Halsey Frank: In support of qualified immunity

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In December of 1994, a United States Capitol Police Officer shot and killed Marcelino Corniel in front of the White House. Corniel was a mentally ill, homeless man who had been living across the street in Lafayette Park. On the day he was killed, Corneil had duct taped a large knife to his hand. Prior to being shot, he had failed to comply with commands to drop the knife or get down on the ground.

The officer who shot him feared that Corneil was about to charge and was within a distance of other people such that they would not be able to defend themselves. I helped represent the officer and obtain judgment in his favor based on qualified immunity.

Qualified immunity protects law enforcement officers from having to defend against claims that they used unconstitutionally excessive force. It has become controversial because of the sense that Black people are disproportionately the victims of excessive force, and that police officers too often escape responsibility for using excessive force based on qualified immunity. Congress is considering bills to reform or eliminate it.

On February 25, a Maine federal district judge denied Portland Police Officer Nicholas Goodman’s motion for summary judgment based on qualified immunity for killing Chance David Baker.

Baker was a 22-year-old Black man. Family and friends described him as hard-working and generous, but also as erratic and concerning in the days before his death. They suspected he was mentally ill. On the day he was shot, February 18, 2017, Baker was intoxicated with a blood alcohol level more than three times above the legal limit.

On February 18, 2017, Baker bought an air rifle from the pawn shop in the Union Station Plaza shopping mall at the intersection of Congress and St. John streets. He was staggering, behaving erratically and drinking. The mall is a busy place. People were concerned. They called the police. Officer Goodman was one of those who responded. When Baker didn’t obey commands to put the rifle down, Goodman fired one shot, killing him.

In 2018, the Attorney General’s Office found that the shooting was justified because Officer Goodman reasonably believed that Baker was about to shoot people.

In 2019, Baker’s family sued the pawn shop for negligence and wrongful death for selling an air rifle to a visibly intoxicated buyer. They sued Goodman for violating Baker’s Fourth Amendment right to be free from the excessive use of force.

In 2020, the judge dismissed the claims against the pawn shop for failure to state a claim under Maine law. He found that the pawn shop did not have a special duty of care toward Baker the way that an innkeeper has toward their guest, a hospital has toward a psychiatric patient, a parent has toward a child or a fiduciary has to a beneficiary.

Nor did it have a duty based on having created a risk that Baker would be harmed by a third party like the police. Viewed from the vantage point of their selling a non-lethal air rifle to an intoxicated person in a mental health crisis, the pawn shop could not have foreseen that the police would kill Baker for holding an air rifle.

That decision left the question whether the officer was immune from the Baker family’s suit.

In legal terms, qualified immunity shields officers from suit so long as their conduct does not violate a right that is so clearly established that a reasonable person would know it. The Supreme Court has said that qualified immunity protects all but the plainly incompetent or those who knowingly violate the law. 

The decisive consideration is often the level of specificity that the presiding judge uses to define the right at stake. In excessive force cases, for example, if the court defines the right as the right to be free from excessive force, no officer would be immune because every officer knows that much. If the definition includes every fact and circumstance of the case, then every officer would be immune because every case is unique. It may not be a useful standard.

Critics say that qualified immunity is contrary to our government of laws because it was created by judges without much basis, it puts government officials above the law and it leaves people whose rights have been violated without a remedy.

My sense is that qualified immunity for individual government officials is related to sovereign immunity for government agencies. In monarchies, the king could do no wrong because kings were considered god-like or entitled to rule by god given right. The king was the state. He made the law, and he was above it. That formulation eroded as power and authority shifted from monarchs to people.

Even so, the concept of sovereign immunity persists. In the context of our system, the government is generally immune unless it waives its immunity. Even when the government allows itself to be sued, for the most part, government employees aren’t personally liable for actions they take in their official capacity and within the scope of their official duties.

The rationale is that the government performs certain essential functions that no other institution can or does. They are political, policymaking or discretionary in the sense that there really aren’t any fair or useful standards by which to judge them. Examples include declaring and waging war. 

On the other hand, our federal and state governments have allowed themselves to be sued in certain situations such as when they are performing ordinary functions where care can be exercised. Congress has provided that government officials can be held personally liable for actions that violate the US Constitution. In some sense, actions that violate the Constitution are not governmental. But that’s a legal question for a judge, not a jury, to decide.

Qualified immunity protects law enforcement officers who are performing an important government function under difficult, fast-moving circumstances where it is very difficult to be careful and easy to second guess after the fact; where making it too easy to second guess would be costly and chilling. I think that the law should favor police officers in such situations, but I understand that those who suffer the consequences feel otherwise.

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Halsey Frank was born and raised in and around New York City and nearby Englewood, NJ. He graduated from the Dwight Englewood School, Wesleyan University and the Boston University School of Law. After law school, Halsey worked for the Department of Justice for 34 years, first as a civil litigator and later as a criminal prosecutor and civil attorney in the U.S. Attorney’s Office for the District of Columbia. In 1999, Halsey moved to Maine where he worked as a civil attorney and criminal prosecutor in the U.S Attorney’s Office until 2017, when he was nominated by the President and confirmed by the Senate to be Maine’s U.S. Attorney, the chief federal law enforcement officer for the District of Maine. Halsey retired from the Department of Justice in February 2021. Prior to becoming a U.S. Attorney, Halsey was active in local affairs, including the Portland Republican City Committee, the Friends of Portland Parks, the Friends of the Portland Public Library and the Maine Leadership Institute. He previously authored a column entitled “Short Relief” that appeared in The Forecaster regional newspaper. His views are his own.

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