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Are Judges Becoming More Critical of Excessive Force?

By Ephrat Livni, Esq. on May 11, 2016 | Last updated on March 21, 2019

Excessive force by police has gotten a lot of media attention in recent years and some legal analysts believe a changing national consciousness is starting to influence decisions on the bench. Judges are increasingly reluctant to let police escape liability with qualified immunity, according to Noah Feldman, a writer and professor of law at Harvard University.

The basis for this claim made in a Bloomberg editorial is extremely limited -- a single conservative judge's dissent on a motion to dismiss a civil suit against Texas officers who allegedly contributed to a man's death with excessive force. Still, let's consider. Is there a growing consciousness, inside and out of the criminal justice system, that police officers have a lot of power which is easily abused?

Qualified Immunity for Police Officers

The case Feldman refers to arises from a stop in Texas that ended with a man hogtied by police in violation of department policy. The man was drunk and on cocaine and police used tasers on him repeatedly, so the death was ruled a combination of factors. His mother sued the police on the basis of the violation of policy, arguing that this negated their immunity.

Qualified immunity allows officers of the state protection from liability except in cases of deliberate wrongdoing or extreme negligence. Ultimately, two judges on an appellate panel of three ruled that the officers are entitled to immunity. So why does Feldman find this denial so interesting?

Unexpected Dissent

It is the dissent that is fascinating, according to the law professor. He quotes from the opinion of a conservative George W. Bush appointee, Judge Catharina Haynes, seeming to find it remarkable. "Wayne Pratt received the death penalty at the hands of three police officers for the misdemeanor crime of failing to stop and give information."

What Feldman seems to be saying is that the tone of this writing by a Republican judge in Texas signals a change in our understanding of excessive force nationally, and he attributed this in part to the Black Lives Matter movement (though the race of the deceased in this case was never noted, Feldman pointed out). Perhaps more importantly, that dissent signals a change in the perception of those whose views matter most -- judges on the bench, even those who might be expected to empathize only with authority.

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