Qualified immunity is a legal doctrine that can keep law enforcement officers from being held liable for violating the constitutional rights of a suspect. The practice has long been a target of criminal justice and civil rights advocates who believe it allows police and other government workers to escape accountability. But a pair of Texas cases the Supreme Court chose not to hear this term also point to how immunity for cops has increased the risk of suicide for mentally ill suspects and inmates.
Nick Sibilla, a writer and legislative analyst for the Institute for Justice, wrote about the two recent cases for Slate. Listen to his interview with Texas Standard above or read the transcript below.
This transcript has been edited lightly for clarity:
Texas Standard: First, can you tell us the mechanics behind how police benefit from qualified immunity?
Nick Sibilla: So qualified immunity is effectively a legal doctrine – a shield that protects not just law enforcement officers, but any government worker from being held liable for violating someone’s constitutional rights, unless the right in question has been “clearly established.”
Effectively, in order to prevail and show that it has been clearly established, a victim whose rights have been violated effectively have to find a case that has almost identical fact pattern and show that as precedent, and as a result, it becomes a very high barrier to entry and left a lot of really questionable and downright abusive actions.
One of the cases you wrote about that the Supreme Court chose not to take up was an Arlington resident named Gabriel Eduardo Olivas, who was suicidal when he encountered police. Can you tell us what happened in his case?
The case of Olivas is a really tragic. The Arlington Police Department got a call from Olivas’ family warning that their father and husband had just doused himself with gasoline and was threatening to kill himself. So three officers from the Arlington Police Department were dispatched. One of the officers warned the other two that “if we Tase them, he’s going to light on fire.” But unfortunately, they did the one thing that they should not have done: They Tased Olivas, and he instantly ignited. He died in the hospital four days later. The family sued the two police officers who Tased him for excessive force. A federal district court actually sided with the family, but that was actually overturned on appeal, and they granted the officers qualified immunity.
I want to touch on another case that you wrote about. This one is in Coleman County, and it’s the case of Derrek Monroe, who was booked into the county jail there. He told staff that he was diagnosed with a form of schizophrenia, and he had threatened to take his own life. Can you tell us what happened after that?
He’d been booked on some type of a drug offense. He had warned the jail staffers that he tried to attempt suicide just two weeks prior to his booking, so he was put on suicide watch. According to court records, within 17 minutes of arriving in jail, Monroe actually began to attempt suicide twice, and it was only after the second attempt at the jail that staff actually tried to intervene. He was moved to the only single-occupancy cell, and that still happened to have a phone with a 30-inch cord, which is an obvious choking hazard.
But it also violated their jail policy. They had a policy that if someone was in this type of mental distress, they used to be able to transfer them to a facility that had the capabilities to handle those types of situations. In fact, due to budget constraints, the county actually only had one jailer on nights and weekends. But then there’s a really brilliant Catch-22: They also prevent any jailer from entering a cell without backup. So they effectively forbade jailers from trying to intervene and help someone. But unfortunately Monreo did kill himself. It was only after about 10 minutes when the jail administrator arrived that the two of them entered the cell, and only then did actually call emergency medical services.
In both lawsuits, attorneys petitioned for them to be heard by the Supreme Court, which collectively declined not to hear them. But you wrote about how Justice Sonia Sotomayor dissented in those decisions. Can you give us an explanation of what she said and what it might mean for future cases like this?
What’s interesting is that for the Olivas case, Sotomayor was joined by the two other liberals on the court at the time, Justice [Stephen] Breyer and Justice [Elena] Kagan. Her arguments for both were effectively that the doctrine of qualified immunity just got completely out of control and really needs to be reined in. And she, along with Justice [Clarence] Thomas, have actually been two of the strongest critics of this doctrine. The two of them could possibly be the furthest from each other on the political spectrum. No doubt. But it is really fascinating that the two of them have been these very sharp critics of qualified immunity, and her dissent really calls attention that, without changes to qualified immunity, these sort of really unforgivable tragedies are going to keep continuing.