit Court of Appeals, but appellate judges there said there wasn’t any case law to support her claim. She further appealed to the Supreme Court, where her case was one of several that the Supreme Court justices declined to hear.

With the Supreme Court unwilling to hear those cases, it’s now up to Congress or state lawmakers to limit the applicability of qualified immunity in cases involving police officers and other public officials.

At least one state has done just that: On Friday, Colorado Governor Jared Polis signed a landmark police reform bill that, among other things, made police officers personally liable for up to $25,000 in damages if they are found to have violated civil rights during encounters with the public.

The new law also says officers could be subject to criminal liability if they do not follow a strict set of rules regarding how they use agency-issued body cameras. Under the law, police officers in Colorado must always keep body cameras on, unless they need to avoid recording personal information that is not related to a case or if there is “a long break in the incident (or) in administrative, tactical and management decisions.”

In the House of Representatives, a bi-partisan bill was recently introduced called the “Ending Qualified Immunity Act” that would curb the use of that defense at a federal level — something that could have major implications across the country.

The bill, introduced by Reps. Ayanna Pressley of Massachusetts and Justin Amash of Michigan, would amend U.S. Code 42, Section 1983 to “explicitly state that the qualified immunity doctrine…does NOT provide police officers (who) brutalize or otherwise violate civil rights with defense or immunity from civil liability for their actions,” according to a press release.

“Qualified immunity shields police from accountability, impedes true justice, and undermines the constitutional rights of every person in this country,” Rep. Pressley said in a statement. “It’s past time to end qualified immunity.”

Tanya Faison, a founding member of Black Lives Matter Sacramento, agrees.

“There should be clear cut and dry instructions, rules, rights, everything should be very clear cut and dry,” Faison told ABC10 in an interview. “Not subjective. Not easily manipulated.”

Click or tap here to read the full story from ABC10 Sacramento

Three officers charged with aiding and abetting murder in George Floyd case

Three former Minneapolis police officers who were present during the arrest of an unarmed black man have been charged in connection with his subsequent death.

The charges were announced at a press conference Wednesday by Hennepin County District Attorney Mark Freeman and Minnesota State Attorney General Keith Ellison.

Court records obtained by a local news station revealed Thomas Lane, 37; Tou Thao, 34 and Alexander Kueng, 26 were each charged with one count of unintentionally aiding and abetting murder and one count of intentionally aiding and abetting manslaughter.

The charges stem from last week’s arrest of George Floyd, a Minneapolis resident who was accused by a deli employee of attempting to make a purchase with counterfeit money.

One officer, 44-year-old Derek Chauvin, was captured on video kneeling on Floyd’s neck during the arrest. Throughout the video, Floyd could be heard telling the officers he was in pain and unable to breathe.

Floyd’s lifeless body was placed on an ambulance stretcher and removed from the scene of the arrest. Video of the incident, first posted to Twitter, sparked a national outcry and led to days of protests in major cities across the country.

Last Friday, Chauvin was charged with third-degree murder and third-degree unintentional manslaughter. On Wednesday, prosecutors added a second-degree murder charge against the officer.

Earlier this week, defense attorney Mark Reichel told FOX40 News he anticipated charges against the other three officers captured on cellphone videos during Floyd’s arrest.

On Wednesday, Mark said the additional second-degree charge is a more-serious offense that could carry a lengthier prison sentence, adding that prosecutors may have more evidence proving Chauvin’s intent.

“Second-degree murder charge means [Chauvin] intended the killing at some point,” Mark told FOX40 News. “Second-degree murder in Minnesota means there was a use of force and he intended to cause bodily harm, serious bodily harm, and during it someone died.”

Mark said it was unlikely prosecutors would have prevailed in court with a third-degree murder charge because Minnesota law requires proof that a person killed more than one individual during the incident.

“Had the case stayed with the county attorney and stayed as third-degree murder, [the officer] likely would have won the case,” Mark said.

Click here to watch the full video on FOX40.com

Accomplice charges likely coming for other officers involved in George Floyd’s death

One week after an unarmed Minneapolis man died during a police encounter, community members and activists continue calling for charges against three officers who were connected to the incident.

Former Minneapolis police officer Derek Chauvin is the only person so far to faces charges in connection with the death of George Floyd, an unarmed black man whose arrest made international headlines following his death.

A bystander to the arrest captured cellphone video showing Chauvin kneeling on Floyd’s neck during the arrest. Multiple times, Floyd could be heard telling Chauvin and other officers on scene that he was in pain and couldn’t breathe.

Floyd’s lifeless body was placed on a stretcher and taken away from the scene in an ambulance, the video shows. He was pronounced dead a short time later.

Chauvin was arrested last Friday and booked into jail on charges of manslaughter and third-degree murder. But three other officers at the scene — Thomas Lane, J.A. Kueng and Tou Thao —  have not been criminally charged in connection with Floyd’s death.

Sacramento criminal defense attorney Mark Reichel told FOX40 News on Tuesday he believes charges against the other three officers are forthcoming, and it’s simply a matter of time before prosecutors in Minnesota announce them.

“Once you’re aware a crime is being committed, if your presence is enough to prevent it from being stopped, you can be charged as an accomplice,” Mark said.

The three officers could be charged with accomplice liability — also known as aiding and abetting — for having reasonable knowledge that Chauvin was committing a crime but failing to stop it. Eyewitness video captured at the scene showed at least one officer repeatedly telling bystanders to stay out of the street while he was standing mere feet away from Chauvin and Floyd.

The video evidence is likely going to be key in charging the other three officers with accomplice liability in the future.

“It’s going to come down to, what did you see? What did you hear? What did you know?” Mark said. “It’s my understanding they’re looking at the facts right now. Some of those facts are, when were they aware there was no pulse? When were they aware those other officers are saying, roll him over…to the right side?”

In a separate but related legal action, state officials in Minnesota filed a civil rights complaint against the Minneapolis Police Department. That complaint opens the door for state investigators to comb through nearly a decade of police cases connected to the department to see if there are additional civil rights violations.

Why aren’t more police officers charged when people die?

Eyewitness video of police officer Derek Chauvin kneeling on the neck of George Floyd sent shockwaves throughout the United States and sparked demonstrations in major cities across the country, including an organized protest in Sacramento’s Oak Park neighborhood on Friday.

Their message: Police need to be held accountable for their actions and brought to justice.

It’s extremely rare for police officers to be charged when a person dies as the result of a law enforcement encounter. In Sacramento, similar protests were sparked after police officers shot and killed Stephon Clark, a 23-year-old black man who was not armed when he was confronted by officers.

After a year-long investigation, Sacramento County District Attorney Anne Marie Schubert declined to file charges against the officers involved in the Clark case.

“There was no justice or accountability for my brother,” Stevante Clark, the brother of Stephon Clark, said at Friday’s rally, according to a report. “I think we have to wait to see how this plays out to see if George Floyd gets justice because at the end of the day, transparency with accountability means nothing.”

So why aren’t more law enforcement officers charged when people die during police encounters?

“The main reason is no prosecutor, for political reasons and to get reelected, ever wants to lose a high-profile case,” Sacramento criminal defense attorney Mark Reichel told FOX40 News. “It’s better to not bring it than to lose a high-profile case and, obviously, officer-involved killings are always high-profile.”

Prosecutors typically bring cases they feel they can prove beyond a reasonable doubt, legal experts say, and juries are typically more likely to believe police officers acted out of self-defense or a sense of danger when presented with conflicting evidence or testimony.

But the video evidence in George Floyd’s death showed precisely the opposite. The videos published earlier this week didn’t just triggered protests — they also led to calls for an investigation and charges from law enforcement groups across the country.

That evidence, prosecutors in Minneapolis said, was key in bringing charges against Chauvin.

“This is by far the fastest that we’ve ever charged a police officer,” Mike Freeman, the top prosecutor in Hennepin County, Minnesota, said at a press conference.

Late Friday afternoon, U.S. Attorney William Barr said the Department of Justice and the Federal Bureau of Investigation were also investigating whether Floyd’s civil rights were violated.

“Both state and federal officers are working diligently and collaboratively to ensure that any available evidence relevant to these decisions is obtained as quickly as possible,” Barr said.

Click or tap here to read the full story from FOX40 News