Mises Wire

Even without “Qualified Immunity,” It Won’t Be Easy to Prove When Police Are Abusive

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As mentioned on the Mises Wire this past June, the State of Colorado passed a broad set of police reforms, including removing qualified immunity protections for any police officer who “causes … the deprivation” of another person’s rights under the Colorado Bill of Rights. Will this help improve police accountability? A recently filed lawsuit against the City of Aurora may help answer this question.

On August 2, 2020, Britney Gilliam, a 29-year-old food service worker at the Denver County Jail, went on an outing with her 6-year-old daughter, 17-year-old sister and two nieces aged 14 and 12. They planned to get their nails done and get ice cream. When they arrived at the nail salon, they found it was closed and, while in the parking lot, Gilliam used her phone to find an open salon. A police car pulled into the parking lot and two officers of the Aurora Police Department (APD) approached their SUV with guns drawn.

The officers demanded they exit the vehicle without explanation. Their license plate scanner erroneously told them that the SUV was stolen—while the numbers matched, it was actually a Montana-registered motorcycle that had been reported as stolen. Despite Gilliam offering to show the officers her registration to demonstrate that she was the legal owner of the SUV, they ignored her. Instead, they forced Gilliam and all of the children to lay face first on the asphalt. A bystander captured a video. More officers arrived. Gilliam and the children were all handcuffed, except for Gilliam’s daughter, whose wrists were too small for the handcuffs to fit. They remained handcuffed for about fifteen minutes, and Gilliam was detained for more than two hours.

“Despite the disturbing fact that terrified children were ordered out of a vehicle at gunpoint and placed face-down on the ground, our conclusion is that there is not evidence beyond a reasonable doubt that the APD officers involved unlawfully, intentionally, knowingly, or negligently violated any Colorado criminal law,” chief deputy district attorney Clinton McKinzie said in a statement. District Attorney George Brauchler agreed that the officers’ actions weren’t criminal but recommended that the department review its policies. Even though Police Chief Vanessa Wilson stated that the officers did what they were trained to do, she has offered to pay for therapy for the traumatized children. (Such an offer may disappear, however, now that she’s been named in the lawsuit. Habersham County promised to pay for Baby Bou Bou’s medical treatment after the sheriff’s department threw a flash-bang grenade in his crib. They never did, at least not voluntarily, probably because it was realized that doing so may be considered an admission of wrongdoing.) It remains to be seen whether the Aurora PD makes any substantive changes to policy.

Britney Gilliam’s lawsuit against the City of Aurora presents a test of the meaningfulness of Colorado’s elimination of qualified immunity. To be clear, it is highly unlikely that the officers involved will pay a penny out of pocket in damages, as their chief has admitted they followed policy. While qualified immunity protects officers as long as they do not violate any “clearly established” law, in practice this has meant that as long as officers have violated rights in a way that the court hasn’t addressed before, they are protected. Under the Colorado reform, citizens may sue police officers in state court, thereby bypassing federal courts and their precedents. As Ryan McMaken notes, however,

The Colorado legislature’s method isn’t foolproof. Federal judges—many of whom, like Chief Justice John Roberts, are apparently just making things up as they go along—could still rule that state bills of rights and state law are superseded by the invented federal notions of qualified immunity.

State laws such as the new Colorado reform, however, make this less likely, and it will then be up to abusive police officers who have lost their cases to appeal up the line to the Supreme Court and then hope the justices overturn state law so as to favor law enforcement officers yet again.

It will be interesting to see what Colorado courts decide in this matter. It seems to hinge on a question with an easy answer: Is it a deprivation of rights to hold people (all female, most of whom were children) at gunpoint, forcing them out of their cars and their faces onto the asphalt, handcuff them, and detain them for hours solely based on a mistaken license plate scan—an error that could have easily been avoided or swiftly corrected?

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