Expert Commentary

How they did it: Reuters reporters investigate qualified immunity in America

Just before thousands of people in hundreds of U.S. cities rose up demanding racial justice and denouncing police violence, an investigative reporting team revealed that federal courts have been increasingly likely to shield police from civil lawsuits.

Qualified immunity

Annually, the Shorenstein Center on Media, Politics and Public Policy awards the Goldsmith Prize for Investigative Reporting to a stellar investigative report that has had a direct impact on government, politics and policy at the national, state or local levels. Six reporting teams were chosen as finalists for the 2021 prize, which carries a $10,000 award for finalists and $25,000 for the winner. The Journalist’s Resource is interviewing many of the finalists and offering a behind-the-scenes look at the processes, tools and legwork it takes to create an important piece of investigative journalism. The main article discussed here, “For cops who kill, special Supreme Court protection,” was the first in a four-part Reuters investigation on a complex legal doctrine called qualified immunity, which often protects police from civil lawsuits. The Journalist’s Resource is a project of the Shorenstein Center, but was not involved in judging the Goldsmith Prize. The winner of the $25,000 will be announced on April 13.

For two years, a team of Reuters reporters built and analyzed a first-of-its kind database that showed appellate courts increasingly granting police immunity from civil rights lawsuits. The cases hinged on a legal doctrine called qualified immunity, which can shield police from those lawsuits.

But the reporters didn’t solely rely on the hard numbers, painstakingly compiled to show the consequences the legal doctrine was having on regular people’s lives — they used video, too. In fact, video doesn’t just bolster the investigation. Video helps lead the report, “For cops who kill, special Supreme Court protection,” by Andrew Chung, Lawrence Hurley, Jackie Botts, Andrea Januta and Guillermo Gomez.

The story opens:

“The U.S. high court’s continual refinement of an obscure legal doctrine has made it harder to hold police accountable when accused of using excessive force.”

Behind those words, a static image of a man standing in a hallway. Keep scrolling:

“Sick with pneumonia, agitated and confused, Johnny Leija refused to return to his hospital room.”

The static image of Leija begins to move. He’s wearing a T-shirt and pajama bottoms, walking down a corridor in a hospital in Madill, Oklahoma. A few police officers follow close behind. A nurse had called them to help give Leija an injection to calm down.

“Moments later, with three police officers pinning him on the floor, Leija was dead at age 34.”

We see three officers bring Leija down. With that, the lead — and video — end.

The Leija video and others throughout the article are unsparing. In another clip, an officer shoots Laszlo Latits dead in a car in Ferndale, Michigan, as Latits tries to back away. In yet another, officers shoot and kill Gerrit Vos as he leaves a store in Newport Beach, California. Vos was experiencing a mental health crisis.

Their deaths came after police used what federal courts found was excessive force, in violation of the Fourth Amendment to the U.S. Constitution, which protects against unreasonable search and seizure by government authorities. A fourth video shows an officer slamming David Becker to the ground in Heber City, Utah. Becker suffered brain damage, according to Reuters. Aside from the videos, the Reuters story provides minimal detail on the Latits, Vos and Becker cases.

In those cases and hundreds others, qualified immunity protected police from lawsuits filed by individuals, or their relatives, alleging excessive force.

“Qualified immunity balances two important interests — the need to hold public officials accountable when they exercise power irresponsibly and the need to shield officials from harassment, distraction, and liability when they perform their duties reasonably,” U.S. Supreme Court justice Samuel Alito wrote for the majority in Pearson v. Callahan, an important qualified immunity case the high court decided in 2009. The database the reporters compiled spans 529 federal appellate court opinions from 2005 to 2019, in which officers accused of excessive force raised a qualified immunity defense.

“As we were coding the cases we were looking to see if the court ruling cited any video or audio because we knew those cases would be good for a multimedia package,” says Hurley, a Reuters Supreme Court reporter.

Tip: Keep an eye out for information, such as audio and video files, that could be used in a multimedia presentation.

The reporters found appellate courts increasingly inclined to grant police immunity from civil rights lawsuits. From 2005 to 2007, those courts favored police in 44% of excessive force cases in which officers raised a qualified immunity defense. Yet from 2017 to 2019, that rate had increased to 57%. Here’s how the reporters explain the two-part test courts use to assess a qualified immunity defense:

“In part one, the court considers whether police used excessive force in violation of the Fourth Amendment to the U.S. Constitution. If yes, the court moves to part two of the test. If no, qualified immunity is immediately granted. Since 2009, the Supreme Court has allowed appellate courts to skip part one. Courts have increasingly chosen this option. In part two, the court determines whether police should have known their actions violated the Constitution because court precedent clearly established their conduct as unlawful. If yes, the case goes to trial. If no, qualified immunity is granted.”

The Pearson decision allows courts to skip the first part of the test. The reporters recall laboring over the language they used to explain the doctrine. The qualified immunity explanation was “probably the most heavily edited” section of the story, says Januta, a Reuters investigative and data reporter.

“We wanted this to be a story lawyers and judges would read, but also a story people who aren’t lawyers could read and understand,” Hurley says. “I think getting that balance right was important.”

Found in a dusty box: ‘It was just luck’

Leija died in 2011 after police pinned him to the hospital floor in Madill. The officers were not criminally charged. Leija’s mother, Erma Aldaba, filed a lawsuit alleging the officers had violated her son’s Fourth Amendment rights. The officers claimed qualified immunity. The 10th Circuit court denied that claim.

But the suit hit a terminal roadblock in November 2015 when the Supreme Court told the lower court to reconsider its ruling. The high court, in a separate qualified immunity case, had narrowly defined part two of the two-part test: “clearly established precedent.” This meant that for a qualified immunity defense to fail, the actions between officer and civilian needed to be very similar to those from some prior case in which courts found police acted unlawfully.

The lower court reversed itself. Aldaba’s suit was over. Her lawyer told Reuters that Aldaba “had to live with the fact that at every stage, every judge that reviewed the case determined that there were constitutional violations that had occurred. Despite that, she still couldn’t have a trial.”

All that remained was the video evidence. The reporters obtained some videos they used in the article from courts. The videos, a mix of security footage and police dashcams, had been submitted as evidence.

But Chung got the Leija video in a slightly different way. In 2019, Aldaba’s lawyer mailed Chung a DVD with Leija’s video, which ultimately helped carry the story’s lead. The lawyer had found the DVD in a dusty box in the storage area of his office. Chung later went to the lawyer’s office in Oklahoma and gathered hundreds of pages of documents from the box.

“It was just luck that he still had that box,” recalls Chung, a Reuters Supreme Court reporter.

Tip: Remember that the internet doesn’t contain all information, and on-the-ground reporting will always be an important source for evidence, especially as pandemic restrictions lift.

From story genesis to data analysis

The Supreme Court in April 2017 declined to hear a qualified immunity appeal from Ricardo Salazar-Limon. He had been unarmed, shot in the back by a Houston police officer, and paralyzed in October 2010.

Justice Sonia Sotomayor favored taking up the case. She observed that the high court was much more likely to take up appeals from officers denied qualified immunity protection than from plaintiffs appealing qualified immunity rulings favoring police. Justice Alito countered with a narrower view based on the ambiguous facts of the case — namely, that the court had to decline the case because details of what happened that early October morning were unclear. He further stated that the Supreme Court might take up a case if a lower court didn’t apply a legal rule or concept at all, but that the high court almost never reviews cases alleging a lower court incorrectly applied settled law.

Chung, Hurley and editor Janet Roberts, for their part, wondered if they might be able to test Sotomayor’s assertion. After months of trial and error, with a small fraction of their time to devote to the story, they settled on building a database of cases that met three criteria:

  1. Plaintiffs alleged police excessive force
  2. Police mounted a qualified immunity defense
  3. A federal appellate court judge offered a written opinion

While the database of federal appellate court qualified immunity cases served as the main source of analysis for their story, the reporters later expanded their data to include federal district courts in Texas, where police won qualified immunity appeals at a high rate, and California, where such appeals were less successful. That database of Texas and California qualified immunity cases — 435 in total — served as the backbone for the second story in the series, “Shot by cops, thwarted by judges and geography,” by Chung, Hurley, Januta, Botts and Jaimi Dowdell.

The reporters manually reviewed nearly 1,000 opinions for their final database of 529 appellate court opinions. For the Texas and California district court database, they used manual and computer analysis to winnow roughly 2,000 cases. Not every case made it to the final databases, for a variety of reasons. Some cases mentioned qualified immunity, but didn’t hinge on a qualified immunity defense. Others centered on qualified immunity claims from civil servants other than police officers.

In their spare time, when there wasn’t pressing news to cover, the reporters would read cases and fill in a spreadsheet with rulings and whether they fit their three-part criteria. They asked key questions: Did the court decide police had committed a civil rights violation? Did the force used against a civilian fall under clearly established precedent?

“We had a hunch, we had a hypothesis, that there was something to say here, something that no one else had ever looked at, something that is extraordinarily consequential on the ground,” Chung says. “That supplied the motivation to keep doing it.”

Tip: Actively record characteristics of your data. The Reuters reporters asked dozens of questions as they read each case, in order to accurately characterize and analyze them later.

An additional analysis of qualified immunity cases the Supreme Court did and did not accept ultimately supported Sotomayor’s assertion: “Over the past 15 years, the high court took up 12 appeals of qualified immunity decisions from police, but only three from plaintiffs, even though plaintiffs asked the court to review nearly as many cases as police did,” the reporters concluded.

Januta had to learn a programming language new to her, called R, to analyze the data extracted from the court cases. She knew a different programming language, but Botts, now an income inequality reporter with CalMatters, had started the Reuters analysis using R. Januta’s takeaway from the experience: Learning a new programming language might not be as daunting as it seems at first glance.

“If you have some programming skills, don’t be intimidated by learning a new programming language,” Januta says. “Once you have the foundation the best way to learn is to have a goal and a project and a task to work on.”

She adds: “Keep your eyes and ears open for when you hear anyone in government saying, ‘Well, we just don’t know, we don’t have that data.’ That’s an opportunity for you to go out and find it and create it yourself — that’s a real way to have a public service.”

Tip: Looking for a database that doesn’t exist? Build it yourself.

Two flavors of trust building

The first story in the series — “For cops who kill, special Supreme Court protection” — opens with the moments before Leija died. It ends with the lawsuit brought by Aldaba, his mother, slipping away without the anchor of “clearly established precedent.”

While Aldaba’s lawyer was helpful in providing Chung the Leija video, the lawyer had lost touch with Aldaba herself. Chung finally tracked down Aldaba’s daughter, who worked at a bakery in a grocery store.

He called the bakery and left a message, and she called back. Chung recalls Aldaba’s daughter being reticent — but not Aldaba.

“Her mom was very eager to talk,” Chung says. “She thought it was a grave injustice that happened to her son, and she wanted the world to know about it.”

Tip: In addition to court opinions, depositions are a valuable source of detail, Hurley says. Depositions are sworn testimonies, often involving confrontational questioning of police officers and other witnesses.

Trust building with a key source took a different turn for the second story in the series, about regional disparities in qualified immunity defense outcomes, including between Texas and California. That story is carried by the journey of David Collie, shot in the back by a Fort Worth, Texas police officer in July 2016, in a case of mistaken identity.

It wasn’t easy for the reporters to persuade Collie to share his experience — after all, he had been traumatized. Collie, who was in his early-30s when the officer shot him, found himself paralyzed from the waist down, living in nursing homes since the shooting, and burdened with infections and depression.

Chung recalls roughly a dozen conversations with Collie, some late into the night, including two in-person visits before the story was published in August 2020. The goal was not to get Collie to go on the record, per se, but to reassure him that the reporters would tell his story in a fair and truthful way, with the public interest at heart.

“We wanted to makes sure we left the power in David’s hands, so that he was comfortable talking to us and trusting us,” Chung says, adding that once Collie decided he was ready to participate he “dove headlong into the project.”

Tip: Meet sources where they are, mentally and emotionally. Show potential on-the-record sources patience, empathy and honesty, particularly those who have experienced trauma.

The reporters were conscious of being fair to the police officers’ perspectives, too.

“Everyone understands police have difficult jobs,” Chung says.

During a trip to interview Aldaba, Chung stopped by the Marshall County sheriff’s office in Madill. An officer who had twice shocked Leija with a stun gun during the 2011 encounter happened to be working.

“Without any hesitation he sat down with me,” Chung says.

The officer, Steve Beebe, had regrets — he thought the encounter could have resolved differently if he and the other officers had known about Leija’s medical condition. He acknowledged that police need to be held accountable, but also said they shouldn’t be worried about being sued for doing their jobs.

“The last thing you want to do is end up with somebody dying,” the officer told Chung. Beebe, also a local Southern Baptist pastor, added he was “sad for the family. We all live in the same community.”

‘Sweat and tears’

The first story in the Reuters series was published May 8, 2020. George Floyd was killed May 25 while in Minneapolis police custody, sparking uprisings against police violence in dozens of cities and directing national media attention to the March 13 police killing of Breonna Taylor in Louisville, Kentucky.

As Hurley points out, high-profile cases like Floyd’s and Taylor’s typically don’t get to the qualified immunity stage. Cases that attract national media attention are more likely to settle out of court.

On March 12, the city of Minneapolis agreed to pay George Floyd’s family $27 million to settle their civil lawsuit. Breonna Taylor’s family agreed to a $12 million settlement from the city of Louisville, announced September 15, 2020. Meanwhile, each year dozens of qualified immunity cases like Leija’s and Collie’s fail in court and fail to garner national coverage.

The Reuters series provided in-depth examination of a complex legal doctrine, and some of the lives affected by it, at the moment the Floyd and Taylor cases made many aware of qualified immunity for the first time. The reporters say their findings have been cited by dozens of other media outlets, in law review articles and by law professors teaching qualified immunity.

In the end, the success of the series came down to persistence.

“You do have to be committed to it,” Hurley says. “There’s a lot of sweat and tears that go into it before you come out the other side.”

Want learn more about qualified immunity? Check out our roundup of 4 data-driven analyses of thousands of qualified immunity lawsuits.

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