Federal Judges Often Let Bad Cops Slide

Written by Michael Avery

Latonya Davis, a disabled African-American woman, was too terrified to get out of her car. The police had pulled her over, surrounded her with four cruisers, and were pounding on her vehicle with their batons. She slid her window open slightly and told Lakewood, Colo., Officer Todd Clifford and Sgt. Todd Fahlsing she would step out if they promised not to hurt her. They made no such promise.

Instead, Mr. Fahlsing smashed the driver’s window with his baton, sending glass into her eye. The officers reached in, grabbed her by her hair and arms and pulled her through the shattered window, tearing the soft tissue in her shoulder. They threw her to the glass-covered pavement and pinned her to the ground. Her crime? The misdemeanor offense of driving under suspension for failure to provide proof of insurance. When she sued, District Judge William J. Martinez dismissed her case, concluding the officers were entitled to “qualified immunity.” More on that doctrine later.

This summer my co-authors and I are preparing our annual update to “Police Misconduct: Law and Litigation,” a treatise for lawyers on civil rights cases. Ms. Davis’ case is one of approximately 400 we will review. The thousands of cases I have studied over four decades establish beyond any doubt that a widespread unwillingness of federal judges to hold bad cops accountable is a principal cause of police brutality.

The problem extends to the Supreme Court. Last spring, I was at the counsel table when the lawyers argued San Francisco v. Sheehan, a case in which two officers recklessly shot and nearly killed a mentally ill woman in her own apartment, instead of waiting for backup. Justice Kagan, one of the “moderates” on the court, said, “we shouldn’t turn every case into an inquiry about, was this the absolute best thing that the police could have done. You know, there’s a lot of uncertainty in these situations, and some reason to give the police officers who have to deal with them the benefit of the doubt.”

Well, Justice Kagan, that’s in fact what the courts have been doing. That’s what Judge Martinez did. That’s exactly what gives officers who break the rule’s confidence that they can get away with it.