Roundtable On Qualified Immunity And Section 1983 – Transcript

Roundtable On Qualified Immunity and Section 1983 – Transcript

Louis Goodman 0:05
Welcome to the Love Thy Lawyer podcast roundtable. I’m Louis Goodman. Today I’m joined by attorneys Fulvio Cajina and Adam Carlson for a discussion of qualified immunity and Section 1983 litigation. If that sounds dry and boring, trust me, it’s not. These issues are at the heart of America’s current debate about policing, race issues and civil rights.

Fulvio Cajina earned his bachelor’s degree at the University of California, Berkeley and his JD from Cornell Law School. He practices in Oakland. Adam Carlson earned his bachelor’s at Middlebury College in Middlebury, Vermont and his JD at the University of San Francisco in San Francisco, California, and currently practices in Walnut Creek, California.

Gentlemen, welcome to both of you and thank you so much for joining me today on the Love Thy Lawyer roundtable.

Adam Carlson 01:10
Thank you, Louis. Glad to be here.

Louis Goodman 01:12
Welcome back. Fulvio, welcome. We decided before we started recording that talking about qualified immunity and Section 1983 litigation would be an interesting and topical subject. I’m wondering if you could tell me and let’s start with you, Fulvio, how you came to be dealing with qualified immunity cases in your practice and give a brief history of your career and how you got there.

Roundtable On Qualified Immunity and Section 1983 – Transcript
Fulvio Cajina 01:43
Yeah, no, I definitely took a circuitous route to …1983. I started off as a Wall Street attorney in New York, came back home to San Francisco, was working on corporate matters and then as life would have it, I came to know some people who had a loved one shot and killed by the police out in Vallejo. I was helping them get counsel for the case, but I ended up working with co-counsel on it and I just fell in love with the subject matter and sense that it’s so visceral. It touches upon the things that we learn about in law school, like so concretely, as opposed to other fields. So, that’s how I fell into litigating 1983 actions.

Louis Goodman 02:35
Well, can you tell me exactly what 1983 action is?

Fulvio Cajina 02:42
Yeah. So, 42 section 1983 of the United States Code is actually a law for post post civil war. It’s actually the Ku Klux Klan act of 1871. And it was a law that allowed for private remedies or people whose civil rights were violated to be able to sue in court to either get injunctive relief or money damages for those violations.

Louis Goodman 03:11
If I may read Section 1983, it says essentially, “Every person who, under color of statute, ordinance, regulation, custom, or usage, of any State or Territory or the District of Columbia, subjects, or causes to be subjected, any citizen of the United States or other person within the jurisdiction thereof to the deprivation of any rights, privileges, or immunities secured by the Constitution and laws, shall be liable to the party injured in an action at suit, suit in equity, or other proper proceeding for redress…” So, essentially what it seems to say is that someone working for the government can be liable for injury to an individual. Is that a radical concept or was it a radical concept when it was first passed? Adam, what do you think?

Roundtable On Qualified Immunity and Section 1983 – Transcript
Adam Carlson 04:06
Well, no, I think, you know, looking at the amendments that were passed back then, a lot of them dealt with individual rights and protecting the individual citizens from government overreach. And that certainly stemmed from you know, things that were at the heart of the, what we were looking for when we were founding our country, we really wanted to protect individuals.

And you know, most of the 1983 actions are fourth amendment, relate to fourth amendment violations and that’s, those are the incidents that I get involved in. All my cases are fourth amendment violation cases, and that’s rights of individuals to be free from unreasonable searches and seizures. And while that’s a very nice amendment and there are protections in the criminal court arena, such as motions to suppress evidence and so that evidence obtained illegally in violation of the fourth amendment cannot be used, it was really a logical next step to also provide for redress and for individuals outside of just the criminal arena, if they’re not charged with a crime, there was nothing really that they could do if a police officer came inside their house. And that was certainly something that the founders of this country had in mind.

Louis Goodman 05:25
Are there state claims under Section 1983 or are they just federal cases?

Fulvio Cajina 05:33
There are federal claims under Section 1983 who are suing for violations of the constitution and also laws under that. But that being said, when you bring in 1983 action, you can also bring in additional claims, such as negligence, … jurisdiction or bring them in state court as well.

Louis Goodman 05:59
And Adam, where does qualified immunity fit into this? And before you tell us that, can you explain what qualified immunity is?

Adam Carlson 06:08
I certainly can. So, there are various defenses that can be brought by individuals who have been in all different types of civil lawsuits. When it comes to civil actions against government agents, government employees, they’re entitled to various forms of immunity.

Some are absolute immunity, such as for the president or prosecutors or things like that, and then in 1968, in a case of Harlow v. Fitzgerald was born the notion of qualified immunity. And the defendants in that case were trying to move for absolute immunity and the court said, no, it doesn’t apply to that level, the level of government employee that was bringing the defense. But the court felt like it was important to protect government officials from lawsuits when there was no way that they knew or should have known that their conduct would violate the plaintiff’s, the individual’s rights. And that’s essentially what qualified immunity is.

It’s sometimes referred to as a good faith immunity, but qualified immunity says that when an individual did not know or should not have known that their conduct would violate the individual’s rights and they are not to be held liable. And the way that it’s applied is by looking at essentially precedent. Has it been established in the law that the conduct by that individual, by the governmental employee, by the police officer, has it been established that their conduct was a violation of the law?

So, that’s what qualified immunity is. That’s what the rule. It came out of a case in 1968 Harlow v. Fitzgerald.

Louis Goodman 08:01
Certain public officials, for example, like you said, the president of the United States have unqualified immunity. They have complete immunity, but certain lesser of governmental officials, for example, a police officer would have what’s referred to as a qualified immunity. Is that correct?

Adam Carlson 08:21
That’s exactly right. And right, so you know, prosecutors absolute immunity, president absolute immunity, but then in terms of evaluating whether or not a lower level government official, government employee could be held liable civilly, then the question is whether or not they’re entitled to qualify. Was the law clearly established at the time that they engaged in the conduct?

Louis Goodman 08:47
Well, Fulvio, who determines that qualification? Who decides how much immunity a lower level, for example, police officer, or official would have?

Fulvio Cajina 08:59
To piggyback on what Adam said a little bit, the qualified immunity test its limits, twofold actually. It’s, one was very constitutional violation? And if there was, was the law clearly established at the time, so that the governmental official would’ve known that that was a constitutional violation.

In respect to the second part of the test, the trial court decides that. The trial court decides essentially whether the law was clearly established or not as a matter of law. And then if they decide it wasn’t clearly established, then unfortunately, you know, they’ll grant immunity to the government official.

Adam Carlson 09:38
And there are really, you know, arguments on both sides when it comes to presenting the case for the judge to decide. And the defense, the side, trying to claim qualified immunity for their officers will say that there is no case precisely like this case that would apply. There is no precedent out there that would apply. And they wanna have the facts construed as narrowly as possible. They argue that because there’s no case out there that’s exactly like this, then the law wasn’t clearly established. And on the plaintiff’s side, we argue that, well, the law was established. We just don’t, we don’t need a set of facts that are exactly like ours. That would just, there’s no way that would ever happen. So, the two sides argue over how narrower or how broad precedent should be applied to the facts of a case.

Louis Goodman 10:35
Adam, you have said to me on past occasions that you really wished that we could get rid of qualified immunity. Why do you feel that way? I mean, it seems to me that it is appropriately protecting government officials from unreasonable lawsuits being brought against them.

Adam Carlson 10:55
Qualified immunity does bother me quite a bit. It’s my least favorite aspect of the law. And it’s because in circumstances where an individual, where a citizen of this country has been subjected to a fourth amendment violation, they have been subjected to an unreasonable search or seizure, the court can basically say, because there was no precedent of this precise, factual scenario, you’re not entitled to compensation. And I think that is in many ways, absurd.

One, I think it’s just depriving victims of fourth amendment violations of redress. There’s no redress. If this victim of a fourth amendment can’t establish that there was some case law out there that should be applied to hold that this, the conduct of the officer was unconstitutional.

And then the notion that what it comes down to is whether or not this officer should have known that the sixth circuit ruled in a certain way, you know, the sixth circuit ruled that in these facts, you can’t do this or in the eighth circuit they ruled, when you do these facts, you can’t do that. The notion that an officer in the field is making, is aware of that, or knew or should have known of what some other circuit’s opinion was, is just inappropriate from my perspective.

You know, I think the law should should be, should the jury figure out was the conduct of the officer, an unreasonable search or seizure or not? And that’s it. And so we have situations where that is admitted. That is not in dispute. There has been an unreasonable search or seizure and the court rips it out from the victim’s hands and they get no redress.

Fulvio Cajina 12:43
So, let me give you the example then. Yeah. So, there was this case out of, I believe it’s Utah. I don’t recall the name, but it was a case where some officers were going to possibly arrest a lady for domestic violence. The officers are walking toward the house where they believe that this female suspect is at when they see the female suspect walking toward them.

So she walks toward them and she passes one of the officers. Officers never say anything, never tell her, “Mam, you know, we’re looking for you, mam. Do you mind to stop, I wanna ask you a few questions.” They don’t say anything. Once she passes him, the officer, like the officer has a brand new taser that he just got. He decides to taser in the back. She becomes incapacitated falls forward, hits her head on the concrete and suffers a traumatic brain injury. Had the officer kicked her in the back there’s no question that’s unconstitutional, but the court in that case ruled that because this was the first time that the officers were using tasers in this way, and because tasers were new technology, they were entitled to qualified immunity.

That just seems like an arbitrary and absurd line to draw for a behavior that’s clearly unconstitutional. And unfortunately that’s what we see as plaintiff’s attorneys all the time. We see these arbitrary lines being drawn.

Well, the gun was pointed at a 45 degree angle. The cases say that it’s pointed down to where the ground you can’t shoot, therefore the officers are entitled to qualified immunity. Things like that that are just somewhat arbitrary. It depends on the judge, whether they find qualified community exists or not. So.

Even Clarence Thomas, let me put it to you that way, is against the notion of qualified immunity because it’s something that’s not the constitution. It’s just made up law.

Louis Goodman 14:43
Right. I was going to get to that a little bit later, but since you brought it up, if you wanna get rid of qualified immunity, do you think that right now, given the six, three very conservative originalist court that we have right now, that ironically, it may be this court that would be most in favor of getting rid of qualified immunity and going to more of a common law system than courts that are considered more liberal that we’ve had in the past?

Adam Carlson 15:19
It’s an interesting question you bring up and your question does, you know, touch on something that’s important when we’re talking about qualified immunity and that is essentially what’s the timeliness of this issue of contesting qualified immunity?

That’s a part of what you’re getting at. And I think, you know, one of the things that happened for qualified immunity was that it was brought into the light after George Floyd. And the George Floyd incident happened in May of 2020. And people were trying to figure out how do we reform policing? You know, there was the defunding policing ideas. The people wanted to do something. They felt like there were injustices that were occurring. And people that like us, that knew about qualified immunity and didn’t like it for the various reasons that we’ve already mentioned, and there’s more that we haven’t even got to. People said, well, let’s attack, legislators said let’s attack qualified immunity.

And so democratic representative Karen Bass brought fourth the George Floyd Justice and Policing Act of 2021 that would eliminate qualified immunity for law enforcement officers. And there were other reforms in it too. And that made, that act made it through the House twice, but, you know, unfortunately it couldn’t get through the Senate because of the Senate Republicans, but you know, qualified immunity was all of a sudden being talked about.

And all of a sudden I was, you know, being asked about it at parties and I couldn’t wait to talk about it because of my views on qualified immunity. Unfortunately it didn’t make it through Congress and so you’re questioning, getting back to your original question of what about the courts? I think you make a good point that perhaps when we’re dealing with justices that are more originalists and, you know, would like to just stick to the language of the constitution and amendments, you know, in theory, perhaps, but my gut just tells me that there’s no real chance of that. I can’t really see that happening with this court that it goes, that a case goes to the Supreme Court and it’s the right case. And it just happens to be the one that gets rid of this. I just, I don’t have confidence that that would happen.

Fulvio Cajina 17:34
Yeah. And going back to your question, Justice Thomas is one of the outliers on the court on this issue, Both the majority of the liberals and the conservative justices are for qualified immunity unfortunately.

Louis Goodman 17:48
So, government officials, including Supreme Court Justices, tend to think that this is really a pretty good law?

Adam Carlson 17:59
They do, they do. There’s been a lot of 9-0 opinions on qualified immunity appeals. I think when you think of it, when you think of it logically, it makes sense. I get it. You know, that if the law wasn’t clearly established, then somebody shouldn’t be held liable. You know, it’s not completely illogical, but I think it’s failing to contemplate you know, what happens to the victim. The way that I like to describe what happens to the victim in these situations, somebody who’s been subjected to a fourth amendment violation is it is a great offense to their comfort as a citizen. You know, this country was founded on the notion of Life, Liberty, and the pursuit of happiness.

And when you have been subjected to a fourth amendment violation by a government official, a police officer who is an arm of the government, your comfort as a citizen in this country is shaken big time. And it doesn’t matter if it’s, you know, a warrantless search, you know, late at night and they come into your home and they rip through your closet and tear through your drawers or if they chewed a loved one, you know, the offense to your comfort as a citizen is essentially all the same when it comes to that. And I think, I get it, this notion that, well, it’s not fair to the officer, but, you know, from my perspective, these officers, they’re not the ones who are end up paying.

I’ve seen from taking depositions of number from officers, asking them about other lawsuits. Sometimes they don’t even know how many times they’ve been sued. It doesn’t bother them. You know, maybe there are a number of officers where, where it does bother them. I mean, that might be the case, but my sense was in taking the depositions of a number of officer, they couldn’t even tell how many times they’ve been sued. They didn’t know. You know, the agency is the one who’s on the hook financially, not the individual officer and the notion that you know, whether their conduct results in redress for a victim is based on whether or not a court has issued an opinion on similar facts just doesn’t seem appropriate to me.

Fulvio Cajina 20:14
I mean, for me the concern is the arbitrariness of it. It’s almost like a due process violation, to be honest. Each judge in the same ward might reach a different opinion as to whether qualified immunity exists or does it. I just got dinged on one where my client had his hands up where a police dog was released. And this isn’t just about you know, his dignity or his moral outrage having his fourth amendment rights violated. His arm was maned. I mean, he can’t close his hand any more. And my judge in that case found that qualified immunity exists because there was no case on point saying an officer can’t release a canine against someone who has their hands up. I mean, what country are we in? I mean, that doesn’t make any sense. And it, I don’t know if we’re gonna ultimately end up appealing, but that seems like a case where qualified immunity should have never even been a factor.

These are questions that a jury should decide, whether the civil rights were violated or not. That’s a jury question.

Louis Goodman 21:24
So, Fulvio, when you are talking to a client and you’re considering taking one of these cases, I assume that these are cases that you take on a contingency basis, like other tort cases. And I’m wondering what you look for in a case and what the general process is throughout that litigation?

Fulvio Cajina 21:46
Yeah. The very first thing I look for in a case is whether a violation occurred. I mean, there’s no question that police officers can use force on individuals to arrest them. There’s no question about that. And so, as Adam mentioned, though, the real thing that we’re looking for is whether that force was unreasonable.

So, sometimes I’ll have a client come in in and say, you know, “I was roughed up by the police.” I look at the facts and I think to myself, well, you know, it doesn’t seem unreasonable what happened. So that’s the very first question to ask. And that, of course damages you. You’re not gonna devote a ton of resources if the damages are small, and I’m not talking about injuries so much. For instance, like if a 20 year old man is held in the back of a police car, you know, unlawfully for 45 minutes versus an eight year old, who’s been arrested in placing cuffs for like 20 minutes, you know, the injury to an eight year old is obviously much greater because that that’s just kind of shocking. So that, that’s what I look for to see the damages and whether violation actually occurred.

Adam Carlson 22:59
One thing I wanted to mention, you asked about whether we take these cases on contingency, and we do, which is really good because there’s no socioeconomic barrier to representation. You don’t have to be rich to be able to hire myself or really good lawyers. Like, you know, you don’t pass along the way. You only pay us if we win. But one really interesting component to these 1983 cases comes from 42 USC, 1988, which is an attendant statute code that provides for attorneys’ fees in the event that you are successful in bringing a 1983 case. And the reason for it is to encourage people, to bring these lawsuits.

So if a police officer comes to your house in the middle of the night without a warrant and goes through your home, and there’s no reason for them to do so, and it was unlawful. Then your damages are, you know, it’s an offense to your comfort as a citizen, but you didn’t, you know, you didn’t, you don’t have any lost wages, you don’t have any medical bills, you don’t have things like that. And so a lot of attorneys wouldn’t really want to get involved because you might go to a trial, you might win, but then you get awarded the nominal damages of a dollar. And so why would attorneys want to take these cases? And so that’s the reason why they have what we call the 1988 attorney’s fees.

So, oftentimes in these cases, the attorney’s fees damages are higher substantially higher than the actual economic damages of the victim in the case. And they’re a big, a big part of the case and can often, you know, field leverage to get a good settlement for the plaintiff. Because you know, the more time spent opposing summary judgements the more time spent opposing qualified immunity motions. All that, you’re just racking up attorney’s speech. That is a damage component.

Luis Goodman 24:57
Fulvio, you recently had a fairly significant trial win in one of these cases. I’m wondering if you could tell us a little bit about the facts of that case and the outcome and how that litigation went for you?

Fulvio Cajina 25:12
Sure. So, as to the facts of the case, this involved a young Latino man, he had just turned 18, who was at home with his family when a friend comes over. He invites him and his younger brothers to go for a ride. They get into his friend’s car. Lo and behold, the car is stolen. They didn’t know this. There’s the high speed chase, the friend doesn’t want to give up. They eventually stop. Officers arrive, they get each one of the men out of, the young men and the kids, some of them were under 18, out of the car and my client, Ricardo, who was the last one to get out of the car. When he gets out, one of the officers puts him in a choke hold, eventually strikes him in the head six times with a flashlight and then takes out his revolver or sidearm, puts it to his head and says, “I’m gonna blow your brains out” or something like that, “I’m gonna kill you.” That’s what it was. All the while Ricardo was unconscious because he was in a chokehold. So there was a case brought by another attorney against the deputies. It was Contra Costa County Sheriff’s Deputies and against a Richmond Police Officer, who was the president at the scene, Contra Costa, whose officers actually used the force settled for 260,000. And then the only case that was left was against the officer that was at the scene who didn’t intercede or didn’t stop what was going on.

I came in the day before trial, literally the day before trial and I tried the case and a jury saw, there was a body cam video. They saw what happened to Ricardo and they saw that the officer didn’t do anything to stop it. So they awarded $250,000 in damages and $300,000 in punitives.

Adam Carlson 26:59
I need to emphasize how significant it is to get what we call a failure to intervene case and win it.

You know, there’s, it’s one thing to take on the officer who actually does the force themselves and prevail against them. But, Fulvio’s case was against an officer who failed to intervene with their fellow officer. That result is just huge. It was a big win in the civil rights world. You don’t get these a lot.

Oftentimes you get the officer who did the conduct themselves, but the notion that Fulvio got a verdict against an officer who did not intervene against this fellow officer is a very, very big deal.

Louis Goodman 27:43
Is there some reason that qualified immunity didn’t protect that non-intervening officer, Fulvio?

Fulvio Cajina 27:50
No, because there’s actually a case law out there and it’s been long established that an officer has to intervene it when he sees excessive force being used. And so, you know, the law was actually pretty well established by the time we brought this case.

Louis Goodman 28:09
And in your favor.

Fulvio Cajina 28:11
Yes, and in our favor. in fact, the officer even admitted that that’s how he’s trained, that he has to intervene if excessive force is being used.

Louis Goodman 28:21
Adam, what, if anything, would you change about the way the qualified immunity protection is used?

Adam Carlson 28:28
So, one thing we talked about briefly is this case, Saucier, established a two-step analysis. The first is, was there a constitutional violation? And then second step, if it was unconstitutional, so if it was constitutional, you stop right there. No more, defense wins. If it was unconstitutional, was it clearly established? And Pearson, a case in 2008 said that you no longer have to do the first step. You only, you can jump to the second step and just look at the facts and see whether or not it was clearly established at the time. And what I would do to change the law going forward was, if we’re assuming we’re gonna keep it, is make them go back to that, make them have to do the two steps. And here’s why.

When courts get involved, they look at whether or not there’s prior cases that have stated that similar facts were determined to be unconstitutional. So when they get involved and they don’t determine whether or not an incident is constitutional, then going forward, those facts, even if they are unconstitutional, will never become precedent.

So the court comes in, they look at the facts. They say, well, it’s never been established whether or not this was unconstitutional. Two years down the road, a court looks at it again and answered the same question. Well, it’s never been established that this was unconstitutional. Now, if the first court had gotten involved and said, this is unconstitutional, this conduct here is unconstitutional, however, it has not been clearly established, then the court two years later will get involved. They’ll look at that court opinion from two years ago and say, “Oh, not only is it unconstitutional, but it was clearly established in that case.” And so what we have here is just this vicious cycle of courts getting involved, determining whether or not it was clearly established. They don’t determine whether or not there was constitutional violation, so there’s no precedence moving forward to be relied upon, to overcome qualified immunity. So that’s one change I would make.

Louis Goodman 30:46
What mistakes do you think lawyers make in dealing with section 1983 and qualified immunity cases?

Fulvio Cajina 30:55
I would say that the biggest mistake is not filing a state law claims. The state law claims normally, you can use them to get around or sidetrack the qualified immunity defense.

Louis Goodman 31:09
Adam, what do you think?

Adam Carlson 31:10
You know, one of the things, a big, big aspect of these cases is initial case evaluation. And, you know, I think that Fulvio’s, what Fulvio talked about analyzing whether or not there was a violation is definitely paramount to these cases, obviously.

But one thing that I think is overlooked by attorneys evaluating these cases is who is the plaintiff. And that to me is almost as important as whether or not there is a violation.

In cases where people are seeking redress, looking, asking for money. who that individual is such a big deal. You know, oftentimes police get involved with individuals who have numerous prior felony, convictions, and unfortunately those will come in to convict, to impeach the person and those are hard to overcome lots of times, when someone has a lot of felony convictions.

In determining whether or not to take a case we often look at who is the individual plaintiff. And for example, we had a case and it was, you know, sort of a borderline case, but it certainly felt like it involved a lot of racial profiling. And the facts themselves were not clear that they were an established violation, it was, you know, well, it’s gonna be a, he said, he said type of a deal. But the plaintiffs, the injured person, the victim was a Harvard Law graduate. He was with his brother, both were black males. He, the brother went to the University of Chicago School of Law. And so these plaintiffs, these individuals, when they were, when their deposition was taken, it was just game over. They presented really well. And the case felt like racial profiling. And when you got to know them, it felt it even more, cuz it just felt like there’s no way the cops should have treated them like this.

So I think in evaluating cases, you know, a mistake, something that’s overlooked by attorneys is just an evaluation of who the plaintiff is.

Louis Goodman 33:10
Fulvio, what do you think about that?

Fulvio Cajina 33:12
I agree with that. My only add on to that would be that, you know, many times when we’re dealing with 1983 actions, unlike, you know, the example Adam just gave, for the most part we’re not dealing with attorneys, doctors, or engineers. We’re dealing often time with people suffering from, let’s say mental health disease, because, you know, that’s why the police are sometimes involved, because it’s a mental health crisis, let’s say, for a police shooting or something like that. And I think juries understand that.

I agree with Adam that, you know, if someone has a super long rap sheet, that’s not a good thing. But if someone’s suffering from mental health disease or something like that, even if it’s a difficult client, I think juries are sympathetic to that.

Louis Goodman 34:02
One of the problems that you hear about now is that in certain jurisdictions, the police are actually afraid to act because they are in fear of being sued for their conduct. Do you think that the qualified immunity can help police feel that they can act? And do you think that if we got rid of qualified immunity, it would even further hamper the police from acting?

Adam Carlson 34:33
That is an interesting question of, you know, does it sort of act as a deterrent if they could be sued without qualified immunity? You know, my sense from getting involved in these cases and taking depositions of numerous officers is that they are not really thinking about lawsuits when they’re acting.

I just, maybe some do, but my sense is that by and large, they don’t. You know, they’re not on the hook themselves personally, you know, with paying money. You know, like I said before, some officers I deposed, they didn’t even know how many times they had been sued and they didn’t know if the other lawsuits involved. They didn’t know how they ended up.

I haven’t deposed every officer out there obviously, but my sense from deposing some of them was, you know, they didn’t even know what other lawsuits there were out there against them.

Louis Goodman 35:29
Fulvio, we’ve been talking primarily here about lawsuits against police officers and police agencies. Does the qualified immunity in the 1983 context apply to other officials as well, and have you seen other officials attempt to use it?

Fulvio Cajina 35:51
Yeah, so it’s important to note that 1983 applies to all constitutional violations. So, I’ve actually used, I brought 1983 actions for, you know, first amendment violations, someone’s right to free speech.

I represented a gentleman who was denied a building permitted to which we thought there was some racial undertones for that, wo we brought it under the 14th amendment for arbitrary, capricious. So it applies, and I know from that context and it does apply to other government officials, not just police officers. We’re talking about people working in building departments and stuff like that. So, yeah, I’ve seen the case law where it has been applied to let’s say a government official who makes a decision, not knowing that it’s a constitutional violation, in a planning context, for example. So, yeah.

Louis Goodman 36:50
Adam, do you think there’s any way that the qualified immunity could be made more fair so there is some level of protection for lower level government officials, such as police officers, and yet still have citizens being protected?

Adam Carlson 37:07
Well, you know, from my perspective just evaluating whether or not there’s been a constitutional violation is fair. And I think that what the case, and the reason why I think it’s fair to them is because these cases come down to, a lot of the way that the, the way that they’re defended is by experts come in and they describe the training that the officers went through and then they articulate why the conduct fit within the training. And that goes to whether or not the conduct was objectively reasonable. And so I think just having a jury evaluate whether or not there’s been a unreasonable force, I think that’s fair to all sides. And I think it does, you know, provide for a way that victims of constitutional violations get compensated and officers who use reasonable force and can show that based on their defenses are protected.

Louis Goodman 38:03
Fulvio, let me ask you this. Does that make it so that these cases then come down to a battle of experts? And if so, have you successfully used experts in any of your litigation?

Fulvio Cajina 38:17
For most cases, we do use experts, but, but I would say that many times, though, the experts kind of cancel each other out. Nowadays, especially in the last 10 years, what jurors are focusing more on is the fact that a lot of these encounters are on video. There’s video tape, there’s a not video tape, there’s, you know, body worn camera of footage of what’s going on and you can have an expert say, yeah, the baton strikes to the head were reasonable here because, like in Ricardo’s case because you know, he was tensing his arm.

You can have another expert say, well, there’s no evidence that he was tensing his arm. Ultimately the journey is watching the video and deciding for themselves. And I think that’s what’s really changed the landscape I’d say in the last 10 years, is that all of these instances for the most part are filmed now.

Louis Goodman 39:13
I see you nodding your head, Adam, do you agree?

Adam Carlson 39:16
Yeah, absolutely. The, you know, the body cam footage is just, it’s changed the game. Everyone knows what happened. Everyone sees it. And experts, like Fulvio said, often do cancel each other out, but everyone sees what happened. They decide, was that unreasonable or not? And I think that’s how it should be.

Louis Goodman 39:36
And does that include the judges who are making the qualified immunity determinations?

Adam Carlson 39:41
Yes, they get to see that and, you know, yeah. So, it’s clear what the facts are, you know, what are facts, what are the law?

Fulvio Cajina 39:51
Well, let me jump in there though. For the most part, yes, the judges can see the video, but that’s the problem with the Pearson case though. Because now that they don’t have to do the two steps where they have to determine whether, you know, whether there was a constitutional law violation first and then determined whether the law was clearly established, now at the pleading stage before discovery is done, before we’ve actually obtained the videos we have judges deciding the qualified immunity exists. And they’ve never seen the evidence. They don’t even know the constitutional violation occurred. So, that’s why Pearson is dangerous like Adam mentioned earlier.

Louis Goodman 40:34
We’ve discussed the basics of 1983, we’ve discussed some of the basics of qualified immunity and gotten a few examples from each of you. Is there anything that you wanted to talk about that we haven’t touched on here?

Adam Carlson 40:51
You know, when you and I were talking, Louis, you wanted me to think about, obviously I brought this topic up because it’s something that I’m very passionate about. I really don’t like qualified immunity because of the implications on, you know, victims of fourth amendment violations. But you asked me to come with arguments for it and arguments against it. And we’ve talked about a number and I just wanted to bring up a couple more, because I think that they’re important to understand when thinking about these cases.

You know, one of the big arguments for it is it saves police departments’ money. They don’t have to defend cases all the way through trial, which can be costly. You know, it’s believed that they would be flooded with lawsuits if qualified immunity didn’t exist and it wasn’t an additional hurdle for attorneys.

And that might be the case. I think it might, you know, if it didn’t exist, police departments and municipalities and counties and all that might end up having to pay more money. And so I think, you know, maybe that is a reasonable argument for it. I personally don’t like it, because I think victims should be compensated.

But another, you know, we mentioned some of the issues that we brought up about, you know, qualified immunity, but one other too be mindful of is just the practical implications of how qualified immunity is raised, just procedurally. So at the, you can, the defense can file a motion for qualified immunity at any point of the process.

And oftentimes it’s at the summary judgment stage and the District Court or the Magistrate Judge rules on it. And if they deny it, then the defense can file an interlocutory appeal. And so they can take it up to the Ninth Circuit, for example, to a Circuit Court. And the implication of this is that it delays cases.

So, I had a case where a District Court judge sat on the qualified immunity motion for three years. There’s no rules of how soon you had to respond to file a ruling. And then they did an interlocutory appeal, went up to the Ninth Circuit. The case. the incident happened in 2014. I have a trial date next year, the case hasn’t even gone to trial because it was hung up on this interlocutory appeal issue for qualified immunity. So, it has some practical implications of delaying cases.

Louis Goodman 43:09
Fulvio, any last comments?

Fulvio Cajina 43:12
Yeah. To one of your earlier questions as to whether, you know, doing away with qualified immunity would bring more lawsuits or chill the police, you know, from acting. These are expensive cases to bring, you know. We do have to do battle of the experts, we have to invest considerable to, the defense counsel are normally very skilled.

You know, there’s gonna be a lot of motion practice. You’re talking about a deep, deep pocket in that it’s the government, they’ll have an army of experts. I don’t know of civil rights attorneys that are gonna bring a frivolous 1983 action, you know, it’s this whole notion that flood gates would open. You still have to prove your case.

You still have to prove that a constitutional law violation occurred, that someone’s civil rights were violated. And that’s not easy to do, especially when you’re dealing with a client, for instance, who might have prior, you know, criminal history and the person you’re going up against is someone who was, you know, officer of the year five times in a row or something like that.

So I think that the plaintiff’s bar, and especially in the civil rights context, we screen a lot of the bad cases. This notion that if qualified immunity disappears the flood gates will open, it’s just not so.

Louis Goodman 44:32
We do have to wrap up fairly soon here, but before we do that I’d like to know if someone wanted to get in touch with you, Adam, is there a website they can go to to find you?

Adam Carlson 44:47
Yeah, my law firm’s website is CMSlaw.com You can email me at [email protected], C A R L S O N at CMS L A W.com. And I encourage you to reach out if you want talk about these types of cases. And I actually, you know, I, as you can tell from this podcast, have strong feelings qualified immunity. If you’re sitting there and you’ve been listening to this and you have a different perspective, I would welcome that. I would like to learn more. I’m always trying to grow as a person. I’d like to hear your thoughts on it. Why, it doesn’t have to be a debate, could be a chat over a cup of coffee. I don’t take people on if they wanna talk to me about things. I like to hear what they have to say. And I welcome that. Or if you wanna, you know, call me and complain about qualified immunity, I would definitely like that. Feel free to reach out.

Louis Goodman 45:35
Thanks Adam. Fulvio, how do we get in touch with you?

Fulvio Cajina 45:38
Yeah, I have a website. It’s cajinalaw.com and my email is [email protected]

Louis Goodman 45:48
And we will get all of that information in the show notes.

Fulvio Cajina 45:51
All right. Excellent.

Louis Goodman 45:53
Fulvio Cajina, thank you so much for joining me today on the Love Thy Lawyer podcast, and Adam Carlson, thank you so much for coming back to the Love Thy Lawyer podcast to do this round table. It’s been a pleasure having both of you here.

Fulvio Cajina 46:08
Likewise. Thank you, Louis.

Adam Carlson 46:09
Yeah. Thank you very much, Louis. Thanks for giving the opportunity to talk about this important topic.

Fulvio Cajina 46:15
Thank you, Louis.

Louis Goodman 46:16
That’s it for today’s episode of Love Thy Lawyer. If you enjoyed listening, please share it with a friend and follow the podcast. If you have comments or suggestions, send me an email. Take a look at our website at lovethylawyer.com where you can find all of our episodes, transcripts, photographs, and information.

Thanks to my guests and to Joel Katz for music, Bryan Matheson for technical support, Paul Robert for social media and Tracy Harvey. I’m Louis Goodman.

Fulvio Cajina 46:57
Sorry, gimme a sec. Like, I can see you talking, but I can’t hear you. Can you hear me?

Louis Goodman 47:02
I can hear you, yeah. Can you not, can you not hear us?

Fulvio Cajina 47:06
Like maybe the, maybe the video is just not synced or something. So I’ll just go based on what I’m hearing about.

Louis Goodman 47:13
Okay, alright.

Fulvio Cajina 47:14
Do you want me to repeat that? Sorry.

Roundtable On Qualified Immunity and Section 1983 – Transcript