Today’s hypothetical: Police officers come to your home at 2 a.m., insist (as a result of their own clerical error) that the car you’re driving is stolen property, order you to lie on your belly, slam your mother against a garage door, and then shoot you three times from 15 feet away when you protest. Is there some chance—some very slight chance—that their conduct violates a “clearly established” constitutional right?
The Supreme Court on Monday said “yes.” All nine justices agreed that a lower court that blew off the claim needs to go back and take a fresh look at the issue.
Tolan v. Cotton began early in the morning of December 31, 2008, when John C. Edwards, a police officer in Bellaire, Texas (a close-in suburb of Houston), saw a black SUV make an “abrupt turn” into a cul de sac. This struck him as suspicious. He watched as two African American men parked in front of a house and got out.
The police computer reported that the car had been stolen. In fact, it hadn't; it belonged to Bobby Tolan, the owner of the house. Bobby Tolan is a local celebrity with a 14-year career in Major League Baseball, including a spot in the outfield for the 1967 World Champion St. Louis Cardinals. The driver was his son, Robbie, then a 23-year-old minor-leaguer with big-league hopes of his own. Robbie lived at the house, too. He was unarmed. He and a friend had been to a Jack in the Box.
Edwards had triggered the stolen-car report by typing the wrong license plate number into the computer.
Edwards drew his pistol and ordered Robbie and his friend down on their bellies. Bobby Tolan and his wife, Marian, came onto the porch in their pajamas. Robbie’s father told Edwards the car was his; the officer ignored him. He also urged their son and his friend to remain compliant; Robbie’s mother, Marian, however, began to complain about the police entering their property and threatening her son.
Unfortunately, at this point “help” arrived in the person of Bellaire Police Sergeant Jeffrey Wayne Cotton. Without hesitation, he slammed Mrs. Tolan against her garage door (bruises persisted for days). When Robbie, 15 to 20 feet away, rose to his knees and said, “Get your fucking hands off my mom!” Sergeant Cotton shot him three times.
He had been on the scene 32 seconds.
Robbie lived, but he reports persistent pain, and his professional baseball career is almost certainly over.
Local district attorneys must work with police, and they are reluctant to move against them except in extreme cases. But even by Texas standards, Cotton’s behavior was so egregious that the local state prosecutor brought criminal charges against him. Cotton was acquitted, but the indictment itself spoke volumes.
Two federal courts, however—the U.S. District Courts for the Southern District of Texas and the Fifth Circuit—decided the case wasn’t even worth listening to. There would be no trial, no jury, no real finding of fact.
The federal courts’ decision was based on special rules of civil-rights litigation. When a government official violates a citizens’ rights, federal statutes allow the citizens to bring a federal lawsuit. The most important, 42 U.S.C. § 1983, is the basis of the Tolan case. It provides a civil action against any person who deprives another of any legal or constitutional right “under color of” law.
But individuals—prisoners, defendants, “sovereign citizens,” and just people who have had a bad encounter with a cop—like to sue law enforcement, especially since, if they win, the government will pay their legal fees. To prevent baseless suits, the Supreme Court evolved a doctrine called “qualified immunity.” Government officials are presumed to be immune from suit for their official acts. Unless the plaintiffs can allege facts that, if true, would violate “clearly established” rights, official defendants are entitled to immediate dismissal.
So, for example, if a cop arrests me, grabs the key to my house, drives there, and uses the key to search without a warrant, I can sue for damages, because any reasonable officer would know the Fourth Amendment forbids that. If, on the other hand, a cop arrests me, grabs my cellphone, and searches my call log, I probably can’t sue, because that issue hasn’t been resolved.