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Judge dismisses Wichita shooting suit, says jury could have found cops used excessive force

Wichita Eagle
Amy Renee Leiker
Sunday, October 7, 2018

Wichita police killed a 23-year-old man running away from a club in the city’s Old Town entertainment district six years ago after someone fired a gun into a crowd at closing time.

The officers who chased Marquez Smart on March 10, 2012, believed he was the shooter, followed him and shot at him, hitting him five times from behind.

Others say Smart was innocent, trying to escape bullets and chaos like everyone else when he was wrongly gunned down.

A federal judge in a recent ruling dismissing a 2014 civil lawsuit brought by Smart’s family, said that a jury could side with Smart’s family and find that the Wichita officers used excessive force.

But, the judge ruled, the officers can’t be sued for the shooting because of a legal doctrine called qualified immunity, which often shields government workers from liability.

In recent years, U.S. Supreme Court decisions have made it increasingly difficult for victims of police shootings to win civil lawsuits against officers accused of using excessive force.

Chief Magistrate Judge James O’Hara in Kansas City, Kan., noted in his Aug. 7 decision that he had a duty to follow high court rulings.

But he was bothered that officers aren’t being taken to trial, writing “the court is troubled by the continued march toward fully insulating police officers from trial — and thereby denying any relief to victims of excessive force — in contradiction to the plain language of the Fourth Amendment.”

The Fourth Amendment protects citizens against unreasonable search and seizure including the use of excessive force by law enforcement.

Smart’s parents, Randall Smart and Brenda Bryant, are “disappointed and upset” by O’Hara’s dismissal, one of the Kansas City attorneys representing them said.

But they’re hopeful he’ll change his mind. Last month, they filed a motion asking him to reconsider his ruling.

The lawsuit has played out at a time when police have been under scrutiny for shooting people, and the nation’s high court has made it increasingly difficult for victims to get their civil lawsuits in front of a jury.

In April, the U.S. Supreme Court threw out a lawsuit by an Arizona woman shot by police outside of her home after she was seen carrying a knife, saying that officers “are entitled to qualified immunity unless existing precedent squarely governs the specific facts at issue.”

That means unless there’s a nearly identical case with nearly identical circumstances where a court has already decided that police actions violated a person’s Constitutional rights, an officer can’t be sued in civil court.

Justice Sonia Sotomayor in dissent said the majority decision was wrong and “sends an alarming signal” that officers “can shoot first and think later.”

Qualified immunity is designed to protect government workers like police officers from frivolous lawsuits and ensure they aren’t fearful of doing their jobs, University of Kansas School of Law professor Lumen Mulligan said.

It “is a very robust defense,” he said.

But it also makes it difficult for someone with a legitimate Constitutional complaint to win a lawsuit because the standards for overcoming an immunity claim are high.

What that means in practice, Mulligan said, is that sometimes no one is held accountable.

“It really is (that) a first constitutional violation comes without liability,” he said, which can be problematic from a civil rights perspective.

“This is a body of law designed to make it hard for plaintiffs to win. On the one hand it makes perfect sense. We want our police officers to be on the beat” and not tied up in court, he said.

“The question is just, to what degree? Where exactly do we turn the control knob? Right now, it’s a very high hurdle.”

Faculty name: 
Lumen Mulligan