Federal judges often let bad cops slide

Latonya Davis, a disabled African-American woman, was too terrified to get out of her car. The police had pulled her over, surrounded her with four cruisers, and were pounding on her vehicle with their batons. She slid her window open slightly and told Lakewood, Colo., Officer Todd Clifford and Sgt. Todd Fahlsing she would step out if they promised not to hurt her. They made no such promise.

Instead, Mr. Fahlsing smashed the driver's window with his baton, sending glass into her eye. The officers reached in, grabbed her by her hair and arms and pulled her through the shattered window, tearing the soft tissue in her shoulder. They threw her to the glass-covered pavement and pinned her to the ground. Her crime? The misdemeanor offense of driving under suspension for failure to provide proof of insurance. When she sued, District Judge William J. Martinez dismissed her case, concluding the officers were entitled to "qualified immunity." More on that doctrine later.


This summer my co-authors and I are preparing our annual update to "Police Misconduct: Law and Litigation," a treatise for lawyers on civil rights cases. Ms. Davis' case is one of approximately 400 we will review. The thousands of cases I have studied over four decades establish beyond any doubt that a widespread unwillingness of federal judges to hold bad cops accountable is a principal cause of police brutality.

The problem extends to the Supreme Court. Last spring, I was at the counsel table when the lawyers argued San Francisco v. Sheehan, a case in which two officers recklessly shot and nearly killed a mentally ill woman in her own apartment, instead of waiting for backup. Justice Kagan, one of the "moderates" on the court, said, "we shouldn't turn every case into an inquiry about, was this the absolute best thing that the police could have done. You know, there's a lot of uncertainty in these situations, and some reason to give the police officers who have to deal with them the benefit of the doubt."


Well, Justice Kagan, that's in fact what the courts have been doing. That's what Judge Martinez did. That's exactly what gives officers who break the rules confidence that they can get away with it.

The legal doctrine of qualified immunity, invented by judges and unknown to the general public, provides that to win a civil rights case it is not enough to prove that a police officer violated someone's rights. One has to prove that every reasonable officer would have known the specific misconduct in question was a constitutional violation. Some earlier court has to have said so in similar circumstances. Because no cop had been depraved enough to pull a disabled woman through the shattered glass of her driver's window before, Judge Martinez ruled that Officers Clifford and Fahlsing were off the hook.

President Barack Obama has asked us to have an open heart and to seek greater understanding between the police and the community. That's a good thing for people of good will. We should all support conscientious police officers. But when bad cops break the law, they should not be given the "benefit of the doubt" and should not be given immunity. They should be sanctioned, and the victims of their misconduct should be made whole with reasonable compensation. Fortunately for Latonya Davis, the 10th Circuit Court of Appeals in part reversed Judge Martinez's decision, and she will get a chance to present her case to a jury. But far too often, legitimate complaints against the police are permanently thrown out of court by conservative federal judges.

In the mid-'70s, as a young lawyer, I represented an elderly black woman who sued the police for her injuries when she was thrown into a police wagon for asking the officers why they were arresting her grandson. An all-white jury returned a verdict for the cops. As we left the courthouse, she turned to me with tears on her cheeks and asked, "What's an old colored woman to do?" That question has haunted me over the course of my career. Now we put it more affirmatively: Black Lives Matter. The question is, do they matter enough to federal judges?

To deter police misconduct, the next president is going to have to appoint fair-minded judges without an ideological bias that blinds them to constitutional violations. It would help if he or she would put as many civil rights lawyers on the bench as there are former prosecutors.

Michael Avery ( is professor emeritus at Suffolk Law School.