This issue has come up twice now, and state defendants just don’t get it.  Here’s the situation:  I represent plaintiffs making claims under Section 1983 of the Civil Rights Act.  Those claims often arise from police conduct that, at least from my point of view and that of my clients and their families, constitutes an excessive use of force, including deadly force.  But the law wants to give certain protections to the cops, and I think that’s fair.

One of these protections is called ‘qualified immunity’.  This means that the officer is not going to be liable for civil damages (payment of money) for shooting (and/or killing) someone if, at the time of the incident, the cop had a reasonable belief that he or someone else was in imminent peril of serious bodily injury or death.  The line that state attorneys love to use in closing argument – and they should because it’s REALLY effective – is that we can’t judge the officer’s behavior with the luxury of 20/20 hindsight.  We have to think about what the officer was thinking when the shit was going down.  Was that reasonable under those circumstance, without reference to outcome, like an innocent person being shot to death?

Normally qualified immunity is a question for the jury in these cases, but, invariably, the attorneys representing the police file what’s called a Motion for Summary Judgment on this issue.  Summary Judgment can only be granted if you take as true all the allegations of the party claiming a civil rights violation, and the cops would still win.  That means they get judgment on this issue in their favor, as a matter of law.

Now, why would I take a case against the cops if I didn’t have any evidence that they did something wrong?  There’s going to be at least one witness to tell the story my way, and if you assume that witness is telling the truth, as the Judge must in deciding the Motion for Summary Judgment, then I’m going to win the Motion.  It’s pretty much that simple.  It’s very hard for the cops to get these motions granted.  Of course, it’s very hard for me to beat the ‘Monday-morning-quarterback’ argument at trial.

So the Motion is denied, I win, and then we can take the case to trial and see what the jury thinks, right?  Well, you would think, except that the attorneys on the other side have started to get cute.  The name of the game in defending these cases is delay, delay, delay.  So rather than let the case go forward to conclusion, they try to go over the Judge’s head and get an appeal going even before we get started with trial.  Normally, that’s a no-no.  There are some instances where an early appeal like that can go forward, but that requires that you ask permission.  But no, these attorneys don’t ask permission.  They just think they’re entitled to this appeal and interminable delay as a matter of right.  They’re not.  And for those interested in proof that I actually work for a living – here’s my submission to the Court about why they’re not entitled to that automatic appeal.