Category Archives: Fourth Amendment

John Jeffrey Sipos and his wife Susanne bought their home in October 2003 on Cobbler Road in North Whitehall Township, property records show..

And they lived there for the next 17 years without brushing up against the law until Pennsylvania State Police came knocking on Oct. 24 with an arrest warrant from a judge in San Diego.

The 75-year-old John Sipos, San Diego police would later announce, was a suspect in the late November 1969 killing of Mary Scott.

Cold case units from the San Diego Police Department and the California countys district attorneys office evaluated the case and were able to use forensic genealogy to identify a possible suspect, according to a brief news release from police on Tuesday. The San Diego Union-Tribune reported Scotts younger sister, having read stories about how DNA and genealogy had led to the arrest of killers, had around the 50th anniversary of her sisters death ... reached out to a law enforcement friend to help get her sisters folder to the top of the cold-case pile.

Parabon NanoLabs and its Chief Genetic Genealogist CeCe Moore werent involved in this investigation, but they are pioneers in the field.

The science -- which Moore says is properly called investigative genetic genealogy -- is about 10 years old and was initially developed to help adoptees learn about their roots.

Its an extremely powerful tool for any type of human identification, Moore, who heads Parabons Genetic Genealogical Services for law enforcement, said in an interview with lehighvalleylive.com from her home in California.

About two and a half years ago, that unit of Parabon entered the world of criminal investigations and has an unparalleled record of over 130 successful identifications in criminal cases, according to background Moore provided.

Her work led to the first conviction, the first conviction through jury verdict, and the first exoneration in criminal cases where the suspect was identified through investigative genetic genealogy.

Raymond "DJ Freez" Rowe pleaded guilty to killing Christy Mirack many years after the 1992 crime in Lancaster.Pennsylvania Department of Corrections

Moore said her first case was the December 1992 murder of school teacher Christy Mirack in Lancaster, Pennsylvania, where the DNA and genealogical work in the spring of 2018 would lead to suspect Raymond DJ Freez Rowe, who wasnt on police radar, according to a published report. There was a significant amount of DNA left at the scene after the sexual assault, beating and strangulation. A DNA profile earlier uploaded by Rowes half-sister to a public database would be the key to solving the crime, a published report said.

An arrest would be made in June 2018 and Rowe would admit his guilt to charges of first-degree murder, rape, forced deviate intercourse and burglary. Rowe, now 52, is serving his life sentence in a Pennsylvania state prison.

It was a seminar through the DNA Doe Project that would led Lehigh County Coroner Eric Minnich to the Mirack case and the ongoing efforts to use DNA and genealogy to solve cold cases. In addition to determining the cause and manner of deaths, the coroners office tells families their loved ones have died. Sometimes thats difficult or nearly impossible due to a lack of information about the person who died. The county has one long unidentified body -- a John Doe case -- and Minnich wonders if this is a route to a resolution.

Lehigh County Coroner Eric Minnich.

Its something weve talked about, he said about using genetic genealogy. Its not something weve done anything about yet. ... As new things become available, its good to apply current standards to old cases. Identification is huge. Currently we use DNA to identify people by comparison from potential family members, but we have to know something. When we dont know anything, theres no simple way to compare DNA.

Investigative genetic genealogy is new to me, he said. Im learning about it too.

But to not consider the evolving science, you might miss an opportunity for identification, Minnich said.

So what changed from the days of the Combined DNA Index System (CODIS) that is the most commonly known DNA repository for crime cases -- but is limited to criminals -- and the development of Parabons work?

The first thing Moore points out is the field is more about genealogy than DNA.

The goal, either way, is to bring answers to people, at first, years back, in family mystery cases and later in such groundbreaking efforts as the Golden State Killer case, which was not a Parabon case but an early and well publicized example of proof of concept. Parabon, based in Reston, Virginia, at that point was in the business of making facial sketches from crime-scene DNA, wired.com reported.

When that case went public, law enforcement really sat up and took notice, Moore said.

CODIS, for example, works with a small portion of a persons genome -- 20 genetic markers, Moore said.

Were looking at hundreds of thousands of genetic markers, she said about the companys work in 2020.

It allows us to detect and predict much more distant relatives, she said. We can predict third, fourth cousins and we can re-engineer the family tree. Were looking at piecing the common ancestors back together that points to one family or one person.

The challenge at first was the DNA pool.

And years ago scientists such as Moore would have to become promoters.

You already know some of the names of commercial applications. 23 and Me. Ancestry. My Heritage. Family Tree DNA.

You send off your DNA to learn more about your roots. Of those four, Family Tree DNA was the only one that made the information public, Moore said. GEDmatch, which caught the publics attention during the Golden State Killer case, is the other major public database. So, working with citizen scientists," the effort began to get people who were already sending DNA to the retail companies to also send the results to GEDmatch, Moore said.

We had to promote this idea of using DNA in order to resolve family mysteries, she said. It was part of my job to get the word out. It took years to build those databases.

Thousand and thousands of volunteer hours later and the pool was much deeper. Family Tree DNA, where people have to actively opt out or results of the free upload become public, has about a million results, Moore said. The investigative industry saw a setback more than a year ago when GEDmatch, which had about 1 million results public, suddenly changed its default from opt in to opt out of DNA results being made public and thus accessible to law enforcement investigations, Moore said. But its back up to about 300,000, she said.

The issues are Fourth Amendment privacy concerns and company transparency worries, news reports say.

The scope of the new science has limits. Most of the people who have the disposable income and interest to pay to send their DNA to the retail firms tend to have ancestry from northwestern Europe, Moore said.

If someone has deep routes in the United States, its easier to identify them, Moore said. With recent immigrants its harder.

And then theres what may be the tougher reality. Moores oldest case dates to 1967. The Scott case is from 1969.

Nobody in a police uniform was worried about DNA preservation in the late 1960s. Or the 1970s. Even into the 1980s. And remember, the jury didnt buy DNA evidence in the mid-1990s when O.J. Simpson was on trial in the killing of his wife.

Thereve been fires, floods, extreme temperatures and contamination over the decades in police evidence storage areas, she said.

Parabon needs about 60% of a persons DNA to work with.

Some of its been thrown out or ordered by judges to be destroyed, she said.

But if the evidence was kept in paper bags or cardboard boxes in a temperature-controlled space -- the key is to avoid extremes -- the DNA can remain viable over many years, she said. It could just be a matter of luck and benign oversight.

Surprisingly, many have worked out to be usable, Moore said.

The truly crushing part for families is now that the science exists, they learn that the crime-scene DNA no longer does, she said.

Her job begins once the DNA has been determined viable, there is a large enough sample and a raw DNA file has been created, she said.

That file is compared against all the people in the public databases, she said.

If as little as 1% of the DNA matches, we can detect these distant relationships, she said. The search is for a common ancestor.

Perhaps it leads to great-grandparents.

You hope you have enough data to narrow it down, Moore said. Optimal cases have matches for all four grandparents. Somehow all these people fit to make this one person related to all these matches. ... The amount of DNA shared helps us predict the relationship.

And thats when the even more detailed and truly difficult part of the effort begins.

Were using the DNA as a guide, she said. From there on its all genealogy.

Anyone who has ever fooled around with ancestry.com knows what comes next.

Birth records. Death records. Any record that might feed a family tree. But in reverse.

Most people learn their lineage from themselves on back. From what you know to what you dont know.

But Moore has to start deep in a familys history and work forward, building a reverse genealogy, she said.

You have to determine the descendants, she said. How did their children and grandchildren marry?

Family tree after family tree is constructed and considered. Paths are followed until they end. Several groups go one way, but how do they relate to other groups of possible distant relatives?

And then?

With lots of crimes, theres one person who fits, said Moore, who has been a full-time genetic genealogist on the PBS series Finding Your Roots with Louis Gates Jr. and has other television credits as well. Its also pretty common that its a set of brothers. You cant tell. You have to go out and get the DNA.

Because thats the positive match. You determine whose DNA is a probable match and then police get the real thing, either through the suspects willingness to cooperate or investigators' efforts to find abandoned DNA on a cup or a cigarette or in the trash, she said.

Sometimes if there are brothers who dont look the same, DNA can predict eye color or hair color and be used to rule someone out, she said.

But, in the end, the genetic genealogists work is a guidepost in the investigation. While San Diego police said genetic genealogy was used to develop Sipos as a suspect, there must be other factors that point to his potential guilt, Moore said.

Her work is not evidence for court, she said.

This is a tool to point them in the right direction, she said.

The ensuing DNA test would be the evidence, she said.

So, whats all this cost? Sounds expensive.

I guess it depends on perspective, she replied in a followup email. It is extremely inexpensive if it helps solve a case that has been worked for years or decades, using a huge amount of public resources.

Then again, for underfunded departments ... it can be expensive. For this reason, we started JusticeDrive.org to help agencies crowd fund, she said.

The cost varies, Moore continued. It is about $1,500 for the DNA processing and about $3,500 for the genetic genealogy research on most of our cases, so a total of approximately $5,000.

Law enforcement agencies who collect DNA evidence would only have to pay a lab for the DNA analysis and processing, she noted. Man-hours can easily add up to more than $3,500, however, if officers have to trace the genealogy.

Thank you for relying on us to provide the journalism you can trust. Please consider supporting lehighvalleylive.com with a subscription.

Tony Rhodin can be reached at arhodin@lehighvalleylive.com.

Excerpt from:
It led police to John Sipos 51 years after Mary Scotts killing. So, what is investigative genetic genealogy? - lehighvalleylive.com

Item 1.01 Entry into a Material Definitive Agreement

On October 26, 2020, the Company entered into a Fifth Amendment to CreditAgreement (the "Fifth Amendment") which amends its existing Credit Agreement,dated as of February 2, 2017, as amended by the First Amendment thereto, datedas of September 18, 2019, the Second Amendment thereto, dated as of March 27,2020, the Third Amendment thereto, dated as of May 7, 2020 (the "ThirdAmendment"), and the Fourth Amendment thereto, dated as of May 18, 2020, withcertain direct and indirect subsidiaries of the Company as guarantors, WellsFargo Bank, National Association, as administrative agent, and the lenders andother agents party thereto.

The Fifth Amendment extended the term of the agreement by one year to February2, 2023, reduced the revolving credit facility to $120.0 million, adjusted themonthly liquidity covenant, added a provision to allow for non-maintenancecapital expenditures based on quarterly EBITDA performance and added provisionsto the Credit Agreement to address the contemplated phase out of LIBOR. Aftergiving effect to the Fifth Amendment, the credit facility will continue toprovide for a $5.0 million subfacility of letters of credit and a $5.0 millionsubfacility for swingline loans. The Fifth Amendment did not change theConsolidated Leverage Ratio and Fixed Coverage Charge Ratio requirements. TheConsolidated Leverage Ratio and Fixed Coverage Charge Ratio requirements fromthe Third Amendment remain in effect through February 2, 2023.

The Fifth Amendment requires the Company and its subsidiaries to meet minimumaggregate cash holding requirements through March 2021 in an amount equal to thefollowing amount for each month set forth below:

The Fifth Amendment also removes the requirement that the Company use 50% of theaggregate net cash proceeds from equity issuances after May 7, 2020 in excess of$30.0 million to repay loans outstanding until the Company could demonstratecompliance with certain financial covenants.

The Fifth Amendment now allows for non-maintenance capital expenditures when theLeverage Ratio is 2.50 to 1.0 or greater with 75% of consolidated EBITDA earnedduring a fiscal quarter in excess of $7.5 million ("Excess EBITDA"). The Companyand its subsidiaries may make non-maintenance capital expenditures with ExcessEBITDA at any time after such Excess EBITDA is earned until the Leverage Ratiohas been reduced to less than 2.50 to 1.0. Prior to the Fifth Amendment, theCredit Agreement had prohibited all non-maintenance capital expenditures whenthe Leverage Ratio was 2.50 to 1.0 or greater. As was also the case before theFifth Amendment, the credit agreement provides that the Company and itssubsidiaries may make capital expenditures in any fiscal year in an amount equalto 75% of consolidated EBITDA for the immediately preceding fiscal year when theLeverage Ratio is equal to or greater than 1.50 to 1.0 but less than 2.50 to1.0. When the Leverage Ratio is less than 1.50 to 1.0, the Company and itssubsidiaries may make capital expenditures in an unlimited amount.

In connection with the closing of the Fifth Amendment, the Company repaid $20.2million in loans so that a total of $115.0 million (excluding $4.8 million inletters of credit) is currently outstanding under the credit facility. Thecurrent interest rate for borrowings under the revolving credit facility is3.75%.

Item 2.03. Creation of a Direct Financial Obligation or an Obligation under anOff- Balance Sheet Arrangement of a

Registrant

The discussion of the Fifth Amendment to Credit Agreement set forth underItem 1.01 of this Current Report on Form 8-K is incorporated herein by referencein this Item 2.03.

Item 9.01. Financial Statements and Exhibits

--------------------------------------------------------------------------------

Edgar Online, source Glimpses

Originally posted here:
RUTHS HOSPITALITY GROUP, INC. : Entry into a Material Definitive Agreement, Creation of a Direct Financial Obligation or an Obligation under an...

Posted on October 30, 2020, at 2:50 p.m. ET

A screenshot from a Chicago Police Department training video.

Regardless of the results of the 2020 election, its possible that the United States will see civil unrest in its aftermath. Some activists fear that police will use the same violent tactics that were used to respond to the Black Lives Matter protests that followed the deaths of Breonna Taylor and George Floyd earlier this year.

To find out how police are preparing to respond to postelection protests, BuzzFeed News filed public records requests with six major departments.

So far, only one has responded.

BuzzFeed News received over 100 pages of documents from the Chicago Police Department, as well as a video, showing how police in the most populous city in the Midwest are preparing for unrest on election night. In many ways, Chicago stands in for any large American city since the materials use official protest guidance from the Department of Homeland Security and the US Army that arent particular to Chicago.

A Chicago police spokesperson told BuzzFeed News that every sworn officer will be on duty on Nov. 3 into the morning of Nov. 4.

In a press conference on Oct. 15, Chicago Police Superintendent David Brown said officers have done several workshops preparing for Election Day. Its unclear if these workshops incorporated the material obtained by BuzzFeed News.

The presence of organization within a team can intimidate the opposition.

We're trying as best we can to anticipate any hazard that might happen including a weather hazard, snow might happen in our city, along with anything related to protests [or] embedded agitators that may loot, cause violence, or destroy property, Brown said.

One 64-page document, titled "Crowd Control and Behavior," contains the outline for an eight-hour course in which officers were taught how to control protests and arrest demonstrators.

The presence of organization within a team can intimidate the opposition, it says. Using team tactics has a military type advantage over larger organized groups.

In addition to the documents, Chicago police released a training video that instructs officers how to push and thrust batons at protesters.

One section of the "Crowd Control and Behavior" document outlines strategies for a Mobile Field Force unit, a group of police officers who carry weapons (like batons and pepper spray) and use platoon-style tactics to address civil disorder.

A military bearing demonstrates to the protesters that the MFF is a well-disciplined and highly trained group, the document says.

The document does note that police must be aware of peoples First and Fourth Amendment rights while they protest. But if the public peace is disturbed, police have the legal right to make arrests. The "Crowd Control and Behavior" document notes that mob action is defined under Illinois law as disturbing the public peace or damaging property while in a group.

Military-style tactics are not unusual within US police departments, and the document covers several different formations that police may use to control crowds. The documents refer to a group of police officers as a platoon, which is led by a sergeant or captain. The formations include column, skirmish, wedge, and encirclement.

The "Crowd Control and Behavior" document also defines several types of demonstrator groups and identifies many by name. It labels ACC, Globalize This, South Dakota Radicals, Food Not Bombs, Black Cat Collective, Black Cross, North Eastern Federation of Anarcho-Communists, and Act Now to Stop War and End Racism (ANSWER) as anarchist groups. It defines anarchists as those who believe private property is theft, state property is an object for the protection of corporate interest, and that both must be destroyed for the creation of a society based on mutual aid and individual liberty.

The "Crowd Control and Behavior" document says that these protesters try to manipulate the media and provoke police by prominently positioning children and older people to gain sympathy and negative portrayals of police dispersal and arrest actions. It also claims that protesters accuse the police of misconduct to avoid arrest and gain the sympathy of the media and bystanders.

The document advises that some violent demonstrators may use wrist rockets, catapults, incendiary devices, impact weapons, mirrors, hazardous substances, battering devices, fireworks and rockets, weapons of mass destruction, suspicious packages, golf balls, bottles, cans of soup, and pieces of concrete as weapons during protests.

Its common to see legal observers, such as lawyers or law students, at a protest. But the document says that legal teams may try to intimidate police by telling them that their tactics are illegal.

The document notes that its legal to use pepper spray on protesters who are passively resisting police officers, even if they arent doing anything violent.

View original post here:
This Is How Chicago Police Are Getting Ready For Election Night Protests - BuzzFeed News

from the dodging-oversight-from-two-other-branches dept

Earlier this year, the Wall Street Journal revealed that ICE and CBP were buying location data from third-party data brokers -- something that seemed like a calculated move to dodge the requirements of the Supreme Court's Carpenter decision. There's a warrant requirement for historical cell site location data, but the two agencies appear to believe gathering tons of "pseudonymized" data to "help identify and locate" undocumented immigrants isn't a Fourth Amendment problem.

At this point, they're probably right. They may not be correct but they don't have court precedent telling them they can't do this. Not yet. So, they're doing it. It may not be immediately invasive as approaching a cell service provider for weeks or months of location data related to a single person, but this concerted effort to avoid running anything by a judge suggests even the DHS feels obtaining data this way is quasi-legal at best.

In late June, the House Committee on Oversight and Reform opened an investigation into Venntel's sale of location data to ICE and CBP. The Committee asked Venntel to hand over information about its data sales, whether or not it obtained consent from phone users to gather this data, and whether it applied any restrictions to the use of data by government agencies. The answers to the Committee's questions were due in early July. So far, Venntel has yet to respond.

Venntel's business hasn't slowed despite being investigated by Congress. Joseph Cox reports for Motherboard that CBP has just signed another deal with the data broker.

Earlier this month U.S. Customs and Border Protection (CBP) paid nearly half a million dollars to a company that sells a product based on location data harvested from ordinary apps installed on peoples' phones, according to public procurement records reviewed by Motherboard.

[...]

CBP paid just under $476,000 for "Venntel Software" on August 5, according to the public procurement record.

Venntel's data collection does have limitations that makes it more useful for these agencies than others that have tried it.

The office of Senator Ron Wyden found that the criminal investigation unit of the Internal Revenue Service (IRS) tried to use Venntel data to identify and track potential criminal suspects. The IRS failed to locate any targets of interest during the year-long contract.

The Venntel data is more useful for tracking "herds of people," the second former worker told Motherboard. The Wall Street Journal's February report mentioned agencies have used Venntel data to identify border crossings and then arrest people.

But even with these limitations, it's still powerful enough to be of concern, especially when it appears federal agencies are willing to buy data from brokers rather than approach service providers with subpoenas and warrants. Venntel's "product" comes from cellphone apps that collect location data. Venntel generates its own identifiers for each device to tie location data together. Customers like ICE can either ask for all data gathered at certain locations or search by identifier to collect all data tied to that device.

And it's not just about securing the border. ICE and CBP are also authorized to use Venntel's data to assist in "law enforcement operations." Venntel claims it doesn't sell access to local law enforcement agencies, but it appears CBP and ICE have the capability -- and presumably the willingness -- to perform proxy searches for agencies Venntel won't sell to.

If it's questionable for a private company to sell data to the federal government while under investigation from another branch of that same government, it's doubly questionable for a federal agency to continue doing business with a company being investigated by Congress. But people without papers must be caught, I guess, even if some rights must be violated (or evaded) to do it.

Thank you for reading this Techdirt post. With so many things competing for everyones attention these days, we really appreciate you giving us your time. We work hard every day to put quality content out there for our community.

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Filed Under: 4th amendment, cbp, data brokers, dhs, ice, privacy, warrantCompanies: venntel

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CBP Is Still Buying Location Data From A Company Currently Being Investigated By Congress - Techdirt

FORT WORTH, Texas (Reuters) - When David Collie slipped off his shirt as he set out one sultry night to visit some friends, he didnt know he was putting himself in grave danger. But he was. He now fit the description: shirtless, Black, male.

Moments later, Collie lay face down on the pavement, gunned down as a possible suspect in a crime he didnt commit.

The shooter was Fort Worth, Texas, police officer Hugo Barron. He and his partner had been looking for two shirtless Black men wanted for an armed robbery involving tennis shoes. When the cops spotted David Collie, they pulled into the apartment complex, got out of the squad car and started shouting commands at him.

Police dashboard camera video shows that Collie was walking away from the two cops as he pulled his hand out of his pocket and raised his arm. Thats when Barron fired his gun. A hollow-point bullet slammed into Collies back, punctured a lung and severed his spine, leaving him paralyzed from the waist down.

In the four years since then, Collie, now 37 years old, has lived in nursing homes, afflicted with infections, pressure sores, and bouts of crushing depression. As he talked about the July 2016 shooting and what it took from him, wails from an elderly patient echoed down the corridor. The odors of urine and excrement wafted in from the hall. Collie closed his eyes and exhaled. Paralyzed over some tennis shoes? Come on, man, he said. Youre playing with a human life here.

To many Americans, the outlines of Collies encounter with police have become dismayingly familiar in recent years and all the more so since the May 25 death of George Floyd, a Black man, under the knee of a Minneapolis cop sparked mass protests against racism and aggressive police tactics. The fate of Collies attempt at redress has become familiar, too, and now underpins demands that police be held accountable when they kill or seriously injure people.

In a lawsuit filed in federal court in Fort Worth, Collie accused Barron of excessive force, a civil rights violation under the Fourth Amendment to the U.S. Constitution. He thought that any money from a settlement or jury award would give him some measure of independence after the shooting cost him his job and derailed his plans to return to college. He also thought Barron should be held responsible for what he did.

Collie didnt get very far. Barron, who hadnt been disciplined or charged with any wrongdoing for the shooting, argued that he had acted reasonably on a fear that Collie was about to shoot his partner. Collie said he took his hand from his pocket to point to where he was going when Barron shot him. The judge sided with Barron though Collie had nothing to do with the robbery the cops were investigating, had no gun on him, and was 30 feet away with his back to Barron when the cop fired.

The judge ruled that Barron was entitled to qualified immunity, a legal doctrine meant to protect police and other government officials from frivolous lawsuits. A federal appeals court, saying the case exemplifies an individuals being in the wrong place at the wrong time, upheld the lower courts decision.

You shoot me, paralyze me, put me in a nursing home, ruin everything, and I cant get no type of compensation? Collie said. He leaned back in his bed. This aint justice.

Collie would have stood a much better chance of getting the justice he sought if he had been able to sue elsewhere. Thats because, in excessive force lawsuits, courts in some parts of the United States are more likely to deny cops immunity than others.

In a review of 529 cases since 2005, Reuters found significant differences in how the federal appeals courts treat qualified immunity.

Plaintiffs fared worst in the court that heard Collies appeal, the 5th U.S. Circuit Court of Appeals, where judges habitually follow precedents that favor police. The court granted 64% of police requests for immunity in excessive force cases.

By contrast, the 9th Circuit has set a higher bar for police. The appellate judges there granted immunity in just 42% of police requests for immunity in excessive force cases.

The regional disparities are also evident in federal district courts, where excessive force lawsuits are actually heard and which must follow precedents set by their respective appellate courts. In an analysis of 435 federal district court rulings in excessive force cases from 2014 to 2018 in California and Texas, the two most populous states, judges in Texas granted immunity to police at nearly twice the rate of California judges 59% of cases, compared to 34%.

A plaintiffs chances are so much better in California that one who was armed in an encounter with police is more likely to overcome qualified immunity than one who was unarmed in Texas.

For years, the words qualified immunity were seldom heard outside of legal and academic circles, where critics have long contended that the doctrine is unjust. But outrage over the killing of George Floyd and incidents like it have made this 50-year-old legal doctrine created by the U.S. Supreme Court itself a target of broad public demands for comprehensive reform to rein in police behavior.

The criticism that qualified immunity denies justice to victims of police brutality is well-founded. As Reuters reported just two weeks before Floyds death, the immunity defense has been making it easier for cops to kill or injure civilians with impunity. Based on federal appellate court records, the report showed, courts have been granting cops immunity at increasing rates in recent years even when judges found the behavior so egregious that it violated a plaintiffs civil rights thanks largely to continual Supreme Court guidance that has favored police.

The regional differences Reuters has found in how qualified immunity is granted only add to arguments that the doctrine is unfair. Its essential to our system of government that access to justice should be the same in Dallas and Houston as in Phoenix and Las Vegas, said Paul Hughes, a prominent civil rights attorney who frequently argues before the U.S. Supreme Court. It shouldnt turn on the happenstance of geography as to whether or not they (plaintiffs) have a remedy.

The happenstance of geography shows up in a comparison of Collies case to the one Benny Herreras family filed after a cop killed him in 2011. Police in Tustin, California, were looking for the 31-year-old father of four after a former girlfriend reported that he had assaulted her. They found him walking along a lightly trafficked road, behaving erratically. As in Collies case, a cop opened fire when he thought Herrera was about to shoot him. Like Collie, Herrera did not have a gun.

In the Herrera familys lawsuit, the cop was denied immunity. The district court judge, and the 9th Circuit Court of Appeals after him, weighed the same question as the courts in Collies case: Did the shooter act reasonably on a fear for his and others safety when he used deadly force? In this instance, the court said no. The case could move forward.

Before the familys lawsuit got to trial, the plaintiffs secured a $1.4 million settlement. Herrera always wanted his children to be financially secure, Elizabeth Landeros, mother of one of his children, said. They lost their father, she said, but at least now theyll be OK.

Qualified immunity plays out differently from region to region because of differences in judicial philosophies among those regions, lawyers and legal experts said.

Over the years, the Supreme Court has repeatedly told lower courts to use an objective analysis when weighing police claims of immunity: They must determine whether the force used was reasonable or excessive, and if the latter, whether the specific type of force used has already been defined as illegal under clearly established precedent.

But how judges answer those questions is influenced by their personal views on police authority and individuals rights, and their views often reflect the cultural and political landscapes they inhabit. In typically conservative areas, judges tend to favor police, while in more liberal parts of the country, they tend to favor plaintiffs. Those tendencies get baked into circuit court precedents that all judges in that circuit must follow.

Most judges are from the area where they serve and grew up in that culture, and whether they are liberal or conservative, they are bound to apply the law as its developed in that circuit, said Karen Blum, a professor at Suffolk University Law School in Boston and a critic of qualified immunity. Is it fair? No.

The liberal-leaning 9th Circuit, where the Herrera family sued, has established in its precedents powerful support for plaintiffs. Among them are rulings cautioning against throwing out excessive force cases before a jury has had a chance to weigh an officers credibility, and requiring more than officers claims that they feared for their safety as grounds for granting immunity.

The Supreme Court has repeatedly rebuked the 9th Circuit for its willingness to deny cops immunity, and especially for applying, as the high court wrote in a 2011 ruling, a high level of generality when analyzing the question of clearly established precedent.

Judges in the 5th Circuit, where Collies case was heard, are more likely to prioritize police power over citizens rights and liberties. Courts in the 5th Circuit habitually cite precedents that favor police by treating an officers perception of a threat as the key consideration. They do the same when deciding whether the force used was illegal under clearly established precedent, requiring that the material facts of the two cases be nearly identical.

If you approach these cases by placing a thumb on the scale in favor of police officers, you will tend to search the record for any basis in which to conclude that the actions police officers ultimately took were justified, said Hughes, the civil rights lawyer.

Across the country, different judicial approaches result in different outcomes for similar cases including numerous cases like Collies, in which cops claimed they were countering a threat to themselves or others when they shot someone from behind.

In Indio, California, a cop was denied immunity after fatally shooting Ernest Foster Jr three times in the back during a foot chase at a shopping plaza, even though police recovered a gun from the scene. And in Denver, Colorado, an officer was denied immunity after shooting Michael Valdez in the back, severely injuring him, though the cop himself had been shot during the preceding car chase.

These cases were in the 9th and 10th Circuits, respectively, both relatively plaintiff-friendly, based on the Reuters analysis of how often they granted qualified immunity.

But in Houston, a cop was granted immunity after fatally shooting Gerrit Perkins in the back while Perkins crouched in a closet holding a cordless phone. Perkins was unarmed. And in Bradley County, Arkansas, an officer was granted immunity after shooting Davdrin Goffin in the back, partially paralyzing him, even though he had already been patted down for weapons. He, too, was unarmed.

These cases were in the more police-friendly 5th and 8th Circuits, respectively, based on how often they granted qualified immunity.

Minnesota, where George Floyd lived, is also in the 8th Circuit. The day state investigators arrested the Minneapolis officer who knelt on Floyds neck as he died, the appellate court granted immunity to cops in Burnsville, Minnesota, who killed Map Kong, a man in a mental health crisis, when they shot him in the back as he ran away holding a knife.

Police officers and their supporters say qualified immunity is essential to ensure that police can make split-second decisions in dangerous situations without having to worry about being sued later. If we expose police officers to these suits on a regular basis, who would ever want to be a police officer? said Kent Scheidegger, a lawyer with the pro-law enforcement Criminal Justice Legal Foundation, based in Sacramento, California.

However, denial of immunity doesnt necessarily mean a certain loss for police. It means only that a lawsuit can move toward a jury trial or a financial settlement. District court data show that when cops were denied immunity in California and Texas, the cases were settled at about the same rate, 64% of the time. In nearly all of the remaining cases, a jury decided in favor of the police.

Even when a plaintiff secures recompense through a settlement or a jury award, the cops are nearly always indemnified against personal liability, meaning local governments typically named as defendants or their insurers cover the costs.

This widespread practice, legal experts said, undermines the ability of lawsuits to deter excessive force, particularly since cops are rarely prosecuted or otherwise disciplined for their actions. There is no sense of justice being done, said Blum, the Suffolk University law professor. The goal should be to deter, in some way to have a price paid if you engage in this kind of behavior.

Blum is part of a broad coalition of lawyers, scholars, civil rights groups and politicians who in recent years have called for qualified immunity to be reined in. As currently applied, they say, the doctrine too often denies even an attempt at justice to people who believe they are victims of excessive force and fails to hold police accountable.

An increasing number of judges of all stripes have also expressed frustration with the doctrine and the Supreme Courts repeated interventions that have made it harder to deny immunity. In an opinion last year, Judge Don Willett, appointed to the 5th Circuit by President Donald Trump, put it bluntly: The real-world functioning of modern immunity practice essentially heads government wins, tails plaintiff loses leaves many victims violated but not vindicated.

The justices have offered few explanations for their stance on qualified immunity beyond writing in opinions that the doctrine is important to society as a whole and balances individuals rights with the need to curb litigation that could unduly burden government officials. Two of the justices liberal Sonia Sotomayor and conservative Clarence Thomas have criticized qualified immunity in written opinions in recent years. All nine current justices declined to be interviewed for this article.

Amid the protests in the wake of Floyds death, expectations ran high that the Supreme Court would finally move to restrict or end qualified immunity by taking up at least one of several petitions to hear cases backed by opponents of the doctrine. But in early June, it rejected those petitions.

Congress moved swiftly to draft police reform measures, but legislative proposals, including some that would have ended qualified immunity, stalled as Democrats and Republicans deadlocked over issues of addressing racial inequality and police accountability. President Donald Trumps White House and some Republicans in Congress have called eliminating qualified immunity for police a non-starter on the grounds that it would deter police officers from doing their jobs properly.

In the summer of 2016, David Collie was putting his life in order and putting a troubled past behind him.

More than a decade earlier, as a student at Texas Southern University in Houston, he had become involved in a gang, indulging in glamor, clothes, money and girls, he said. When he pulled a gun on an adversary and took his car for a ride, Collie was charged with robbery and evading arrest and spent 11 years in prison.

Two months before Barron shot him, Collie had landed a full-time gig building supermarket produce displays. He liked the work, and he was cheered to be saving money before resuming college classes in cinematography in the fall. Work and school, that was always the plan, he said.

On the night of July 27, he got a call. Some friends who lived in the same apartment complex were arguing. It was late, and he had to be at work at 7 a.m., but he decided to walk over to the couples home to try to calm them and provide a diversion for their children, who called him Uncle David.

Officer Barron of the Fort Worth police and Tarrant County Deputy Sheriff Vanesa Flores were working off-duty paid security detail for a nearby apartment complex that night. They had just heard from dispatch that two shirtless Black men had made off with two pairs of tennis shoes, valued at $225 each, in a deal organized through Facebook. One of the suspects, the officers heard, had brandished a gun.

Just after midnight, police dashboard camera video shows, the two officers were walking toward Collie when Flores trains her flashlight on him. Barron pulls out his pistol. Collie turns around briefly and then continues to walk away.

Collie said the pair were shouting commands at him and over each other. He was confused, unsure about what to do, he said. They asked me where I was going, I was pointing, he said. I was trying to comply.

The instant Collie pulled his right hand out of his pocket to point, Barron fired. You didnt have to shoot me, Collie recalled saying after the force of the bullet slammed him to the pavement.

Time elapsed from the cops first appearing on the dash-cam to the shooting: five seconds.

The Fort Worth Police Department declined to comment and declined to make Barron available for comment. Flores, who no longer works for the Tarrant County Sheriffs Office, could not be reached.

After the Fort Worth police internal affairs division investigated the shooting, the Tarrant County Criminal District Attorneys Office presented the evidence to a grand jury, which declined to indict Barron on any criminal charges. A spokeswoman for the office noted that Flores did not cause, participate in, or contribute to the shooting, and had no further comment.

Collie endured a difficult two-month recovery in hospital. In addition to his paralysis and other medical issues that linger to this day, he was diagnosed with post-traumatic stress disorder. Doctors removed a bullet fragment from his chest seven weeks after the shooting.

He was also shackled to his hospital bed for nearly the entire time because police had charged him with aggravated assault on a public servant. A grand jury eventually declined to indict him.

In March 2017, Collie filed his lawsuit in federal district court in Fort Worth, naming Barron, Flores, the City of Fort Worth, Tarrant County, and several other officers as defendants. Any money Collie got would allow him to afford a home and a car modified for his disability. He also hoped to pay for physical therapy to try to walk again, though doctors said that was a long shot. Its like the world is saying, Im sorry, were wrong we did thatWere going to help you out, help you get back on your feet, Collie said of the recompense he sought.

Less than a month after Collie sued, lawyers for Barron, provided and paid for by Fort Worth, requested qualified immunity for the cop. Early on, Judge John McBryde dismissed Collies claims against all defendants other than Barron and Fort Worth.

In court papers, Barrons lawyers said the cop had acted reasonably because he believed Collie had a handgun and was moving to take aim at Flores. Flores had also told investigators that night that she thought she saw something in Collies hand. In using reasonable force to stop an apparent deadly threat, Officer Barron violated none of Plaintiffs constitutional or other rights and is entitled to qualified immunity, Barrons lawyers argued.

Collie had no gun. A boxcutter was found in the grass near where Collie went down, according to the police report. Collie said he always carried a boxcutter with him because it was necessary for his job. He adamantly denied that he was holding the boxcutter when he raised his hand to point. He said he believes Barron cited it as an excuse to cover up a mistake.

Barrons request for immunity asserted that whether Collie was armed or not was irrelevant. Merely arguing that in the end it must somehow be unreasonable to shoot an unarmed suspect is not enough to let a lawsuit go forward, the request said.

Collies lawyers countered that Barron created a threat in his mind that did not exist. A forensic expert they hired to map the scene, capture images using a drone and analyze the dash-cam footage concluded that Collie was not holding an object, let alone pointing it at Flores, when he was shot.

In July 2017, McBryde granted Barrons request for immunity. In his decision, he relied on a stringent 5th Circuit standard for finding that excessive force was used: not only that the plaintiffs injury resulted from force that was clearly excessive, but also that the excessive force was clearly unreasonable.

As a Texas judge, McBryde supported his ruling that shooting Collie was reasonable by drawing on 5th Circuit precedents that elevate an officers perception of a threat as the key consideration in weighing an immunity claim. He cited a 2003 precedent that force is presumed to be reasonable when police perceive a threat, even if alternative courses of action were available.

Even if Collie had nothing in his hand and did not point at Flores, he had no right to a trial, McBryde said in his ruling, because the test is whether Barron acted reasonably in light of what he perceived.

McBryde declined to comment.

Collie fared no better with his appeal to the 5th Circuit. Noting that Collie fit the description of one of the suspects, the appeals court in 2018 agreed that Barrons perception that night mattered most.

The appeals court cited its own precedents. One was a 2008 ruling, Ramirez v. Knoulton, which said that cops do not have to wait to act against a threat and that courts should not second guess the timing of that realization. Another was a 2016 ruling that singled out a Houston cops perception of an immediate threat as the most important consideration in granting immunity. In that case, the cop claimed he shot Ricardo Salazar-Limon in the back, paralyzing him, after Salazar reached for his waistband. Salazar was unarmed.

A spokesman for the 5th Circuit declined to comment for this article.

Manny Ramirez, president of the Fort Worth Police Officers Association, said the courts made the right decision to throw out Collies suit. Barron is a good officer, Ramirez added. His work product speaks for itself. The legal system, he said, must recognize the dangers officers face on the job.

Barron was moved to a special tactical unit of the Fort Worth police in 2018.

Plaintiffs and civil rights activists said the 5th Circuit is providing an easy out for cops who use excessive force because it is particularly receptive to the argument that they perceived a lethal threat.

Daniel Harawa, a lawyer affiliated with the NAACP Legal Defense and Educational Fund, called this defense How to get out of a civil lawsuit 101. He said he fears that as this line of defense succeeds, we almost incentivize police officers to reflexively say, I saw him reaching, I saw an object.

The cop who shot and killed Benny Herrera used the same defense as Barron. But that was in California, not Texas.

On the morning of Dec. 17, 2011, Herrera was visiting his former girlfriend, Hilda Ramirez. He spent time playing with her children and making them breakfast. Over the meal, Ramirez later told detectives, Herrera said he had a feeling something big was going to happen that day.

Around 2 p.m., he left for home. He returned just 15 minutes later, his demeanor changed paranoid, pacing back and forth, his eyes glossy. Ramirez recognized the signs: Herrera battled substance abuse for much of his life. He had been in and out of prison, too, for armed robbery, drug possession and parole violations. Court records show that in two instances, girlfriends had called the cops because they feared for their safety after Herrera became agitated.

When Herrera saw Ramirez texting her new boyfriend, he punched her in the head, grabbed her cellphone and left. Ramirez called 911 to report what had happened. She told the operator that Herrera had not used a weapon and did not carry one. A dispatcher relayed to the responding officers that Herrera was not known to carry weapons.

Minutes later, Tustin police officers Brian Miali and Osvaldo Villarreal in separate vehicles found Herrera walking along El Camino Real where it runs alongside Interstate 5. A cigarette dangled from Herreras lips. It was a cold and cloudy afternoon, and he kept his right hand in the pocket of his black hoodie.

Dashboard camera video from the scene shows Herrera running away and then turning around and skipping backward as he veers into the middle of the street. The officers close in, trying to hem in Herrera between the two vehicles. Each cop drew his gun.

Get your hand out of your pocket! Villarreal shouted as his vehicle approached Herrera, who at that instant wheeled around toward Villarreal with his right arm flailing. Almost immediately, Villarreal fired his gun through the cars open passenger side window.

Villarreal told investigators that he felt trapped when Herrera turned toward him and that he believed Herrera was armed and would shoot him. When Herrera charged at me and started to pull his hand out of his pocket, Villarreal told investigators, I knew he had the drop on me, and as I came up, I fired twice.

But Herrera was unarmed. A pack of cigarettes, a syringe, and several coins were recovered near his body. Toxicology tests found methamphetamine and tranquilizers in his blood.

After investigating the incident, the Orange County District Attorneys Office concluded in a January 2013 report that Villarreals use of deadly force was reasonable because he thought Herrera was armed. It recommended no criminal charges.

Herreras family filed an excessive force lawsuit in federal district court in Santa Ana against Villarreal and the City of Tustin.

Villarreal quickly requested qualified immunity. Judge Josephine Staton denied the request. She cited a 9th Circuit ruling, Deorle v. Rutherford, that sets a higher bar for cops than the 5th Circuit precedents cited in Collies case. It says that a simple statement by an officer that he fears for his safety or the safety of others is not enough; there must be objective factors to justify such a concern.

Staton declined to comment.

Villarreal appealed, but in 2016, the 9th Circuit upheld the lower courts decision. It cited the Deorle precedent and others to conclude that Herrera was not an immediate threat to the officers. Herrera did not try to flee, and Villarreal gave him no time to act upon the order to take his hand out of his pocket before shooting, the appeals court said.

The ruling also cited precedents that clarified when deadly force is justified, including one from 2005 that said a suspects involvement in a domestic incident does not necessarily make him an immediate threat to an officer.

A spokeswoman for the 9th Circuit declined to comment for this article.

The appellate courts decision meant the excessive force claim could proceed. Soon, the plaintiffs faced a choice: continue to trial or accept a settlement with the city.

Elizabeth Landeros, a former girlfriend of Herrera and mother of one of his children, said she felt Villarreal should be held responsible for leaving her child without a father. But the familys lawyers were wary that the jury would be persuaded by the defenses arguments that Herrera was a dangerous man with a criminal history and a drug problem. The family ultimately agreed to accept a $1.4 million settlement, split among Herreras parents and his four children.

A spokesman for Tustin police said, The litigation ended to the satisfaction of all parties, and declined to comment further. Villarreal retired from the department and could not be reached.

Without the recompense he sought in his lawsuit, David Collie gets by on Social Security disability benefits and Medicaid. In early June, he moved to an assisted living facility. He still shares a bathroom, but now has his own living space. His mother, Pamela McCloud, whose house doesnt have wheelchair access, got training as a home health aide so that if her son is ever able to move into his own place, she can care for him.

Collie has closely followed media coverage of the protests sparked by George Floyds death and the ensuing debate about police reform. The part I like about it, as a Black man that experienced it and sees whats going on, is now you have white people and people from different nationalities saying, Yeah, lets be honest about it.

About his own situation, he said that without his Christian faith, I probably wouldnt even want to be alive. His faith has allowed him to forgive Barron, he said, but he was wrong.

Collie said he thinks bad apples may taint many police departments with racism and excessive force across the country, but in the main, he defends cops, including the Fort Worth police. Its an honorable profession, he said.

Reporting by Andrew Chung in Fort Worth, Texas; Lawrence Hurley in Washington, D.C.; Andrea Januta in New York; and Jackie Botts and Jaimi Dowdell in Los Angeles. Edited by John Blanton and Janet Roberts.

Read more from the original source:
Special Report: Shot by police, thwarted by judges and geography - Reuters

FORT WORTH, Texas When David Collie slipped off his shirt as he set out one sultry night to visit some friends, he didnt know he was putting himself in grave danger. But he was. He now fit the description: shirtless, Black, male.

Moments later, Collie lay face down on the pavement, gunned down as a possible suspect in a crime he didnt commit.

The shooter was Fort Worth, Texas, police officer Hugo Barron. He and his partner had been looking for two shirtless Black men wanted for an armed robbery involving tennis shoes. When the cops spotted David Collie, they pulled into the apartment complex, got out of the squad car and started shouting commands at him.

Police dashboard camera video shows that Collie was walking away from the two cops as he pulled his hand out of his pocket and raised his arm. Thats when Barron fired his gun. A hollow-point bullet slammed into Collies back, punctured a lung and severed his spine, leaving him paralyzed from the waist down.

In the four years since then, Collie, now 37 years old, has lived in nursing homes, afflicted with infections, pressure sores, and bouts of crushing depression. As he talked about the July 2016 shooting and what it took from him, wails from an elderly patient echoed down the corridor. The odors of urine and excrement wafted in from the hall. Collie closed his eyes and exhaled. Paralyzed over some tennis shoes? Come on, man, he said. Youre playing with a human life here.

To many Americans, the outlines of Collies encounter with police have become dismayingly familiar in recent years and all the more so since the May 25 death of George Floyd, a Black man, under the knee of a Minneapolis cop sparked mass protests against racism and aggressive police tactics. The fate of Collies attempt at redress has become familiar, too, and now underpins demands that police be held accountable when they kill or seriously injure people.

In a lawsuit filed in federal court in Fort Worth, Collie accused Barron of excessive force, a civil rights violation under the Fourth Amendment to the U.S. Constitution. He thought that any money from a settlement or jury award would give him some measure of independence after the shooting cost him his job and derailed his plans to return to college. He also thought Barron should be held responsible for what he did.

Collie didnt get very far. Barron, who hadnt been disciplined or charged with any wrongdoing for the shooting, argued that he had acted reasonably on a fear that Collie was about to shoot his partner. Collie said he took his hand from his pocket to point to where he was going when Barron shot him. The judge sided with Barron though Collie had nothing to do with the robbery the cops were investigating, had no gun on him, and was 30 feet away with his back to Barron when the cop fired.

The judge ruled that Barron was entitled to qualified immunity, a legal doctrine meant to protect police and other government officials from frivolous lawsuits. A federal appeals court, saying the case exemplifies an individuals being in the wrong place at the wrong time, upheld the lower courts decision.

You shoot me, paralyze me, put me in a nursing home, ruin everything, and I cant get no type of compensation? Collie said. He leaned back in his bed. This aint justice.

Collie would have stood a much better chance of getting the justice he sought if he had been able to sue elsewhere. Thats because, in excessive force lawsuits, courts in some parts of the United States are more likely to deny cops immunity than others.

In a review of 529 cases since 2005, Reuters found significant differences in how the federal appeals courts treat qualified immunity.

Plaintiffs fared worst in the court that heard Collies appeal, the 5th U.S. Circuit Court of Appeals, where judges habitually follow precedents that favor police. The court granted 64% of police requests for immunity in excessive force cases.

By contrast, the 9th Circuit has set a higher bar for police. The appellate judges there granted immunity in just 42% of police requests for immunity in excessive force cases.

The regional disparities are also evident in federal district courts, where excessive force lawsuits are actually heard and which must follow precedents set by their respective appellate courts. In an analysis of 435 federal district court rulings in excessive force cases from 2014 to 2018 in California and Texas, the two most populous states, judges in Texas granted immunity to police at nearly twice the rate of California judges 59% of cases, compared to 34%.

A plaintiffs chances are so much better in California that one who was armed in an encounter with police is more likely to overcome qualified immunity than one who was unarmed in Texas.

For years, the words qualified immunity were seldom heard outside of legal and academic circles, where critics have long contended that the doctrine is unjust. But outrage over the killing of George Floyd and incidents like it have made this 50-year-old legal doctrine created by the U.S. Supreme Court itself a target of broad public demands for comprehensive reform to rein in police behavior.

The criticism that qualified immunity denies justice to victims of police brutality is well-founded. As Reuters reported just two weeks before Floyds death, the immunity defense has been making it easier for cops to kill or injure civilians with impunity. Based on federal appellate court records, the report showed, courts have been granting cops immunity at increasing rates in recent years even when judges found the behavior so egregious that it violated a plaintiffs civil rights thanks largely to continual Supreme Court guidance that has favored police.

The regional differences Reuters has found in how qualified immunity is granted only add to arguments that the doctrine is unfair. Its essential to our system of government that access to justice should be the same in Dallas and Houston as in Phoenix and Las Vegas, said Paul Hughes, a prominent civil rights attorney who frequently argues before the U.S. Supreme Court. It shouldnt turn on the happenstance of geography as to whether or not they (plaintiffs) have a remedy.

The happenstance of geography shows up in a comparison of Collies case to the one Benny Herreras family filed after a cop killed him in 2011. Police in Tustin, California, were looking for the 31-year-old father of four after a former girlfriend reported that he had assaulted her. They found him walking along a lightly trafficked road, behaving erratically. As in Collies case, a cop opened fire when he thought Herrera was about to shoot him. Like Collie, Herrera did not have a gun.

In the Herrera familys lawsuit, the cop was denied immunity. The district court judge, and the 9th Circuit Court of Appeals after him, weighed the same question as the courts in Collies case: Did the shooter act reasonably on a fear for his and others safety when he used deadly force? In this instance, the court said no. The case could move forward.

Before the familys lawsuit got to trial, the plaintiffs secured a $1.4 million settlement. Herrera always wanted his children to be financially secure, Elizabeth Landeros, mother of one of his children, said. They lost their father, she said, but at least now theyll be OK.

Qualified immunity plays out differently from region to region because of differences in judicial philosophies among those regions, lawyers and legal experts said.

Over the years, the Supreme Court has repeatedly told lower courts to use an objective analysis when weighing police claims of immunity: They must determine whether the force used was reasonable or excessive, and if the latter, whether the specific type of force used has already been defined as illegal under clearly established precedent.

But how judges answer those questions is influenced by their personal views on police authority and individuals rights, and their views often reflect the cultural and political landscapes they inhabit. In typically conservative areas, judges tend to favor police, while in more liberal parts of the country, they tend to favor plaintiffs. Those tendencies get baked into circuit court precedents that all judges in that circuit must follow.

Most judges are from the area where they serve and grew up in that culture, and whether they are liberal or conservative, they are bound to apply the law as its developed in that circuit, said Karen Blum, a professor at Suffolk University Law School in Boston and a critic of qualified immunity. Is it fair? No.

The liberal-leaning 9th Circuit, where the Herrera family sued, has established in its precedents powerful support for plaintiffs. Among them are rulings cautioning against throwing out excessive force cases before a jury has had a chance to weigh an officers credibility, and requiring more than officers claims that they feared for their safety as grounds for granting immunity.

The Supreme Court has repeatedly rebuked the 9th Circuit for its willingness to deny cops immunity, and especially for applying, as the high court wrote in a 2011 ruling, a high level of generality when analyzing the question of clearly established precedent.

Judges in the 5th Circuit, where Collies case was heard, are more likely to prioritize police power over citizens rights and liberties. Courts in the 5th Circuit habitually cite precedents that favor police by treating an officers perception of a threat as the key consideration. They do the same when deciding whether the force used was illegal under clearly established precedent, requiring that the material facts of the two cases be nearly identical.

If you approach these cases by placing a thumb on the scale in favor of police officers, you will tend to search the record for any basis in which to conclude that the actions police officers ultimately took were justified, said Hughes, the civil rights lawyer.

Across the country, different judicial approaches result in different outcomes for similar cases including numerous cases like Collies, in which cops claimed they were countering a threat to themselves or others when they shot someone from behind.

In Indio, California, a cop was denied immunity after fatally shooting Ernest Foster Jr three times in the back during a foot chase at a shopping plaza, even though police recovered a gun from the scene. And in Denver, Colorado, an officer was denied immunity after shooting Michael Valdez in the back, severely injuring him, though the cop himself had been shot during the preceding car chase.

These cases were in the 9th and 10th Circuits, respectively, both relatively plaintiff-friendly, based on the Reuters analysis of how often they granted qualified immunity.

But in Houston, a cop was granted immunity after fatally shooting Gerrit Perkins in the back while Perkins crouched in a closet holding a cordless phone. Perkins was unarmed. And in Bradley County, Arkansas, an officer was granted immunity after shooting Davdrin Goffin in the back, partially paralyzing him, even though he had already been patted down for weapons. He, too, was unarmed.

These cases were in the more police-friendly 5th and 8th Circuits, respectively, based on how often they granted qualified immunity.

Minnesota, where George Floyd lived, is also in the 8th Circuit. The day state investigators arrested the Minneapolis officer who knelt on Floyds neck as he died, the appellate court granted immunity to cops in Burnsville, Minnesota, who killed Map Kong, a man in a mental health crisis, when they shot him in the back as he ran away holding a knife.

Police officers and their supporters say qualified immunity is essential to ensure that police can make split-second decisions in dangerous situations without having to worry about being sued later. If we expose police officers to these suits on a regular basis, who would ever want to be a police officer? said Kent Scheidegger, a lawyer with the pro-law enforcement Criminal Justice Legal Foundation, based in Sacramento, California.

However, denial of immunity doesnt necessarily mean a certain loss for police. It means only that a lawsuit can move toward a jury trial or a financial settlement. District court data show that when cops were denied immunity in California and Texas, the cases were settled at about the same rate, 64% of the time. In nearly all of the remaining cases, a jury decided in favor of the police.

Even when a plaintiff secures recompense through a settlement or a jury award, the cops are nearly always indemnified against personal liability, meaning local governments typically named as defendants or their insurers cover the costs.

This widespread practice, legal experts said, undermines the ability of lawsuits to deter excessive force, particularly since cops are rarely prosecuted or otherwise disciplined for their actions. There is no sense of justice being done, said Blum, the Suffolk University law professor. The goal should be to deter, in some way to have a price paid if you engage in this kind of behavior.

Blum is part of a broad coalition of lawyers, scholars, civil rights groups and politicians who in recent years have called for qualified immunity to be reined in. As currently applied, they say, the doctrine too often denies even an attempt at justice to people who believe they are victims of excessive force and fails to hold police accountable.

An increasing number of judges of all stripes have also expressed frustration with the doctrine and the Supreme Courts repeated interventions that have made it harder to deny immunity. In an opinion last year, Judge Don Willett, appointed to the 5th Circuit by President Donald Trump, put it bluntly: The real-world functioning of modern immunity practice essentially heads government wins, tails plaintiff loses leaves many victims violated but not vindicated.

The justices have offered few explanations for their stance on qualified immunity beyond writing in opinions that the doctrine is important to society as a whole and balances individuals rights with the need to curb litigation that could unduly burden government officials. Two of the justices liberal Sonia Sotomayor and conservative Clarence Thomas have criticized qualified immunity in written opinions in recent years. All nine current justices declined to be interviewed for this article.

Amid the protests in the wake of Floyds death, expectations ran high that the Supreme Court would finally move to restrict or end qualified immunity by taking up at least one of several petitions to hear cases backed by opponents of the doctrine. But in early June, it rejected those petitions.

Congress moved swiftly to draft police reform measures, but legislative proposals, including some that would have ended qualified immunity, stalled as Democrats and Republicans deadlocked over issues of addressing racial inequality and police accountability. President Donald Trumps White House and some Republicans in Congress have called eliminating qualified immunity for police a non-starter on the grounds that it would deter police officers from doing their jobs properly.

In the summer of 2016, David Collie was putting his life in order and putting a troubled past behind him.

More than a decade earlier, as a student at Texas Southern University in Houston, he had become involved in a gang, indulging in glamor, clothes, money and girls, he said. When he pulled a gun on an adversary and took his car for a ride, Collie was charged with robbery and evading arrest and spent 11 years in prison.

Two months before Barron shot him, Collie had landed a full-time gig building supermarket produce displays. He liked the work, and he was cheered to be saving money before resuming college classes in cinematography in the fall. Work and school, that was always the plan, he said.

On the night of July 27, he got a call. Some friends who lived in the same apartment complex were arguing. It was late, and he had to be at work at 7 a.m., but he decided to walk over to the couples home to try to calm them and provide a diversion for their children, who called him Uncle David.

Officer Barron of the Fort Worth police and Tarrant County Deputy Sheriff Vanesa Flores were working off-duty paid security detail for a nearby apartment complex that night. They had just heard from dispatch that two shirtless Black men had made off with two pairs of tennis shoes, valued at $225 each, in a deal organized through Facebook. One of the suspects, the officers heard, had brandished a gun.

Just after midnight, police dashboard camera video shows, the two officers were walking toward Collie when Flores trains her flashlight on him. Barron pulls out his pistol. Collie turns around briefly and then continues to walk away.

Collie said the pair were shouting commands at him and over each other. He was confused, unsure about what to do, he said. They asked me where I was going, I was pointing, he said. I was trying to comply.

The instant Collie pulled his right hand out of his pocket to point, Barron fired. You didnt have to shoot me, Collie recalled saying after the force of the bullet slammed him to the pavement.

Time elapsed from the cops first appearing on the dash-cam to the shooting: five seconds.

The Fort Worth Police Department declined to comment and declined to make Barron available for comment. Flores, who no longer works for the Tarrant County Sheriffs Office, could not be reached.

After the Fort Worth police internal affairs division investigated the shooting, the Tarrant County Criminal District Attorneys Office presented the evidence to a grand jury, which declined to indict Barron on any criminal charges. A spokeswoman for the office noted that Flores did not cause, participate in, or contribute to the shooting, and had no further comment.

Collie endured a difficult two-month recovery in hospital. In addition to his paralysis and other medical issues that linger to this day, he was diagnosed with post-traumatic stress disorder. Doctors removed a bullet fragment from his chest seven weeks after the shooting.

He was also shackled to his hospital bed for nearly the entire time because police had charged him with aggravated assault on a public servant. A grand jury eventually declined to indict him.

In March 2017, Collie filed his lawsuit in federal district court in Fort Worth, naming Barron, Flores, the City of Fort Worth, Tarrant County, and several other officers as defendants. Any money Collie got would allow him to afford a home and a car modified for his disability. He also hoped to pay for physical therapy to try to walk again, though doctors said that was a long shot. Its like the world is saying, Im sorry, were wrong we did thatWere going to help you out, help you get back on your feet, Collie said of the recompense he sought.

Less than a month after Collie sued, lawyers for Barron, provided and paid for by Fort Worth, requested qualified immunity for the cop. Early on, Judge John McBryde dismissed Collies claims against all defendants other than Barron and Fort Worth.

In court papers, Barrons lawyers said the cop had acted reasonably because he believed Collie had a handgun and was moving to take aim at Flores. Flores had also told investigators that night that she thought she saw something in Collies hand. In using reasonable force to stop an apparent deadly threat, Officer Barron violated none of Plaintiffs constitutional or other rights and is entitled to qualified immunity, Barrons lawyers argued.

Collie had no gun. A boxcutter was found in the grass near where Collie went down, according to the police report. Collie said he always carried a boxcutter with him because it was necessary for his job. He adamantly denied that he was holding the boxcutter when he raised his hand to point. He said he believes Barron cited it as an excuse to cover up a mistake.

Barrons request for immunity asserted that whether Collie was armed or not was irrelevant. Merely arguing that in the end it must somehow be unreasonable to shoot an unarmed suspect is not enough to let a lawsuit go forward, the request said.

Collies lawyers countered that Barron created a threat in his mind that did not exist. A forensic expert they hired to map the scene, capture images using a drone and analyze the dash-cam footage concluded that Collie was not holding an object, let alone pointing it at Flores, when he was shot.

In July 2017, McBryde granted Barrons request for immunity. In his decision, he relied on a stringent 5th Circuit standard for finding that excessive force was used: not only that the plaintiffs injury resulted from force that was clearly excessive, but also that the excessive force was clearly unreasonable.

As a Texas judge, McBryde supported his ruling that shooting Collie was reasonable by drawing on 5th Circuit precedents that elevate an officers perception of a threat as the key consideration in weighing an immunity claim. He cited a 2003 precedent that force is presumed to be reasonable when police perceive a threat, even if alternative courses of action were available.

Even if Collie had nothing in his hand and did not point at Flores, he had no right to a trial, McBryde said in his ruling, because the test is whether Barron acted reasonably in light of what he perceived.

McBryde declined to comment.

Collie fared no better with his appeal to the 5th Circuit. Noting that Collie fit the description of one of the suspects, the appeals court in 2018 agreed that Barrons perception that night mattered most.

The appeals court cited its own precedents. One was a 2008 ruling, Ramirez v. Knoulton, which said that cops do not have to wait to act against a threat and that courts should not second guess the timing of that realization. Another was a 2016 ruling that singled out a Houston cops perception of an immediate threat as the most important consideration in granting immunity. In that case, the cop claimed he shot Ricardo Salazar-Limon in the back, paralyzing him, after Salazar reached for his waistband. Salazar was unarmed.

A spokesman for the 5th Circuit declined to comment for this article.

Manny Ramirez, president of the Fort Worth Police Officers Association, said the courts made the right decision to throw out Collies suit. Barron is a good officer, Ramirez added. His work product speaks for itself. The legal system, he said, must recognize the dangers officers face on the job.

Barron was moved to a special tactical unit of the Fort Worth police in 2018.

Plaintiffs and civil rights activists said the 5th Circuit is providing an easy out for cops who use excessive force because it is particularly receptive to the argument that they perceived a lethal threat.

Daniel Harawa, a lawyer affiliated with the NAACP Legal Defense and Educational Fund, called this defense How to get out of a civil lawsuit 101. He said he fears that as this line of defense succeeds, we almost incentivize police officers to reflexively say, I saw him reaching, I saw an object.

The cop who shot and killed Benny Herrera used the same defense as Barron. But that was in California, not Texas.

On the morning of Dec. 17, 2011, Herrera was visiting his former girlfriend, Hilda Ramirez. He spent time playing with her children and making them breakfast. Over the meal, Ramirez later told detectives, Herrera said he had a feeling something big was going to happen that day.

Around 2 p.m., he left for home. He returned just 15 minutes later, his demeanor changed paranoid, pacing back and forth, his eyes glossy. Ramirez recognized the signs: Herrera battled substance abuse for much of his life. He had been in and out of prison, too, for armed robbery, drug possession and parole violations. Court records show that in two instances, girlfriends had called the cops because they feared for their safety after Herrera became agitated.

When Herrera saw Ramirez texting her new boyfriend, he punched her in the head, grabbed her cellphone and left. Ramirez called 911 to report what had happened. She told the operator that Herrera had not used a weapon and did not carry one. A dispatcher relayed to the responding officers that Herrera was not known to carry weapons.

Minutes later, Tustin police officers Brian Miali and Osvaldo Villarreal in separate vehicles found Herrera walking along El Camino Real where it runs alongside Interstate 5. A cigarette dangled from Herreras lips. It was a cold and cloudy afternoon, and he kept his right hand in the pocket of his black hoodie.

Dashboard camera video from the scene shows Herrera running away and then turning around and skipping backward as he veers into the middle of the street. The officers close in, trying to hem in Herrera between the two vehicles. Each cop drew his gun.

Get your hand out of your pocket! Villarreal shouted as his vehicle approached Herrera, who at that instant wheeled around toward Villarreal with his right arm flailing. Almost immediately, Villarreal fired his gun through the cars open passenger side window.

Villarreal told investigators that he felt trapped when Herrera turned toward him and that he believed Herrera was armed and would shoot him. When Herrera charged at me and started to pull his hand out of his pocket, Villarreal told investigators, I knew he had the drop on me, and as I came up, I fired twice.

But Herrera was unarmed. A pack of cigarettes, a syringe, and several coins were recovered near his body. Toxicology tests found methamphetamine and tranquilizers in his blood.

After investigating the incident, the Orange County District Attorneys Office concluded in a January 2013 report that Villarreals use of deadly force was reasonable because he thought Herrera was armed. It recommended no criminal charges.

Herreras family filed an excessive force lawsuit in federal district court in Santa Ana against Villarreal and the City of Tustin.

Villarreal quickly requested qualified immunity. Judge Josephine Staton denied the request. She cited a 9th Circuit ruling, Deorle v. Rutherford, that sets a higher bar for cops than the 5th Circuit precedents cited in Collies case. It says that a simple statement by an officer that he fears for his safety or the safety of others is not enough; there must be objective factors to justify such a concern.

Staton declined to comment.

Villarreal appealed, but in 2016, the 9th Circuit upheld the lower courts decision. It cited the Deorle precedent and others to conclude that Herrera was not an immediate threat to the officers. Herrera did not try to flee, and Villarreal gave him no time to act upon the order to take his hand out of his pocket before shooting, the appeals court said.

The ruling also cited precedents that clarified when deadly force is justified, including one from 2005 that said a suspects involvement in a domestic incident does not necessarily make him an immediate threat to an officer.

A spokeswoman for the 9th Circuit declined to comment for this article.

The appellate courts decision meant the excessive force claim could proceed. Soon, the plaintiffs faced a choice: continue to trial or accept a settlement with the city.

Elizabeth Landeros, a former girlfriend of Herrera and mother of one of his children, said she felt Villarreal should be held responsible for leaving her child without a father. But the familys lawyers were wary that the jury would be persuaded by the defenses arguments that Herrera was a dangerous man with a criminal history and a drug problem. The family ultimately agreed to accept a $1.4 million settlement, split among Herreras parents and his four children.

A spokesman for Tustin police said, The litigation ended to the satisfaction of all parties, and declined to comment further. Villarreal retired from the department and could not be reached.

Without the recompense he sought in his lawsuit, David Collie gets by on Social Security disability benefits and Medicaid. In early June, he moved to an assisted living facility. He still shares a bathroom, but now has his own living space. His mother, Pamela McCloud, whose house doesnt have wheelchair access, got training as a home health aide so that if her son is ever able to move into his own place, she can care for him.

Collie has closely followed media coverage of the protests sparked by George Floyds death and the ensuing debate about police reform. The part I like about it, as a Black man that experienced it and sees whats going on, is now you have white people and people from different nationalities saying, Yeah, lets be honest about it.

About his own situation, he said that without his Christian faith, I probably wouldnt even want to be alive. His faith has allowed him to forgive Barron, he said, but he was wrong.

Collie said he thinks bad apples may taint many police departments with racism and excessive force across the country, but in the main, he defends cops, including the Fort Worth police. Its an honorable profession, he said.

Excerpt from:
Shot by Police, Thwarted by Judges and Geography - Claims Journal

Posted Thu, August 20th, 2020 4:03 pm by Andrew Hamm

This week we highlight cert petitions that ask the Supreme Court to weigh in on a pair of disputes with environmental implications. Massachusetts Lobstermens Association v. Ross involves the intersection of two federal statutes and a stretch of the Atlantic Ocean containing three deep-sea canyons and four underwater mountains. The National Marine Sanctuaries Act governs the protection of marine areas, delegating authority to the president but also requiring a specific process for the designation of marine sanctuaries, subject to review by Congress and affected states. In contrast, the Antiquities Act authorizes the president to declare national monuments on land owned or controlled by the federal government, without the same review process. The Massachusetts Lobstermens Association sued to challenge a proclamation by President Barack Obama designating 3.2 million acres of the Atlantic Ocean as the Northeast Canyons and Seamounts Marine National Monument. The association argues that the monument exceeds the presidents power under the Antiquities Act and circumvents the National Marine Sanctuaries Act. Though President Donald Trump lifted the prohibition on commercial fishing in the area, the association argues the case is not moot because the monument otherwise remains unaffected.

In Kane County, Utah v. United States and United States v. Kane County, Utah, Kane County and Utah sued the federal government to claim title to the rights-of-way for 15 roads crossing federal land. Two environmental groups, the Southern Utah Wilderness Alliance and The Wilderness Society, sought to intervene in the dispute because of their interest in preventing possible harm to the surrounding area from increased traffic. The petitions ask the Supreme Court to weigh in on whether the environmental groups, under Rule 24 of the Federal Rules of Civil Procedure, have demonstrated a right to intervene in the case.

These and otherpetitions of the weekare below the jump:

Himsel v. 4/9 Livestock, LLC20-72Issue: Whether a state statute violates the takings clause of the United States Constitution when it provides complete immunity from nuisance and trespass liability for an industrial-scale hog facility newly sited next to long-standing family homes, even though the facility causes noxious waste substances to continuously invade those homes, making it impossible for the families to use and enjoy their properties where they have lived for decades.

Kane County, Utah v. United States20-82Issues: (1) WhetherRule 24(a)(2) of the Federal Rules of Civil Procedureallows intervention as of right where the movant does not have a significant, cognizable interest in the lawsuit; and (2) whether the United States adequately represents its title, which is the only interest at issue in a quiet title suit.

Jones v. Kalbaugh20-83Issues: (1) Whether the U.S. Court of Appeals for the 10th Circuit improperly focused on the knowledge and intentions of the suspect, rather than the facts knowable to the officers, in reversing the district courts grant of qualified immunity in an excessive force case; and (2) whether the 10th Circuit analyzed clearly established law at too high a level of generality by relying on general statements of Fourth Amendment excessive force principles rather than identifying a case in which officers acting under similar circumstances were held to have violated the Fourth Amendment.

Hutchings v. Ross20-86Issue: WhetherRule 10(c) of the Federal Rules of Civil Procedurepermits a habeas petitioner to rely on a state court order appended to, but never mentioned in, his original federal habeas petition to supply the core operative facts necessary to satisfy the relation-back standard set forth inMayle v. Felix.

United States v. Kane County, Utah20-96Issue: Whether an advocacy organizations environmental concerns qualify as an interest required byRule 24(a)(2) of the Federal Rules of Civil Procedurefor the organization to intervene as of right as a party defendant in a pending civil action, where no judicial relief could be granted against that organization in the action and its environmental concerns are unrelated to any claim or defense that the organization could itself assert in the action.

Massachusetts Lobstermens Association v. Ross20-97Issues: (1) Whether, in conflict with the holdings of the U.S. Courts of Appeals for the 5th and 11th Circuits and the National Marine Sanctuaries Act, the Antiquities Act applies to ocean areas beyond United States sovereignty where the federal government has only limited regulatory authority; and (2) whether the president can evade the Antiquities Acts smallest area requirement, including designating ocean monuments larger than most states, by vaguely referencing resources or an ecosystem as the objects to be protected.

Posted in Himsel v. 4/9 Livestock, LLC, Kane County, Utah v. U.S., Jones v. Kalbaugh, Hutchings v. Ross, U.S. v. Kane County, Utah, Massachusetts Lobstermens Association v. Ross, Featured, Cases in the Pipeline

Recommended Citation: Andrew Hamm, Petitions of the week: Atlantic Ocean canyons, Utah wilderness roads and more, SCOTUSblog (Aug. 20, 2020, 4:03 PM), https://www.scotusblog.com/2020/08/petitions-of-the-week-atlantic-ocean-canyons-utah-wilderness-roads-and-more/

Read this article:
Petitions of the week: Atlantic Ocean canyons, Utah wilderness roads and more - SCOTUSblog

Law enforcement continues to buy private data from brokers. And investigative journalists continue to uncover these shocking truths.

Location data seems to be law enforcersfavorite retail therapy target. And the latest agency to be found using it is the US Secret Service. Fourth Amendment be damned.

And, in the end, the love you take is equal to the love you make. In this weeks Security Blogwatch, we cross over, between Belishas.

Your humble blogwatcher curated these bloggy bits for your entertainment. Not to mention:ykcul teg.

Here come oldJoseph Cox. He come groovin up slowlySecret Service Bought Phone Location Data from Apps, Contract Confirms:

Something in the wayChristine Fisher knowsNormally, law enforcement would need a warrant or court order:

Bang bang,Rhett Jones silver hammer came downSecret Service Paid to Get Americans' Location Data Without a Warrant:

Well, you know I nearly broke down and cried.Heres what Immerman wants to know:

But I feel that ice is slowly meltingcoryseaman is unclear why people keep banging on about warrants:

Users have consented to the sharing of the underlying datawhether knowingly or not, and it doesn't include the identities of the device owners. [Police] would need to obtain a warrant to discover its owner, obtain call records, or get its identifiable device ID and attempt to trace its location in real time.

This is a fair bit different than offering the fourth amendment up for sale.

And neitheris TimothyHollins, because the sky is blue:

If you have a problem with this development in law enforcement I suggest you go to the root, the gathering and collation of information on private citizens in general.

Youre gonna carry that weight.So run, DMCVegas:

What happens when youhave a suspect [who] learns how to game the system to skew the datathat applications like this run off of? What happens when common sense is rejected entirely, and instead we rely upon data streams and algorithms? What happens when [individuals] send false location information, and LEOs fail to stop criminals?

Surely everyone knowsthat apps can record your location? DogDude barks in the middle of negotiations:

I really doubt that anybody doesn't know they're spying devices by now. That seems really far-fetched.

iOS 14 is going to blur the location accuracygiven to apps. But Omnom Bacon tanta mucho que canite carousel:

Meanwhile,NoNonAlphaCharsHere sleeps in a hole in the road: [Youre firedEd.]

If your apps gather location data, think carefully about what you do with it, in case a PR firestorm blows up in your face. (And if youre buying it, quit the police department and get yourself a steady job.)

Ykcul teg

Previously in And finally

You have been reading Security Blogwatch by Richi Jennings. Richi curates the best bloggy bits, finest forums, and weirdest websites so you dont have to. Hate mail may be directed to @RiCHi or sbw@richi.uk. Ask your doctor before reading. Your mileage may vary. E&OE. 30

This weeks zomgsauce: Claudio Toledo (cc:by). Someday I'm going to make her mine.

The rest is here:
Secret Service dodges location-data warrants there's an app for that - TechBeacon

Vice President Mike Pence speaks during the first day of the Republican National Convention on Monday, August 24, 2020, in Charlotte, N.C. (Chris Carlson / AP Photo)

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On Sunday night, video was released showing the attempted murder of Jacob Blake on a street in Kenosha, Wis. The video shows Blake, a Black man, walking towards his parked vehicle followed by two police officers who have their guns drawn on him. As Blake reaches his car door, one of the officers grabs Blakes tank top and holds him in place as he, or the other officer, fires multiple shots into Blake at point-blank range. In the video, seven shots can be heard.Ad Policy

Witnesses say Blake had exited his car not long before to break up a fight between two women. Cops, who were apparently called to the scene, claim that Blake was noncompliant with their instructions when they arrived.

Blakes three young children were in the car when the police shot him. Blake was taken to a hospital, where he remains in the intensive care unit.

Less than 24 hours later, on Monday, Republicans started their national nominating convention in a crowded, mask-optional room in Charlotte, N.C. Vice President Mike Pence, accepting his renomination to his office, declared, Were gonna back the Blue. Pence, apparently, couldnt say Black lives matter. Not only that, he insisted on elevating the police, which is a profession, to the level of an immutable (if, yes, constructed) characteristic like race, color, or ethnicity. Theres no such thing as a blue life. There are just people armed at the behest of the state who are supposed to follow constitutional guidelines while they protect and serve unarmed citizens.

Such was the first installment of the Republicans days-long convention-as-culture war, which will cast cops, like the ones who shot Blake, as victims in need of protection from an unarmed citizenry. If Blakes story comes up at all, it will arrive in the form of red-faced denunciations of the protesters decrying Blakes attempted murder, rather than outrage over the attempted murder of another unarmed Black man.

Pence didnt even bother to offer thoughts and prayers to Blake or his children or family. When it comes to Black men gunned down by the cops, even the usual useless platitudes get caught in Republican throats.Current Issue

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Pence, presumably, isnt at all sorry that a Black man was shot several times in the back as his children cried out in horror. I imagine he, and most Republicans, think the murder was justified. I can tell you exactly what the cops will say: Theyll say that they thought Blake was reaching for a gun somewhere in his vehicle (even though there was no gun). The cops will say, with a straight face, that they shot a man in the back in self-defense. And that defense might work. Betty Shelby, the cop who shot Terrence Crutcher in the middle of a Tulsa street when she was surrounded by fellow officers and a police helicopter, was acquitted.

Many Republicans just dont think gunning down unarmed Black men is illegal. Many of them probably think the Black guy had it coming, for one reason or another. The Republican Party has fully aligned itself with the most violent and racist elements in our society. Everybody from the white supremacists who showed up in Charlottesville to QAnon conspiracy theorists to unashamed bigots like Laura Loomeranybody, quite simply, who has violent impulses toward people of colorhas a home in the modern Republican Party.

Theres a reason the New York Police Union openly endorsed Donald Trump for president. Its because cops know that Trump and the Republicans will take their side against any Black person they murder. Republicans simply do not want to protect Black people from the police.

Democrats havent always been champions of Black lives either. But Republicans have stood, and continue to stand, against every suggested measure to address police brutality. Im not just talking about the big, structural changes that progressives have been pushing in recent years; Republicans oppose even the small changes that would simply make it harder for cops to gun down Black people with impunity. Republicans oppose measures that would bring more transparency to police forces through the disclosure of their disciplinary records. Republicans oppose a national registry of bad apples so that they cant be shuffled from one department to another. Republicans oppose independent commissions set up to prosecute police. Republicans oppose federal oversight and consent decrees entered into with the Department of Justice, oppose federal use-of-force regulations, and oppose strengthening Fourth Amendment protections to prevent cops from racial profiling or executing no-knock warrants.

It would be possible to support any or all of these positions and still be a law and order Republican. Transparency, accountability, and oversight over policing are ideas everybody should agree to, whether they believe that systemic racism infects law enforcement or not.

If you like this article, please give today to help fund The Nations work.

But you wont find those kinds of Republicans, or plans, at the convention. Instead of an anti-police-brutality agenda, Republicans have Tim Scott, the Senator from South Carolina who happens to be Black. Scott spoke last night at the convention. Scotts proposals to address police brutality are underwhelming, but if Scott represented the actual Republican agenda on police violence, it would at least be a starting point.

But Scotts ideas were not adopted as part of the Republican Party platform. In fact, the Republican Party in 2020 adopted no platform at all. The GOP blamed (wait for it) coronavirus social-distancing rules for preventing it from gathering and agreeing on a 2020 agenda. Instead of adopting actual policies, the Republicans just put out a blanket resolution enthusiastically supporting Donald Trump. Im not making that up. The 2020 GOP is not a political party; it is, officially, a cult of personality set up to support Trump.

If there is one thing we know about Trump and the party that is now forever tied to his existence, its that they do not care if people die. Black and brown people are, and have long been, at the top of that list of not caring, but the thing about death cults is that they tend to expand. Todays Republicans dont care if people are killed by law enforcement. They dont care if people die in floods, hurricanes, or fires brought on by climate change. They figuratively shrug their shoulders as our children are gunned down at school. And just a few weeks back, we saw President Trump literally shrug his shoulders and say It is what it is when confronted with the reality of the Americans felled by Covid-19 on his watch.

The callousness of Trump and the Republicans is matched only by the nihilism of their supporters. A recent poll found that 57 percent of Republicans viewed the 170,000 (and counting) American deaths from Covid-19 as acceptable.More from Mystal

This willful indifference in the face of systemic suffering is the defining feature of the modern Republican Party. By championing a kind of latter-day social Darwinism, Republicans try to absolve themselves of responsibility. They dont have to come up with a national plan to combat the virus if there was nothing that could be done anyway. Grandma had to die of something, I guess. They dont have to respond to mass shootings if they act like school shooters are unpredictable lightning bolts from an angry God. They dont have to address police brutality if Black lives do not matter.

An unarmed Black man was shot seven times in the back in broad daylight on camera on the eve of the Republican National Convention, and the vice president of the United States didnt even adjust his talking points to suggest that cops are anything other than the victims of the protests against that kind of violence. Two tropical storms will slam into the Gulf Coast, at nearly the same time, during the convention, and the Republicans will not adjust their speeches that portray climate change as a liberal hoax perpetrated by people who want to raise the cost of doing business. And the entire convention will be held in an alternate reality where the coronavirus either doesnt exist, or has already been defeated, or will be defeated by a miracle cure Trump will present to the nation very soon.

The only response Republicans have to the human suffering theyve caused is to spend a week pretending that the humans who died on their watch never existed in the first place.

Read more:
At the RNC, Republicans Go All-In on Police Impunity - The Nation

Fort Worth, Texas: When David Collie slipped off his shirt as he set out one sultry night to visit some friends, he didnt know he was putting himself in grave danger. But he was. He now fit the description: shirtless, Black, male.

Moments later, Collie lay face down on the pavement, gunned down as a possible suspect in a crime he didnt commit.

The shooter was Fort Worth, Texas, police officer Hugo Barron. He and his partner had been looking for two shirtless Black men wanted for an armed robbery involving tennis shoes. When the cops spotted David Collie, they pulled into the apartment complex, got out of the squad car and started shouting commands at him.

Police dashboard camera video shows that Collie was walking away from the two cops as he pulled his hand out of his pocket and raised his arm. Thats when Barron fired his gun. A hollow-point bullet slammed into Collies back, punctured a lung and severed his spine, leaving him paralyzed from the waist down.

In the four years since then, Collie, now 37 years old, has lived in nursing homes, afflicted with infections, pressure sores, and bouts of crushing depression. As he talked about the July 2016 shooting and what it took from him, wails from an elderly patient echoed down the corridor. The odours of urine and excrement wafted in from the hall. Collie closed his eyes and exhaled. Paralyzed over some tennis shoes? Come on, man, he said. Youre playing with a human life here.

To many Americans, the outlines of Collies encounter with police have become dismayingly familiar in recent years and all the more so since the May 25 death of George Floyd, a Black man, under the knee of a Minneapolis cop sparked mass protests against racism and aggressive police tactics. The fate of Collies attempt at redress has become familiar, too, and now underpins demands that police be held accountable when they kill or seriously injure people.

In a lawsuit filed in federal court in Fort Worth, Collie accused Barron of excessive force, a civil rights violation under the Fourth Amendment to the US Constitution. He thought that any money from a settlement or jury award would give him some measure of independence after the shooting cost him his job and derailed his plans to return to college. He also thought Barron should be held responsible for what he did.

Collie didnt get very far. Barron, who hadnt been disciplined or charged with any wrongdoing for the shooting, argued that he had acted reasonably on a fear that Collie was about to shoot his partner. Collie said he took his hand from his pocket to point to where he was going when Barron shot him. The judge sided with Barron though Collie had nothing to do with the robbery the cops were investigating, had no gun on him, and was 30 feet away with his back to Barron when the cop fired.

The judge ruled that Barron was entitled to qualified immunity, a legal doctrine meant to protect police and other government officials from frivolous lawsuits. A federal appeals court, saying the case exemplifies an individuals being in the wrong place at the wrong time, upheld the lower courts decision.

You shoot me, paralyze me, put me in a nursing home, ruin everything, and I cant get no type of compensation? Collie said. He leaned back in his bed. This aint justice.

David Collie who was shot by police sits beside his mother, Pam McCloud, during her visit to the nursing home where he lives in Fort Worth, Texas, US, September, 27, 2019. Photo: REUTERS/Callaghan OHare

Collie would have stood a much better chance of getting the justice he sought if he had been able to sue elsewhere. Thats because, in excessive force lawsuits, courts in some parts of the United States are more likely to deny cops immunity than others.

In a review of 529 cases since 2005, Reuters found significant differences in how the federal appeals courts treat qualified immunity.

Plaintiffs fared worst in the court that heard Collies appeal, the 5th US Circuit Court of Appeals, where judges habitually follow precedents that favour police. The court granted 64% of police requests for immunity in excessive force cases.

By contrast, the 9th Circuit has set a higher bar for police. The appellate judges there granted immunity in just 42% of police requests for immunity in excessive force cases.

The regional disparities are also evident in federal district courts, where excessive force lawsuits are actually heard and which must follow precedents set by their respective appellate courts. In an analysis of 435 federal district court rulings in excessive force cases from 2014 to 2018 in California and Texas, the two most populous states, judges in Texas granted immunity to police at nearly twice the rate of California judges 59% of cases, compared to 34%.

A plaintiffs chances are so much better in California that one who was armed in an encounter with police is more likely to overcome qualified immunity than one who was unarmed in Texas.

Target of outrage

For years, the words qualified immunity were seldom heard outside of legal and academic circles, where critics have long contended that the doctrine is unjust. But outrage over the killing of George Floyd and incidents like it have made this 50-year-old legal doctrine created by the US Supreme Court itself a target of broad public demands for comprehensive reform to rein in police behaviour.

The criticism that qualified immunity denies justice to victims of police brutality is well-founded. As Reuters reported just two weeks before Floyds death, the immunity defence has been making it easier for cops to kill or injure civilians with impunity. Based on federal appellate court records, the report showed, courts have been granting cops immunity at increasing rates in recent years even when judges found the behaviour so egregious that it violated a plaintiffs civil rights thanks largely to continual Supreme Court guidance that has favoured police.

The regional differences Reuters has found in how qualified immunity is granted only add to arguments that the doctrine is unfair. Its essential to our system of government that access to justice should be the same in Dallas and Houston as in Phoenix and Las Vegas, said Paul Hughes, a prominent civil rights attorney who frequently argues before the US Supreme Court. It shouldnt turn on the happenstance of geography as to whether or not they (plaintiffs) have a remedy.

The happenstance of geography shows up in a comparison of Collies case to the one Benny Herreras family filed after a cop killed him in 2011. Police in Tustin, California, were looking for the 31-year-old father of four after a former girlfriend reported that he had assaulted her. They found him walking along a lightly trafficked road, behaving erratically. As in Collies case, a cop opened fire when he thought Herrera was about to shoot him. Like Collie, Herrera did not have a gun.

In the Herrera familys lawsuit, the cop was denied immunity. The district court judge, and the 9th Circuit Court of Appeals after him, weighed the same question as the courts in Collies case: Did the shooter act reasonably on a fear for his and others safety when he used deadly force? In this instance, the court said no. The case could move forward.

Before the familys lawsuit got to trial, the plaintiffs secured a $1.4 million settlement. Herrera always wanted his children to be financially secure, Elizabeth Landeros, mother of one of his children, said. They lost their father, she said, but at least now theyll be OK.

Benny Herrera poses for a photo with his two-year-old daughter Abygail Herrera in this undated handout. Photo. Elizabeth Landeros/Handout via REUTERS

Philosophical differences

Qualified immunity plays out differently from region to region because of differences in judicial philosophies among those regions, lawyers and legal experts said.

Over the years, the Supreme Court has repeatedly told lower courts to use an objective analysis when weighing police claims of immunity: They must determine whether the force used was reasonable or excessive, and if the latter, whether the specific type of force used has already been defined as illegal under clearly established precedent.

But how judges answer those questions is influenced by their personal views on police authority and individuals rights, and their views often reflect the cultural and political landscapes they inhabit. In typically conservative areas, judges tend to favour police, while in more liberal parts of the country, they tend to favour plaintiffs. Those tendencies get baked into circuit court precedents that all judges in that circuit must follow.

Most judges are from the area where they serve and grew up in that culture, and whether they are liberal or conservative, they are bound to apply the law as its developed in that circuit, said Karen Blum, a professor at Suffolk University Law School in Boston and a critic of qualified immunity. Is it fair? No.

The liberal-leaning 9th Circuit, where the Herrera family sued, has established in its precedents powerful support for plaintiffs. Among them are rulings cautioning against throwing out excessive force cases before a jury has had a chance to weigh an officers credibility, and requiring more than officers claims that they feared for their safety as grounds for granting immunity.

The Supreme Court has repeatedly rebuked the 9th Circuit for its willingness to deny cops immunity, and especially for applying, as the high court wrote in a 2011 ruling, a high level of generality when analyzing the question of clearly established precedent.

Perceived threats

Judges in the 5th Circuit, where Collies case was heard, are more likely to prioritize police power over citizens rights and liberties. Courts in the 5th Circuit habitually cite precedents that favour police by treating an officers perception of a threat as the key consideration. They do the same when deciding whether the force used was illegal under clearly established precedent, requiring that the material facts of the two cases be nearly identical.

If you approach these cases by placing a thumb on the scale in favour of police officers, you will tend to search the record for any basis in which to conclude that the actions police officers ultimately took were justified, said Hughes, the civil rights lawyer.

Across the country, different judicial approaches result in different outcomes for similar cases including numerous cases like Collies, in which cops claimed they were countering a threat to themselves or others when they shot someone from behind.

In Indio, California, a cop was denied immunity after fatally shooting Ernest Foster Jr three times in the back during a foot chase at a shopping plaza, even though police recovered a gun from the scene. And in Denver, Colorado, an officer was denied immunity after shooting Michael Valdez in the back, severely injuring him, though the cop himself had been shot during the preceding car chase.

These cases were in the 9th and 10th Circuits, respectively, both relatively plaintiff-friendly, based on the Reuters analysis of how often they granted qualified immunity.

But in Houston, a cop was granted immunity after fatally shooting Gerrit Perkins in the back while Perkins crouched in a closet holding a cordless phone. Perkins was unarmed. And in Bradley County, Arkansas, an officer was granted immunity after shooting Davdrin Goffin in the back, partially paralyzing him, even though he had already been patted down for weapons. He, too, was unarmed.

These cases were in the more police-friendly 5th and 8th Circuits, respectively, based on how often they granted qualified immunity.

Minnesota, where George Floyd lived, is also in the 8th Circuit. The day state investigators arrested the Minneapolis officer who knelt on Floyds neck as he died, the appellate court granted immunity to cops in Burnsville, Minnesota, who killed Map Kong, a man in a mental health crisis, when they shot him in the back as he ran away holding a knife.

Essential to policing

Police officers and their supporters say qualified immunity is essential to ensure that police can make split-second decisions in dangerous situations without having to worry about being sued later. If we expose police officers to these suits on a regular basis, who would ever want to be a police officer? said Kent Scheidegger, a lawyer with the pro-law enforcement Criminal Justice Legal Foundation, based in Sacramento, California.

However, denial of immunity doesnt necessarily mean a certain loss for police. It means only that a lawsuit can move toward a jury trial or a financial settlement. District court data show that when cops were denied immunity in California and Texas, the cases were settled at about the same rate, 64% of the time. In nearly all of the remaining cases, a jury decided in favour of the police.

Even when a plaintiff secures recompense through a settlement or a jury award, the cops are nearly always indemnified against personal liability, meaning local governments typically named as defendants or their insurers cover the costs.

This widespread practice, legal experts said, undermines the ability of lawsuits to deter excessive force, particularly since cops are rarely prosecuted or otherwise disciplined for their actions. There is no sense of justice being done, said Blum, the Suffolk University law professor. The goal should be to deter, in some way to have a price paid if you engage in this kind of behaviour.

Blum is part of a broad coalition of lawyers, scholars, civil rights groups and politicians who in recent years have called for qualified immunity to be reined in. As currently applied, they say, the doctrine too often denies even an attempt at justice to people who believe they are victims of excessive force and fails to hold police accountable.

An increasing number of judges of all stripes have also expressed frustration with the doctrine and the Supreme Courts repeated interventions that have made it harder to deny immunity. In an opinion last year, Judge Don Willett, appointed to the 5th Circuit by President Donald Trump, put it bluntly: The real-world functioning of modern immunity practice essentially heads government wins, tails plaintiff loses leaves many victims violated but not vindicated.

The justices have offered few explanations for their stance on qualified immunity beyond writing in opinions that the doctrine is important to society as a whole and balances individuals rights with the need to curb litigation that could unduly burden government officials. Two of the justices liberal Sonia Sotomayor and conservative Clarence Thomas have criticized qualified immunity in written opinions in recent years. All nine current justices declined to be interviewed for this article.

Amid the protests in the wake of Floyds death, expectations ran high that the Supreme Court would finally move to restrict or end qualified immunity by taking up at least one of several petitions to hear cases backed by opponents of the doctrine. But in early June, it rejected those petitions.

Congress moved swiftly to draft police reform measures, but legislative proposals, including some that would have ended qualified immunity, stalled as Democrats and Republicans deadlocked over issues of addressing racial inequality and police accountability. President Donald Trumps White House and some Republicans in Congress have called eliminating qualified immunity for police a non-starter on the grounds that it would deter police officers from doing their jobs properly.

US President Donald Trump addresses a coronavirus disease (COVID-19) pandemic briefing in the Brady Press Briefing Room of the White House in Washington, US, August 5, 2020 Photo: Reuters

A new beginning

In the summer of 2016, David Collie was putting his life in order and putting a troubled past behind him.

More than a decade earlier, as a student at Texas Southern University in Houston, he had become involved in a gang, indulging in glamour, clothes, money and girls, he said. When he pulled a gun on an adversary and took his car for a ride, Collie was charged with robbery and evading arrest and spent 11 years in prison.

Two months before Barron shot him, Collie had landed a full-time gig building supermarket produce displays. He liked the work, and he was cheered to be saving money before resuming college classes in cinematography in the fall. Work and school, that was always the plan, he said.

On the night of July 27, he got a call. Some friends who lived in the same apartment complex were arguing. It was late, and he had to be at work at 7 a.m., but he decided to walk over to the couples home to try to calm them and provide a diversion for their children, who called him Uncle David.

Officer Barron of the Fort Worth police and Tarrant County Deputy Sheriff Vanesa Flores were working off-duty paid security detail for a nearby apartment complex that night. They had just heard from dispatch that two shirtless Black men had made off with two pairs of tennis shoes, valued at $225 each, in a deal organized through Facebook. One of the suspects, the officers heard, had brandished a gun.

Just after midnight, police dashboard camera video shows, the two officers were walking toward Collie when Flores trains her flashlight on him. Barron pulls out his pistol. Collie turns around briefly and then continues to walk away.

Collie said the pair were shouting commands at him and over each other. He was confused, unsure about what to do, he said. They asked me where I was going, I was pointing, he said. I was trying to comply.

The instant Collie pulled his right hand out of his pocket to point, Barron fired. You didnt have to shoot me, Collie recalled saying after the force of the bullet slammed him to the pavement.

Time elapsed from the cops first appearing on the dash-cam to the shooting: five seconds.

The Fort Worth Police Department declined to comment and declined to make Barron available for comment. Flores, who no longer works for the Tarrant County Sheriffs Office, could not be reached.

After the Fort Worth police internal affairs division investigated the shooting, the Tarrant County Criminal District Attorneys Office presented the evidence to a grand jury, which declined to indict Barron on any criminal charges. A spokeswoman for the office noted that Flores did not cause, participate in, or contribute to the shooting, and had no further comment.

Shackled in recovery

Collie endured a difficult two-month recovery in hospital. In addition to his paralysis and other medical issues that linger to this day, he was diagnosed with post-traumatic stress disorder. Doctors removed a bullet fragment from his chest seven weeks after the shooting.

He was also shackled to his hospital bed for nearly the entire time because police had charged him with aggravated assault on a public servant. A grand jury eventually declined to indict him.

In March 2017, Collie filed his lawsuit in federal district court in Fort Worth, naming Barron, Flores, the City of Fort Worth, Tarrant County, and several other officers as defendants. Any money Collie got would allow him to afford a home and a car modified for his disability. He also hoped to pay for physical therapy to try to walk again, though doctors said that was a long shot. Its like the world is saying, Im sorry, were wrong we did thatWere going to help you out, help you get back on your feet, Collie said of the recompense he sought.

Less than a month after Collie sued, lawyers for Barron, provided and paid for by Fort Worth, requested qualified immunity for the cop. Early on, Judge John McBryde dismissed Collies claims against all defendants other than Barron and Fort Worth.

In court papers, Barrons lawyers said the cop had acted reasonably because he believed Collie had a handgun and was moving to take aim at Flores. Flores had also told investigators that night that she thought she saw something in Collies hand. In using reasonable force to stop an apparent deadly threat, Officer Barron violated none of Plaintiffs constitutional or other rights and is entitled to qualified immunity, Barrons lawyers argued.

Collie had no gun. A boxcutter was found in the grass near where Collie went down, according to the police report. Collie said he always carried a boxcutter with him because it was necessary for his job. He adamantly denied that he was holding the boxcutter when he raised his hand to point. He said he believes Barron cited it as an excuse to cover up a mistake.

Barrons request for immunity asserted that whether Collie was armed or not was irrelevant. Merely arguing that in the end it must somehow be unreasonable to shoot an unarmed suspect is not enough to let a lawsuit go forward, the request said.

Collies lawyers countered that Barron created a threat in his mind that did not exist. A forensic expert they hired to map the scene, capture images using a drone and analyze the dash-cam footage concluded that Collie was not holding an object, let alone pointing it at Flores, when he was shot.

David Collie who was shot by police speaks to a reporter at the nursing home where he lives in Fort Worth, Texas, U.S., September, 27, 2019. Photo: REUTERS/Callaghan OHare

Excessive and unreasonable?

In July 2017, McBryde granted Barrons request for immunity. In his decision, he relied on a stringent 5th Circuit standard for finding that excessive force was used: not only that the plaintiffs injury resulted from force that was clearly excessive, but also that the excessive force was clearly unreasonable.

As a Texas judge, McBryde supported his ruling that shooting Collie was reasonable by drawing on 5th Circuit precedents that elevate an officers perception of a threat as the key consideration in weighing an immunity claim. He cited a 2003 precedent that force is presumed to be reasonable when police perceive a threat, even if alternative courses of action were available.

Even if Collie had nothing in his hand and did not point at Flores, he had no right to a trial, McBryde said in his ruling, because the test is whether Barron acted reasonably in light of what he perceived.

McBryde declined to comment.

Collie fared no better with his appeal to the 5th Circuit. Noting that Collie fit the description of one of the suspects, the appeals court in 2018 agreed that Barrons perception that night mattered most.

The appeals court cited its own precedents. One was a 2008 ruling, Ramirez v. Knoulton, which said that cops do not have to wait to act against a threat and that courts should not second guess the timing of that realization. Another was a 2016 ruling that singled out a Houston cops perception of an immediate threat as the most important consideration in granting immunity. In that case, the cop claimed he shot Ricardo Salazar-Limon in the back, paralyzing him, after Salazar reached for his waistband. Salazar was unarmed.

A spokesman for the 5th Circuit declined to comment for this article.

Manny Ramirez, president of the Fort Worth Police Officers Association, said the courts made the right decision to throw out Collies suit. Barron is a good officer, Ramirez added. His work product speaks for itself. The legal system, he said, must recognize the dangers officers face on the job.

Barron was moved to a special tactical unit of the Fort Worth police in 2018.

Plaintiffs and civil rights activists said the 5th Circuit is providing an easy out for cops who use excessive force because it is particularly receptive to the argument that they perceived a lethal threat.

Daniel Harawa, a lawyer affiliated with the NAACP Legal Defense and Educational Fund, called this defence How to get out of a civil lawsuit 101. He said he fears that as this line of defence succeeds, we almost incentivize police officers to reflexively say, I saw him reaching, I saw an object.

Meanwhile, in California

The cop who shot and killed Benny Herrera used the same defence as Barron. But that was in California, not Texas.

On the morning of Dec. 17, 2011, Herrera was visiting his former girlfriend, Hilda Ramirez. He spent time playing with her children and making them breakfast. Over the meal, Ramirez later told detectives, Herrera said he had a feeling something big was going to happen that day.

Around 2 p.m., he left for home. He returned just 15 minutes later, his demeanour changed paranoid, pacing back and forth, his eyes glossy. Ramirez recognized the signs: Herrera battled substance abuse for much of his life. He had been in and out of prison, too, for armed robbery, drug possession and parole violations. Court records show that in two instances, girlfriends had called the cops because they feared for their safety after Herrera became agitated.

When Herrera saw Ramirez texting her new boyfriend, he punched her in the head, grabbed her cellphone and left. Ramirez called 911 to report what had happened. She told the operator that Herrera had not used a weapon and did not carry one. A dispatcher relayed to the responding officers that Herrera was not known to carry weapons.

Minutes later, Tustin police officers Brian Miali and Osvaldo Villarreal in separate vehicles found Herrera walking along El Camino Real where it runs alongside Interstate 5. A cigarette dangled from Herreras lips. It was a cold and cloudy afternoon, and he kept his right hand in the pocket of his black hoodie.

Dashboard camera video from the scene shows Herrera running away and then turning around and skipping backwards as he veers into the middle of the street. The officers close in, trying to hem in Herrera between the two vehicles. Each cop drew his gun.

Get your hand out of your pocket! Villarreal shouted as his vehicle approached Herrera, who at that instant wheeled around toward Villarreal with his right arm flailing. Almost immediately, Villarreal fired his gun through the cars open passenger side window.

Villarreal told investigators that he felt trapped when Herrera turned toward him and that he believed Herrera was armed and would shoot him. When Herrera charged at me and started to pull his hand out of his pocket, Villarreal told investigators, I knew he had the drop on me, and as I came up, I fired twice.

But Herrera was unarmed. A pack of cigarettes, a syringe, and several coins were recovered near his body. Toxicology tests found methamphetamine and tranquilizers in his blood.

After investigating the incident, the Orange County District Attorneys Office concluded in a January 2013 report that Villarreals use of deadly force was reasonable because he thought Herrera was armed. It recommended no criminal charges.

Herreras family filed an excessive force lawsuit in federal district court in Santa Ana against Villarreal and the City of Tustin.

Villarreal quickly requested qualified immunity. Judge Josephine Staton denied the request. She cited a 9th Circuit ruling, Deorle v. Rutherford, that sets a higher bar for cops than the 5th Circuit precedents cited in Collies case. It says that a simple statement by an officer that he fears for his safety or the safety of others is not enough; there must be objective factors to justify such a concern.

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