On August 28, 2018, the Eighth Circuit Court of Appeals issued an opinion in a police excessive force case that will not please the law enforcement community.


Given today’s divisive political climate, the political makeup of the three-judge panel needs to be stated. Circuit judges Raymond Gruender and William Duane Benton are Republicans appointed to the appeals court by former Republican President George W. Bush. The third judge on the panel was John R. Tunheim, the chief judge for the United District Court for the District of Minnesota, a Democrat appointed to the bench by former Democratic President Bill Clinton. In a nutshell, the panel was not made up of “bleeding heart liberals.”


Mistaken ID Leads to Put Down at Gun Point


In September 2014, Levi Wilson, a dark-skin man of Indian descent, was taking his six-year-old home from a Boys Scout meeting in the family pickup truck in Orange City, a small northwest Iowa community, when they were stopped by two police officers, Scott Lamp and Jessica Dorhout-VanEngen—both of whom were riding in unmarked vehicles. The two officers exited their vehicles with guns drawn and immediately trained them on Wilson and his son sitting inside the truck.


David Wilson, Levi’s brother, was a registered sex offender with outstanding arrest warrants against him. Lamp and Dorthout were trying to locate David Wilson on the evening of September 23, 2014 and had sketchy information leading the officers to believe that he was the individual driving the pickup they stopped. Immediately after stopping the pickup, however, Dorthout realized that Levi Wilson, not David, was the driver of the vehicle.


Despite this realization which was conveyed to Officer Lamp, the two officers ordered Wilson and his son out of the truck. They instructed Levi to raise his hands. He complied. Officer Lamp then slammed Wilson against the vehicle with his service weapon pointed at the back of Levi’s head. The officers patted Wilson down and conducted a search of the vehicle without Wilson’s consent. Throughout this entire process Wilson and his son had at least one gun trained on them at all times.


Cops Raise Qualified Immunity Defense


Wilson and his son filed a federal civil rights lawsuit against the two officers, alleging violations of their constitutional rights through the personal and vehicle searches and the use of excessive force by the continuous training of the officers’ weapons on them. The two officers raised a qualified immunity defense against the alleged constitutional violations.


U.S. District Court Judge Mark Bennett, sitting in Des Moines, Iowa, refused to dismiss the lawsuit in November 2015 finding the “alleged police misconduct arising from the plaintiffs’ act of driving while black” had merit. The two officers appealed to the Eighth Circuit.


The appeals court granted the officers qualified immunity on the unreasonable searches and invasion of privacy claims. The three judge panel, however, refused to dismiss the excessive force claim.


The appeals court noted that the U.S. Supreme Court in Graham v. Connor held that “the Fourth Amendment protects citizens from being seized through excessive force by law enforcement officers.” A Fourth Amendment violation occurs when an officer’s use of excessive force is “objectively unreasonable.” The Supreme Court in Kingsley v. Hendrickson said that force may be objectively unreasonable when an individual does not have time to comply with an officer’s instructions before force is applied, when the individual does not resist, and/or when the individual does not pose a safety threat.


Levi Wilson was immediately recognized as the wrong person that Dorthout and Lamp were looking for; he complied with all their instructions; he did not at any point exhibit resistance; and neither he nor his six-year-old innocent son posed any kind of safety threat.


Police Argue Gun at Back of Head Insufficient to Support PTSD


Attorneys for the two officers told the Eighth Circuit that Wilson and his son had not shown they are injured by the guns being trained on them. All three judges on the panel rebuffed this argument, finding that “Levi had been diagnosed, treated, and hospitalized for post-traumatic stress disorder. [Levi’s son] now suffers from post-traumatic stress disorder. Post-traumatic stress disorder is a sufficient injury supporting an allegation of excessive use of force.”


That is a significant finding. Law enforcement officers making either vehicle or personal stops frequently do so with their weapons drawn and often keep those weapons trained on citizens while they conduct searches or run background checks. With the well documented police violence against African Americans and other “dark skinned” persons, the police’s misuse of their weapons, such as the continuous training of those weapons on innocent citizens, can induce post-traumatic stress disorder, and there is no qualified immunity for this type of police misconduct.


Qualified Immunity Defense Begs Serious Re-Thinking


The reliance of qualified immunity defenses by law enforcement officers who blatantly engage in misconduct is trying the patience of many federal district court and appellate judges across the country, even among those judges inclined to view law enforcement actions in a light most favorable to the officers. Not only was this evidenced by the Eighth Circuit decision in the Wilson case, but was specifically expressed by Fifth Circuit Court of Appeals Judge Don R. Willet, a President Trump appointee, who called the qualified immunity defense a “judge-made doctrine” that begs serious judicial re-thinking.


“To some observers,” Judge Willet wrote, “qualified immunity smacks of unqualified impunity, letting public officials duck consequences for bad behavior—no matter how palpably unreasonable—as long as they were the first to behave badly. Merely proving a constitutional deprivation doesn’t cut it; plaintiffs must cite functionally identical precedent that places the legal question ‘beyond debate’ to ‘every’ reasonable officer. Put differently, it’s immaterial that someone acts unconstitutionally if no prior case held such misconduct unlawful.”


Judge Willet then concluded:


“Qualified immunity aims to balance competing policy goals. And I concede it enjoys special favor at the Supreme Court, which seems untroubled by any one-sidedness. Even so, I add my voice to a growing cross-ideological chorus of jurists and scholars urging recalibration of contemporary immunity jurisprudence and its ‘real world implementation.’”


We agree that qualified immunity should protect public officials from liability when they act reasonably and within the clear bounds of the law.


Qualified immunity, however, should not be a shield for law enforcement misconduct or abuse of their official authority. In the Levi Wilson case, for example, there was no need for Officers Lamp and Dorthout to force Wilson out of his vehicle, to slam him against the vehicle, and to keep their guns trained on him and his six-year-old son throughout the vehicle stop. That is not objectively reasonable conduct, and, fortunately, the Eighth Circuit agreed with that assertion. A jury will now determine, after hearing all the evidence, whether the two officers in fact acted in an “objectively unreasonable” manner.


This stop illegal from the outset.  There was absolutely no reason for guns to be drawn and pointed at this father and son, especially the six-year old child, who were not suspects and who were not threatening or resisting and were complying with orders from the officers.