Dope With A Gun? 11th Circuit Gives Qualified Immunity

The facts of Corbitt v. Vickers were sufficiently straightforward that they could be easily summed up.

On July 10, 2014, Vickers and other officers “participated in an operation to apprehend a criminal suspect, Christopher Barnett, whom [plaintiffs] ha[d] never met.” The operation
spilled over onto Plaintiff-Appellee Amy Corbitt’s (“Corbitt”) property after Barnett “wandered into the area.”

Why he was a suspect is unclear, which matters since it reflects on the possibility of a threat to the police. After all, if they were seeking Barnett because he failed to pay 100 parking tickets, it’s different than if he was a suspect in a violent murder.

Presumably, they had a description. That too goes unmentioned. How they knew he “wandered” anywhere, likewise, is unexplained. If they didn’t know him, how would they know? It’s possible someone told them, but there’s no finding that says so.

At the time of the incident, one adult (Damion Stewart) and six minor children—including Corbitt’s ten-year-old child SDC and two other children under the age of three—were outside in Corbitt’s yard. Corbitt and two other minors were inside. At some point after Vickers and the other officers entered Corbitt’s yard, the officers “demanded all persons in the area, including the children, to get down on the ground.” An officer handcuffed Stewart and placed a gun at his back. The children were outnumbered by the officers, and plaintiffs alleged at least four of the children (including SDC) “remained seized by deadly firearms.”

The police, for some reason, end up at Corbitt’s yard. Notably, it’s Corbitt’s yard, meaning Corbitt and his agent, Stewart, together with his guests, either gets to do with his property as he will or not, with the caveat that it’s not otherwise illegal. Merely being there when cops are copping is not illegal.

Nonetheless, the police entered the curtilege and made demands of random people who had complete entitlement to do as they pleased on their property, as it was wholly unrelated to whatever it was the cops were concerned with. But the cops had guns.

Assuming that the cops, like the Corbitts, had never met Barnett, it might be understandable that they would have some confusion about who he was. The greater the police ignorance, the wider their authority and more justifiable their acting out of ignorance. It’s ironic, but the law.

Then, “while the children were lying on the ground obeying [Vickers’s] orders . . . without necessity or any immediate threat or cause, [Vickers] discharged his firearm at the family pet named ‘Bruce’ twice.” The first shot missed, and Bruce (a dog) temporarily retreated under Corbitt’s home. No other efforts were made to restrain or subdue the dog, and no one appeared threatened by him. Eight or ten seconds after Vickers fired the first shot, the dog reappeared and was “approaching his owners,” when Vickers fired a second shot at the dog. This shot also missed the dog, but the bullet struck SDC in the back of his right knee. At the time of the shot, SDC was “readily viewable” and resting “approximately eighteen inches from . . . Vickers, lying on the ground, face down, pursuant to the orders of [Vickers].”

See dog, shoot dog. Come up with threat later. But if you shoot dog for no actual reason whatsoever, aim well enough so that the bullet doesn’t end up striking some unrelated unquestionably innocent kid, lying on the ground as commanded, Oh yeah, and Barnett?

Barnett (the fleeing suspect) “was visibly unarmed and readily compliant” with officers.

Amy Corbitt sued on behalf of her child, SDC, for being shot by Vickers. The district court rejected qualified immunity. The Eleventh Circuit, however, dug deeper.

Although we have held that SDC was already seized at the time of the shot, SDC is best described as an innocent bystander. And although the commands of the officers that SDC and the other children lie face down on the ground were actions directed at SDC and the other children, Corbitt does not claim that those actions violated SDC’s Fourth Amendment rights; rather, she claims that the action of Vickers firing at the dog and accidentally hitting SDC violated the Fourth Amendment. We hold that Vickers’s action of intentionally firing at the dog and unintentionally shooting SDC did not violate any clearly established Fourth Amendment rights.

This holding reveals one of the absurd quirks of qualified immunity law: the more bizarre, incompetent and downright stupid a cop’s action, the less likely there is to be caselaw explicitly informing the cop that he shouldn’t do it. The dissent sums it up succinctly.

The majority accurately points out that qualified immunity protects “all but the plainly incompetent.” [] Because no competent officer would fire his weapon in the direction
of a nonthreatening pet while that pet was surrounded by children, qualified immunity should not protect Officer Vickers. Therefore, I dissent.

I join in the dissent.

41 thoughts on “Dope With A Gun? 11th Circuit Gives Qualified Immunity

  1. Ray Lee

    While I hesitate to say something is THE best, I don’t know of a better, more well written, succinct & cogent dissent.

    Reply
  2. BottledJuice

    How far have things slid downhill when the “plainly incompetent” wear badges and bang gavels?

    Reply
      1. L. Phillips

        If Officer Vickers had been under my care and keeping and was he not already on a fast track to termination this incident would have put him on it.

        I say “fast” with some sarcasm because the process took two years of determined action and documentation by a supervisor, plus at least six months for the inevitable federal civil rights trial if the terminated employee was not a straight white male.

        However, competent representation for the family can cause that process to accelerate by costing the department considerable money and public derision.

        Reply
        1. SHG Post author

          It’s unclear whether Vickers was venal, stupid or both, but one would think his partners and supervisors would have had a clue well before he shot a kid.

          Reply
        1. Richard Kopf

          GD,

          I tried to bait you but failed.

          How about Johnny Cash – A boy named Sue – Live at San Quentin? It contains the bad words–bleeped from other versions–that make the song so good. All the best.

          RGK

          Reply
          1. Guitardave

            RGK,
            No doubt the best version…my parents had that album …i wore the grooves out. But SHG killed Sue and just left me with Bruce…so i went from there.
            Regards, GD

            Reply
    1. SHG Post author

      No. The law no longer requires a court to first determine whether it constitutes a constitutional violation before conferring QI on the basis of it not being a “well established” violation, so that the next Dumb Cop case will still have the open question.

      Reply
  3. Dan T.

    And after deciding the lack of a clearly established right means that qualified immunity holds, the court went on to say, “Because we find no violation of a clearly established right, we need not reach the other qualified immunity question of whether a constitutional violation occurred in the first place. This opinion expressly takes no position as to that question.” So just how is a right ever to become clearly established if courts always punt on making any decision about them because it’s sufficient to note that they’re not yet clearly established? That’s a Catch-22.

    Reply
      1. BottledJuice

        Geesh, like watching a member of the entitled attempt to weasel out of a traffic ticket.

        Whoops, let me get a screenshot before this comment goes away…..

        Reply
        1. SHG Post author

          And now I’m left with the unsavory option of trying to figure out what the hell you’re talking about or backing away slowly.

          Reply
          1. BottledJuice

            To the untrained eye in the cheap seats: congress creates bad law (congruent to entitled making an illegal u-turn and subsequently being pulled over). The court spends the next 20 years unable to see established rights or violations thereof (congruent to weaseling out of a plain-as-day traffic violation as the entitled cannot see the obvious violation for reasons). Unsavory indeed….

            Reply
            1. SHG Post author

              Oh. These are constitutional rights, not “bad law,” and your attempt at snark would be far better enjoyed at reddit. Trust me. They’ll love you there. Here, maybe not as much.

  4. B. McLeod

    His story may be that he intended to fire at the dog, but hitting the kid, at a range of 18 inches, would normally pose an issue of fact, given that some jurors, blessed with the ordinary experience of personkind, might decide not to believe that bullshit.

    Reply
    1. SHG Post author

      That’s the point of QI, to protect police, because no one appreciates how hard it is to be a cop making split-second decisions in life-threatening situations, except other cops. Jurors just can’t be trusted.

      Reply
  5. Jake

    For some reason, after reading this, I felt compelled to look at the Coffee County Sherrif’s office website. I wish I hadn’t, but I sure am glad I don’t live in Coffee County.

    Reply
  6. kemn

    So, a reasonable cop can shoot in the general direction of a dog while holding a child at gunpoint only when they’re 19″ away?

    Just trying to understand what’s reasonable now.

    Reply
  7. Chaswjd

    I get that qualified immunity jurisprudence is a mess. The underlying problem remains with sec. 1983: Do we federalize every possible tort by a state or local official? If a local official blows a red light and hits my car, has he taken my property without just compensation? There are arguments that he has not, but still . . . State laws do restrict tort recovery. But those laws also keep our taxes low and prevent municipal bankruptcy because of the actions of a single idiot. I do get the need to federalize tort law in the Reconstruction South. But do we need to federalize tort law in California or New York today?

    Reply
      1. Chaswjd

        Qualified immunity protects against sec 1983 liability. The problem highlighted in the post is that a dolt of a sheriff’s deputy did something so idiotic that of course he or his employer should pay. The problem for the plaintiffs in the situation is that Georgia counties evidently enjoy broad sovereign immunity. Thus, the plaintiffs were forced to turn to sec. 1983 for a remedy. But for the Georgia sovereign immunity, the case would be a mere blip, because the plaintiffs could have recovered under Georgia law. And it is that tension, between respecting state ability to restrict their or their subdivisions’ liability through immunity doctrines and granting injured people a remedy that I wished to highlight.

        Reply
        1. SHG Post author

          Sec. 1983 provides a remedy against state actors for constitutional violations. It may overlap with a tort. It may not.

          Some states waive sovereign immunity for tort claims. Some do not. But those are tort claims, which may or may not overlap with constitutional violations. You’ve done nothing but muddle the problem. Stop.

          Reply

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