While the process known as civil forfeiture may be the bulbous, dripping chancre on American jurisprudence, the doctrine of qualified immunity takes a close second place in the hall of shame. On the surface, qualified immunity has a noble purpose. It shields police officers acting in good faith from personal liability for their actions. Like so many well-intentioned laws, it only works when dealing with people acting in good faith. 

Qualified immunity has been the subject of abuse.

Police Set a Suicidal Man on Fire

On July 10, 2017, Gabriel Eduardo Olivas poured gasoline over his body and threatened to kill himself. After Olivas’ son called 911, three officers from the Arlington Police Department in Texas — who recognized that tasering Olivas would set him on fire and voiced this fact — tasered him anyway after seeing an object that allegedly appeared to be a lighter in Olivas’ hands.

The house burned down and Olivas sustained injuries on 85 percent of his body. He ultimately passed away, his life callously ended by the very police officers who were called to help him when he was vulnerable and in distress. Seeking accountability, Olivas’ family brought forth a lawsuit, but the officers were granted qualified immunity and the family received no justice or relief.

Police Officer Shot a Child While Firing at a Non-Threatening Family Dog

In Georgia, on July 10, 2014, a Coffee County officer, in the process of trying to apprehend an individual who “wandered” into another family’s yard,  tried to shoot a non-threatening family dog in the vicinity of six children, including two kids under age three, but missed the shot. The dog retreated into the home. At no point was there anything to indicate this dog was threatening or bearing hostility towards anyone.

Officers then held the children at gunpoint and directed them to lay on the ground, an order with which the children complied. The dog once again approached officers, and an officer again attempted to shoot him, only to shoot a 10-year-old child instead. After the case went to court, the officer received qualified immunity.

Officers Purportedly Stole Over $150,000 from Two Businessmen

In 2013, law enforcement officers in Fresno, California executed a search warrant during an illegal gambling investigation and purportedly stole $151,380 in cash and $125,000 in rare coins from two businessmen who owned an ATM company — yet were never charged with a crime. In a subsequent lawsuit, the court held that, since there was no clearly established law that found that officers violated the Fourth or Fourteenth Amendments when they steal property during the execution of a search warrant, the officers could not be successfully sued for their actions. Notably, the court sympathized with the businessmen, emphasizing that, if officers did admit to stealing their property, which they did not, it was morally reprehensible – but still did not violate the Constitution in a way that had been clearly established before. Accordingly, the officers were granted qualified immunity.

A case decided by the US Fifth Circuit Court of Appeals on May 3 made us all a little safer by further defining what police officers can't do and get away with. For most of this post, I will use the excellent narrative of Senior Judge (Reagan appointee) E. Grady Jolly:

For those who worry that qualified immunity can be invoked under absurd circumstances: Buckle up. 

Austin Thompson Hughes is a Good Samaritan. After 2:30 a.m., Hughes called 911 to report a pickup truck swerving violently across a four-lane highway in Houston. While Hughes was on the phone with emergency dispatchers, the drunk driver crashed. Still on the phone with 911, Hughes pulled behind the drunk driver and effectuated a citizen’s arrest in accordance with Texas law. But when police officers arrived at the scene, they let the drunk driver go and then arrested Good Samaritan Hughes. (Seriously.) Piling insanity on irrationality, the officers then charged Hughes with a felony for impersonating a peace officer. Hughes spent thousands of dollars defending against the frivolous criminal charges before the City of Houston dropped them. Then Hughes brought this § 1983 suit against the two officers who victimized him. The district court denied qualified immunity. We affirm. (Obviously.) 

The story is totally bizarre. Hughes stopped the driver from fleeing the scene:

The drunk man continued to move into oncoming traffic on foot. Hughes “felt that the best and safest option would be to physically restrain the suspect,” so he “retrieved handcuffs from his Jeep and used them to temporarily detain the DWI Suspect.” ROA.260. At no point did Hughes identify himself as a police officer. Finally, Hughes suggested his two Uber passengers request a new ride, which they did.

Even though the driver maxed out the field sobriety test and was standing in the wreckage of his truck, the cops took a statement and released the driver. In the statement, the driver claimed that he knew Hughes, that Hughes accused the driver of boinking his wife, that Hughes had driven the drunk around, that they had visited a flea market at 2 a.m., that Hughes was driving the truck when it crashed, and on and on. 

Despite Hughes being able to document that he was driving for Uber and producing his clients to corroborate his story, the cops went with the drunk:

Two days later, Garcia signed a probable cause affidavit based on that incident report. The affidavit asserted Hughes “unlawfully, intentionally impersonate[d] a public servant, namely a peace officer with intent to induce [the drunk driver] to submit to his pretended official authority and to rely on his pretended official acts, by stating he was a Police Officer.” ROA.273–74 (first alteration in original). 

The affidavit included information gathered by both Garcia and Few during the investigation. The affidavit again recounted several details allegedly from Hughes’s 911 call. But the affidavit omitted critical information, like Hughes’s play-by play of the Sierra swerving erratically down the highway, his description of his own vehicle, and Hughes yelling at the drunk driver to get back in the car. Instead, the affidavit claims Hughes can be heard on the 911 call asking the drunk driver for his identification. According to Hughes, he never made that request—the drunk driver’s license was in the cupholder of the Sierra, so Hughes simply retrieved it.

The probable cause affidavit also included an embellished version of the drunk's statement:

ROA.277 (emphasis in original complaint). The new details—like the previously undiscussed “two female friends” who purportedly drove Hughes’s Jeep to the scene on Interstate 610—appeared nowhere in the incident report and contradicted Hughes’s statement. Moreover, Garcia reported that an “Officer A. Walters” assisted in interviewing Hughes. But there is no other evidence “Officer A. Walters” had any involvement in this case at any time.   

The new version of the statement also omitted key facts suggesting the drunk driver’s unreliability. For example, the affidavit made no mention of the drunk driver calling Hughes “Jesse” or the apparent confusion about whether the drunk driver was drinking at a “flea market” or a bar. Compare ROA.265–66, with ROA.277. And perhaps most tellingly, the probable cause affidavit omitted that the officers’ sole basis for believing Hughes committed a felony—the drunk driver’s statement—came from the ramblings of a man who flunked all six clues in the HGN intoxication test. 

Finally, as to Hughes’s statement, the affidavit omitted any corroborating evidence supporting Hughes’s account of the incident. For example, the affidavit omitted the third-party 911 call and the screenshots from Hughes’s Uber app. Instead, the affidavit reported Hughes “would not” disclose his passengers’ contact information.

The District Attorney's office charged Hughes with "felony impersonation of a public servant," and an arrest warrant was issued.

At 3 a.m., two days after the incident, the two officers who had responded to the crash site went to Hughes' home and arrested him, but not without more drama:

Few and Garcia asked to see Hughes’s Uber app, insisting they needed to see his actual cell phone, rather than the screenshots he had already sent. Hughes “cracked open the door to give [his cell phone] to the officers. However, instead of taking the phone, [the] officers grabbed Mr. Hughes’s outstretched arm and pulled him out of his apartment into the hallway and handcuffed him.” ROA.280. The record does not reveal, and again judicial imagination cannot fathom, why officers needed to trick an undressed Hughes into extending his arm through the cracked door so he could be forcibly arrested in his pajamas.

Hughes spent 24 hours in the jail's general population before being released.

Three months later, the state dismissed the case on the basis that "no probable cause existed . . . to believe the defendant committed the crime."

Hughes sued everyone in the Houston government phone book, claiming a violation of "his Fourth Amendment rights by arresting and prosecuting him without probable cause because they included material misstatements and omissions in their warrant affidavit and materials." 

The two cops asserted qualified immunity. The district judge denied their application, and they appealed:

It is unclear which part of this case is more amazing: (1) That officers refused to charge a severely intoxicated driver and instead brought felony charges against the Good Samaritan who intervened to protect Houstonians; or (2) that the City of Houston continues to defend its officers’ conduct. Either way, the officers’ qualified immunity is denied, and the district court’s decision is AFFIRMED. 

This case has yet to play out. As the Fifth Circuit says, the judge may still grant qualified immunity because this case deals solely with the judge's rejection of the motion to dismiss. I think the judge would have to be something of a goober if he read this decision and okayed the qualified immunity move, but this is Houston that we're talking about.