Occupy, Qualified Immunity, and Cell Phone Cameras

Mark Wilson 

Qualified immunity is the little black dress in the civil rights defendant’s litigation toolbox. Any answer to either a 42 U.S.C. § 1983 civil rights complaint or a Bivens action will include this go-to defense.

Harsh police reactions in recent weeks at the various Occupy protests have me thinking about qualified immunity. Last month, Oakland police fired a tear gas canister into a crowd and ended up hitting Scott Olsen, an Iraq War veteran, who suffered a fractured skull. As other protesters tried to help him, another officer fired a flash-bang grenade into the crowd. Here’s a video of police at the University of California at Davis pepper-spraying a group of students who peacefully refused to move. There are also reports that police at Occupy Oakland were covering up their name badges, ostensibly so they cannot be identified in a lawsuit or complaint.

And lawsuits there will be! In the inevitable lawsuits to follow, city attorneys will advance the defense of qualified immunity, arguing that police used an amount of force they believed reasonable under the circumstances. Qualified immunity protects public officials from § 1983 lawsuits so long as it would be unclear to a reasonable officer that his actions were violating a federal right. In an excessive force situation, qualified immunity is a he-said she-said situation where the plaintiff insists that he was doing nothing wrong when the cops beat him up, and the cops insist that the plaintiff was being violent or not obeying police orders.

That’s changing with cell phone cameras.

Video footage of the police reaction to the Occupy protests raises questions. Why did police need to beat protesters with their batons at Occupy Cal? Did police really need to throw a flash-bang grenade into a group of people trying to help someone up at Occupy Oakland? The deference granted to police in qualified immunity has taken a significant hit. With cell phone cameras, citizens who are victims of excessive force have more than just their own declarations and the declarations of witnesses. They have video.

When a court grants summary judgment, it’s not supposed to weigh the credibility of the evidence. However, in 2007, the Supreme Court decided that judges could weigh the credibility of the evidence at summary judgment “[w]hen opposing parties tell two different stories, one of which is blatantly contradicted by the record, so that no reasonable jury could believe it.” In that case, Scott v. Harris, a videotape “blatantly contradicted” Harris’s assertion that his driving was not endangering anyone.

The videos of police brutality at the Occupy protests are damning. Yes, it is clearly established that a reasonable police officer should not beat or pepper-spray peaceful protesters whose only crime is not dispersing. See Headwaters Forest Defense v. County of Humboldt, 276 F.3d 1125 (9th Cir. 2002). And no, the police should not get away with it.

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