Get Informed

Regular updates, analysis and context straight to your email

Close Newsletter Signup

Lawsuit Tests the Supreme Court’s ‘Immunity Protection Program’ for Police Officers Who Kill

Brittany Hogan / Flickr (CC BY-NC-ND 2.0)

Lawsuit Tests the Supreme Court’s ‘Immunity Protection Program’ for Police Officers Who Kill


On May 23, 2013, Khari Illidge, a 25-year-old Black man in Lee County, Alabama, was face down and hogtied, with a 385-pound police officer kneeling on his back, when he suddenly went limp and a mixture of white froth and blood seeped from his mouth.

Sheriff’s deputies had confronted Illidge while he was running in the street naked, unarmed, and, the deputies agreed, suffering a mental health crisis. When Illidge did not heed commands to stop, the deputies used the electric shock of their Tasers to subdue him. They tased him 19 times, 13 of which came after he was on the ground with two officers on his back. One officer later testified that tasing Illidge on the ground served no purpose other than to inflict pain and shut down his nervous system.

The officers then handcuffed Illidge and shackled his feet behind his back in the hogtie position because he was “thrashing” and making “unintelligible” utterances. Officers called paramedics when they saw the blood in his mouth, and he was pronounced dead soon after.

Khari Illidge on his 25th birthday.
Photo provided by LDF.

Illidge’s estate brought a federal civil rights suit against the officers involved in his death, citing Fourth Amendment precedent that police may use force only to serve a legitimate purpose. But both the trial court and court of appeals granted the officers “qualified immunity,” which shields officers from civil liability unless their conduct clearly violates the Constitution.

Last week, the NAACP Legal Defense and Educational Fund (LDF) filed a petition asking the Supreme Court to review the grant of immunity. The case is the latest test of the Court’s role in the nation’s ongoing struggle to hold police accountable for fatal violence, particularly against young African American men. It also highlights a question that has gained urgency among legal commenters and some members of the Court: Will the Supreme Court use its discretion equally to protect victims of police violence as it does to protect the rights of police?

In recent years, the Supreme Court has quietly carved out a special space on its docket to enforce the civil immunity of police officers, going out of its way to ensure that lower courts strictly apply immunity. Law professor Will Baude has called it the Court’s “immunity-protection program.” With Illidge’s petition, the Court can take the same steps to enforce the rights of someone killed by police, or it can allow the lower court’s grant of immunity to stand, and further entrench its role defending officer immunity and undermining police accountability.

For decades, the Supreme Court has favored a strong version of immunity in civil rights cases against police and other government officials, with any immunity case before the Court a nearly foregone conclusion. By one count, the Court has conclusively denied immunity just twice in over 30 opportunities in the last 36 years. The Court’s robust view of qualified immunity has made it harder to sue police officers for violating constitutional rights than for causing injury through ordinary negligence.

But under Chief Justice John Roberts, the Court has deployed an additional tool to protect officers from liability: summary reversal. Ordinarily, the Court takes cases to resolve clear disagreements among the federal appellate courts, or to decide a pressing legal issue of national significance, and then decides after full briefing and oral argument. Not so with official immunity. Instead, the Court has effectively patrolled the lower courts on the issue, looking for mistaken denials of immunity and then summarily reversing them. The Court has done this six times since 2013, including in April of this year. In one case, an officer ignored superior commands and shot at a fleeing car six times from an overpass, killing the driver, rather than allowing the car to hit spike strips in the road. In the most recent case, an officer shot a woman four times while she stood in her front yard with a kitchen knife; it was unclear whether she even knew officers were there.

Justice Sonia Sotomayor has become a vocal critic in dissent. Last year, she called out the Court’s double standard when it declined to review immunity granted to an officer who shot an unarmed man in the back while he walked away from the officer. It is a “disturbing trend,” she wrote, that the Court has “not hesitated to summarily reverse courts for wrongly denying officers the protection of qualified immunity in cases involving the use of force,” yet “rarely intervene[s] where courts wrongly afford officers the benefit of qualified immunity in these same cases.”

In April, when the Court summarily granted immunity in another officer shooting, Justice Sotomayor decried the Court’s “unflinching willingness” to intervene on behalf of police in excessive force cases. The “one-sided approach to qualified immunity,” she wrote, “transforms the doctrine into an absolute shield for law enforcement officers” and “tells officers they can shoot first and think later.”

For the most part, the Court’s majority has not concealed and has in fact defended its zeal to shield officers and prioritize immunity over accountability. An opinion last year explained that “in the last five years, this Court has issued a number of opinions reversing federal courts in qualified immunity cases … because qualified immunity is important to society as a whole.” And in 2015, Justice Samuel Alito wrote that “the Court often corrects lower courts when they wrongly subject individual officers to liability.”

But in response to Justice Sotomayor last year, Justice Alito made a curious denial of what appears to be an obvious a double standard. He said the Court “applies uniform standards in determining whether to grant review in cases involving allegations that a law enforcement officer engaged in unconstitutional conduct,” and challenged Justice Sotomayor to identify “a single case” where a victim of unconstitutional policing raised the same sort of error that has triggered Supreme Court intervention when claimed by police.

Lawyers for Khari Illidge’s estate argue their client’s claims present just such a case.

Whether the Court applies a uniform standard going forward — correcting errors not just to protect police but also victims of police brutality — is not just an academic matter. The small number of cases the Court decides have far-reaching consequences, affecting the relationship between police and communities across the country. Daniel Harawa, assistant counsel at LDF, said the Court’s failure to review Illidge’s death would not only condone the officers’ conduct in his case, but “could cause the public to wonder when, if ever, police officers will be held accountable for their unnecessary use of deadly force.”

A Flurry of Bills Followed Larry Nassar’s Conviction. Here’s Why That’s a Problem.

Larry Nassar (foreground) listens to a victim impact statement at a sentencing hearing after pleading guilty to multiple counts of sexual assault
Scott Olson / Getty

A Flurry of Bills Followed Larry Nassar’s Conviction. Here’s Why That’s a Problem.


The history of child sex abuse legislation in the United States follows a well-worn pattern: a chilling incident rouses public anger and fear, to which lawmakers respond with expansive, emotionally charged legislative action.

The 1994 Jacob Wetterling Act, the first law to establish federal guidelines requiring states to implement sex offender registries, was named after an 11-year-old Minnesotan who was kidnapped and murdered by a suspected pedophile. Megan’s Law, mandating public notification about registered sex offenders when deemed necessary, was introduced directly in response to the brutal rape and murder in New Jersey of 7-year-old Megan Kanka by a recidivist sex offender neighbor. And the expansion of the sex offenders registry to include juvenile registrants came in part in response to the assault of an 8-year-old Wisconsin girl by a 14-year-old boy.

It’s an understandable pattern, but a dangerous one. Premised on extreme horrors, sex offender laws have constructed an overreaching, excessively punitive registry system, which empirical studies and human rights advocates have found may cause more harm than good. Nonetheless, public support for a wide range of sex offender policy and law is consistently high, and the pattern of reactive legislation is rarely challenged. Such is the case at present in Michigan, where a flurry of legislation has been proposed in response to the case of Larry Nassar, the sports doctor accused of molesting more than 300 children and young people over a two-decade period.

Nassar is already in prison for the rest of his life, serving a 60-year federal sentence for child pornography and related obstruction-of-justice crimes, and two state sentences of up to 175 years for criminal sexual misconduct. Yet, his case has led to calls for reform.

“This package of bills delivers justice, justice for the children who were sexually assaulted,” State Senator Margaret O’Brien (R-Portage), a lead sponsor for some of the bills, said when the legislation passed the Senate in March.

She was joined at a press conference announcing the legislation by some of Nassar’s victims, who expressed a desire for justice beyond his slow death behind bars. “Together we will change our laws and our culture so that every child will be valued, respected and protected,” said Jordyn Wieber, an Olympic gold medalist.

To that end, more than 30 bills are under consideration in the Michigan House of Representatives, and a package of related state Senate bills was passed with overwhelming and speedy bipartisan support in March. Some of the legislation seems sensible, such as bills expanding sex education curriculum for students and requiring public schools to maintain records about why an employee leaves or is fired. But other bills, such as extending the statute of limitations and increasing prison sentences for child pornography possession, risk regressive consequences under the patina of progressive, victim-focused reform.

“The injustice in many of the laws involving sex or sex-related offenses is that they are passed without debate,” said Lawrence A. Dubin, a law professor at the University of Detroit Mercy, “without an examination of the underlying data that would show their ineffectiveness in accomplishing their intended goals and in creating people as monsters who are often not dangerous to anyone.” The Senate Judiciary Committee approved its bills in just one day. House hearings, which are already underway, are planned to go on for a number of weeks but the package is expected to easily pass.

Representative Rose Mary Robinson (D-Detroit) is among those who have criticized the bills. She told Michigan’s Bridge Magazine that most of them were “an overreaction” and “a waste of time.” Robinson did not respond to a request for comment.

Two bills under consideration would increase the number of years people can be imprisoned and the fine levied for charges related to child pornography on the state level. The bills would have limited consequences since most child pornography charges, including the ones filed against Nassar, are already federal (because the material is spread online). Responding to a question about why these bills were necessary, O’Brien told The Appeal they are meant to offer an extra “tool” for state prosecutors.

To Dubin, whose autistic son was placed on the sex offender registry for child pornography possession, legislation like this isn’t necessary. It also poses a risk in failing to offer the possibility of diversion programs instead of criminal prosecution, even if defendants are known to have developmental disabilities. When asked about this concern, O’Brien told me that she believes prosecutors would use their discretion when it comes to bringing charges in such cases. But dozens of cases nationwide speak to the criminal justice system’s shortcomings regarding defendants with developmental disabilities. And, more broadly, the bills reflect a tendency toward carceral and punitive approaches to the exclusion of more rehabilitative and therapeutic ones.

Perhaps the most controversial aspects of the legislative package involve extensions to the state’s criminal and civil statutes of limitations for sexual conduct cases — a recognition that many of Nassar’s victims were reluctant to come forward for many years. There’s already no statute of limitations in Michigan for first-degree criminal sexual conduct, while victims of second- and third-degree criminal sexual conduct have 10 years or until the victim’s 21st birthday to seek criminal charges. Under the proposed legislation, the statute of limitations would be eliminated for prosecution of second-degree criminal sexual conduct if committed on a victim under the age of 18, and extended to 30 years (or longer if DNA evidence is found) in third-degree cases. For civil suits, two new bills would give people who were sexually assaulted as minors the ability to file a civil action against the state of Michigan at any time and would apply retroactively to any sexual assaults that happened after 1996 specifically with Nassar’s victims in mind. (He began working as a team physician for Michigan State University in 1997.)

That troubles groups like the ACLU of Michigan. They say the issue remains that the possibility of a fair trial diminishes considerably over time and the difficulty of mounting a defense grows exponentially. “As a principle, removing the statute of limitations should be done with great caution,” Kimberly Buddin, policy counsel for the ACLU of Michigan wrote in a statement to the state’s Senate Judiciary Committee. “They were enacted to ensure the ripeness of a lawsuit and protect constitutional rights such as due process,” she added, noting that any extension of the statute of limitations should come with attendant reforms to ensure due process protections.

The case for extending or eliminating the statute of limitations in sexual misconduct cases, especially involving children, has been well made: Victims often take years to report incidents and can take many more years to be believed. The fact that many of Bill Cosby’s over 50 accusers are unable to prosecute in criminal court given the statute of limitations has provoked a nationwide conversation about the problem of the temporal constraints, and a swath of state legislative reforms against them. In defense of the Michigan bills, Senator O’Brien told The Appeal that she “feels comfortable” that due process will not be threatened. “Time does not favor a victim,” she added, noting that the burden of proof remains on the state and these cases remain difficult to litigate, especially since physical evidence is usually lost in older cases.

Due process concerns have also been raised about another of the bills, which would make it easier for jurors to hear about prior accusations of sexual assault against a defendant, with a judge’s permission, even if those allegations were never brought to court. Testifying before the House on a very similar bill, Lore Rogers, staff attorney to the Michigan Domestic and Sexual Violence Prevention and Treatment Board said such changes are important in helping victims speak out and be believed. “Allowing evidence of other sexual offenses by a defendant in such a case can provide corroboration of a victim’s report and assist the trier of fact in making these difficult credibility decisions.” While it might seem reasonable that a judicial process consider whether defendants have a history of accusations, as Nassar did, the principle that a trial is limited to litigating only the alleged crimes in question is a central tenet of our justice system.

Critics say these bills, taken together, are not only misguided but represent a squandered opportunity because they distract from the deeper question of why the culture of silence around sexual abuse persists. As Guy Hamilton-Smith, the Sex Offense Litigation and Policy fellow at the Mitchell Hamline School of Law explained, “Instead of addressing the reasons why people are waiting to report or not reporting at all, we’re seeking to fix it on the back end.” He’d rather see more conversations about the lack of victim support services, police functioning as gatekeepers to rape investigations, and the misdirection of prevention policies. “To the extent that these discussions get boiled down to an argument about statutes of limitations,” he said, “I think, we miss the bigger picture.”

And what does justice entail in a criminal case newly enabled under an extended statute of limitation? While these prison sentences may bring satisfaction and relief for victims, they do nothing to address the deep flaws in our criminal justice system. As Kelly Hayes and Mariame Kaba argued here in response to Nassar’s “death warrant”-length prison sentence, “When we see defendants as symbols of what we most fear, and that which we most greatly despise, we are confronted with a true test of our belief that no justice can be done under this system.”

We find ourselves in a political moment when #MeToo, a movement against sexual violence and for survivor justice, is leaning on policing and courts at the very same time that social justice advocates push for decarceration efforts and abolition. The proposed package of bills includes some good, preventative measures. Yet at a time when Michigan’s incarceration rate has dropped to a 20-year low, we should be wary of reactive legislation that conflates justice and societal security through more imprisonment. Those who seek vengeance through incarceration attempt to vindicate themselves by pointing at the few Larry Nassars of the world who get locked away, but vile cases like Nassar should not be used to further bolster an inherently violent system under the guise of obtaining justice.

More in Explainers

In Las Vegas, Critics Say Prosecutors Don’t Play Fair When It Comes To Sharing Evidence

Public defenders say the problem has disastrous effects on their clients' cases.

Clark County DA Steve Wolfson
Facebook

In Las Vegas, Critics Say Prosecutors Don’t Play Fair When It Comes To Sharing Evidence

Public defenders say the problem has disastrous effects on their clients' cases.


Earlier this year, a U.S. district judge threw out criminal charges against Clark County cattle rancher Cliven Bundy, his sons, and a co-defendant, citing “flagrant” and “outrageous” misconduct by Nevada prosecutors. But the allegations against the U.S. Attorney’s office — that key evidence was delayed or withheld — apply to the county’s local prosecutors as well, public defenders tell The Appeal.

Attorneys with the Office of the Clark County Public Defender say the county’s district attorney’s office frequently violates the law that governs the sharing of information, also known as “discovery.” While some oversights are accidental, explained public defender David Westbrook, others appear intentional. Pieces of evidence are “wedged between the cracks, and then someone kicks dirt on them till nobody finds [them],” he said.

To address the problem, the public defenders began to document cases involving observed violations and their outcomes. In 2017 alone, they recorded 28 cases in which county prosecutors turned over discovery — including jail calls, surveillance video, police reports and body camera footage, witness details, DNA and forensic test results, medical reports and other forms of evidence — within 30 days of trial. The gravity of these violations varied. In some cases, a late disclosure involved a large document dump on the defense ahead of trial. But four cases allegedly involved the late disclosure of exculpatory evidence, such as police notes about a victim who had previously made false allegations, a report from Child Protective Services, and witness interviews.

Sometimes, the office found, discovery was provided within one business day of a trial’s start date. In six of the 28 cases, evidence was not revealed until the trial had begun.

The state’s criminal statutes require prosecutors to disclose key evidence against a defendant early on in a case. They have to turn over defendant and witness statements in their possession at least five days before a defendant’s preliminary hearing. As a trial nears, prosecutors must continue to turn over additional evidence they have collected and plan to use, and Nevada law establishes deadlines for these disclosures. Both sides, for instance, have until 21 days before trial to disclose the summaries of what expert witness testimonies will be. They also have until 30 days before trial to disclose medical reports, test results, defendant and witness statements, and physical evidence, including relevant documents, if those are formally requested by the opposing side.

Failure to provide discovery before a deadline without the court’s permission — or not providing it at all — is a violation, and judges are authorized to sanction the responsible parties or prohibit them from presenting the evidence at trial.

Another public defender, Robert O’Brien, said his colleagues have lamented systemic discovery violations for years and raised concerns to judges and policy committees. But their grievances have largely fallen on deaf ears. “The response that we’ve encountered consistently is that we need to show that there’s a pattern or more than anecdotal evidence,” O’Brien said. “We usually would bring up the most egregious violations we could find and, generally, our district courts have refused to sanction the district attorney for it.”

The office found that judges responded to these late discovery disclosures in different ways. They allowed prosecutors to admit the evidence in three cases. Four cases were resolved with plea deals. Judges postponed 11 cases and allowed late discovery to be presented in three. Seven cases proceeded as normal.

With approximately 60,000 cases every year, a spokesperson for the district attorney’s office acknowledges that “the flow of discovery in each and every case will not be perfect.” But the office disputes claims that it doesn’t take discovery violations seriously. “We exercise good faith and due diligence in providing discovery in every case,” the spokesperson wrote in an email to The Appeal.

Yet public defenders maintain that discovery violations are ubiquitous and that little has been done to rectify the problem.

“I have never had a trial when there hasn’t been some kind of discovery violation,” Westbrook said. “Whether [defendants are] guilty or innocent, they’re still entitled to a fair trial.”

Clark County v. Mr. J

It’s easy to find examples in which late discovery derailed a case, many of which predate the public defenders’ study of the violations. On Sept. 30, 2013, the Las Vegas Metropolitan Police Department arrested and detained Mr. J (a pseudonym used at Westbrook’s request to protect his client’s identity). He was accused of entering a bar, demanding money from a female victim at knifepoint, forcing her into a separate room, and touching her breasts. The district attorney’s office charged him with robbery with the use of a deadly weapon, attempted sexual assault, and other charges, based on eyewitness identification. Mr. J denied any wrongdoing.

Court motions and hearing transcripts obtained by The Appeal show that, starting in October 2014, Westbrook specifically requested discovery related to how investigators received information from a confidential informant mentioned during an earlier hearing, as well as any potentially exculpatory evidence that could undermine the prosecution’s case. The presiding judge granted both requests during two separate discovery hearings that month, but Westbrook says he never received that discovery ahead of Mr. J’s trial in January 2015. Several transcripts from discovery hearings show that prosecutor Mary Kay Holthus actually pushed back against having to turn over information about the confidential informant’s tip, even going so far as to criticize Westbrook for not procuring the information himself. “I’m not his lackey,” she said in court.

The prosecution didn’t put up a fight when it came to disclosing exculpatory evidence requested by the defense. It confirmed that it would turn over the information — which it is obligated to do under the Nevada and U.S. constitutions — while noting that it wasn’t sure such evidence existed. For good measure, the judge granted Westbrook’s request for that material.

As Mr. J’s trial date approached, however, prosecutors ultimately told Westbrook that they had turned over everything in their possession and that some of the requested discovery did not exist. He took them at their word and prepared his defense with the information he had been given, Westbrook said. It wasn’t until trial was well underway that Westbrook learned the prosecution’s response to his discovery requests was categorically untrue.

During the trial, the lead detective testified that he had talked to the confidential informant himself, contrary to his claims made under oath at the preliminary hearing, when he claimed that he didn’t know who the informant was or who he or she had tipped off. He then dropped a far bigger bomb: There were several other suspects in the case. In revealing this, he made clear that exculpatory information known as Brady evidence was never disclosed — a direct violation of the U.S. Constitution.

If prosecutors had produced that material evidence in the months leading up to trial, Westbrook says he could have prepared a stronger defense for Mr. J. The defense had argued that Mr. J wasn’t the perpetrator, but knowing that there were other suspects could have helped Westbrook make the case that another person was more likely to have committed the crime. Instead, Mr. J’s team was completely blindsided. “It’s one thing [for me] to say somebody else did it,” Westbrook explained. “It’s quite another thing to be able to investigate suspects that the detectives also believed may have committed the crime.”

Though she was court ordered and constitutionally required to dig into it, there is no way to know if Holthus was aware of the conversation between the detective and the confidential informant. She did not respond to requests for comment on the case. But the prosecution is required to learn about anything exculpatory in law enforcement’s case file.

“When this kind of thing happens, you get a lot of finger-pointing and buck-passing. The DA blames the detective for not telling her about the evidence or the defendant for not somehow, magically, getting the information himself,” Westbrook said. “This system of plausible deniability allows both the DA and the police to duck a finding of ‘bad faith,’ which is about the only finding that will get a case dismissed.”

Undermining ‘Fairness and Accuracy’

No matter what the reason is for a particular delay, late discovery disclosures occur nationwide and wreak havoc on defendants’ cases, says Jennifer Laurin, a criminal procedure and civil rights professor at the University of Texas at Austin School of Law. “We depend on the effective assistance of counsel so that a lawyer can scrutinize the other side’s evidence. Discovery in advance of trial is part of what enables that to happen,” Laurin told The Appeal. By the time a trial is getting ready to start, the defense has usually settled on a strategy based on the evidence in its possession. Discovery obtained right before or during trial can render that strategy moot, and gives the attorneys little time to review the evidence and adjust their plans accordingly. It undermines fairness and accuracy, Laurin said.

If defendants are detained pretrial, discovery violations can also cause damage long before a trial begins. The sooner prosecutors produce discovery, the sooner defense teams can scrutinize it and press for a defendant’s release, Laurin said. According to Westbrook, 92 percent of his clients are currently detained in jail pending trial. Defendants can spend extended periods of time behind bars if court proceedings are delayed because of late discovery. Pretrial detention also increases the likelihood that someone will take a plea deal. “The longer the delay, the more their resolve is broken down,” he said.

That is exactly what happened to Mr. J, who was never released after his arrest in September 2013. He went into the trial facing a life sentence, but after the last-minute disclosures about the confidential informant and alternative suspects, prosecutors offered him a deal. Westbrook encouraged him not to take it, and unsuccessfully pushed for the case’s dismissal. But faced with the prospect of spending a lifetime behind bars, a deal was too hard to pass up. In exchange for pleading guilty, Mr. J was sentenced to five to 20 years in a state prison — time he is still serving. Defendants nationwide often do the same, which empowers prosecutors to cheat over and over again. But it is simply impossible to know how many times a defendant could have been spared a conviction if prosecutors and the law enforcement officers they collaborate with were forthcoming about all the evidence they had.

The district attorney’s office says it has taken concrete steps to improve discovery production, such as creating a checklist of best practices. The checklist requires prosecutors to contact the opposing counsel for a file review, but the latter doesn’t have to accept the offer. The office also says public defenders haven’t taken advantage of a special subcommittee created in 2015 to review and refine discovery procedure, which Clark County’s chief public defender, Philip Kohn, chairs. But Kohn told The Appeal that his office hasn’t seen the discovery checklist, and that the subcommittee hasn’t convened because of prosecutors’ refusal to implement suggested reforms.

“Again and again, the DA simply came to the subcommittee unwilling to propose any reform suggestions, unwilling to consider reform suggestions, and unwilling to consider any rule other than one that removes the DA’s constitutional responsibilities to timely disclose evidence,” he said. The DA denies that reforms were proposed.

Meanwhile, public defenders are continuing to document discovery violations, but say there is no way to determine just how many defendants have been impacted. “We can’t see behind the curtain,” O’Brien said. “There’s just a big black void of what’s happening. We either trust that the system just works and we don’t question it at all, or we keep pushing for the idea that it should be transparent.”

More in Podcasts