Podcast on qualified immunity

 A few minutes ago, I reported that New York City has abolished qualified immunity.  Meanwhile, below you will find a podcast in which Prof. Alexander Reinert (Cardozo School of Law) discusses an empirical assessment and comprehensive study on the actual way that courts of appeals have handled qualified immunity cases.  You can listen to the podcast by clicking on the play button below or by going to the podcast website here.

New York City Council abolishes qualified immunity

Yesterday, the New York City Council passed legislation that will effectively end qualified immunity for police officers; thus removing one of the largest impediments to holding officers personally liable for violating citizens’ civil rights, several local news outlets reported.  In doing so, New York became the first city in the country to abolish the defense.  Law & Crime has more information here.

Courts find that police officers do not have immunity in two recent cases

As you probably know, police officers often escape possible tort liability because they claim to have qualified immunity.  According to the doctrine of qualified immunity, officials performing discretionary functions have immunity as long as their conduct does not violate clearly established statutory or constitutional rights or which a reasonable person would have known.

The use of qualified immunity in cases involving alleged police misconduct has been increasingly criticized of late, and two courts recently decided that the officers involved did not have immunity for their actions.

In one case, the Court of Appeals for the 11th Circuit unanimously ruled that an Alabama police officer is not entitled to immunity for an incident in which he repeatedly deployed a Taser on an innocent teenager who was having seizures at a concert.  You can read about that case here.

In the other case, the Court of Appeals for the Tenth Circuit held that the defendant did not have immunity in a case in which the plaintiff alleged that the officer punched a suspect in the face, whipped him with a chain, and released a police dog on him.  Evidently, the Court felt that a reasonable officer should know that that type of conduct violates someone's rights.  You can read about that case here.

Today in Supreme Court History: Benjamin Cardozo is sworn in as Associate Justice of the Supreme Court

You probably remember Benjamin Cardozo as the New York Court of Appeals judge who wrote Palsgraf v. Long Island Railroad, which developed what has become the standard analysis for proximate cause in Tort law.  But in 1932, President Herbert Hoover appointed Cardozo to the Supreme Court of the United States to succeed Justice Oliver Wendell Holmes.  Interestingly, Hoover, a Republican, appointed Cardozo even though he was a Democrat. I would be curious to know how many times that has happened since.

According to an article in The New York Times about Cardozo's appointment, "seldom, if ever, in the history of the Court has an appointment been so universally commended."

Cardozo was confirmed by a unanimous voice vote in the Senate on February 24 and was sworn in on March 14, 1932.

To celebrate, why not do some reading?  Here is a link to my article Ahead of his time: Cardozo and the Current Debates on Professional Responsibility, 34 Touro Law Review 101 (2018).

New York expands category of people who can recover for emotional distress from witnessing someone else's accident

As you probably know, in most jurisdictions a plaintiff has a cause of action for emotional distress based on having witnessed someone else suffer an injury even if the plaintiff is outside the zone of danger (within which the plaintiff would be in danger of physical injury) if certain conditions are met. 

New York, however, is not one of those jurisdictions.  Instead, New York still follows the minority approach.  Thus, in NY, plaintiffs seeking to recover for emotional distress from witnessing someone else’s accident must show that they (the plaintiffs) were within the zone of danger and in danger of physical injury at the time of the accident and that the person who suffered the injury must have been an “immediate family member.”

I am writing about this today because about two weeks ago, the New York Court of Appeals (the highest court in the state) expanded the category of people who can recover by recognizing that grandparents are “immediate family members.”  

It should be clear that the opinion did NOT extend the reach of possible liability to people outside the zone of danger, but it did expand the category of people who can recover if they are within the zone of danger.

The case is called Greene v. Esplanade Venture Partnership.  You can read the opinion here.  Courthouse News and the ABA Journal have more information about the case here and here respectively.

Short article on the state of defamation law

Last month, the Texas Supreme Court rejected Alex Jones’ petition to review a lower court's decision to allow a defamation lawsuit to proceed against him.  The plaintiffs in the lawsuit are some of the parents of children who died in the Sandy Hook school shooting.  

In a short interview published in Above the Law, law professor Derek Bambauer, who coauthored an amicus brief to the Texas Supreme Court arguing that the defamation claim against Jones should proceed, talks about the case and the current state of defamation law in general.  You can read the interview here.

New study on lawsuits that have resulted in benefits to society as a whole

The Center for Justice & Democracy has a new study, called Lifesavers 2021: CJ&D’s Guide to Lawsuits that Protect Us All. The study describes over 125 lawsuits that have led to major health and safety improvements benefiting large numbers of people, spanning over 50 years. These cases have not only saved lives but also show us how to mitigate some of today’s most dire crises. 

Here is a press release that explains the study.   The PopTort has a comment here. You can download the full study here.

Eighth Circuit Strips Qualified Immunity From Cop Who Pulled Over A Driver For Flipping Her Off

As reported in TechDirt, the Eighth Circuit Court of Appeals is the latest to add to a body of case law that holds that "engaging in any law enforcement response to a flipped bird is unwise, at best."  This decision reminds police officers that being rude towards them isn't a crime.  

In this case a police officer conducted a traffic stop after the driver extended his middle finger at her as he drove past her.  Other officers arrived later to assist the first officer and the driver was handcuffed and detained for a short period of time. The driver later sued the officers and the City under 42 U.S.C. § 1983, claiming violations of his First and Fourth Amendment rights. 

The district court granted summary judgment to the officers and the City, finding that the officers were entitled to qualified immunity because the original officer had probable cause to conduct the traffic stop.  In support of the argument regarding probable cause, the officer claimed she had probable cause because of the plaintiff’s “disorderly conduct.”  However, the court declined to grant qualified immunity to the officer on the disorderly conduct violation, and she did not challenge the district court’s conclusion on appeal.  On the other claims, the Court of Appeals affirmed in part and reversed in part.  The case is called Garcia v. City of New Hope, and you can read it here.

Go here for the full story and some commentary.

Illinois approves sweeping criminal justice reforms that will have torts consquences

Last week, the Illinois General Assembly adopted sweeping criminal justice reforms that include the elimination of cash bail and a requirement that police officers in the state wear body cameras. Some of the adopted provisions are very good; others will have unintended negative consequences; but the one provision that caught my eye is one that few people have been talking about.

According to the bill, Illinois police officers will have a “duty to intervene” if they see another officer using excessive force, even if the officer outranks them.

This is not unique as other jurisdictions have adopted similar provisions in the past year.  See here, for example.  But it is interesting to me because it opens the door to a whole new possibility of civil liability by creating a duty in tort law.  What is going to happen if an officer does not intervene and then gets sued in civil court?  Will courts recognize the right to sue or will they give immunity to the police departments?  Will the court say that the duty is not one that can be enforced through tort law because it is contrary to the generally accepted view that there is no duty to help?

I have not seen the actual bill so I do not know if it addresses these questions in any way; but I will update this post when I find out...

Man misidentified by facial recognition software sues for false imprisonment and violation of civil rights

Man who was misidentified by facial recognition software and subjected to police interrogation sues a city in New Jersey, its police department, and a prosecutor for false arrest, false imprisonment and violation of his civil rights.  Go here for the story.