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An important new decision out of the Fifth Circuit—​Ramirez v. Killian—​makes clear that a jury can't decide whether an officer is entitled to qualified immunity. Instead, whether the law is "clearly established" is a question for the judge. Ramirez should have a significant impact on civil rights practice in the Fifth Circuit, and illustrates how the current power of qualified immunity rests on both procedural and substantive decisions.


As Alex Reinert has shown, in most courts, qualified immunity doesn't play much of a role at trial. That makes sense. According to the Supreme Court, officers are entitled to qualified immunity unless prior court decisions held similar facts unconstitutional. Whether such prior decisions exist and clearly establish the law is an objective decision, according to the Court. It is a legal decision that judges, not juries, ​should make.


But the Fifth Circuit has viewed things differently. In the Fifth Circuit--which includes federal courts in Texas, Mississippi, and Louisiana--jurors have regularly been given the power to decide whether officers are entitled to qualified immunity. And Fifth Circuit juries have generously doled out the defense.


On August 15, 2024, the Fifth Circuit's decision in Ramirez made clear that juries, not judges, should decide whether the law was clearly established. As the court explained, juries can decide whether the plaintiff's constitutional rights were violated. But it falls to the judge to assess whether those rights were clearly established. Furthermore, if a court has denied qualified immunity at summary judgment, ruling that the plaintiff's version of facts shows a violation of clearly established law, there is no basis to grant qualified immunity to a defendant following a jury's verdict on the plaintiff's behalf.


The Fifth Circuit's decision in Ramirez is essentially a course correction, putting it in line with the practice other circuits. But it will have significant impact in federal courts in the Fifth Circuitin Texas, Mississippi, and Louisiana. Take, for example, the case of Tony Timpaa white Dallas executive who was killed by Dallas police officers who knelt on his neck and back for more than fourteen minutes. Timpa had called the police asking for helphe had anxiety and depression and was off his medication. But instead of helping Timpa, Dallas officers killed him less than thirty minutes after he placed the call. Timpa's mother sued the Dallas officers, and the lawsuit was a multi-year ordeal for many different reasons, including qualified immunity.


Six weeks after Derek Chauvin killed George Floyd, the trial judge in Timpa's case granted the officers qualified immunity, ruling that the officers did not violate clearly established law when they knelt on his neck and back for more than fourteen minutes, until he died. Two years later, the Fifth Circuit reversed the trial court, ruling that “the law had long been clearly established that an officer’s continued use of force on a restrained and subdued subject is objectively unreasonable” and concluded that, viewing the facts in the light most favorable to Tony Timpa’s family, the officers violated Tony’s clearly established rights.​


In September 2023, more than seven years after Dallas police officers killed Tony Timpa, the civil rights case brought by Vicki and other family members went to trial. After a week of testimony and argument, the jury found that three officers who were on the scene violated Tony Timpa’s constitutional rights but awarded qualified immunity to the two officers who knelt on Tony’s neck and back. 


The Fifth Circuit's recent decision in Ramirez v. Killian could change the result of cases like Timpa. In Timpa, the jury concluded that Tony's constitutional rights were violated after the Fifth Circuit had concluded that there was no qualified immunity for the officers if a jury found a constitutional violation. Before Ramirez, the Timpa jury could essentially overrule the Fifth Circuit, finding qualified immunity despire their conclusion that the officers have violated Timpa's rights. After Ramirez, the jury would not have had that power--the Fifth Circuit's decision, in combination with the jury's verdict, would have meant no qualified immunity for the officers.


To be sure, the ultimate outcome of the Timpa case in a post-Ramirez world could have been the samehad the jury's ultimate goal been to deny Timpa compensation, they could have concluded that Timpa's rights weren't violated at all. ​But clarifying that judges, not juries, should decide qualified immunity explicitly cabins the power of the defense in a way that is important, given Reinert's finding that that when juries are asked to decide qualified immunity they often award the defense to officers. It also simply makes sense that judges, not juries, make this type of decision.


The Fifth Circuit's decision in Ramirez v. Killian is noteworthy for reasons beyond the impact on cases like Timpa. The decision is another indication that the Fifth Circuitlong viewed as the most generous bestowers of qualified immunityis becoming more reluctant to grant the defense. It also brings to light that some of the most powerful aspects of qualified immunity aren't about the core of the defense but about various procedural protections that come along with it, including the power immediately to appeal qualified immunity denials and the power to limit plaintiff's entitlement to discovery while qualified immunity motions are pending. These procedural effects of qualified immunity deserve top billing when thinking about the impacts of the doctrine, as the Fifth Circuit's decision in Ramirez makes clear. 








In Shielded, I write about interlocking & overlapping protections for law enforcement that make it exceedingly difficult to get justice when your rights are violate. There's no clearer example of those protections & the horrors they inflict than Terrell v. Harris County.


In February 2020, Shanita Terrell, a 33-year-old married mother was roofied while at a Houston bar. Michael Hines & Mark Cannon, off-duty, uniformed Harris County officers, were working security. When she walked out, disoriented, they ordered her into their patrol car.


Terrell doesn't know what happened next because, presumably, she'd passed out from the drug in her drink. When she work up, she had vaginal pain. She went to the hospital and Officer Hines's DNA was found in her underwear. Terrell sued Hines, Cannon, the Sheriff & the County.


The case against Hines was airtight, but he never responded to the complaint-presumably because he wasn't indemnified by the county & is judgment proof. Hines WAS criminally charged-but that charge ended up in a plea and six years' deferred adjudication.


The district court dismissed the claims against Cannon-the other officer-and the 5th circuit affirmed. Why? The allegation that Cannon helped put Terrell in the patrol car to facilitate her assault is speculative & so must be ignored, according to the Supreme Court's decisions in Iqbal/Twombly. Never mind that Terrell, it seems, HAD BEEN ROOFIED and so wouldn't have much in the way of facts about what happened leading up to her assault. And oh, also - the district court and 5th circuit say - qualified immunity because no clearly established constitutional violation.


What about Harris County & the Sheriff? No liability for not training and supervising Hines because no notice that they needed to do better-EVEN THOUGH, two years before, Hines was charged with sexual assault of a minor (though not indicted) and wasn't investigated by the county.


The 5th circuit's decision affirmed the grant of a motion to dismiss-meaning Terrell never even has the opportunity to get discovery, where she could seek out information about what happened to her that night. So: No Information. No Compensation. No Public Reckoning. SHIELDED.


You can read the 5th circuit's decision here.


One of the most powerful legal barriers to accountability under 42 U.S.C. § 1983 is Monell—the Supreme Court decision that recognized municipalities can be held responsible for constitutional violations by their officers but set an exceedingly high standard for such claims. Many have called for Monell to be replaced with vicarious liability, and some courts and legislators have expressed interest in the idea, but immediate prospects for meaningful reforms are dim.


In this Article, I offer an alternative path around the barriers of Monell that does not require convincing courts or legislators to change the law: Plaintiffs should pursue Monell claims based on police departments’ disregard of allegations and information in lawsuits brought against them and their officers.


Police departments are unquestionably obligated to investigate citizen complaints made against their officers: every circuit recognizes that the failure to do so can be the basis for municipal liability. Lawsuits, like citizen complaints, allege officer wrongdoing—they are, in essence, citizen complaints plus demands for money. Yet I have found many police departments do not investigate allegations in lawsuits brought against them and their officers as they would allegations in citizen complaints. If failing to investigate citizen complaints is sufficient basis for municipal liability, failing to investigate allegations in lawsuits should be as well.


Police departments’ disregard of information unearthed during litigation should also be a basis for municipal liability. Litigation files are chock-full of deposition testimony and other evidence about officers’ conduct and police policies and practices. Yet I have found that many police departments do not review information from lawsuits as part of their internal affairs investigations of officers’ conduct or to inform supervision and training decisions. Courts have ruled that perfunctory internal affairs investigations can be a basis for municipal liability. If a department systematically ignores litigation information relevant to their internal affairs investigations or findings, that failure should be a basis for municipal liability as well.


In the short term, pursuing Monell claims based on departments’ inattention to lawsuits would make it easier to establish municipal liability. In the longer term, effectively requiring police officials to take account of litigation information may improve departments’ internal investigations and supervision of their officers.


You can read the article, forthcoming in Columbia Law Review, here: https://papers.ssrn.com/sol3/papers.cfm?abstract_id=4745422


This is Appendix A, which is an overview of departments' policies and practices with regard to litigation data:




This is Appendix B, which sets out thirty lawsuits against the defendants named in a case called Glasper, that I write about in the article:









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