ACLU Takes On Qualified Immunity In The 5th Circ.

By Marco Poggio | September 9, 2022, 9:04 PM EDT ·

Twenty days before George Floyd was murdered in Minneapolis, a 37-year-old Black woman had a violent encounter with two police officers in her driveway on the other side of the country.

In a civil suit filed in federal court last year, Teliah C. Perkins of Slidell, Louisiana, accused the officers, both white, of using excessive force during an arrest, causing her long-term injuries and psychological trauma to both her and her son.

Deputies with the St. Tammany Parish Sheriff's Office pin Teliah C. Perkins to the ground during a May 5, 2020, arrest for a traffic violation. Perkins later sued the officers alleging constitutional violations. Hers is one of 40 civil suits challenging qualified immunity that the ACLU of Louisiana has brought in the state. (Court documents)

Perkins said in her May 2021 complaint that on May 5, 2020, St. Tammany Parish Sheriff's Deputies Kyle Hart and Ryan Moring were responding to a 911 call about a person driving a dirt bike without a helmet — a traffic violation punishable by a $50 fine — when they approached her and asked for her driver's license, registration and proof of insurance.

She complied, but as she questioned the 911 call as racially motivated, one of the officers, Hart, allegedly lost his patience.

"That's it. Right now you're being [placed] under arrest," he told her, reaching in the back of his belt for the handcuffs.

By that time, Perkins' son, then 14, had begun recording the encounter on his cellphone. The video, which is now evidence in the case, shows the officers pinning Perkins to the ground after she appears to resist. Hart can be seen kneeling on Perkins' body and she can be heard shouting that she is in pain. Moring threatens her son, who was standing nearby, with a stun gun.

"You can't tase a child," the boy says.

"Watch me," Moring replies.

Perkins was charged with resisting a police officer, battery of a police officer, driving a motorcycle with no proof of insurance, and driving a motorcycle with no safety helmet. She ended up spending the night in jail. All charges except resisting arrest were ultimately dropped, but the incident left an indelible mark on her and her son, she said in her complaint.

Perkins accused the officers of violating her Fourth and 14th Amendment rights, and her son's First Amendment right to record the incident. She also filed several state law claims including assault, battery, false arrest and imprisonment, malicious prosecution and infliction of emotional distress.

Ryan M. Goldstein and Keith Y. Cohan, two partners at Reid Collins & Tsai LLP's office in Austin, Texas, are representing Perkins pro bono in the suit, which is currently before the Fifth Circuit.

Cohan said Perkins' case shows how crucial having video evidence could be in a police abuse case.

"We have a record that the courts can stand on," he said.

Perkins' case is one of dozens of police misconduct suits filed in Louisiana as part of the Justice Lab, a partnership between the American Civil Liberties Union, law firms and corporate lawyers. The project seeks to hold local and state police departments, as well as individual officers, accountable for constitutional violations.

"A lot of people recognize Derek Chauvin didn't wake up one day and murder someone," Nora Ahmed, the legal director of ACLU Louisiana, told Law360. "That was years in the making."

The Justice Lab's Suits in Louisiana

Since its creation in June 2020, the ACLU's Justice Lab has filed 40 civil rights suits challenging local police departments, sheriff's offices and the Louisiana State Police. Twenty-two of those cases were filed in the U.S. District Court for the Eastern District of Louisiana, which has its seat in New Orleans. The Jefferson Parish Sheriff's Office is the law enforcement agency that has been named the most as a defendant.

Source: ACLU Justice Lab

A Project Focusing on Louisiana

Launched in June 2020 in the aftermath of George Floyd's murder, the Justice Lab works with BigLaw firms and corporations that have pledged to commit money and manpower to fight racial injustice, particularly in policing.

The partnership is an example of the pro bono, in-house and nonprofit synergy that has grown since Floyd's killing. Sixty-five law firms and 27 corporations have joined the effort.

Forty civil suits have so far been filed in federal court as part of the project, as recently as Sept. 7, and many of them are in discovery. Allegations in the suits range from excessive force to unlawful arrest or search to racial profiling to murder — but they have one thing in common: They challenge actions by cops in Louisiana.

Ahmed, a former Paul Weiss Rifkind Wharton & Garrison LLP attorney, said the Justice Lab was created to "put boots on the ground" in that state, which is often described as a "legal aid desert." Louisiana has the highest incarceration rate in the country, and it is also one of the states with the highest police presence per capita, two facts she said are correlated.

But unlike other pro bono partnerships, where firms tend to prefer taking on large impact cases such as class actions, the Justice Lab focuses on individual cases.

"The goal was to see how many of these corporations and how many of these law firms would really be willing to commit to representing individuals telling their true and authentic stories, and understand that individual cases are impact cases," Ahmed said.

Taken together, the suits allege a pattern of abuse involving sheriff's offices, local police departments and state police.

Typical scenarios allege unarmed people pinned to the ground face down with officers kneeling on their bodies, or people roughed up during warrantless arrests. In one case, Travis Stevenson, a Black man who was experiencing a mental health crisis, was shot and killed by East Baton Rouge sheriff's deputies. The ACLU said their actions were an "objectively unreasonable" use of lethal force.

Since the Justice Lab began placing ads on buses, Google and radio, about 415 people have reached out claiming to be victims of police brutality. In about half of those instances, the ACLU was able to follow up with the people making allegations. Often, people with ongoing criminal cases get cold feet about becoming a named plaintiff in a civil suit, Ahmed said.

"They're worried about how talking to us might impact their criminal case, or they fear significant retaliation," she said.

More than 150 in-house attorneys at major corporations such as Amazon, Citigroup, Visa and Facebook, have worked pro bono in the first-phase intake process, which consists of screening the allegations and identifying stories that could form the basis for successful lawsuits.

"Without that intake infrastructure of about a dozen corporations across the country, a number of which are international, we would not be able to deal with the intake that we receive," Ahmed said.

The Justice Lab

by the numbers

The ACLU of Louisiana has forged partnerships with 65 law firms and 27 corporations, including Amazon, Facebook, PayPal and Visa, looking to play a role in fighting police abuse. The mobilization has resulted in:


intake volunteers


incidents reported


intake memos


cases assigned to investigation


civil rights suits filed


civil pro se civil right suit taken over

Source: ACLU of Louisiana

A Qualified Immunity Defense

Perkins was ultimately convicted of misdemeanor resisting arrest, which forced her to drop the false arrest claim under the U.S. Supreme Court doctrine in Heck v. Humphrey . In the 1994 ruling, the high court said Section 1983 claims cannot be pursued unless the defendant can prove their criminal proceedings ended "in favor of the accused."

"Ms. Perkins is one of too many Black people who endure excessive force by police, only to face criminal charges stemming from that very same incident," the complaint says. "Black people like Ms. Perkins not only suffer from the physical and psychological trauma of police violence, but they must also confront a criminal justice system that views them not as victims, but as criminals, resulting in long-lasting barriers to employment, housing, and education."

Chadwick W. Collings of Milling Benson Woodward LLP, who represents the officers, told Law360 that his clients "used the appropriate and lawful amount of force" to place Perkins under arrest.

"This is supported by the fact that the plaintiff was ultimately convicted in state court of resisting arrest," Collings said.

In answering the complaint, which was filed two days before a one-year statute of limitation ran out, the deputies denied Perkins' allegations and claimed they were protected by qualified immunity, a doctrine that shields police officers from civil suits unless their actions are found to violate the U.S. Constitution or federal law.

On July 26, U.S. District Judge Wendy W. Vitter of the Eastern District of Louisiana denied a bid by the officers to scrap the suit, tossing only Perkins' claim that her motorcycle was unlawfully impounded following her arrest and allowing her other claims to move forward.

The officers filed an appeal with the Fifth Circuit. The case will be heard there in the fall.

"We absolutely believe that the defendants were entitled to qualified immunity in this case" Collings said. "The fact that Judge Vitter completely failed to articulate the reason for the denial of qualified immunity will be one of the bases of the appeal."

Under Supreme Court precedent, once a defendant officer claims qualified immunity, the burden shifts to the plaintiff to show that their constitutional rights were violated and that those rights were "clearly established" at the time of the alleged violations.

Collings said Judge Vitter's opinion was "utterly devoid" of any mention of how the plaintiff met that burden.

"We believe this, among other reasons, will be why the Fifth Circuit will ultimately reverse her decision," he said.

Goldstein and Cohan, meanwhile, said Perkins has a good shot on appeal.

"The court's opinion goes through what the clearly established law already is," Goldstein said. "Nobody's making new law here."

The Fifth Circuit: A Bastion for Qualified Immunity

Suits against police are hard to win in the Fifth Circuit, in part because there is a lack of recognition of the "state-created danger" doctrine recognized by other federal circuit courts, which can make state employees liable for death or injury resulting from their actions, Ahmed said.

There are additional hurdles in Louisiana, which is included in the Fifth Circuit with Texas and Mississippi. It is one of only three states — along with Kentucky and Tennessee — to impose a one-year statute of limitations for bringing civil lawsuits in federal court.

In addition, state law does not require local departments to collect data on arrests. That makes it harder to monitor police misconduct and racial disparities, the ACLU said.

At the federal appellate level, Fifth Circuit jurisprudence around qualified immunity is generally viewed to be more favorable to police officers than plaintiffs alleging abuse. Ahmed called it a "challenging venue."

In a 2-1 decision last year in Tucker v. City of Shreveport , the appeals court reversed a district court ruling that denied extending qualified immunity to three Shreveport Police Department officers who violently took a motorist to the ground and punched and kicked him during an arrest. In that case, after reviewing video evidence of the arrest, the panel's majority ruled that the officers were immune, tossing the allegations.

The Supreme Court denied review in December 2021, but Justice Sonia Sotomayor agreed with dissenting Fifth Circuit Judge Stephen A. Higginson, who said the panel ignored a 2007 high court decision holding that courts can assess video evidence if it directly contradicts allegations in a civil rights suit. Judge Higginson said the footage in Tucker's case did not contradict his account that officers used disproportionate force on him.

The Tucker decision has cut against the first case the Justice Lab brought, Beroid v. Lafleur. Under Tucker, a district court judge summarily affirmed a report and recommendation based on a magistrate judge's view of video evidence in that case. The ACLU has appealed.

But despite its reputation as a challenging venue for police abuse suits, the Fifth Circuit has in recent years shown willingness to scrutinize the use of excessive force by police, Ahmed said.

In Roque v. Harvel , a district court ruled on a case of a 20-year-old man with what turned out to be a BB gun who was fatally shot in 2017 by the Austin Police Department. The man's mother had called 911, saying he was suicidal and might shoot himself. Cops arrived on the scene and one of them fired three shots within the span of three seconds, according to court documents.

The court granted qualified immunity to the officer as to the first shot, but declined to grant it as to the second and third shots based on video evidence showing the man had dropped his BB gun and was no longer a threat after the police fired the first round. The Fifth Circuit in April 2021 upheld that ruling with a 2-1 majority.

"What you see happening in Roque v. Harvel is a very clear, deliberate analysis of every shot fired," Ahmed said. "You are seeing the Fifth Circuit articulate standards based on clearly established law that are clarifying how to most effectively argue cases that are subject to qualified immunity."

In Joseph v. Bartlett , the family of Kendole Joseph, who had paranoid schizophrenia, sued the Gretna Police Department after they beat him up during an arrest. Joseph was acting erratically on school grounds when police were called. He hid behind the counter of a grocery store, but he was not suspected of committing any crime and was not actively resisting.

Officers used a stun gun on him twice and kicked and punched him repeatedly, causing 26 blunt force injuries as he pleaded for help and kept saying he wasn't armed. Nine other officers stood and did nothing to stop their colleagues, according to court documents. Joseph died due to his injuries.

In an opinion that articulated standards not only for excessive force but also bystander liability, the Fifth Circuit in November 2020 ruled that the suit could proceed.

"We expect those charged with executing and enforcing our laws to take measured actions that ascend in severity only as circumstances require," the panel said in its opinion. "A disproportionate response is unreasonable. And if it describes physical force inflicted by a police officer, it is unconstitutional."

While acknowledging the challenges of taking on qualified immunity in the Fifth Circuit, Ahmed said she sees a path to bring about change. Holding police officers accountable through civil suits can in turn push law enforcement agencies to change the way they are trained, and establish effective mechanisms for disciplining abusive cops, she said.

Unlike the high-profile cases of deadly police brutality that have shocked and divided the nation in recent years, the Justice Lab focuses on cases where the plaintiffs are still alive — and whose stories are equally important, Ahmed said.

"Once someone is dead, you do, of course, want to ensure that you do something for the family and try to get justice," she said. "But justice is that person never having died in the first place. Justice is that person never having been so traumatically beaten that they don't have regular functioning anymore."

--Graphics by Ben Jay and Jason Mallory. Editing by Jay Jackson Jr. and Alanna Weissman.

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