Here is how qualified immunity works on appeal

Police misconduct cases usually do not lend themselves to summary judgment motions, especially when the plaintiff claims the police subjected her to excessive force. These cases cannot be resolved on paper unless there is something unusual about the case that prevents a jury from ruling for the plaintiff. Or the police can seek summary judgment on qualified immunity grounds, claiming they did not violate clearly established law. If that motion fails, the police can take an immediate appeal, one of the rare instances where a pre-trial appeal is permissible. That's what happened here. This strategy worked for one officer, but not the second officer.

The case is Lennox v. Miller, issued on July 29. After the police charged plaintiff with endangering the welfare of a child following her alleged physical confrontation with some neighborhood teenagers who were hanging around plaintiff's troublesome ex-boyfriend, she claims the police handcuffed her for no reason and subjected her to excessive force. She wanted to pull away from the officer at this time but was unable to do so because he was too strong. In the end, the handcuffs were too tight, and she claims the police pushed her to the ground so hard that she urinated herself and also bashed her head to the ground.

The district court denied summary judgment on qualified immunity grounds. You normally cannot appeal from the denial of summary judgment in federal court. You can do so in state court, which has different appellate rules, which is why the state appellate courts are so backed up that you'll wait over a year for oral argument in the Second Department. But the federal rule has a major exception: the denial of qualified immunity can be appealed right away - if, and only if, the municipal defendant can show that even on the plaintiff's facts, the defendant did not violate clearly established case law as handed down by the Supreme Court and the Second Circuit.

So what happens here: the Court of Appeals (Hall, Lohier and Park) says that the officer who assaulted plaintiff cannot win the appeal because, viewing the facts in her favor, the officer violated clearly established law, which is that police officers cannot subject people to the gratuitous use of force, whether it's with the officers fists, or with a Taser. Second Circuit cases are now holding that all uses of force, even through innovative and novel technologies, like Tasers, are treated like traditional use of force cases. Force is force. So no qualified immunity for the officer whom plaintiff says subjected her to excessive force.

There was a second police officer on the scene who did not intervene to prevent the first officer from violating plaintiff's constitutional rights. The second officer was also denied qualified immunity. On appeal, the Court of Appeals says this officer is entitled to that relief because there is no evidence to suggest that he had any realistic opportunity to intervene but failed to do so.