Qualified immunity denied where police tried to frame someone for attempted murder

The Court of Appeals holds that a plaintiff alleging that police officers in Nassau County had futzed around with the rules and procedures to frame him for attempted murder, resulting in plaintiff spending nearly a decade in prison until he was exonerated when new evidence pointed to a different suspect. While the officers claimed entitlement to qualified immunity, the Court holds that the jury may find the officers did not act in good faith and that clearly established case law had already held that misconduct like this can violate the Constitution.

The case is Galloway v. County of Nassau, issued on June 26. The Second Circuit deals with plaintiff's claim that the officers denied him a fair trial. Fair trial claims may be brought in this jurisdiction if the officers make an arrest on the basis of false or fraudulent information. Plaintiff asserts that the officers (1) coerced witnesses to falsely implicate plaintiff's role in the crime, and (2) prepared a suggestive photo lineup that made it more likely the crime victims and witnesses would implicate the plaintiff. One way the police played around with the photo array, the Court of Appeals says, is by sitting plaintiff on two phone books to make him look taller, since the crime victim (a taxi driver who was shot in the face) identified a man who was much taller than plaintiff. Plaintiff also asserted Brady violations, where the police fail to turn over evidence that might exonerate him.

Qualified immunity attaches when prior case law is not sufficiently on point and the police were therefore not on notice that their misconduct would violate the Constitution. So, even if the police did wrong, if prior cases did not clearly hold as such, they are immune from suit. Many good cases disappear due to this immunity, but this case survives because the Court of Appeals (Jacobs, Chin and Menashi) holds that the right to due process protects us from suggestive police identification procedures that create a substantial risk of mis-identification.One case was Jenkins v. City of New York, 478 F.3d 76 (2d Cir. 2007). Another case holding that Brady violations are actionable under Section 1983 is Walker v. City of New York, 974 F.2d 293 (2d Cir. 1992).

The way to repel a motion for qualified immunity is to find a good case in your jurisdiction that will convince the court that your case is sufficiently similar to a prior case that the police were on constructive notice that they were violation clearly established law. The puzzle is how factually similar the prior case was to your case. There is no hard-and-fast formula for this. It often depends on the identify of the judge whether the case will fail under qualified immunity or proceed to trial. This case will proceed to trial, as the Second Circuit finds that, by 2008, when all of this happened, the officers' misconduct was sufficiently illegal to get around the immunity claim. Prior cases were close enough to this one that plaintiff was able to avoid qualified immunity.

Judge Menashi, in partial dissent, says two of the officers should get qualified immunity because existing precedent in 2008 had not "placed . . . beyond debate the statutory or constitutional question of whether police may use phone books, hats, and sheets to obscure a suspect's short height and braided hair from a witness who they know believes the perpetrator is tall and short-haired." The majority disagrees with the dissent on this point, stating that "it is (and was) clearly established that identification methods bearing a likelihood of mis-identification of the accused violates due process, no matter their form -- just as procedures without such a likelihood do not." The majority adds, "it is immaterial whether appearance is disguised by phone books, or by cigar boxes, or by pillows, or by hats, sheets, eyelashes, mustaches or pimples. With enough artifice and disguise, almost anybody may end up fingered."

The majority's rebuttal to the dissent conveys a tone of impatience. Note that the majority opinion was written by Judge Jacobs, who for many years was among the most conservative judges on the Court of Appeals. The dissent was written by Judge Menashi, one of several conservative judges appointed by the Court by the current president. Conservative judges are more likely to grant qualified immunity, in my experiences, but not always. There are conservatives, and there are conservatives. You can see that play out in this opinion.