KQED News/Sukey Lewis

A federal appeals court in San Francisco is considering whether six Pittsburg police officers can be held liable for killing a man during a violent arrest in 2016. At the center of the officers’ appeal is a legal doctrine called qualified immunity that broadly shields public officials — and police — from liability.

[The Plaintiffs, represented by Haddad & Sherwin LLP, claim that those six Pittsburg officers killed Beto Martinez with a choke hold — where Beto can be heard on video saying “I can’t breathe” — multiple punches, kicks, stomps, and uses of a taser, and finally, after they had broken sixteen ribs, his sternum, and his thyroid cartilage, three officers knelt on his back and neck for two minutes until he died.  They were trying to arrest Beto for an expired vehicle registration (a “fix-it-ticket”) and for fleeing from their arrest.]

As police accountability comes under increased scrutiny in the wake of killings and widespread protests, calls have grown to remove this legal protection for officers. On Monday, congressional Democrats introduced the Justice in Policing Act of 2020, which would eliminate officers’ access to qualified immunity. The U.S. Supreme Court may also revisit the issue.

The legal standard outlined by the courts says officers can only be directly held responsible for killing or injuring someone if they both clearly violated that person’s constitutional rights and they knew, or should have known, they were violating those rights.

“Qualified immunity is supposed to provide officers with breathing room when they’re involved in very difficult situations,” the officers’ attorney Noah Blechman told justices for the 9th Circuit Court of Appeals during oral arguments in San Francisco on Wednesday. …

The Supreme Court’s [doctrine of qualified immunity] has resulted in the dismissal of more wrongful death lawsuits before they ever get to trial. In a dissenting opinion, Justice Sonia Sotomayor wrote that the court was treating the doctrine of “qualified immunity as an absolute shield.”

“It’s time to undo it and return justice to courts and juries for police, just like it exists for everybody else,” one of the family’s attorneys, Michael Haddad said.

If the case law establishing “qualified immunity” were changed, more lawsuits over killings by police officers would be allowed to go to trial.

“I think about what happened to Eric Garner and George Floyd and many others,” Haddad said to the 9th Circuit justices in closing. “And for each of them, as police officers beat and crushed the breath from them, their last words were, ‘I can’t breathe.’ Now some of those very officers are here, literally asking for you to give them some breathing room.”  . . .

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