Lawmakers take qualified immunity off table as fight rages to get horrific case before Supreme Court

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Police reform negotiations between Republican and Democratic lawmakers no longer include conversation on qualified immunity, Politico reported, quoting three sources who have knowledge of the situation but wish to remain anonymous. Changes to the legal protection for police officers are off the table, the political news site reported.

But the details in a request for the Supreme Court to review a lower court’s decision on a Denver case exemplify exactly why qualified immunity is not a point people of color can afford to compromise on. The legal doctrine frees individual government officials and police officers from guilt in civil suits unless they have violated a “clearly established” statutory or constitutional right. The Denver case calls on justices to examine the qualified immunity doctrine’s application when officers intentionally disregard their training to retaliate against a person for filming them, and that’s exactly what Denver police officers are accused of doing when someone recorded them beating David Flores because he refused to remove a sock from his mouth and slamming to the ground his pregnant girlfriend who tried to help Flores in the 2014 incident. The officers suspected that the sock contained drugs, according to the factual background in the review request.

The facts laid out in the request of the Supreme Court maintain:

“On August 14, 2014, respondent John Bauer, a detective in the Denver Police Department, saw what he thought was a drug transaction involving a silver car. He radioed for backup and followed the car to a parking lot. Exiting his vehicle, Detective Bauer then announced “police.” Pet. App. 8a. When the driver of the car, David Flores, did not immediately show his hands, Bauer “pulled him from the car and pinned him against it.” Id.

As respondent Sergeant Russell Bothwell arrived to assist, Flores “removed a sock from his waistband and stuffed it in his mouth.” Pet. App. 8a. There was no indication that Flores was armed or dangerous. But the officers assumed the sock contained drugs, so they ordered him to “spit it out.” Id. The officers then “fell to the ground” with Flores as they tried to remove the sock. Id.

Petitioner Levi Frasier was observing this tussle from nearby in the parking lot. Detective Bauer initially “asked him for help” getting the sock out ofFlores’s mouth. Pet. App. 8a. Petitioner briefly assented. But as other officers arrived, they asked petitioner to step back. Petitioner “moved about ten feet away and started video-recording the event using his tablet computer.” Id. Nothing he did interfered with the officers’ actions. SA_101, 111; A_268.

What petitioner recorded was dramatic. WhileFlores refused to release the sock from his mouth, one of the officers pinned his forearm on Flores’s head.Another officer pinned Flores’s arms behind his back.Respondent Officer Charles Jones then punchedFlores “in the face six times in rapid succession,” Pet.App. 8a; SA_75. As petitioner later described it: “[T]he punches were punishing, but what must have hurt even more was the cement hitting Mr. Flores back in the face. . . . t seemed like after one strike, [OfficerJones] could have stopped and, . . . manually pulled out the sock.” SA_75. “There wasn’t a need for the second or the third, for sure the fourth, fifth, or sixth.Each one seemed to get more violent and powerful.” Id.

Flores’s girlfriend, Mayra Lazos-Guerrero, who was seven-and-one-half-months’ pregnant, began screaming and approached the officers. “Officer Jones pushed her away, and then Officer Evans grabbed her ankle and pulled her off her feet.” Pet. App. 9a. She fell onto her stomach and face, hitting the pavement.

As petitioner recorded the violent interaction,Sergeant Bothwell called out, “Camera!” Pet. App. 9a. All of the officers had attended the Denver PoliceDepartment’s trainings explaining that citizens have a First Amendment right to record the police while performing their duties in public. Id. 66a, 70a. And they all were aware that this constitutional rule“protected [Frasier’s] right to record them.” Id. 13a,66a, 70a. Nevertheless, as petitioner stopped filming and returned to his parked car, Officer Evans followed him “and asked him to bring his identification and the video of the arrest to the officer’s patrol car.” Id. 9a.

Petitioner brought his driver’s license, but not his computer tablet, over to the patrol car. He was afraid that if he let the officers have access to the video, they would make it “disappear.” Id. 9a. As petitioner explained, “I had just witnessed an officer that I didn’t feel had the power to be able to strike somebody in the face, and I was the only one with video evidence of his wrongs.” SA_33, 78. Officer Evans continued to ask for the video. Gesturing to the back seat of his patrol car, he told petitioner, “Well, we could do this the easy way or we could do this the hard way.” Pet. App. 9a. When petitioner still did not respond, Officer Evans asked him to fill out a witness statement form. Upon further prodding from Officer Evans to disclose whether he filmed the incident, petitioner wrote (falsely) in his statement that “he took only a Snapchat photo of the arrest.” Id. 10a. He added that he “no longer had a copy” of the photo on his “phone” because “Snapchat removes [footage] as soon as you send [it].” Id.(alterations in court of appeals opinion).

Officer Evans told petitioner to go get his phone.As petitioner returned from his car, another officer said, “That’s not it” and indicated that his recording device had been larger. A_1014-15. At that point, all five of the officers encircled petitioner and demanded the video. Believing he would be taken to jail if he refused any longer, petitioner retrieved his tablet. Pet.App. 11a. Officer Evans then “grabbed the tablet out of [petitioner’s] hands” and began searching for the video of the arrest. Petitioner objected that this was improper without a warrant, but Officer Evans continued to scan files on the tablet. Id. He then announced to the other officers, “I don’t see the video in here. I can’t find it.” Id. Another officer responded,“As long as there’s no video, it’s okay. . . . f there’s just a photo, that’s fine, as long as there’s no video.”Id.; SA_89, 96. The officers then gave petitioner back his tablet and his driver’s license, and he left.

Mr. Flores was taken away in an ambulance, bleeding from the back of his head. The record does not disclose the extent of his injuries.3. After the incident, petitioner provided a copy of his video to the Denver Police Department and Fox31News Denver. The media outlet aired an investigative report on the officers’ use of force and produced several follow-up reports.2 After the incident was publicized, the Department changed its use-of-force policy to prohibit officers from using “physical force solely to stop a person from swallowing a substance or to retrieve evidence from the person’s mouth.””

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Clark Neily, senior vice president for legal studies at the Cato Institute, tweeted about the case: "I've seen plenty of no-brainer cert petitions in my day, but this one—from a CA10 decision granting QI to cops who were specifically trained that there's a constitutional right to record police in public that they mustn't interfere with—takes the cake."

2. No one seriously thinks modern QI has a shred of legitimacy, and virtually everyone agrees it was invented out of whole cloth in a blatant act of judicial policymaking that's supposed to offend a certain kind of jurist (hint: rhymes w "shmoriginalist").https://t.co/yZMuuClM4H

— Clark Neily (@ConLawWarrior) August 17, 2021

He said in a Twitter thread that modern qualified immunity doesn't have "a shred of legitimacy," but Republican legislators, represented in congressional negotiations by Sen. Tim Scott, would obviously beg to differ. Scott, Sen. Cory Booker, and Rep. Karen Bass have been leading already stalled negotiations on police reform for months as law enforcement unions repeatedly caused the legislators to backtrack. Law enforcement officials want any changes to the qualified immunity doctrine stripped from any police reform package, and progressives have advocated that the doctrine must be gutted to hold officers accountable for their brutality.

“We compromise, we die,” Rep. Cori Bush tweeted in June. “If we compromise on qualified immunity, police officers will continue to kill Black people with impunity. The provision to end qualified immunity must remain in the George Floyd Justice in Policing Act. I won't vote for it without it.”

Bush, the first Black woman to represent Missouri in Congress, worked as a triage nurse during unrest in Missouri following the death of Michael Brown on Aug. 9, 2014 in the St. Louis suburb of Ferguson. Brown, an 18-year-old Black man, was shot at least six times and killed by a white police officer in Ferguson, Missouri. Despite the common narrative that Brown was suspected of robbing a convenience store, officers admitted they had no knowledge Brown was a robbery suspect and had only stopped him for walking in the street.

Democratic Rep. Cori Bush tells CNN's @abbydphillip that she is not prepared to compromise on ending qualified immunity for police officers as part of negotiations on police reform. pic.twitter.com/PD8p2PlyKP

— CNN Newsroom (@CNNnewsroom) April 25, 2021

When Bush was asked in April whether she would vote for a version of the George Floyd Justice in Policing Act, a comprehensive police reform bill, that didn’t include changes to the qualified immunity doctrine, she said flat out she isn’t prepared to support that. “St. Louis did not send me here—St. Louis being number 1 for police murder in the country per capita and has been that way for years—the people did not send me here to save their lives by falling down on the one thing that we needed the most, no.”

House Majority Whip James Clyburn faced criticism in May for being all too willing to compromise. “I will never sacrifice good on the altar of perfect,” he said in a CNN interview when asked about qualified immunity. “I just won’t do that.”

“If you don’t get qualified immunity now, then we’ll come back and try to get it later, but I don’t want to sees us throw out a good bill because we can’t get a perfect bill,” says House Majority Whip James Clyburn on police reform. #CNNSOTU pic.twitter.com/cjp4R2zQUB

— State of the Union (@CNNSotu) May 9, 2021

Caroline Anderegg, a spokesperson for Scott, said in a statement Politico received that "the senator will stay at the negotiating table as long as progress is being made" and that negotiators "will continue to work through August toward finding an agreement.” RELATED: Shocking! Negotiations on police reform bill hampered by the very people who need to reform

RELATED: James Clyburn is wrong on this one. Qualified immunity must be tossed out with other trash