Full Transcript - Qualified Immunity Turns On Police
Full Transcript - Qualified Immunity Turns On Police
Watch Episode # 63 - Qualified Immunity Turns On Police & Cops Get A Taste Of Their Own Medicine!
Today on Legalese we are talking about two of the most outrageous examples of bad cops skirting responsibility through qualified immunity. This includes a unique case where qualified immunity was granted to an officer whose victim was another officer. Another is a shocking example of a man who did absolutely nothing, but found himself being followed home and assaulted by a true sociopath who was later found to be an off duty cop.
When I first started creating content some years back, I used to do videos discussing what I called “Blue on Blue Violence”… This is a term that I coined to describe an event where one police officer would hurt or kill another police officer, and a discussion of the sometimes tragic, sometime infuriating, but always fascinating circumstances that would result from this phenomenon. Furthermore, what happens when two people who both believe themselves to be above the law come into conflict?
Anytime a cop finds themselves in a situation where they are expected to respect and obey the very laws they enforce against others, it doesn’t go well. Just look at what happens during a cop on cop traffic stop.
Now, in my past vides of Blue on Blue Violence, the circumstances were very different to the recent example we will be looking into today. In past videos we talked about another legal doctrine just as unjust and ethically repugnant as qualified immunity. I’m speaking of the Felony Murder Rule.
The rule of felony murder is a legal doctrine in some common law jurisdictions that broadens the crime of murder: when someone is killed in the commission of a dangerous or enumerated crime, the offender, and also the offender's accomplices or co-conspirators, may be found guilty of murder. The concept of felony murder originates in the rule of transferred intent. Thus, when a person participates in an inherently dangerous crime, he or she may be held responsible for the fatal consequences of that crime, even if someone else caused the actual death.
The felony murder rule is an exception to the normal rules of homicide. Normally, a defendant can be convicted of murder only if a prosecutor shows that the defendant acted with the intent to kill or with a reckless indifference to human life. Under the felony murder rule, however, a defendant can be convicted of murder even if the defendant did not act with intent or a reckless indifference; the prosecution must show only that the defendant participated in a felony where fatalities occurred.
There are rare circumstances where the felony murder rule is ostensibly a reasonable and potentially appropriate doctrine to be applied. The problem is when it is utilized to the benefit of a police officer and to the detriment of the often entirely innocent citizen who winds up being punished for a crime they didn’t commit, the application of the felony murder rule doesn’t come close to meeting the sort of highly scrutinized circumstances that would warrant its use.
And that’s before we even factor in the clear conflict of interest in all of this, allowing the actual perpetrator to blame someone else, while assuming a position of authority that automatically makes his allegation more credible than his innocent victim’s denial in the eye of the justice system…
Perhaps the quintessential example of this is one I covered back in the day in Bonneville County, Idaho. while responding to a call in which a motorist, Jenna Holm1, had been in a single-car crash on a rural stretch of road. Bonneville County Sheriff's Deputy Wyatt Maser died after his colleague, Sergeant Randy Flegel, accidentally hit him with his police cruiser. Maser died at the scene. Jenna Holm, was charged with manslaughter. It is uncontested that Holm did not kill Maser. In fact when the accident happened she was laid out on the ground, completely immobile, having just been tased repeatedly. If you’re wondering what felony she committed (which is what a lawful enforcement of felony murder requires)… there was none.
An internal police investigation found that the officers had failed to follow proper safety protocol in securing the scene on the road that evening, concluding that Maser neglected to activate his rear emergency lights and that he had stepped in front of a moving vehicle. Furthermore another deputy on the scene gave wrong directions to Flegel, left off his emergency lights, and didn't use his flashlight as needed. The state sought to withhold those findings from Holm's defense, in direct contravention of the Brady Rule.
But what happens when the result isn’t death, but instead grievous bodily injury… In a recent case from Kentucky a hapless cop shot and paralyzed a fellow cop was granted qualified immunity. Defenders of qualified immunity often argue it’s needed to protect law enforcement officers. But in this case it would protect one officer while simultaneously screwing another.
The main thrust of this case can be found in the headline of the article that initially turned me onto this incident:
Kentucky Supreme Court case shows qualified immunity can even keep police from getting justice.2
I couldn’t have said it better myself… The facts of this case come from that particular article, plus the Court records of the several lawsuits filed as a result of this particular incident and they can all be found on the show notes page for this episode..
In 2018, then-Scott County Police Deputy Jaime Morales was partially paralyzed after he was shot in the back by then-Georgetown Police Officer Joseph Enricco during a standoff with a fugitive at a rest stop off I-75. After sustaining the life-changing injuries, Morales sued Enricco, the Georgetown Police Department, and the city of Georgetown, arguing that officers did not have adequate training.
Unfortunately, Morales has run into the same legal hurdles that everyday Americans run into when their rights are violated by government officials. The courts have essentially told Morales that Enricco cannot be held accountable for paralyzing him. Now, Morales’ hopes for getting justice rest in the hands of Kentucky’s state supreme court.
Qualified immunity shields government officials from civil liability so long as the right they violated is not “clearly established.” While that might not sound like a crazy standard, what it means in practice is that, even if the Court entirely agrees that the cop being sued is at fault, or that the cops actions violated a constitutionally protected individual right, that’s not enough to bring a civil action. You need to be able to point to some past case precedent whose facts are sufficiently identical to the facts at play in your lawsuit in which the court found the police did in fact violate that person’s rights and found qualified immunity did not apply. Only then can your lawsuit against the police go forward. This can and does lead to some absurd conclusions.
For example, I recently discussed the case of Bailey v Iles3 in which police officers sent in a SWAT team to arrest a man under a state anti-terrorism law because he posted a joke about covid-19 on his Facebook page. He brought suit against the police officers and the police department involved in this clear violation of his first and fourth amendment rights. Yet the trial court would dismiss the case, despite finding this was an obvious violation of his rights. Because he could not pinpoint a clearly established analogous case that identified the same actions as a violation of another plaintiff’s rights..
So, the Morales’ case shows that even police officers and other government officials can become the victims of bad actions of government officials, yet find themselves with no means for holding those officials accountable. That’s what qualified immunity does: it creates a legal labyrinth that is impossible to navigate for any victim — police, ordinary citizens… really anybody. Frankly I can’t help but wonder if a case like this, which is obviously an injustice to the injured officer, isn’t perhaps a benefit to those of us who want to see an end to qualified immunity.
The sad fact is, ‘No matter where you go, no matter where you find yourself in the world, the stupidest people are always the cops.’ And perhaps the only thing that will get them to understand just how unjust this doctrine is, is for them to become the victims of their own standards and practices.
If qualified immunity blocks innocent everyday citizens and innocent police officers from getting justice, then who does this doctrine really protect?
In the vast majority of qualified immunity cases there is a clear pattern that emerges of inferior men compelled to obtain qualified immunities superior legal protection who see a way to compensate for the former by abusing the latter. This is what happened in our second case, Rosales v Bradshaw.
Here, Chaves County Sheriff’s Deputy and world-class douchebag David Bradshaw was granted qualified immunity following a fit of road rage whose circumstances were so bizarre it truly beggar’s belief. Which is why I want to stress, the following account has been pulled directly from the original case files of the criminal and civil suits. Which I encourage people to read, if for no other reason than to verify my synopsis is accurate and presented in context. As always, all case briefs, documents and other resources are available on the show notes page and proper citations are included in the episode transcription.
According to the official Court records4 here’s what happened:
On March 18, 2018, Mario Rosales was driving home in his home town of Roswell, New Mexico. He passed a black Ford pickup truck, driven by off-duty Chaves County Sheriff’s Deputy David Bradshaw. [Bradshaw apparently didn’t like being passed by the Mustang driven by Rosales, which set off his explosive temper. He started following Mario and called another deputy to look up information about him and his car.]
We will be coming back to Deputy Bradshaw’s exact account of events, in his own words, a little later. But for now I want to stress a couple crucial points that we will discuss in detail in Deputy Bradshaw’s account.
Bradshaw was not on duty at the time
He was traveling in his own truck,
He was not in uniform
Rosales had no way to know the guy who has begun to harass him is a police officer.
Deputy Bradshaw never, at any point alleged that Rosales had broken any law, ordinance, infraction or moving violation… or even operated his vehicle in an unsafe or reckless manner.
The following incident occurred solely because
Bradshaw was “greatly offended” that another car passed him, Despite the fact Rosales passed him in a safe and wholly legal manner.
Meanwhile, worried that a hostile stranger was following him, Mario Rosales started taking a less-direct route home, making turns without signaling to see if he was indeed being followed. Sure enough, the black truck tracked every turn.
Seconds after Mario pulled into his driveway, Bradshaw blocked Mario in with his truck. [Scared that a road-raging stranger had now trapped him] Mario put his lawfully owned handgun in his pocket, displaying it openly in accordance with New Mexico law.
Bradshaw immediately began yelling and cursing at Mario, [without explaining who he was or why he had followed this man home.] Rosales tried to calm him down, But Bradshaw continued to yell. At one point, Bradshaw made a comment about Mario’s handgun. Mario explained that he was simply exercising his rights.
It was only at this point that Bradshaw identified himself as a police officer, and seemingly only brought it up to lend credibility to a threat that he should issue Rosales a ticket despite the fact that throughout the encounter he never actually explained what Rosales had done to warrant this treatment. And as we came to find out, that’s because Rosales had not done anything that might justify this assault against his person. But cryptically, Bradshaw told Rosales he had already contacted another officer.
It was at this point Deputy Bradshaw pulled out a revolver and pointed it at Mario, who kept his hands away from his gun and tried to reason with Bradshaw.
When a gust of wind momentarily blew Rosales’ shirt over his handgun, Deputy Bradshaw remarked, “now that’s concealed carry,” and raised his revolver like he was going to shoot Mario. Rosales put his hands in the air and backed away.
At that time, Rosales first noticed Bradshaw’s toddler in the front passenger seat of his truck. The child was between the men and just inches from Bradshaw’s gun.
Bradshaw offered to lower his gun and talk with Rosales if he would put his gun back in his car, so Rosales did. Bradshaw then got out of the truck. [wearing a long-sleeve t-shirt, shorts, and flip-flops.] Instead of talking as promised, he kept his gun aimed at Rosales and asked Mario for his license and if he had been drinking. Mario gave him his license and said that he does not drink. Bradshaw continued to berate Mario in the driveway… until another deputy arrived, who fortunately convinced Bradshaw to leave. [He] Bradshaw did leave, but not before telling Mario, “I’ll talk to you in court when you get your citation in the mail.”
After the incident, a state prosecutor charged Bradshaw with aggravated assault with a deadly weapon and child abuse. A jury found Bradshaw guilty, and a judge imposed a two-year sentence. Bradshaw’s employer, Chaves County, dismissed him from his job [and has argued that what Bradshaw did was outside the bounds of his employment.]
Bradshaw has always refused to admit what he did was wrong, and Chaves County has refused to take responsibility for hiring this psycho, failing to train him, and failing to fire an officer with a volatile temper who was forced out of other law enforcement jobs for similar reasons before getting a job with Chaves County. He also had a history of other incidents while employed by Chaves County, in which his violent temper and inclination to abuse his authority as a police officer were leveraged against others to settle the score for personal grudges… So, Mario sued.
In federal court, the judge decided that Bradshaw did violate Mario’s constitutional rights-- Finding it was unreasonable to hold Mario at gunpoint when he posed no threat. But the court dismissed Mario’s case by deciding that his claim against the county was flawed and Bradshaw had “qualified immunity.”
This brings us to the second most consequential problem with qualified immunity and that is the disconnect between what the judiciary in this country claim is both the purpose and the source of the qualified immunity doctrine and reality.
Here Is how the district Court of New Mexico, who upheld Bradshaw’s motion to dismiss on qualified immunity grounds defined the purpose of granting qualified immunity:
Public officers and employees, therefore, are "afford[ed] protection from damages-- liability for good faith judgment calls made in a legally uncertain environment."[1] In other words, "'[o]fficials are not liable for bad guesses in gray areas[.]'"[2] "Thus, 'qualified immunity protects "all but the plainly incompetent or those who knowingly violate the law[3]".
“Assuming the allegations are true, Mr. Bradshaw is entitled to qualified immunity.”5
Even if one would agree the above criteria would justify giving government employees special rights like qualified immunity, I fail to see how Bradshaw could have possibly met even one of those conditions, much less all of them. In briefs filed by Bradshaw in his criminal case and a brief he filed as the respondent to Rosales’ civil action this is precisely how Bradshaw described the initial act that lead to his hostile pursuit. And I want to stress the following list of statements are direct quotes, in his own words, from briefs filed with the Court by former Officer David Bradshaw, and exact citations for each statement can be found on the show notes page for this episode so you can read them in context of his full statement and verify I have not been cherry-picking out of context quotes to make him look like a deranged sociopath. He did that all by himself and needed no help from me…
Rosales was driving behind a black Ford pickup truck that was driven by Bradshaw. Bradshaw owned the black Ford pickup truck.[4] After driving past 19th Street, Rosales overtook and passed Bradshaw. Bradshaw took “great offense” when Rosales passed him.[5] Bradshaw then began to follow Rosales.
Rosales v. Bradshaw, CIV 20-0751 JB/JHR, (D.N.M. Nov. 17, 2021)
Bradshaw’s own claim is that he was personally offended that someone driving on the same road as him had the temerity to pass him.
How is something as routine as one car passing another on the road constitute a good faith judgement call or a legal uncertainty. There is nothing uncertain about one driver’s ability to pass another driver on the roads.
Furthermore if qualified immunity protects everything except the plainly incompetent or knowing violations of the law. How does that apply to Bradshaw when his actions were so plainly illegal he was convicted of several criminal offenses and spent two years in jail for those crimes.
There could not be a clearer disconnect between what judges SAY the purpose of qualified immunity is and what the true purpose of this doctrine is, which is clearly to make the protection of our constitutionally enumerated natural and individual rights unenforceable guarantees. Mere “parchment barriers” as James Madison called them.
It’s not just the purpose of this doctrine that judges can’t seem to understand. They seem to completely fail to grasp the source of this doctrine as well. This is evident in the Circuit Court opinion from our first case, Morales v City of Georgetown. They would identify applicable precedent in a 2014 case of Marson v. Thomason:
“The circuit court ruled that the officer defendants in the case were entitled to qualified immunity because, ‘as a society, we have decided that law enforcement officers deserve special protection.’ Marson, 438 S.W.3d at 298.”
Morales v. City of Georgetown, No. 2022-CA-0009-MR, 11 (Ky. Ct. App. May. 12, 2023)
But qualified immunity was never established by some kind of democratic consensus amongst the people of the several states. It comes from 8 dicks in black robes who fabricated this doctrine out of nowhere in 1982.
The next episode of Legalese will be a long-promised and maybe long-awaited history of qualified immunity. While the doctrine itself is only several decades old you need to understand vast amount of English Common Law and American Constitutional law, because its not that you need to understand where this doctrine comes from as much as you need to understand everything it doesn’t come from to appreciate just how shallow the legal justifications for it actually are.
That will be coming out in just a couple days so make sure you are subscribed to the channel, or better yet to the legalese newsletter over at LegaleseShow.com to make sure you don’t miss out.
[1] Yanero, 65 S.W.3d at 522.
[2] Rowan Cnty. v. Sloas, 201 S.W.3d 469, 475 (Ky. 2006) See Maciariello v. Sumner, 973 F.2d 295, 298 (4th Cir. 1992).
[3] Id. (quoting Anderson v. Creighton, 483 U.S. 635, 638, 107 S.Ct. 3034, 3038, 97 L.Ed.2d 523 (1987)).
[4] See First Amended Complaint ¶ 8, at 3.
[5] First Amended Complaint ¶ 9, at 3.
Waylon Bailey v. Iles
Rosales v. Bradshaw, CIV 20-0751 JB/JHR, (D.N.M. Nov. 17, 2021)