In the early morning of August 20, 2022, a Columbus, Ohio, police officer named Ricky Anderson, along with two other white officers, entered the residence of a 20-year-old Black man named Donovan Lewis. The officers were present to serve an arrest warrant against Lewis for improperly handling a firearm, assault, and domestic violence.
Police body cam recorded Lewis in bed with one hand raised in the air, indicating a startled surrender. That show of compliance did not satisfy Anderson, who immediately opened fire with his service weapon, mortally wounding Lewis. The video captures the police officers handcuffing and screaming at Lewis before attempting to render aid.
Columbus police Chief Elaine Bryant apologized profusely to the community for Lewis’ tragic death.
The Lewis family attorney, Rex Elliott, vowed to “get justice.”
“As a result of this entirely reckless behavior, a family is left to grieve the loss of such a young soul,” Elliott said. “Frame by frame, the video reveals the truth—three white officers accompanied by an aggressive K9 dog shot an unarmed 20-year-old … as he sat up in his bed in compliance with police commands.”
Attorney Elliott will likely file a federal civil rights lawsuit against the officers to get the justice he demands. The facts and circumstances of this police killing of a Black man by a White police officer may force the City of Columbus to settle with the Lewis family. The city has a troubled history of white officers unjustifiably killing black men.
Police Misconduct is Billion-Dollar Industry
In an exclusive March 9, 2022 report, the Washington Post illustrated how settling police misconduct lawsuits has become a billion-dollar industry.
This police misconduct lawsuit industry underscores how egregious, and violent white police officers have become toward communities of color.
Given the U.S. Supreme Court’s long, sordid history of blessing police officers with qualified immunity in most citizen/police encounters involving lethal force, one would assume that cities would fight the police conduct lawsuits. Most cities do not take these cases to trial because they do not want to undergo the discovery process, which could disclose a pattern of departmental misconduct or the violent disciplinary histories of the officers named in the lawsuit.
The Lewis shooting death is the very kind of case the Supreme Court has given judicial forgiveness to rogue cops for excessive and lethal force misconduct.
Qualified Immunity
In 1989, the United States Supreme Court in Graham v. Connor established the standard by which qualified immunity should be applied in cases where police officers are sued.
Graham v. Connor instructed that a federal judicial determination of whether an officer’s use of force is “objectively reasonable” must be decided based on the facts and circumstances of each situation, not the motivation or intent of the individual officer during the use of force. This judicial assessment must include an analysis of whether the suspect posed an immediate threat to the safety of the officers or others and whether the suspect was actively resisting arrest or attempting to evade arrest through flight.
Below is a list of post-Graham v. Connor cases by the Supreme Court that illustrates how the Court has applied qualified immunity to favor the police. The police now have a virtual legal license to use excessive or lethal force without meaningful legal accountability.
- 2001 Saucier v. Katz: Excessive force case. Created a two-step constitutional inquiry as to whether police enjoy qualified immunity: First, a suing plaintiff must show that the officer’s conduct violated a constitutional right; and, second, the right was so clearly established that a reasonable officer would know his actions violated the right.
- 2004 Brosseau v. Haugen: Excessive force case. Qualified immunity, in excessive force cases, protects an officer in the “hazy border between excessive and acceptable force;” therefore, even in situations where an officer makes bad decisions, an officer is nonetheless immune from liability when the law is not clearly established that the bad decision violated a constitutional right.
- 2015 City & County Of San Francisco v. Sheehan: Excessive force case. The “objectively reasonable” standard is unmistakably designed to protect an officer’s reasonable but mistaken judgments except for those who are plainly incompetent or who knowingly violate the law.
- 2015 Mullenix v. Luna: Lethal force case. Unless there is an existing case precedent by a court that places a constitutional right of a suspect beyond debate, an officer is entitled to qualified immunity for killing the suspect.
- 2017 White v. Pauly: Lethal force case. Qualified immunity attaches when a police officer’s conduct does not violate a clearly established right that the officer would have reasonably known at the time the lethal force was employed.
- 2017 City of Los Angeles v. Mendez: Excessive force case. Reinforced the clearly established right requirement with the observation that “there is no need to dress up every Fourth Amendment claim as an excessive force claim.”
- 2018 Kisela v. Hughes: Excessive force case. Qualified immunity protects all officers except those who are plainly incompetent or who knowingly violate the law.
- 2019 Escondido v. Emmons: Excessive force case. Qualified immunity attaches when a police officer’s conduct does not violate clearly established right—and that clearly established right must be defined with specificity.
- 2021 Lombardo v. City of St. Louis: Lethal force case. Under the qualified immunity standard, lower courts must pay “careful attention to the facts and circumstances” before denying the immunity. In this case, the Court said it was unclear whether the Eighth Amendment barring cruel and unusual punishment was violated when police killed a man in a restrained position because he was still resisting.
- 2021 City of Tahlequah v. Bond: Lethal Force case. Officers were entitled to qualified immunity when there was insufficient evidence to show that the officer’s conduct was reckless or his use of lethal force was unlawful.
- 2021 Rivas-Villegas v. Cortesluna: Excessive force case. To defeat the application of qualified immunity, an individual claiming excessive force must show that a clearly established law put the officer on notice that his “specific conduct was unlawful.”
These cases highlight the practical and constitutional barriers the U.S. Supreme Court has put in place to keep the police from being held accountable for unlawful excessive and lethal force misconduct.
Legislation to Limit Qualified Immunity
U.S. Senator Ed Markey(D) of Massachusetts has unsuccessfully sponsored legislation that would end qualified immunity, a court-created right that Congress can overrule. He explains why the doctrine should be eliminated:
“By shielding police officers from accountability, qualified immunity encourages more police violence against Black and Brown people.”
Markey is correct. Police kill black people at a rate 2.8 times higher than white people.
Individuals who are victims of police excessive force or the families of individuals who are the victims of lethal force should begin with this first question: Was the use of either excessive or deadly force necessary?
This question is answered by the facts and circumstances of each case, such as:
- Did the police properly identify themselves before the use of force?
- In excessive force cases, did the victim resist the arrest or attempt to flee to evade arrest?
- In lethal force cases, did the victim pose an immediate threat to the officer or others to such an extent that no lesser use of force would have eliminated the danger?
- Were the police properly trained in the use of excessive or lethal force?
- What is the officer’s disciplinary history?
- What is the officer’s and department’s history of police misconduct?
These questions, and so many others, can best be answered with the assistance of an attorney experienced in handling police misconduct cases.
As for criminal charges in police misconduct cases, District Attorneys often fail to hold officers accountable in excessive or lethal force cases. They use the investigatory process to either delay a finding on the use of force incident or to manipulate the evidence to produce the desired outcome favoring the police.
That is the true nature of “protect and serve” justice in America.
Civil liability and criminal prosecution are the only meaningful tools to achieve accountability for unlawful police misconduct. Unfortunately, politics and historical alliances leave neither as meaningful alternatives. As we pointed out on July 31, 2022, most cities are willing to pay the price by settling lawsuits instead of holding bad cops responsible.