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Supreme Court’s Practices in Excessive Force Cases Raises Questions about Fairness

Sep 19 2015
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Claims of excessive force against the police are difficult to prove. To make matters more difficult, until recently the evidence presented to justify the force used was typically only the testimony of the police officers involved, who routinely vouched for each other. Even the proliferation of smart phones with cameras has not insured successful lawsuits against police officers.

Why? Qualified Immunity

It does not matter what an officer’s intentions and motivations were when he or she used excessive force. The U.S. Supreme Court has narrowed excessive force cases to this singular issue: did the officer violate a “clearly established” statutory or constitutional right of the abused individual—a right the officer should have reasonably known violated the individual’s rights?

In a July 20, 2015 New York Times piece, Adam Liptak called attention to a recent article by Ninth Circuit Court of Appeals Judge Stephen R. Reinhardt published in May edition of the Michigan Law Review. Judge Reinhardt leveled the serious charge—one based on exhaustive research—that the Supreme Court has consistently made it impossible for individuals who have been abused by the police to have their claims heard by courts because the high court protects the police with the doctrine of qualified immunity .

“ … in the name of protecting officers from being held accountable for ‘minor’ errors made in the line of duty,” Judge Reinhardt wrote, “the Court has through qualified immunity [has] created such powerful shields for law enforcement that people whose rights are violated, even in egregious ways, often lack any means of enforcing those rights.”

And what is the end result?

Tilted, Biased Decision-Making

Regardless of how egregious the constitutional violation may be against an individual, he or she cannot now obtain any relief from the Supreme Court unless they make a precise, almost impossible, showing that the factual circumstances of their case is virtually identical to those in a precedent decision by the Court. Judge Reinhardt pointed to 15unsignedSupreme Court reversals of lower federal court decisions granting habeas relief to state prisoners between October 2007 and this year. This is significant because nearly 60 percent of the nation’s state prison population is comprised of African-Americans and Hispanics.

In contrast, federal court decisions holding government officials liable for misconduct, especially in police excessive force cases, during the same period were overturned and effectively dismissed by the Supreme Court. Most were white officials in cases in which the rights of minorities were violated.

This unexplained dichotomy raises many sensitive questions about the tendencies of our highest jurists.

This has spurred some legal experts to directly question the very integrity of the court. Judge Reinhardt, an appointee of former President Jimmy Carter and an unabashed liberal, said these kinds of decisions by the court have, as described by Liptak, “stunted the development of constitutional law.”

This criticism of the Supreme Court is not confined to a liberal judge on one of the most liberal appellate courts in the country. Fellow Ninth Circuit Judge Alex Kozinski , a Reagan appointee and an “ideological opposite” of Reinhardt, earlier this year called for an end to absolute immunity for prosecutors who engage in misconduct. He also agreed with Judge Reinhardt criticism of the Court’s handling of state prisoners’ cases in federal habeas proceedings, saying it often forces lower court federal judges to sit by in “impotent silence” in cases where an innocent person may have been wrongfully convicted.

Justices Hide Behind Unsigned Per Curiam Opinions

During the two-week period between August 13 and August 26, four federal courts of appeals—Fifth, Sixth, Seventh and Tenth—issued significant rulings that allowed five lawsuits against the police in excessive force cases to proceed. In all likelihood, these cases will be appealed to the Supreme Court by government attorneys because they know the police have a safe harbor there. And these five lower federal court rulings will probably be vacated through unsigned per curiam opinions—a practice that allow the justices who issued such rulings to remain anonymous. During Chief Justice John Roberts’ tenure, approximately thirteen percent of all the court’s full opinions have been per curiam.

This means that these five appellate court rulings, issued by 15 judges who represent a broad ideological spectrum, could be reversed anonymously by the highest court in the land. That would be tragic. Excessive force claims against the police dominates news headlines these days. The recent roughhouse takedown of former tennis star James Blake in front of a Manhattan hotel by a police officer with a history of excessive force complaints illustrates this point. The New York police commissioner and mayor were forced to apologize to Blake because the police officer tackled and arrested the wrong man with excessive force. A man who was clearly wrongly identified and most likely profiled.

Tennis Star Subjected to Excessive Force by NYPD

As in the James Blake case, and most other excessive force cases, the police officer was white and the victim African-American. 75 percent of the nation’s police forces are white and they arrest African-Americans at a rate three times higher than other races, according to a USA Today report last year. The majority, or at least the appearance of a majority, are younger African-American men who are profiled—quite often targeted—by white police officers zealous in their use of excessive force, even lethal force, to accomplish an arrest, more often than not for relatively minor crimes (Blake was suspected of being a credit card thief).

The lower federal courts are seeing more and more of these kind of excessive force cases and they are sending a message to the police that their misconduct will not automatically be shielded by the doctrine of qualified immunity. But this message could be muted by a Supreme Court that too often appears to be political tribunal rather that a respected court of law. The reason our justice system is plagued by prosecutorial and law enforcement misconduct is because, at the end of the day, prosecutors and police know they will be rescued from the fires of accountability by the Supreme Court through immunity doctrines.

This kind of decision-making raises some serious political, racial and social implications; most notably, whether the court’s decision-making is now governed by political ideology rather than the historical rule of law. When a conservative Reagan-appointed judge calls on the Supreme Court to end absolute immunity for rogue prosecutors, you know there are serious problems in the high court’s decision-making.

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    Had the pleasure speaking with John Floyd on a personal matter, he was very responsive, nothing but exceptional, and he really cares about you with sincerity and most importantly knows … More what is he talking about! No games or bs, his approach to my situation even though I knew it was probably way smaller then what he normally takes on, he was extremely helpful and didn't care about the size of the matter like other attorneys do. He really looked out for my best interests. You can tell he has decades of experience doing what he does just by chatting with him. I would highly recommend him.
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    Words can’t describe how grateful I am for working with John, he went above and beyond my expectation. I was wrongly accused and hired many lawyers before hiring John Floyd but they … More all disappointed me, I had lost hope until a friend of mine referred me to John. From the start he had my best interest in mind and gave helpful advice, he explained the process and guided me. He put more work and time than all my previous lawyers that cost me thousands of dollars. He was constantly communicating with court and defended me more than all lawyer i had hired before him. Don’t waste your time and money like I did, believe me when I say I hired countless lawyers before him and no one came close to John. I’m forever thankful for him for fighting for my innocence and getting my case dismissed. Thank you so much🙏🏼🙏🏼
  • Avatar Gary Watch ★★★★★ 4 years ago
    I called Mr Floyd and left a message, with in the hour I received a call back with much more information then I could have ever expected. Mr Floyd was very informative on every question … More I had for him. He seemed like he cared, instead of like most attorneys that you talk to that are just out for a quick buck. If you want someone that is going to shoot strait with you, and has your best interest in hand, this is you guy. This was the best experience that I have ever had with an lawyer.
  • Avatar Saman Daftarian ★★★★★ 4 years ago
    I can state with confidence that Mr. Floyd and his team are the most competent and professional lawyers one can hope for. My case was quite complex and I admit that as a law student … More I was not the most patient client. Mr. Floyd did a phenomenal job of managing the bench, prosecution and myself! The result was above expectation, and I will never hesitate to recommend this firm regardless of the caliber of the case at issue.
  • Avatar calvin robinson ★★★★★ 4 years ago
    It was a pleasure working with Mr. Floyd. I contacted him regarding a legal matter and he was extremely knowledgeable about the law, and responded in a timely manner. I appreciated … More the fact I did not feel rushed, and he made sure he thoroughly answered all questions I had. I would highly recommend him!Positive
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    Spoke with John Floyd about a 45 year old criminal case I was involved in. I had very little information about the case and John helped me search what records were available and gave … More me guidance to find more information. He was very professional and took his time helping me. I may need to hire a lawyer on this case and Mr. Floyd will be the man.Thanks John.
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    Very professional and straight forward. He's not going to waste your time or money. Very knowledgeable in a large range of possible matters one could face living in these days … More and times. If ever you need legal assistance, this is who I would suggest. Awesome!Positive
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    I called about some legal questions I needed to get clarified and John was able to give me clarification and sound advice. I will definitely contact John for all future legal questions … More and issues.Thank you John!Positive
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    Knows his stuff and well respected with DA and judges. I have referred him a couple times and every client has been satisfied
  • Avatar Kedar Puranik ★★★★★ 4 years ago
    John is beyond knowledgeable! If I decide to pursue my case any further I would only have him represent me.
  • Avatar Joseph Sivadon ★★★★★ 4 years ago
    What a great attorney, this guy really took time out of his day to answer my questions and explain my case to me. Very grateful, thank you so muchPositive
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    Absolutely a very professional lawyer. Very well read in the current law and more than willing to help if needed.
  • Avatar karim khalifa ★★★★★ 4 years ago
    Mr. John he’s a professional he knows what he’s doing and he’s patient they recommend Him stronglyPositive
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  • Avatar James Haggard ★★★★★ 4 years ago
    Great service, very knowledgable and happy to help with any questions I had
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    Quick to action and helpful and knowledgeable with entertainment industry based issues!
  • Avatar Chad Groves ★★★★★ 4 years ago
    Responded on a holiday week. Very knowledgeable and reassuring.
  • Avatar Mark Fein ★★★★★ 4 years ago
    Very professional
  • Avatar Bthomason903 Bthomason903 ★★★★★ 4 years ago
  • Avatar Anton Jasser ★★★★★ 4 years ago
  • Avatar Alma Garza ★★★★★ 4 years ago
  • Avatar Victory 2020 ★★★★★ 6 years ago
    I want to thank John T. Floyd and all of his team. He is the best lawyer who cares aboutHis clients and fights really hard to get the best outcome. He is a fighter and he is awesome!!!I … More recommend if any one needs criminal defense , he is the BEST. We had a really serious caseAnd we are very thankful for the outcome. Thank you John!!!!! God bless you!!!!!!
  • Avatar Alma Garcia Cunningham ★★★★★ 6 years ago
    The attorneys at John T. Floyd Law Firm work diligently to achieve the best possible results for their clients. They are caring and knowledgeable professionals. Their expertise in the … More law and their experience as trial attorneys makes them the right choice as a defense attorney. I recommend this law firm highly.
  • Avatar Rajiv Patel ★★★★★ 6 years ago
    From beginning to end this firm handled my case like the top tier professionals they are. I would not trust ANYONE else with my legal needs after having less than stellar experiences … More with other teams. Thank you Floyd!!!
  • Avatar Jose Tapia ★★★★★ 6 years ago
    I really felt like the team cared about my case and am super satisfied with the outcome. Would not recommend anyone else!
  • Avatar Sagar Patel ★★★★★ 6 years ago
    These guys do amazing work and have phenomenal service! Hands down best in the Houston area!!
  • Avatar RAYNINN ★★★★★ 6 years ago
    John and Chris are true professionals! Love those guys like family!
  • Avatar Virginia Martin ★★★★★ 6 years ago
    Mr. Floyd and his team are very knowledgeable, informative, and helpful.
  • Avatar Darla Latham ★★★★★ 6 years ago
    A team you can depend on to stand up and fight for you to prove the truth the whole truth!
  • Avatar Veronica Elorza ★★★★★ 6 years ago
  • Avatar Karetta Lux ★★★★★ 7 years ago
    Mr. John T. Floyd represented me.I couldn't be happier with the outcome he managed to achieve on an VERY Important case that was dismissed the day of Trial. He is patient & … More very knowledgeable of the legal system. I HIGHLY recommend him to anyone in need of a lawyer!John, I am forever grateful & satisfied with the effort you put forth & all you did for me. Thank you isn't enough!God bless you & your family!
  • Avatar GM ★★★★★ 8 years ago
    The John T. Floyd Law Firm assisted me, and I can tell you that the attorney took the time to answer my questions, and I didn't feel rushed or dismissed as I have experienced in … More the past with attorneys. The attorney was very nice and extremely knowledgeable. Initial impressions and continued excellent customer service are big factors for me and as such I would highly recommend this firm.
  • Avatar Sandra Bivens ★★★★★ 8 years ago
    I thank you for your efforts to help Felons regain their Civil rights, and for the information on possession , I am A convicted Felon, no violent history. I am an expert shot, I am … More 76 yoa, and very concerned about the present lake of Security in our State and Country. God Bless and Prosper you in your efforts, Your friend, Sonny Bivens
  • Avatar Mike Kittelson ★★★★★ 8 years ago
    I really appreciated both Chris and John helping with my legal questions and concerns. Both are good guys and I would not hesitate to recommend them.
  • Avatar Robert Hair ★★★★★ 8 years ago
    Extremely helpful!!! Helping me understand the law.

John T. Floyd is Board Certified in Criminal Law By the Texas Board of Legal Specialization

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