Flashing lights on top of police patrol car concept

Two federal appeals judges slammed their colleagues on Wednesday for declining to review a decision granting immunity to a former Clear Creek County sheriff’s deputy who shot and paralyzed an unarmed motorist.

“Regrettably, this case is one of many illustrating that the profound issues with qualified immunity are recurring and worsening,” wrote Judge Carlos F. Lucero, joined by Judge Gregory A. Phillips. “By continuing to await addressing deep and troubling qualified immunity issues brought to our attention time and again, we are complicit in this denial.”

Lucero, one of the 12 active judges on the U.S. Court of Appeals for the 10th Circuit, asked the entire court in a practice known as “en banc” to examine the May 2020 decision in the Clear Creek case issued by a panel of two judges. (The third judge who heard the case, Monroe G. McKay, died before the panel published its opinion.) Lucero felt the panel improperly and "exponentially" expanded public officials' immunity from lawsuits throughout the entire circuit.

After a vote, a majority of judges declined to rehear the appeal, prompting Lucero and Phillips to issue their dissent.

Michael Fairhurst, a partner and civil rights attorney with Killmer, Lane & Newman, LLP, said that while it is common for en banc requests to be denied, a published dissent "happens extraordinarily rarely."

The civil lawsuit stemmed from a January 2014 car chase on Interstate 70. A dispatcher received multiple phone calls that the vehicle of Cody William Cox was driving dangerously on the ice and was “having a hard time getting up the road.” Deputy Sheriff Kevin Klaus saw Cox get stuck and instructed him to turn off the vehicle, but reported that Cox was “trying to get away again.” 

Klaus observed that Cox sped his truck up to 80 miles per hour and that law enforcement must “take some physical action on this vehicle. This guy has got to be very drunk, and he is not stopping.”

Deputy Don Wilson took over as the leader in the pursuit when Cox became bogged down in traffic. Cox still drove aggressively, pushing into openings between cars and nearly losing control of the vehicle. As Cox continued to disobey orders to stop, Wilson observed him reach to his hip and inferred Cox had a firearm.

Another motorist decided to block Cox from moving further and Wilson jumped out of his vehicle, believing it was imperative to stop Cox. “Almost immediately,” according to court findings, he shot Cox in the neck through the passenger window. Cox became quadriplegic as a result.

The "strength" of qualified immunity

Cox filed a federal lawsuit alleging Wilson’s actions violated the Fourth Amendment’s prohibition on unreasonable seizure. Wilson employed a defense of qualified immunity, which is a judicial doctrine allowing lawsuits against government officials if their actions violate a clearly established legal right. In practice, this means denying immunity only if previous courts found similar circumstances also warranted denial.

The concept has received criticism in recent months for its ability to shield police officers facing excessive force claims. There are bills pending before Congress to end the practice, and Colorado’s legislature eliminated it as a state-level defense in a landmark police accountability bill this June. One study, however, found qualified immunity was rarely the reason for civil lawsuits' dismissal.

"I want to emphasize how dangerous the conduct of [Cox's] driving was," said Wilson's lawyer, Gordon Vaughan, in 2018. "They didn't know if he was trying to get away from committing a serious crime, didn't know if he was armed. There were a lot of factors going on." 

A jury delivered a verdict in favor of Wilson, but a mistrial was declared. A second trial also returned a favorable verdict for Wilson, but Cox appealed citing an inadequate instruction to the jury. In both instances, the court denied a qualified immunity defense to the deputy.

The two judges on the appellate panel, Harris L. Hartz and Allison H. Eid, believed the lower court acted correctly in omitting an instruction that would have allowed the jury to consider Wilson’s actions leading up to the shooting.

“Cox sought the instruction to allow him to base liability on his claim that, even if Wilson was in imminent danger when he shot Cox, the only reason Wilson was exposed to danger was that he unreasonably exited his police vehicle and approached Cox’s pickup,” Hartz wrote in the opinion.

The appeals panel agreed that Wilson was entitled to qualified immunity in his decision to leave his vehicle because Cox failed to cite cases where courts found an officer had violated a clearly-established right in similar circumstances. Hartz pointed to another 10th Circuit case from New Mexico in which officers killed a man at a residence after approaching in the dark and causing the victim to think they were intruders.

Although the court in that instance found the officers to have acted unreasonably and recklessly, it “nevertheless held that the officers were entitled to qualified immunity because there was no clearly established law that such recklessness created liability,” Hartz explained.

He added that the “impropriety of the alleged actions by the officers before the shooting...would be apparent to most laypersons,” but there was no precedent to indicate a violation of rights. Therefore, if the “strength” of qualified immunity protected the New Mexico officers, it also covered Wilson.

Departure from precedent

Lucero, in his dissent from the 10th Circuit’s decision not to rehear the appeal, warned that this action “exponentially expands” the use of qualified immunity, even though the Clear Creek case “clearly demonstrates so much of what is wrong with qualified immunity.”

Lucero and Phillips took issue with the panel’s injection of qualified immunity into their decision, which the judges said was not an issue on appeal. (Hartz wrote that because the granting of qualified immunity was not a decision for the jury, the appellate panel could review it even without Cox appealing it.)

Furthermore, “rather than compare the specific facts of the present case with those of prior cases, the panel satisfies itself with comparing the relative perceived egregiousness of police conduct in factually dissimilar cases,” Lucero wrote, arguing that the New Mexico case did not involve a car chase or any similar circumstances.

“Apparently, trial courts and appellate panels of this circuit need only cite to a previous decision in which qualified immunity has been granted and state, ‘So too, here’,” he added in the sharply-worded dissent.

Earlier this summer, an appeals panel for the Fourth Circuit issued the first decision denying officers qualified immunity following the death of George Floyd in Minneapolis police custody and the racial justice protests that followed. In that case, involving West Virginia police officers who shot to death a Black man lying motionless, the court wrote, “This has to stop.”

Fairhurst, the civil rights attorney, believed Lucero and Phillips were attempting to urge the U.S. Supreme Court to review qualified immunity, given growing discontent among judges and policymakers. He agreed that the Clear Creek panel's act of basing their qualified immunity decision on a case unlike the matter at hand was a departure from past practice.

"The problem with that is it's incredibly subjective, not to mention that it's just inconsistent with how courts, based on guidance from the Supreme Court, have typically addressed qualified immunity questions," Fairhurst said. As someone who has tried cases involving deprivation of rights, Fairhurst added that he was not criticizing lower court judges who are obligated to make decisions on qualified immunity.

However, "I believe it undermines trust in the government more generally because government officials are given an immunity that no one else can receive," he added.

Lucero ended the dissent by noting the Clear Creek panel’s decision invited further institutions of qualified immunity at any point in the legal process and established a standard that an officer may receive qualified immunity if more wanton behavior elsewhere also received it.

“Together,” Lucero concluded, “these two pronouncements create a carte blanche which can be scripted and negotiated to counter the public interest and foster the violation of constitutional rights by those charged with protecting them.”

The case is Cox v. Wilson.

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