Preserving Qualified Immunity

There is a movement afoot in this country to erode yet another right of police officers in our legal system.

In Salizar v. Texas the police officer was granted Qualified Immunity in an officer involved shooting.  The trial court granted Summary Judgement based upon Salizar’s admission that he resisted the officer and then walked away. The officer perceived a threat when Salizar reached under his shirt towards his belt. The plaintiff’s attorney and some in the activist community are saying that the case should have gone to a jury.  The reason, better community relations.  To follow that argument any case that involves an officer involved critical incident should be tried by a jury in order to make the community feel better.  This argument would go against years of settled law and would deprive an officer who is a defendant in a civil law suit of a defense simply because he is a police officer.

This claim is being raised in connection with a civil law suit in Texas.  Salizar v Houston.  Salizar admitted to drinking several beers prior to being pulled over by the defendant officer.  The officer observed Salizar driving in an erratic manner.  Salizar pulled over to the right hand side of the road on a bridge next to a low wall.  The officer noticed the odor of alcohol when he approached the driver’s side window. Salizar produced a Mexican driver’s license when pulled over.  After running the license and learning that there were none, the officer asked Salizar to leave the truck and to walk back to the front of the unit.

To overcome a qualified immunity defense a plaintiff must allege a violation of a Constitutional right and then show that the right was clearly established in the context of the case.  This is a demanding standard and it should be.  There is clear public policy interest in allowing Law Enforcement Officers to perform their duties without having to run through a legal analysis.

Well established law should not be disregarded as a way to create better community relations for law enforcement.  It is doubtful that such a change would even have that effect.  The courts are established to find the truth and to allow individuals to assert and protect their rights.  They are not in the business of public relations.

The Court further found that excessive force was not present in this incident.

Salazar admitted at trial that he had resisted the officer’s attempts to handcuff him and that he walked away from the officer.

Excessive Force exists where there was an injury which resulted directly and only from a use of force that was clearly excessive and the excessiveness was clearly unreasonable.

“The courts have never required officers to wait until a defendant turns towards them with a weapon in hand before applying deadly force to ensure their safety.” (citation omitted)       (Salazar note 4 at page 8.)

“The use of deadly force is not unreasonable when an officer would have reason to believe the suspect poses a threat of serious harm to the officer or others.” Carnaby v. City of Houston 636 F.3d 183, 188 (5th Cir. 2011)

The scene of an arrest is not the place to argue one’s Constitutional rights.  The Courts are the place for that.  We see increasing instances of belligerent behavior by crowds at the scene of an arrest.



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