Court’s downplaying of video in police misconduct case was a mistake of fact

The right to a jury trial is one of our most fundamental rights as citizens, and it must be preserved under the Seventh Amendment to the United States Constitution. Protections against unreasonable searches and seizures and against cruel and unusual punishment are also basic rights guaranteed by the Constitution. Qualified immunity for police officers is a judicially created doctrine that is not found in the Constitution. When it is applied by a court, it can serve to deny civil rights to plaintiffs, including the right to a jury trial and the right to seek redress for violations of Fourth, Eighth or Fourteenth Amendment rights.

Civil rights cases are challenging unless there is clear video evidence or unassailable eye-witness testimony. These cases often turn on triable issues of fact, as the police version of events can differ substantially from what others witnessed or videotaped. But even where those issues of fact exist, courts have been granting summary judgment on the question of qualified immunity much more frequently. This is due, in part, to the continued expansion of the doctrine.

Just this month, the 9th Circuit followed this trend in a California case alleging denial of medical care that resulted in wrongful death. In its decision, the appellate court ignored critical facts and inferences in the plaintiff's favor when it affirmed summary judgment on the issue of qualified immunity.

Qualified immunity was established and defined by the U.S. Supreme Court in Harlow v. Fitzgerald (457 U.S. 800 (1982)). The court held that a plaintiff could overcome qualified immunity only by showing that the defendant's conduct "violate[d] clearly established statutory or constitutional rights of which a reasonable person would have known." To show that the law was "clearly established," plaintiffs must be able to point to an existing judicial decision with substantially similar facts. The standard of a "reasonable officer" has shifted since Harlow to grant government officials greater deference. In a 1986 decision, the court wrote that qualified immunity protects "all but the plainly incompetent or those who knowingly violate the law."

The bottom line is that to overcome qualified immunity, the right violated must be so clear that its violation would have been obvious not just to the average "reasonable officer" but to the least informed, least reasonable officer. In Saucier v. Katz (533 U.S. 194 (2001)), the Supreme Court established a two-part test for whether a government official is entitled to qualified immunity:

1. First, a court must look at whether the facts indicate that a constitutional right has been violated;

2. If so, a court must then look at whether that right was clearly established at the time of the alleged conduct.

Qualified immunity applies unless the official's conduct violated such a right. In light of numerous prior decisions in high-profile police misconduct cases, including the George Floyd criminal verdicts, it should be axiomatic that withholding medical care when there are clear signs of distress or emergency is a violation of a person's constitutional rights.

Which is why the 9th Circuit's decision in the recent case should raise concerns. On Aug. 2, in the case of J.K.J. v. City of San Diego (No. 20-55622), a divided three-judge panel upheld a lower court ruling that San Diego police officers were protected by qualified immunity in the death of a detainee in their custody. The panel's majority ruled that the plaintiff had failed to meet the legal standard for establishing that the officer's conduct amounted to a constitutional violation. The court's amended opinion affirms the district court's dismissal of an action brought pursuant to 42 U.S.C. § 1983 alleging constitutional violations by the police officers in their treatment of a woman who fell ill while in their custody and subsequently died.

When San Diego police officers stopped a vehicle for a traffic violation, they discovered that Aleah Jenkins, a young Black woman who was a back seat passenger, was subject to arrest based on a warrant for a prior methamphetamine offense. They proceeded to handcuff her and put her in officer Durbin's cruiser. Once inside the cruiser, Jenkins vomited. Officer Taub called for paramedics but then canceled the call after Jenkins said she was pregnant and insisted that she was not detoxing from ingested substances.

Several times during the drive to the police station, Jenkins groaned and screamed for help. After she was fingerprinted at the police station, she lay on her side. The officers nevertheless put her back in the cruiser. About eleven and a half minutes later they found her unconscious, called for paramedics, and began CPR. Jenkins fell into a coma and died nine days later.

Despite bodycam footage that was incorporated by reference into the plaintiff's amended complaint, the panel held that the alleged violative nature of the officers' conduct, in failing to recognize and respond to Jenkins' serious medical need, was not clearly established in the specific context of this case. In so holding, the court disregarded facts in evidence that supported the plaintiff's claims.

There is no dispute that the video shows the decedent pleading for help and distress during the hour-long transport from the scene of the arrest. At the scene of the arrest the decedent vomited, but the officer placed and then canceled a call for paramedics, despite clear signs of a medical emergency. The appellate court nevertheless ruled that the defendant officers were entitled to qualified immunity under the second prong of the qualified immunity test.

In a well-reasoned and compelling dissent, Circuit Judge Paul J. Watford said that the majority's account of events was "truncated and highly sanitized," overlooking most of the facts alleged in the complaint. "The complaint also expressly incorporated by reference the contents of a publicly available body camera video that captures many of the relevant events, yet the majority opinion turned a blind eye to most of what that video depicted as well," the judge wrote.

According to the dissent, there was a clear mistake of fact as to what was alleged and proven in the complaint and the video. Despite bodycam footage with the complaint, the lower court disallowed discovery and granted the defense's motion to dismiss. This was reversible error, said Watford. "The plaintiff's complaint plausibly alleged that Jenkins, a young African-American woman, died in police custody because the officer responsible for transporting her to police headquarters took no action when she experienced an acute medical emergency."

To rectify the error, an en banc petition is appropriate. Although the 9th Circuit panel granted a request for rehearing, it ruled that the plaintiff's en banc petition was moot. Unless the full court hears and sees the evidence, the outcome is unlikely to change. Judge Watford's dissent makes it clear that the case should never have been dismissed. The full 9th Circuit should hear and decide this case.