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What is Qualified Immunity?

Qualified immunity has been in the news quite a bit these days. In this podcast episode, Josh and Aaron address what qualified immunity is and how it impacts personal injury law. Listen here or read the transcript below. FVF’s Summary Judgment podcast is available wherever you listen to podcasts including Apple Podcasts, Spotify, iHeart Radio, and more.

Intro: Thank you for tuning in to Summary Judgment, where Austin personal injury attorneys Josh Fogelman and Aaron von Flatern of FVF Law discuss the ins, outs, and in-betweens of personal injury cases.

Josh Fogelman: Welcome back and thank you for tuning in today. Josh Fogelman here from FVF Law, here with my partner, Aaron von Flatern. The question that we’re going to address today, which is in the news quite a bit these days is, what is qualified immunity, and how does it impact personal injury law? So Aaron, can you tell our listeners, what is qualified immunity?

Aaron Von Flatern: Yeah, if you hear that term, you might want to just think of it as police immunity. Qualified immunity refers to a lot of things, but in the news lately, and for our purposes in this discussion, it’s going to refer to the doctrine that the courts have created to protect police in excessive force cases, and I’m careful with my words there, that the courts created this. The US Congress did not pass a rule or pass a law that says that the police are immune in these cases. Over the years, since 1967, the Supreme Court and the lower courts have developed a doctrine that basically says that when a police officer is accused of excessive force, they’re going to be immune from those claims, even if true, as long as at least one reasonable officer would have believed that the use of force was lawful. This is a problematic doctrine, from my perspective, of course. We have a bias, we’re handling one of the cases right now, here in Austin, that involves one of the APD kinetic projectiles, basically, the bean bag bullets hitting somebody in the face.

And so, of course, we’ve got a point of view on this, but I think anyone who looks at this objectively would think to themselves, “Okay, this is an immunity that we never voted on, the courts basically came up with it on their own,” and it’s worth talking about because it leads to some unintended consequences. The thing about this reasonable officer standard is that the courts are actually looking to the police departments to tell us, through their policies and procedures, what makes a reasonable officer. In other words, you have the police departments setting the constitutional standard for the courts to follow, instead of the other way around, and that causes some problems. If we had immunity for car manufacturers, we would have problems with our cars. In fact, we used to have problems with our cars, they used to roll over and decapitate you almost all the time, and now, because of lawsuits, because there wasn’t immunity, we have very safe cars. I think everybody would agree that it’s amazing how far we’ve come in automotive safety.

Likewise, on our streets, police officers are interacting with citizens all the time, and because of this immunity doctrine, we often don’t have a jury looking over their shoulders. And I know some people will say, “Well, there’s too many lawsuits, there’s too much litigation,” but when you don’t have a jury, the people, as our constitution says, looking over the shoulders of the police officers, excess will follow, and that excess is what has led to all these protests and a lot of the problems that we’re facing today. So of course, I’m making an argument, but my point is that it’s a good time to talk about qualified immunity, and it actually does affect personal injury cases, and maybe that should be the next question. Josh, why would personal injury lawyers care about this doctrine?

Josh Fogelman: Well, we field a lot of phone calls about people who have been harmed in a variety of different ways, and as you pointed out, with qualified immunity being a court-created issue, we struggle with the reality that, but for the core-created issue, the federal legislature has authorized police forces to be sued when they have harmed somebody carelessly. And we care about our police officers too, we understand that there are many, many people in blue out there that are doing outstanding work to keep our citizens safe, but just like in any industry, you’ve got your bad apples, and the legislature has authorized those bad apples to face repercussion when they act outside the balance of what they’re legally authorized to do, and without the qualified immunity that’s been created by the courts, you would have the right to help people who have been wrongfully harmed seek recompense for the harms and losses.

And we care about that quite a bit in our firm, because any time we field a phone call from someone and have to explain to them that, even though we believe they have been wronged, even though we believe an officer has acted wrongfully, has been abusive of their power and caused somebody harm, but that they don’t have any rights anymore, it hurts us as humans, it hurts us as citizens, as people who are trusted by other members of our community to provide legal answers and to help them navigate through the fog when they’re trying to put their lives back together, because oftentimes, as we’re seeing in one of the cases that we have, and a lot of the injuries that we’ve seen from the most recent protests, some of these injuries can be life-altering, serious, long-term consequences, huge, huge medical liabilities. I mean, it’s a big deal, so having to talk to somebody and tell them, “I’m sorry, there’s nothing that we can do for you because the law doesn’t allow you to vindicate your rights,” it hurts.

Aaron Von Flatern: Yeah, and I guess one thing I want to add about police officers and respecting them too is that, if I was a police officer, number one, I’d want the accountability. I would want, if I was innocent, to be vindicated by a jury of my peers, and have that option to go before them, and have a jury see all the facts and decide, did the officer act reasonably? But more than that, I would recognize that, when you give these immunities, you may think you want them, but they build up resentment in the community, and as an officer, you can face a lot of danger due to that resentment, and that danger’s not healthy for anybody.

So, in other words, if we could get rid of this doctrine, or at least modify it, let the community have the oversight that the constitution intended for all of our communities, then the police could actually be fitting back into our communities in a more comfortable way for everybody.

And that’s just a soapbox issue, not a personal injury issue, but it does raise this question of, what about frivolous lawsuits? Josh, I’ve always said there’s a myth of frivolous lawsuits, explain to me why we should open up the courts and allow police officers to be sued for just doing their jobs.

Josh Fogelman: Sure. Things like frivolous lawsuits and jackpot justice have been used by tort reform advocates for years to place limitations on the rights of people to secure financial recovery when they have been legitimately harmed by somebody else. We’ve seen it in a big tort reform push in the past couple of decades, and we’ve seen those terms actually be used in Texas to dramatically change the rights of people who are hurt in the medical malpractice world.

So this is real, and real harmful stuff, and really dangerous rhetoric, but the practicalities of personal injury law just don’t really support an argument that frivolous lawsuits are a reason to abandon or limit people’s rights.

Practically speaking, personal injury lawyers can’t afford to take frivolous cases. You and I did a podcast earlier this month or last month, about how personal injury lawyers get paid, and it matters to understand that, because personal injury lawyers don’t get paid an hourly fee, they don’t charge a retainer like criminal defense lawyers or family lawyers do. They’re investors in a person’s case, they get paid a percentage of whatever they are able to recover at the end of the day, and beyond that, they’re going to pump a lot of time, and money, and resources into a case that they’re not going to get paid on for months or years, so they have to be very careful about the cases that they choose to take on to make sure that they are legitimate cases, that they’re not going to be a type of frivolous lawsuit that will ultimately be tossed out or thrown out of court.

So oftentimes, the cases that come to light that really don’t have any merit are going to get filtered out just by the review and underwriting process that legitimate lawyers are going to go through when they’re evaluating whether to even take the case at all.

Aaron Von Flatern: Exactly, exactly. Well, if you’re interested in this topic, obviously, call us, we’ve done a lot of reading on it, but first, start at our website.  You can find us on Facebook, we’ve got a ton of content up there, we’ve got a blog on our website. Find us now on Instagram, Josh helped us to get on Instagram. And it’s an important topic, we’ve got more than 1000 professional coaches and athletes who’ve signed a petition to either abolish or change qualified immunity, and I think it’s one… It’s a topic that I hope the public continues to engage on. Thanks again, and this has been Summary Judgment.



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