George Floyd Didn't Have to Die

         Five months after George Floyd’s death in Minneapolis, the federal appeals court in California issued a ruling in a less serious use-of-force case that could have saved Floyd’s life if the Ninth Circuit’s rule had been adopted earlier by the Minneapolis police department. The appeals court’s ruling in Cortesluna v. Leon cited a twenty-year-old decision as establishing a simple, easy-to-follow rule for police to follow: any use of force against a suspect, lying on the ground and not resisting, is excessive and against the law.

            The Ninth Circuit’s panel treated that rule as clearly established and applied it to allow the suspect in a domestic disturbance case, Ramon Cortesluna, to sue the officer, Daniel Rivas-Villegas, who kneeled on his back while he lay on the ground helpless and compliant. With one judge dissenting, the panel majority determined that controlling precedent at the time put officers on notice that kneeling on a prone and non-resisting person’s back so hard as to cause injury was excessive.

            With a rule like that in Minneapolis, Officer Derek Chauvin might have known that he was violating the law from the very first moment that he pressed his knee against Floyd’s neck—not for eight seconds but for nine minutes. The other, younger officers at the scene might have felt more comfortable in urging Chauvin to stop before the pressure on Floyd’s windpipe killed him.

            The Supreme Court reversed the Ninth Circuit’s decision in a ruling issued last week (October 18) that effectively ended Cortesluna’s suit against the two officers involved in his arrest and resultant injury. Ruling in the case without full briefing or oral arguments, the justices held that the earlier case that the Ninth Circuit relied on was “materially distinguishable” from Cortesluna’s case and determined that Rivas-Villegas’ use of force – kneeling on Cortesluna’s back for eight seconds -- was not clearly excessive and on that basis that he was entitled to qualified immunity.

            More than a year after George Floyd’s death in May 2020, the efforts to reform police practices on use of force have produced little by way of changes in policy. The Ninth Circuit’s rule, on the other hand, could have significant impact if adopted not only in western states but in other federal circuits. The Supreme Court’s peremptory rejection of the Ninth Circuit’s decision, on the other hand, kills any prospect for extending the rule.

            The Supreme Court’s ruling in the California case was one of two summary decisions issued last week that granted qualified immunity to police officers sued for excessive force. Together, the two decisions dashed hopes that the justices might respond to the growing criticism of the judicially created doctrine of qualified immunity, which effectively allows police officers to escape liability by claiming ignorance of the law. How were we to know, the officers in the California case might have asked, that it is wrong to use force against a suspect after the suspect is compliant and under control.

            Joanna Schwartz, a professor at UCLA Law School who teaches about police accountability, summarized the arguments against qualified immunity in an article published recently in the University of Chicago Law Review. “There is a growing consensus among courts, scholars, and advocates across the ideological spectrum that qualified immunity doctrine is legally unsound, unnecessary to shield government officials from the costs and burdens of litigation, and destructive to police accountability efforts,” Schwartz wrote.

            Critics emphasize that qualified immunity effectively leaves police officers and oversight agencies with no clear guidance on use of force. The Supreme Court’s ruling in the California case, for example, unsettles the Ninth Circuit’s bright-line rule and instead holds that eight seconds of unnecessary use of force is not necessarily excessive – but how about sixty seconds? Or nine minutes?

Even apart from the issues left unresolved in decisions based on qualified immunity, Schwartz reports in her article that police officers “are not notified of the facts and holdings of cases that clearly establish the law for qualified immunity purposes.” And, in any event, “there is no reason to believe that officers would analogize or distinguish situations rapidly unfolding before them to the court decisions they once studied.”

            Two terms ago, critics of qualified immunity filed several petitions urging the Supreme Court to take a serious look at the doctrine and consider either eliminating it or narrowing it significantly. The justices turned aside all those petitions, despite the widespread buzz among the defense bar and civil liberties communities. With last week’s decisions, the Court appears to be doubling down on qualified immunity rather than re-examining the doctrine.

            The Court’s reticence bodes ill for any significant reform in police practices in the near future. Recall that police practices on interrogating suspects and defendants were reformed only after the Warren Court laid down bright-line rules for police to follow: specifically, no custodial interrogation without first advising suspects of their right to an attorney during questioning. The Miranda guidelines were intensely controversial when adopted in the 1960s, but by 2000 Chief Justice William H. Rehnquist spoke for a 7-2 Court in declaring that the Miranda warnings “have become part of our national culture.”
            The current Court ought to consider what it can do to establish reasonable limits on police use of force instead of using qualified immunity to avoid the issues. Miranda, it is now clear, has been good for law enforcement by giving a clear roadmap for admitting confessions from suspects. Police today need the same kind of clear rule about when and how use of force can be justified.