No Matter How Stupid And Evil You Think Qualified Immunity Is, It's Worse

Transcript

This transcript was generated automatically and may contain errors — the audio is the record.

0:00:45 Thomas: Hello and welcome to Opening Arguments. This is episode 1049. I'm am so excited to bring you a fantastic guest talking about a not fantastic thing. In a moment, I will cut over to an interview with not only Matt Cameron, who will be there, but also Professor Joanna Schwartz out of the UCLA School of Law. She is one of the country's leading experts on police misconduct. She also wrote a book titled Shielded, How the Police Became Untouchable. And we're going to talk about qualified immunity.

And no matter how mad you are about qualified immunity based on, I don't know, whatever your familiarity with it, I feel like I'm someone who knew about it and has gone on a deep dive or two about it. Still massively surprised every single time by how stupid and evil it is. The, just the examples, you know, just the cases, absolutely evil. I don't remember if we've ever done a deep dive on qualified immunity. I think maybe not. I think we've talked about it.

But anyway, not only is that fascinating and interesting and very important for all of us to keep in mind, the reason we're here is there might be some cause for some amount of optimism. I know it's this day and age. I can't really say that with a straight face. I can't say like, Hey, good news, everyone. But there is a case out of Florida of all places that was a good court thingy regarding qualified immunity.

I don't know how good, I'm not the expert, but we brought the expert along to tell us. So after this break, let's get on over to our interview with Professor Joanna Schwartz.

0:02:19 Thomas: We're joined by Professor Joanna Schwartz out of UCLA School of Law. Joanna, how you doing today? Uh, Well, you know, we do record in advance, so listeners, I'm gonna just be clear, I'm going to be transparent with everyone. Uh, we're recording this, it's been a pretty miserable Supreme Court day, not gonna lie. Uh, it's uh, it's been bad, bad, bad day.

0:02:24 Joanna: How are you?

0:02:40 Matt: Of a rough 24 hours in America actually.

0:02:41 Thomas: Yeah.

0:02:42 Joanna: It's true. It's true. When I say great, I it in a sort of you know, I don't I was trying to be... I hear you. I have my health this morning. I had a delicious cup of coffee and excited to talk to you, but yes, if you pull the lens back any further than that, it's a frightening day.

0:02:42 Thomas: You were being a a professional, you were being a professional I'm not, I I can't, uh, yeah, hey, there you go, absolutely, We are very excited to have you. Um, I don't know, I can't remember, it's been, the show's been around a while, I can't remember if we've ever done just a full-on deep dive on qualified immunity. Um, even if we have, it's been too long, it's something that we reference all the time. I think, think a lot of people are vaguely aware of, but it's something that I know Lydia, who does a lot of the booking, was very excited to get your expertise on, especially because I think you can pretty much say you wrote the book on it, a book on it. The minute I write any book, I'm going to just say I wrote the book on it, whatever it is, you know?

0:03:36 Joanna: Exactly. Perfect. Perfect. Did. I wrote, well, I wrote a book that's It's called Shielded, How the Police Became Untouchable. And one of the many ways, but in a very important way in which police and other government officials have become untouchable is through this doctrine of qualified immunity. And I'm grateful that you're having this conversation and that you are doing a deep dive, because I think that a lot of people are with that phrase, have seen the phrase qualified immunity, whether in blog posts or on social media or on protesters' signs, but actually understanding what the doctrine is, where it came from and what impact it has, I think requires more than 140 characters or a sign. Sure.

0:04:21 Thomas: Absolutely.

0:04:22 Matt: Can we start actually with where it came from?

0:04:24 Joanna: Qualified immunity is a doctrine or a protection that the Supreme Court created in 1967. And that was six years after the Supreme Court had, for the first time, recognized that people could sue law enforcement officers and other government officials for violating their constitutional rights. They have that power under a statute that had been enacted in 1871 after the Civil War during Reconstruction when there was the Ku Klux Klan and other white supremacist groups killing newly freed people and others who were sympathetic to their plight.

Congress created this statute, part of the Ku Klux Klan Act, to create a right to sue under a statute that's referred to generally as Section 1983. It basically was unused until 1961 when the Supreme Court said, yes, you can use this to sue law enforcement officers. And then six years later, in 1967, the Supreme Court said, well, well, you need to have some protection for officers if they've been acting in good faith.

The Supreme Court, when they created qualified immunity, talked about it as a good faith defense. If an officer thought that they were following the law, but it turns out that was unconstitutional or was repealed, that

0:05:48 Thomas: Like, they thought they had a warrant for that dog, that that dog was like the top 10 most wanted fugitive, like, maybe, that, sure.

0:05:55 Joanna: Sure, at the time, it's kind of, you know, the case was a case where there was a group of black and white ministers who were in the South doing voter protection, other civil rights work, and they were arrested in a bus terminal's coffee shop, which was segregated. The law that they were arrested under was later held to be unconstitutional. So the officer got this protection because he was acting in good faith. That's what the protection of qualified immunity was in 1967.

0:06:18 Thomas: Yeah. Can I ask you right there, did, I would have thought that's something that would just be common sense, like, is that something do we really need to create a whole doctrine based on that, wouldn't it just be like, well, yeah, the, the law later was found unconstitutional, how could you blame the police, or is that just kind of how the, the Spring Court tends to work? I don't know, I'm not the lawyer. Yeah.

0:06:32 Joanna: Yeah, yeah.

0:06:43 Joanna: Well, I would say in 1967, that might have been something that needed to be clarified. Now, today, a good faith mistake doesn't violate the Constitution, doesn't violate the Fourth Amendment. The Supreme Court has made very clear that you can arrest someone wrongfully, you can search their home wrongfully. You can shoot who has a wallet in their hand and not a gun. And if it was a reasonable mistake, a Good Faith mistake, it's not a constitutional violation at all. And

0:06:58 Thomas: Right.

0:07:17 Thomas: Like, oh, I thought they made a new wallet gun, that, you know, Apple, they're always innovating.

0:07:21 Joanna: That's, this is one of many reasons that I'm critical of qualified immunity. I think that it duplicates protections that I already exist elsewhere in our system, but important to know that what I've just described as good faith defense isn't what qualified immunity looks like now, because it's gotten stronger and stronger, this protection over the years. And I could tell you about all of those shifts, but the key thing to know is that today, what the Supreme Court has said is that you, in most cases, to get past qualified immunity, you have to find another court case with nearly identical facts in which another court has previously held that is unconstitutional, in order to put an officer on notice that what they're doing is violating the Constitution. There's a small slice of exceptions for what the Supreme Court has called obvious violations that should be obvious without having a prior court case. But in many, many cases, when there is what you and I might think of as an obvious wrong, they get qualified immunity because there's not a prior court decision that says this is wrong.

0:07:29 Thomas: Yeah.

0:08:35 Thomas: This is insane.

0:08:36 Matt: Yeah how obvious are these exceptions?

0:08:36 Thomas: Okay.

0:08:39 Joanna: Let me, I mean, one example of such a case is from the Ninth Circuit from California, from the city of Fresno. This was a case where an officer did a search of someone's home and pocketed a quarter of a million dollars in cash and coins.

0:08:58 Thomas: Was probably a close call, I'm sure, in the courts. Like, okay.

0:09:01 Joanna: Well, I mean, it wasn't that close because the Ninth Circuit said the officers get qualified immunity because there's not a prior court case that has has made this clear.

0:09:09 Thomas: My God. What? Okay. Look, I wanted get that there's a thing as being on notice in certain legally thingies, but it seems like for us plebes, us knowing the law is not a defense. Why is it that for me, a guy, well, don't count me, I have a law show, okay, for a normal person with a life, why is it for them that ignorance is not a defense, but for people whose job it is to, like, the law, they, you need special notice, they need to have seen the docket, it, you know, they need to, in order to know, like, oh, don't kill the dog, okay, gosh dang it, all right, I'll try to remember that.

0:09:15 Matt: Yeah so

0:09:24 Joanna: Yes, correct.

0:09:50 Joanna: Don't ask me to defend the distinction, But I think that if I could imagine what the explanation is, I think there is this idea that if you read the opinions where they talk about the importance of notice, officers are all of the time having to make these split-second decisions. And they shouldn't be held personally responsible when these split second decisions are so difficult to make. And there's a lot of conversation about the dangers of potentially bankrupting people who are just trying to do their jobs with these split second decisions. There's a couple of major problems with this line of argument. One is one we already talked about. If an officer makes a good faith, a reasonable mistake, there's no liability. So that's the first thing.

Second Second thing is officers are not personally responsible for settlements and judgments entered against them most, if not nearly all of the time. And I've looked at, I looked at 81 police departments across the country over a six-year period, looked at how much was paid in these cases and who actually did the paying. And I found that 99.98% of the dollars came from local governments and their insurance companies, not from officers. And when officers paid, it was an average about $2,000, not the makings of a bankruptcy petition. This has nothing to do with qualified immunity. These are state laws and local policies that provide that when an officer is sued, they get a lawyer and settlements or judgments come out of these other funds, not from the officer's bank account. You don't

0:09:52 Thomas: Yeah. Yeah.

0:10:50 Thomas: Gotcha.

0:11:31 Joanna: Need qualified immunity to protect officers from bankruptcy.

0:11:34 Thomas: So So it's not qualified immunity being the reason that they don't pay anything, but it is a reason why, like, you don't need this extra protection you're talking about, oh, they're gonna be bankrupt, they're, and it's like they don't pay, pay anything. Okay.

0:11:37 Joanna: No. Correct. Correct.

0:11:45 Matt: Can take a quarter million dollars apparently to cover it, so

0:11:47 Thomas: I was going to say, let's get back to that case. Are you telling me that the Ninth Circuit, our, as Californians, beloved liberal circuit said that taking a quarter million dollars is fine?

0:11:48 Matt: Yeah.

0:11:59 Joanna: They didn't quite say that. They said it's not clearly established that it's unconstitutional.

0:12:07 Matt: They found it was morally wrong, but that the officers didn't know that it violated the Fourth Amendment, right? Is something something like that, yeah.

0:12:09 Joanna: They actually, that is That's about right. That is about right. And there's often hand-wringing in these cases. This is a tragic outcome. This is a terrible situation. But the law was not clearly established under these circumstances.

0:12:26 Thomas: I'm sorry. What? So what happened to this money in this instance?

0:12:28 Matt: I I really hung up on this, so

0:12:32 Thomas: Putting you on the spot. Sorry, but this is crazy.

0:12:31 Joanna: My understanding, no, no. My understanding is that the money was never, never recovered. I mean, I don't know what the person whose money was taken. I don't believe ever recovered it. The case ended at that point.

0:12:48 Matt: I'm Sorry, I I actually, I was not aware of this decision before, but how is it that

0:12:48 Thomas: Wow.

0:12:51 Joanna: It's called Jessup versus City of Fresno.

0:12:52 Matt: Yeah. I'm looking at it now and I'm just, I'm skimming it, but I guess, and I'm not asking you to defend it obviously, but how do we get to the point where the Fourth Amendment, which is supposed to keep us from unlawful search and seizure, is defending this massive seizure which has nothing to do with a crime where they just took it

0:12:55 Joanna: Oh yeah.

0:13:08 Thomas: It wasn't drug money or something. It wasn't. No, really. Like they didn't justify it by like it being part of the crime. Even I

0:13:14 Joanna: No, it was, I mean the, get the, deeper into the facts, this was a guy who was accused of out of those kinds of um machines that you might see like at a laundromat or something that you, you know, it mimics a um slot machine, um, these were ruled unlawful, he started the company when it was, when it, it was legal.

0:13:35 Thomas: Was so confused. Said bedding machine and laundromat. And I was thinking bedding with a D. I was like, what in the world are you talking about? Okay. Betting. Yeah.

0:13:42 Joanna: Sorry. Like a slot betting.

0:13:44 Thomas: Like in Vegas, where it's just everywhere. Those gotcha.

0:13:44 Matt: But

0:13:45 Joanna: Like in Vegas. Yes. But They used to be legal in California. A certain kind of them, and then they became illegal. And so then this guy and his partner were under investigation. And they went to his house to look for evidence of this. They apparently seized about $300,000, but recorded $50,000 in the evidence. So,

0:13:47 Thomas: Okay.

0:14:08 Thomas: Okay, like and we're taking your duvet just in case I

0:14:14 Joanna: Moving from good faith defense to this, it's it also does not protect against officers acting in bad faith here. I mean, clearly, I don't think that you can think of stealing a quarter of a million dollars as anything but an act in bad faith. This was not a mistake. And yet, the court now saying what we have to find is whether there's a prior court decision with nearly identical facts, which, by the way, the officers don't learn the facts and holdings of these cases. That's not it's not how they're trained.

0:14:43 Thomas: Was kind of making that joke earlier. Like, they're keeping an eye on the the docket just to make sure, you know, I

0:14:47 Joanna: No. Right. A study I did was to look in California at hundreds of trainings, training outlines and policy manuals. And these officers are not trained about the facts and holdings of these cases. They're given a broad understanding of the law. You can't use force against someone who isn't resisting. You have to look at all of the circumstances and figure out when force is appropriate. A broad framework that then they learn how to apply.

0:15:14 Matt: Presumably they do know that larceny is a crime, I hope. Wow.

0:15:18 Joanna: I would hope so, so. But maybe not a Fourth Amendment violation.

0:15:21 Matt: Yeah, and

0:15:22 Thomas: Don't even see it. Seriously. Like I'm, I'm taking it back. I just want to make certain that you're not saying that they just like, Oh, they seized it. And then they gave it back. And the guy was saying, yeah, I can't believe you kept it for that long.

0:15:30 Joanna: No, no, no.

0:15:34 Thomas: Literally. They're just like finders keepers.

0:15:36 Joanna: I mean, again, I I haveto come back and say they didn't quite say finders keepers. They said this is not, this is not good.

0:15:42 Thomas: The police said finders keepers and then the court said our hands are tied this

0:15:44 Joanna: The police said, you know, the police had finders keepers, yes.

0:15:47 Matt: They Covered it Up, I mean, it's just Wow, okay, you

0:15:47 Joanna: Yeah, yeah, yeah. Yeah.

0:15:51 Thomas: Way.

0:15:51 Joanna: And unfortunately, there's, that you one case, but But there's many, more where there is conduct that if you read about it, it just seems clearly wrong. And courts say, well, there's not a prior case that says it's wrong. So your common sense matters not. But

0:15:52 Thomas: Okay.

0:16:09 Thomas: Is Is there really not a case prime saying stealing money is wrong for cops? Or is it like you need the exact denomination? You need the same amount. Well, I knew stealing $200 ,000 was wrong, but I

0:16:12 Joanna: Well, this is sort of where we get. And I would say different courts treat this differently at times and in different circumstances. But if you read the Supreme Court's decisions, they justify lower courts saying, we need the same kind of force used under the same circumstances in order for the law to be clearly established. There's a case that I often think about when I think about how arbitrary this doctrine can be. And, you know, it's a case where there was a man who had committed a burglary or allegedly committed a burglary. The police surrounded the house. He sat down on the ground. He raised his hands in the air, said, I give up. And one of the officers released their police dog on him, who then mauled him. And there had been prior court cases saying, from that circuit, saying it was unconstitutional to release a police dog. On a suspect who had surrendered and was lying down.

0:17:25 Matt: Don't say you.

0:17:25 Joanna: But Alexander Baxter.

0:17:26 Thomas: Already hate this so much.

0:17:27 Joanna: You don't like where this is going to go. Alexander Baxter, who was the plaintiff in this case, had been sitting up with his hands in the air and not lying down. Court said this prior case didn't clearly establish the unconstitutionality of releasing a police dog on Alexander Baxter, given the differences in the factual circumstances. Okay, well, I

0:17:37 Thomas: I can't, I can't even. Come on, man. No, I disagree. Have you? Can you say no? Tell him no. I don't know how the law works. Can you say it just like that's wrong.

0:17:58 Joanna: Mean, this is why I think people have signs that they, you know, started raising in the air after George Floyd's murder saying end qualified immunity, because it just doesn't seem right. And it's the message that is sent, I think, from these cases, is that you can, as a government official, get away with doing things that are egregious.

0:18:09 Thomas: No kidding.

0:18:21 Thomas: Well, and I'm sorry, you said the rationale partly was like, oh, lots of split second decisions. Got it. Can't blame them. And you're telling me, oh okay, but in the split second though, the cop knew like, wait, there's prior cases about a standing sitting up, but not laying down, whatever. Like that's a split second decision? That's insane.

0:18:23 Joanna: Right.

0:18:41 Joanna: It doesn't hold water. It does. And I have spent the past several years taking the Supreme Court at its word about why we have qualified immunity, what the benefits are, and then trying to assess whether any of these things bear any relationship to how the world actually

0:18:59 Thomas: I was going to say, why would you do that? That sounds like a bad idea.

0:19:00 Joanna: Works. Well, in some ways, it's so clear. I have to throw studies at you for you to sense that this doesn't make any sense. But actually having the data there to say 99.9% of the money in these cases are not coming from officers. So stop talking about officers getting bankrupt as a basis for qualified immunity. Officers don't learn about the facts and holdings of these cases. So stop talking about notice as the justification for this doctrine. What are you left with? And

0:19:11 Thomas: Yeah.

0:19:32 Thomas: Vague fascism noises? I don't know. What are they left with?

0:19:36 Joanna: I think they're left with needing to back away with those justifications. And, there's a case that you mentioned you wanted to talk about, Plowright versus Miami-Dade County. And I think this is one example of a court of appeals, a conservative court of appeal, stepping back a little bit from the most robust descriptions of this doctrine. And, you know, I do think that over the past couple of years, courts have, in subtle ways, sort of stepped back from the doctrine and its most aggressive form.

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0:22:24 Matt: We've been talking about 1983, uh, How does that compare to Bivens? Because it seems to me from that CBP decision was it Egbert, a couple years ago, that Bivens is dead, right?

0:22:26 Joanna: Hmm. Yeah, yeah, yeah.

0:22:32 Thomas: Bivens.

0:22:32 Matt: Isn't it pretty much? I

0:22:32 Joanna: Oh, Bivens. For listeners, I don't know, everyone is just nodding their head with with total understanding of 1983 and But so Section 1983 is that statute, the relic of the Ku Klux Klan Act, that allows people to sue state and local officials and local governments, counties and cities for constitutional violations. But nowhere in there is anything about federal officials. And so the Supreme Court, in a case called Bivens, there's more to it, but it's referred to as Bivens.

In that case, the Supreme Court said, we recognize that there is a right to sue directly under the Constitution that can be used for cases against federal actors. And there were basically three cases that recognized Bivens claims in different contexts. But the Court in these days has since narrowed and narrowed the application of Bivens and basically said, unless your facts are similar to the facts of these other cases, then you do not have a Bivens claim.

Because it's context and we need Congress to tell us affirmatively that you can bring a case under those circumstances. So that is the state of Bivens, whether you can Bring a Claim at all. And then if you can bring a claim, you also have to show that those officers are not entitled to qualified immunity. So qualified immunity just sits on top of the other limits that we already have in these Bivens claims. Yeah.

0:22:37 Thomas: No, they're not. You for...

0:22:39 Matt: Was yeah. It...

0:24:19 Thomas: Holy shit. No wonder nothing ever, there's no consequence. So Bivens is like, you don't even get to be here. Like, you get out of here. And if you can clear that, though, then there's qualified immunity, which is, well, okay, should the officer have known that it couldn't kill your dog or steal your money? And then apparently the answer is no, except maybe in this one new case. This is, yeah, this is, I don't know how, it sucks that it, that just feels like there's no way anyone could possibly agree with this if you sat him down. And yet, this is where we are, I...

0:24:52 Joanna: It's interesting because I end up being put on panels where I'm the anti-qualified immunity person and there's another person who defends government or, you

0:25:02 Thomas: Was gonna say, who else? Are you with Darth Vader? Sure.

0:25:05 Joanna: Know, like the attorney general of some state or defense lawyers. And the expectation is that we're going to battle it out crossfire style, and we will have no agreement on anything. And actually, even speaking to these people who defend qualified immunity in the courts on behalf of their clients, or seek qualified immunity on behalf of their clients, they don't agree with the decision in Jessup versus City of Fresno, it's not a justification for those kinds of cases. They talk about the importance of fair notice and about the importance of not holding an officer responsible if the law has changed or if it was really hazy, uncertain circumstances.

0:25:48 Thomas: Yeah.

0:25:49 Joanna: But if you give them examples of cases like like Jessup versus City of Fresno, or Baxter versus Bracey, which is the case of the dog attacking the man while was sitting up with his hands in the air, they don't defend those cases.

0:26:03 Thomas: I'm...

0:26:04 Joanna: So I actually think that there is a place for agreement. Just seems to be very difficult to get there.

0:26:13 Matt: Seems to me that practically their best argument is very cold, but it's, it's just that it's going to bankrupt localities and municipalities, right? Get the money out of them?

0:26:21 Joanna: That's a good argument. And that one too. And there are exceptions to what I'm about to say, but in the vast majority of cities and counties across the country, settlements and judgments in police misconduct cases amount to 1% of local budgets, less than 1%.

0:26:39 Thomas: Sorry, I, reminds me of when, um, Trump was, was complaining about not being able to pay his bond and was like, "Hey, your honor, that's a lot of money, I don't want to do that, that's, that that, I don't like that." Yeah, okay. Or you could just not shoot people's dogs. Sorry, this is, John, I don't normally get this heated with a guest, but I can't, this is insane, I'm so sorry. No, it's not going to bankrupt, yeah, okay, I guess if you, you're, you have dog killing machines that will not, not kill dogs, then I guess maybe there could be some budgetary concerns there. Or you can just stop shooting people's dads. Come...

0:27:13 Joanna: Well, I mean, you're not going to get any disagreement from me about that. Yeah, I agree.

0:27:14 Thomas: On. Oh my God.

0:27:20 Joanna: And, you have to argue this in multiple voices, screaming, certainly, but also, no, no. No, it is good. I take your point. And it is fair to say the best way to reduce the cost of settlements and judgments, if that is what you are really worried about, is to stop violating people's constitutional rights. That's number one.

0:27:25 Thomas: Sorry. Sorry Hey, can't do the time. Don't do the crime cops.

0:27:42 Joanna: But also, for those who are less sympathetic to that point and who are taking that bottom-line concern about bankrupting officers or bankrupting local governments, let's be real, they're not. They are not. When you look at the costs that are being expended and when you look at a police department's budgets, which can eat up a to a third or more of local government's budgets. And then you look at the cost of settlements and judgments in these police misconduct cases, which are like 1% of these budgets. What should we be complaining about?

0:27:55 Thomas: Yeah. Yeah Yeah

0:28:16 Joanna: What should be, you about?

0:28:16 Thomas: I just imagine that Guy that you're on a panel with is like, "See, you're gonna bankrupt us." All right, anyway, no more questions, and then he hits his key fob and goes on his police nuclear submarine that he gets to drive around because they just have military grade equipment. There's no, they're not hurting for budget. Oh. Well, should we get more into that Florida case though? And I mean, it's kind of cause for optimism, maybe.

0:28:18 Joanna: Oh, yeah, it's it is Look, it. Look, I take every every, sort of rational application of the law is a win for me. Um... This is an example. I mean, do you want me to talk about this case?

0:28:49 Thomas: Please. Yeah, yeah, yeah.

0:28:51 Joanna: It is a case called Plowright v. Miami-Dade County. And, um… It's a case where, um…. Sylvan Plowright sued the county and its police chief and two officers after one of those officers shot and killed Plowright's dog, Niles. And dog shooting cases, which unfortunately there are many of, are just tragic cases if you've ever loved a dog. Someone who brings some of these cases said, it's unfortunate sometimes people are more sympathetic to hearing about a dog being killed than a person being killed. But nevertheless, this is a dog who was not threatening, was not particularly large and threatening and was tased and then shot and killed before the eyes of his owner. Important to this case, it was filed in district court and it was dismissed on the complaint. Just looking at the allegations in the complaint, the district court granted qualified immunity because there wasn't a prior court

0:29:07 Thomas: Niles, that's such a good dog name too. Oh, come on.

0:29:25 Thomas: Yeah.

0:29:52 Thomas: Come

0:29:52 Joanna: Decision in

0:29:53 Thomas: On. There's, they shoot so many dogs. How is there not a prior dog shooting decision? Really? In Florida? I think Well, they've shot an alligator but no dog case. Yeah. Oh,

0:29:59 Matt: Yeah, what's

0:30:00 Joanna: Florida, in Florida in the 11th Circuit. Well, I'm sorry, before we, let me just get you furious about one more thing related to qualified immunity. Immunity.

0:30:10 Thomas: Thanks, I'm not mad enough.

0:30:12 Joanna: It's related to what you're just saying, which is that the Court has told lawyers, if you want to get past qualified immunity, you have to find a prior court case in which a court has said, this is unconstitutional. Apply the facts. The Supreme Court has told lower courts, you can grant qualified immunity without ruling about whether the Constitution was violated. So courts, Supreme Court has given lower courts the freedom not to rule on whether there was a constitutional violation if the law's not clearly established.

0:30:37 Thomas: What? Oh, wow, wait,

0:30:47 Matt: Is there a standard?

0:30:49 Joanna: For what? For when they decide to do that?

0:30:51 Matt: Of the Constitution, what are they using?

0:30:52 Joanna: They're saying, we're not going to rule on whether the Constitution was violated. We don't need to because whether or not it was, it was not clearly established that conduct was unconstitutional.

0:31:05 Thomas: So this sounds, this is like Judge Cannon writing things in the margin so she can't be appealed. Is this like that kind of thing, like they're

0:31:12 Joanna: Well, the court's justification is that if you're going to grant qualified immunity, if your decision is that the law was not clearly established, and so the officer's entitled to qualified immunity, it's sort of not necessary to rule on whether the conduct was unconstitutional because that's not key to the decision. If the law wasn't clearly established, then you get qualified immunity. And it's sort of added on to the resolution of that case to decide the constitutional question. And they've said, you've got to worry about courts' time and the resources that they need to decide these difficult constitutional questions. And sometimes it's pro se plaintiffs and the case isn't briefed will...

0:31:52 Thomas: Gonna bankrupt the courts if we decide these

0:31:54 Joanna: Exactly.

0:31:54 Thomas: Qualified immunity cases, yeah.

0:31:57 Joanna: Exactly. So this is all relevant to the question you just asked. How in the world is there not a case about dog shootings out of Florida? One One of the things that people rightly, I think, complain about qualified immunity is it leads to what people have called constitutional stagnation. Because if courts can keep granting qualified immunity without ruling on the constitutionality of the claim, then you get to a situation where the 11th Circuit doesn't have a ruling because there's been qualified immunity grants, like what the district court did in this very case, where the law is not established that it's unconstitutional to shoot and kill someone's dog without justification.

And so what the court does here, the court of appeals taking the appeal, is say no, there is not a prior Supreme Court case or Florida Supreme Court case or 11th Circuit case saying that shooting a dog without justification is a violation of Fourth Amendment rights. But there's a bunch of other cases from other circuits that have held that. And it has a combination of different rulings. They say cases from our circuit are close enough, even if the principles are close enough, even if the facts aren't the same. Cases from other

0:32:07 Thomas: We got ourselves

0:33:21 Joanna: Circuit, that's the penumbral part of the argument. Then the second is look at other circuits and you can see that in other circuits it's clearly established. And then the third thing that they say is this case falls in, whether you buy argument one or argument two, this case should fall into that exception for obviousness. Even if there wasn't another case, it should be obvious without having to find a prior case on point that it is unconstitutional to shoot a dog.

0:33:21 Thomas: A penumbra here, huh? Yeah.

0:33:47 Thomas: Boy, That's, that's what I'm saying. I feel like I'm now qualified to make arguments at a circuit court level, if that, because I feel like I had that one pretty, pretty good. I love having to come up with multi-pronged arguments for why dog murder is not okay. Like, all right, gosh, all right. Point one. It's like, what are we doing? Come on.

0:34:16 Matt: Actually, I meant to circle back on that, because we were talking about the obviousness exception. If not stealing money and shooting dogs, what has been held to be obvious?

0:34:17 Joanna: Yeah, yeah. So, so right. So in this case, the 11th circuit says shooting a dog, is you enough to fit in with with the obviousness exception.

0:34:25 Thomas: I can't wait for this.

0:34:32 Matt: But this is a freakish case.

0:34:32 Joanna: Um, yes

0:34:34 Thomas: Yeah, this is news.

0:34:35 Joanna: It is. Now this is, this

0:34:37 Thomas: This is man bites dog. Oh my God. Sorry,

0:34:39 Matt: He

0:34:37 Joanna: Is news. This is news um, the Supreme Court twice has denied qualified immunity with this obviousness exception. And one was a case back in 2002 called Hope versus Peltzer where a prisoner was shackled in Alabama, was shackled all day outside in the Alabama sun without benefit of water. He was tortured. And the Supreme Court said, look, you don't, we don't need to find another case where That's true. November of 2020, just think about what that timing is, you know, there had been all of these cases, there's been such a strong push for the Supreme Court to reconsider qualified immunity.

0:34:41 Thomas: Oh God. God. After

0:35:03 Matt: He was actually tortured Yeah Oh

0:35:20 Thomas: George

0:35:20 Joanna: And George Floyd, basically of those cases, the Court decided not to hear. But then they quietly, without argument, without briefing, or there was initial briefing, but without argument. They issued a per curiam, so unsigned decision in November, I think it was November 6th, right before the election, in a case called Taylor v. Riojas, where again, the court said, this is one of those cases. We found a second one after Hope where you don't need a prior court case. And this was a case where Trent Taylor, a Texas prisoner, had been held for six days in a prison in two different cells that were in the most egregious circumstances that you can imagine.

0:35:20 Thomas: Floyd. Wow.

0:35:49 Thomas: Jesus.

0:36:06 Joanna: He was held, the sewage sewage, coursing through the raw sewage into his cell. He was held naked.

0:36:06 Matt: This Is the sewage One. Yeah. That's Right. That's Right. Yeah. Yeah.

0:36:13 Joanna: He was freezing. And one of the, I don't know if you can curse on this show, but one of them, one of corrections officers said, I hope you fucking freeze to death. You know, it was like that kind of, was you those kinds of circumstances. And the Supreme Court said, we don't need a prior case. Oh, I'm sorry. I just take a step back. The district court granted the officers qualified immunity. The Fifth Circuit Court of Appeals affirmed that decision. And they said, yes, holding people in intolerable conditions of confinement is unconstitutional, but those other cases were for longer, for more time than six days. And the Supreme Court reversed the Fifth Circuit and said, this is plenty long

0:36:13 Thomas: We'll Allow It Wow. This Is too

0:36:57 Joanna: Enough.

0:36:57 Thomas: Evil even for us. Like, yeah, I Mean, I'm sure Thomas and Alito disagreed, but you know.

0:37:00 Joanna: And You know what? They

0:37:04 Thomas: Holy shit, I

0:37:06 Joanna: Alito even issued a concurrence. And I'm trying to remember precisely the terms of the concurrence, but even in, I think his concurrence might've been like questioning why they were, it it

0:37:14 Thomas: Thought it was like a percurium but we still got some, some Writing On It. How Does that work?

0:37:17 Joanna: Was, but if we're curing him, there can be a concurrance. And what he said was, I think it was about questioning whether this is the kind of case that we should take. It's sort of the Supreme Court isn't in the business, or they say they're not in the business of error correction. He was saying this is kind of an error correction case, which is not really how we should be spending our time. But even though it is a clear constitutional violation. So even Alito thought that this was a clear constitutional violation.

0:37:19 Thomas: Right. Jesus.

0:37:43 Matt: I just double checked the facts, and I mean, he had to sleep without clothing for four days with a clogged Floor drain, so that there was just human waste everywhere. Uh, You Know, in a frigidly cold cell. I mean, this is as obvious as it gets. And so both of these cases involve the torture of prisoners is what you're saying, these obvious cases. Wow. Yeah.

0:37:51 Joanna: Yeah, yeah, yeah. Yes, interestingly, very interestingly.

0:38:00 Matt: So

0:38:01 Thomas: And In the end, I'm, I'm, maybe you don't know this, but it's one thing I always think of in the end. The victory, quote, in quotes, is not. Oh, yeah. Those monsters are now rotting in jail themselves. It's I guess the insurance company will have to pay some money to somebody. Right.

0:38:08 Joanna: Yeah. No, that's right. Well, let's take a step back even further from that. This case that we were just talking about from the 11th Circuit is just about a reversal of a dismissal of a motion to dismiss. So they haven't gotten to discovery yet. This hard fought battle won in the 11th Circuit, the dog

0:38:30 Thomas: Right. For the dog. We're talking about the dog one in Florida. Right. Just.

0:38:38 Joanna: Case, means that they can then seek discovery. All it means. And for the Trent Taylor case as well, that case I believe I know had been dismissed at summary judgment. So again, it's not a determination that there is fault. It's determination that you can go to the next step, which would be trial. I'll

0:38:39 Thomas: Yeah. Jesus.

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0:41:09 Joanna: I'll tell you another thing to blow your mind. This is not qualified immunity specific, but Trent Taylor, the facts of his situation that you just heard about, Trent Taylor litigated this case pro se up through the Fifth Circuit. And asked dozens of lawyers to represent him, and no one would because Trent Taylor is a prisoner. We're talking about a case against Texas Department of Corrections, and we're talking Texas in the Fifth Circuit. And this is one other side effect of qualified immunity and also all of the other kind of doctrines and rules that make it difficult to win in these cases. It's hard for someone who Samuel Alito thinks has clearly had his constitutional rights violated, cannot find a lawyer to represent him. And it's miraculous that Trent Taylor, he

0:41:21 Thomas: Wow. Oh, my God.

0:42:05 Thomas: What

0:42:05 Joanna: Worked with a jailhouse lawyer who sort of helped him, but he was in there trying to get discovery. I mean, out there, I'm sorry, he was in there. He was in prison fighting this case. The case got to the Fifth Circuit. Decision was reported. And at that point, lawyers read about the case. A civil rights organization called Rights Behind Bars found the decision and then found Trent Taylor and then represented him, tried to get it reheard in Fifth Circuit and then before the Supreme Court where they had this amazing victory. But finding a lawyer just to even bring these cases can be really challenging, in part because of how challenging qualified immunity is.

0:42:06 Thomas: A story.

0:42:45 Matt: I guess my question, if you're hearing all of this, is, first of all, is there some way that we can get this pulled back to the side of justice? And if not, what else? What else is there? No

0:42:53 Joanna: I think that there are, despite the many reasons for pessimism and hopelessness, perhaps, in the conversation that we've just had, it's also important to remember that there is still important work that's done in these cases. There are still victories that are eked out despite these high odds. And I think that a key thing that can be done and can continue to be done is to inspire people to keep bringing these cases, lawyers to keep bringing these cases and keep working on these cases.

I teach a class appropriately called Suing the Police at UCLA, and we talk a lot about all of these doctrinal barriers. And students get depressed, start thinking about should they do trust and estates work instead or find another area of law.

And then I bring in lawyers who are actually bringing these cases, figuring out how to get past qualified immunity, talking about the importance to them, the value to them of working with people like Trent Taylor, like Alexander Baxter, who are pursuing these cases, the kinds of justice that they feel that they get in victories that are incomplete and eked out, but nevertheless important.

And I think finding ways to encourage people to keep bringing these cases is critically important because there's not, I mean, we also should continue to push for legislative change. We should push for local governments to change the way they budget for and pay settlements and judgments in these cases, and on and on and on. I think that the highly imperfect, but best available means of accountability in these cases is by going through the courts in the civil justice system. So we have to keep pursuing that that end, as imperfect as it is.

0:44:41 Matt: I appreciate that answer, it is a fight worth having. Um, just, just as a thought experiment, say that qualified immunity is not going to change, what alternatives do we have?

0:44:48 Joanna: In some ways, it depends on where you are in the country. There is state law, there are state law protections, state law torts that don't enjoy a qualified immunity defense. There are claims that you can bring against local governments that are very difficult to bring, but don't have qualified immunity as a defense. I also think that people who are bringing these cases can pursue the kinds of arguments that you see in that 11th Circuit decision that we were describing, there's really three kinds of arguments that can be made. One is if you can, find another case with identical facts, terrific. If not, arguing about analogous cases and why they should be treated the same. And third, focusing on this obviousness exception and trying to make it bigger and bigger. And my detriment, I'm sort of an optimist at heart, and I'm hopeful that there can be some shifts made within qualified immunity doctrine, as the courts particularly see and are reminded of how little the doctrine makes any sense.

0:45:54 Matt: With you there, yeah. Well,

0:45:55 Thomas: Yeah. Yeah, well, look, I'm somebody who already knew a decent amount about this for a non -lawyer and was already outraged. But even still, just doing this episode with you, I am like, you can't be outraged enough about this. It's insane. And the point I'm making, I guess, is keeping people up to, I mean, there's so much to be mad about, obviously, but keeping this information out there, I I do think, I think I've noticed a little bit anecdotal, obviously. But I feel like I've noticed a bit more cultural awareness on this, maybe since George Floyd.

0:46:16 Joanna: Yeah. Mm -hmm. Yeah.

0:46:25 Thomas: I do think I mean, the police shooting your dog is a punchline now for a reason, because it's real and people know it's real and they know vaguely that qualified immunity is the reason why. And I think we just need to keep that keep momentum going. Now, I'm curious if, take California, is there, do we do like a ballot initiative or something, is there legislation that could take this away? Or is it like constitutional or something? Therefore, you know, we couldn't do anything about it. How's that work?

0:46:31 Joanna: Mm -hm. Mm -him. Mm -hum.

0:46:50 Joanna: Good question. So there's nothing that, I mean, Congress could eliminate qualified immunity, and the George Floyd Justice and Policing Act sort of explored that and then failed during negotiations. But states effectively do away with qualified immunity by creating state law causes of action for violations of the state constitution for which qualified immunity is not a defense. And Colorado and New Mexico have each passed statutes like Colorado passed it in the summer of 2020. It was one of those situations where the bill had been introduced and had died in, I think, the spring of 2020, and the person who introduced the bill sort of put it on the shelf.

It was collecting dust. And then after George Floyd, everyone around the country was agitated to try to do something quickly. And there was this bill already pre -written, reintroduced, and passed within a couple of weeks. And another bill was passed in New Mexico in 2021. And It's a really interesting process in New Mexico. There's a pretty active plaintiff's bar in Albuquerque and an active ACLU in Albuquerque, and also a ton of police violence in Albuquerque. And they were very thoughtful about it. They convened a commission that looked a lot at the data. I was pretty involved in that process

0:47:22 Thomas: Hmm. Wow, that's surprising.

0:48:17 Joanna: And testified as well, and really did a careful, thoughtful evaluation of what the doctrine does, what it would mean to get rid of it, and issued a report. And there were objections, of course, and it was hard fought, but it was put into place in 2021. And notably, there have not been droves of bankrupted officers in either New Mexico or Colorado.

0:48:17 Thomas: Oh, wow.

0:48:44 Thomas: So you're saying there's also bad news too. Okay, got it.

0:48:48 Joanna: I'm saying that the defenders, that the objectors said the sky would fall and the sky hasn't fallen. We're working to try to understand exactly what impact these statutes are having. But I'm hopeful, again, this is the perpetual optimist, that other states will look at what's happened in New Mexico and Colorado and be more willing to adopt these statutes in their home states. There have been, I think, more than half of the states have introduced legislation like this, but it has failed in state legislatures because of these same myths about what would happen if it was made too easy to sue, that local governments would be bankrupted, officers would be bankrupted, that people would refuse to serve as police, that we would begin to live in a lawless country because there would be no officers willing to vigorously enforce the law. So those are still being made and still

0:48:50 Thomas: I know.

0:49:40 Joanna: Successful.

0:49:41 Thomas: I I know I'm repeating myself because not on the table is stopping shooting dogs and torturing prisoners. That's not on The Table. Not an option, everybody. Everybody.

0:49:46 Joanna: Successful. Well,

0:49:48 Matt: That's That's what I was going to ask is I don't know if there's any research or any objective metric on this but But, I mean, isn't there, on the other side of this, some reason to believe that officers are going to be a little more careful and behave themselves better if they know that?

0:49:58 Joanna: I I think that this is one of many reasons that keeping a close eye on Colorado and New Mexico is key to assess what the impact is of this statute, um, On the ground.

0:50:06 Matt: Yeah, I

0:50:12 Thomas: Well, it's tough because we know they have little temper tantrums when you do anything like when we talked about any sort of defunding, which didn't even actually happen. They were like, well, then I guess we'll just do a really bad job right now and make us look really vital. And so who knows?

0:50:17 Joanna: No, Yeah, I mean, and there's other parts, we've talked a lot about qualified immunity, but there's other parts of the Colorado bill, for example, that you can create criminal liability, make it easier to create criminal liability for officers who don't intervene to stop constitutional violations by other officers. It's going to be difficult to untangle the impact of these various parts of the statute. But I actually think, having spoken to someone in Colorado, that that criminal provision might be even more impactful because officers know that they're indemnified. Officers know they're not going to pay settlements and judgments in these cases. But if you start talking about an officer being criminally prosecuted for not intervening when somebody else violates someone's constitutional rights, this, again, according to someone I was speaking to in Colorado, that may really be getting officers' attention.

0:51:20 Thomas: Okay, so when we started recording, you know, you had mentioned that it's not just qualified immunity. There's a lot of other reasons why, why broadly about the fascism. So I know we don't have time to go into those in depth, but do you want to perhaps give us a bit of a preview of that? Maybe we can have you back.

0:51:36 Joanna: I would love to come back. And if people want to hear more, you can read my book Shielded.

0:51:42 Thomas: Absolutely shielded. We'll put a link in the show notes.

0:51:44 Joanna: Awesome. And if you listen to it, I narrate it. So you know, you could spend the next nine hours with me if you want. But I I talk about, I mean, we've just been talking about the difficulty of finding a lawyer. That's one of the challenges, just at the very beginning of the case, finding a lawyer. Then you have to draft a complaint, write out a complaint that says what happened in the case. And particularly in cases that involve people who've been killed in police custody, their family members may not know what happened. And A case can get dismissed before it even begins because they don't know enough about what happened, even if the people that they're suing know exactly what happened. So this is, you know, one of many kinds of barriers. Then you have to prove a constitutional violation. We've already been talking about the fact that a good faith mistake doesn't even violate the Constitution. And it's only after you've found the lawyer, drafted the complaint, showed evidence of a constitutional violation, does qualified immunity ever even come into play.

And so it's important to sort of recognize that there are many shields and there are more that talk about in the book. Challenges of proving local governments are responsible for the conduct of their officers, getting past prejudices by judges and juries, and then having these dollars awarded in these cases actually impact officers and departments' practices. And all of these different shields are justified by these same talking points about the dangers of making it too easy to sue.

But it's important, I think, as great as it is that we have talked so much about qualified immunity and done a deep dive there, to understand that we could have equally deep conversations, I think, about all of these other barriers as well and the ways in which they interlock to make it especially hard to succeed in these cases.

0:51:48 Thomas: Ooh, maybe I will.

0:52:15 Thomas: Yeah. Oh yeah. That was, what a deep dive. Thanks for taking us through that. I know there's so much to talk about, uh, in addition to that, but I I'm already, I think my outrage meter is already maxed out, so maybe I'll save it for another day. Um, but wow.

0:53:49 Joanna: Sounds good.

0:53:50 Thomas: Thank you for taking me through that. Uh, is there anything else you want to point people to you in addition to your book shielded, which again, we'll, uh we'll put, put the link in the show notes. Is there anywhere else you want to send people?

0:53:58 Joanna: Awesome. Awesome. There's a website. It's JoannaSchwartz.net. J-O-A-N-N-A, Schwartz, S-C-H-W-A-R-T-Z dot net, and there's more materials about my book and other stuff I've written, and feel free to take a peek.

0:54:15 Thomas: Fantastic. Thank you so much for doing this. We really appreciate it.

0:54:18 Matt: Learned a lot here.

0:54:18 Joanna: Yeah, it's my great pleasure. Thank you for having me on.

0:54:20 Matt: Thank you.

0:54:21 Clip: This podcast is a production of Opening Arguments Media, LLC, All Rights Reserved. It is produced and edited by Thomas Smith, who also provided the fabulous intro and outro music used with permission.