Judges Confirmed Under Trump Are Splitting With Other Republican Appointees In Cases Against Police

Fights over whether police should get immunity against lawsuits show what a rightward shift of the federal courts under Trump looks like in practice.

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WASHINGTON — In October 2010, police officers responded to a report that a teenager was walking through a neighborhood in Garland, Texas, with a handgun. When officers found the 17-year-old, he was holding the gun to his head.

The teenager’s family and police disagree about what happened next, but the encounter ended with officers shooting the young man; he was hit twice, and one shot caused him to involuntarily pull the trigger and shoot himself as well, according to court records. The teen survived but has permanent injuries that include paralysis and brain damage.

The teen and his family sued, accusing the officers of using excessive force and fabricating evidence. They argued that even though the young man was armed, the circumstances didn’t justify deadly force, and they accused one officer of lying about the teen aiming a gun at the police. In August 2019, the US Court of Appeals for the 5th Circuit denied immunity to the officers, meaning the case would go to a jury.

The decision was one of a growing number of cases reviewed by BuzzFeed News where judges tapped for lifetime appointments by President Donald Trump split not only with colleagues appointed by Democratic presidents, but also those confirmed under previous Republican administrations. The 5th Circuit judges who ruled against the officers included Reagan and George W. Bush appointees. The judges who dissented — they would have granted police immunity against the family’s claims — included four of Trump’s appointees.

“No member of this court has stared down a fleeing felon on the interstate or confronted a mentally disturbed teenager who is brandishing a loaded gun near his school,” Judges Andy Oldham and James Ho, both Trump nominees, wrote in a dissenting opinion.

Judges confirmed during Trump’s first term have staked out positions farther to the right on a variety of issues where liberals and conservatives have long seen the courts as a battleground, according to a BuzzFeed News review of dozens of cases in which the president’s nominees have participated. They have taken more conservative positions than their Republican peers on issues including policing, guns, abortion, immigration, and discrimination, as well as how Trump and administration officials have exercised their power.

Taken together, the cases illustrate how Trump’s successes in getting conservative judges on the bench are moving the courts to the right in ways that will dovetail with his politics long after he has left office.

Just last month, a majority of the DC Circuit rebuffed efforts by Trump’s former national security adviser Michael Flynn and the Justice Department to force a judge to dismiss Flynn’s criminal case. Judge Neomi Rao, one of Trump’s appointees, dissented, joined by a George H.W. Bush appointee, Judge Karen LeCraft Henderson. Rao wrote that the majority’s decision — to allow a judge to probe DOJ’s decision to drop the prosecution — “ducks our obligation to correct judicial usurpations of executive power.”

The majority included Judge Thomas Griffith, a George W. Bush appointee who has since retired. He wrote separately in Flynn’s case to argue it was wrong to assume judges’ legal analysis was “a cover for the exercise of raw political power.” Other judges, including Trump’s nominees, have made similar comments arguing they are not political actors whose decisions are rooted in the party of the president who appointed them. In a rare public statement, Chief Justice John Roberts Jr. said in November 2019: “We do not have Obama judges or Trump judges, Bush judges or Clinton judges.”

But Trump has made clear that he sees judges he’s put on the bench as a means to carrying out a conservative political agenda. He even responded to Roberts’ statement with a tweet: “Sorry Chief Justice John Roberts, but you do indeed have ‘Obama judges.’”

In tweets on June 18 — the day the US Supreme Court blocked the administration from rolling back the Deferred Action for Childhood Arrivals program — Trump pledged to release an updated list of “conservative” nominees he’d choose from for the Supreme Court.

“Based on decisions being rendered now, this list is more important than ever before (Second Amendment, Right to Life, Religous [sic] Liberty, etc.),” the president tweeted. He hasn’t released a new list of names yet, but previous versions of his list have been dominated by judges he’s nominated to the federal appeals courts.

In the face of nationwide protests against police brutality, especially the use of force toward Black people, Trump has opposed calls to get rid of qualified immunity, the legal doctrine that can shield police from lawsuits over their conduct; White House press secretary Kayleigh McEnany called it a “nonstarter.”

In cases where police have argued for immunity, Trump’s nominees haven’t just split with their fellow Republican appointees on how to apply the law — they’ve expressed full-throated support for law enforcement and made clear they believe courts should do more to shield officers from lawsuits.

“If we want to stop mass shootings, we should stop punishing police officers who put their lives on the line to prevent them,” Ho wrote in another case in October 2019. He dissented from his colleagues — a mix of Republican and Democratic appointees — who denied immunity to officers accused of using excessive force when they responded to reports of an armed man walking through a neighborhood and shot and killed the suspect.

“[These judges are] clearly trying to take it exactly where President Trump wants it to be, which is to make it virtually impossible to hold police accountable for what could be blatant misconduct, often directed against minorities, but not exclusively,” said Elliot Mincberg, a senior fellow at the liberal advocacy group People for the American Way who published a report this month about how judges confirmed under Trump have split with their colleagues on the bench.

Mincberg reviewed more than 400 federal appeals court rulings since 2017, and found that in a quarter of cases a Trump appointee wrote an opinion or dissent where they broke with another Republican appointee.

Jay Schweikert, a policy analyst at the libertarian think tank the Cato Institute, cautioned that most of Trump’s nominees likely would have been nominated under any Republican president. Disagreements among Republican appointees in qualified immunity cases reflected broader disagreements within the conservative community, he said; modern conservative legal decision-making is often defined by a focus on the text and historical meaning of laws, but that gets tricky with doctrines like qualified immunity that weren’t created by Congress and evolved over time in the courts.

But Schweikert, who has advocated against qualified immunity, acknowledged that the heated rhetoric some judges had used in support of police could be “confusing” and suggest to the public that these judges were making “results-oriented” decisions. He said it was appropriate for judges to share their views on policy issues as long as it was clear they were reaching conclusions based on the law, and not trying to achieve a specific outcome.

What’s more important than provocative lines in certain opinions is the way judges are actually deciding cases. In that respect, I think the bulk of Trump’s appointees are doing their best to follow what they see as these neutral principles of judicial decision-making,” he said.

Qualified immunity for police accused of using excessive force or otherwise violating people’s rights doesn’t come from any federal law — it grew out of broader protections established by the Supreme Court that shield government employees generally from being sued for carrying out their official duties.

Law enforcement officers can be sued, but they can claim immunity by arguing that they didn’t violate “clearly established” laws or constitutional rights that a “reasonable” officer would have been aware of at the time. In some cases, judges have found that police did violate someone’s rights, but they still granted immunity because the violation wasn’t “clearly established” at the time.

It’s a standard that leaves too much room for interpretation by judges and makes it too easy for police to avoid accountability for abuses of power, opponents say. Conservative, libertarian, and liberal groups have joined forces in the past to petition the Supreme Court to take up the issue and get rid of qualified immunity, or at least limit when police can claim it, but so far the justices have declined to step in.

Absent a decision from the Supreme Court — the justices voted this year against hearing a cluster of qualified immunity cases, including the 5th Circuit case involving the 17-year-old in Texas who was shot — the federal appeals courts will continue to have the final word on when people can sue police and when they can’t.

The fact that a judge was appointed by a Republican or Democratic president is not a guarantee that they’ll rule a certain way. It’s not even a guarantee that they share that president’s political leanings. President George W. Bush, for instance, compromised with Democratic senators on several appeals court nominees. But generally, presidents try to choose judges for the appeals courts that align with their politics; these courts set precedent for the regions they cover that can only be overruled by the Supreme Court.

Trump has succeeded in getting more than 200 federal judges confirmed in his first term, including a record-breaking 53 judges on the federal appeals courts.

The 5th Circuit, which covers Texas, Louisiana, and Mississippi, was a conservative-leaning court when Trump took office; the six judges confirmed under Trump to date joined a bench that already had a majority of Republican-appointed judges.

In the case of the 17-year-old shot by police in Garland, Texas, the 5th Circuit majority that declined to grant immunity to the officers accused of using excessive force included a judge confirmed under President Ronald Reagan, four judges confirmed under President George W. Bush, and one judge confirmed under Trump, Judge Kurt Engelhardt. Given the “competing factual narratives” in the case, the judges concluded it should be up to a jury to decide.

Ho and Oldham, joined by Judge Jerry Smith, a Reagan appointee, came out strongly in favor of the police and had harsh words for their colleagues in the majority. They wrote that Supreme Court precedent “gives us no basis for sneering at cops on the beat from the safety of our chambers.”

Judge Kyle Duncan, also a Trump nominee, published his own dissent, writing that by “making the officers run the gauntlet of trial,” the court undermined their ability to make split-second decisions about using lethal force. Judge Don Willett, the fourth Trump nominee who dissented in the case, wrote separately to express long-standing, broader concerns he’s had about qualified immunity.

Willett was on an early iteration of Trump’s Supreme Court short list. Ho, Oldham, and Duncan are widely considered contenders if Trump releases an updated list; the president tweeted that he’d release a new version by Sept. 1, but hasn’t yet.

In another qualified immunity case, Ho dissented from a majority decision featuring a mix of Republican and Democratic appointees that he believed set too low a bar for taking law enforcement officers to court over how they used force in the field. His dissent, which included the language tying qualified immunity to preventing mass shootings, was joined by Engelhardt as well as a George W. Bush appointee and a Reagan appointee.

In the 6th Circuit, another court where the majority of active judges are Republican appointees, Judge Amul Thapar — Trump’s first nominee to a federal appeals court and another name on his Supreme Court short list — split with one of his George W. Bush–appointed colleagues, Judge Deborah Cook, in a qualified immunity case.

A woman had sued police officers who took her into custody based on a report from her ex-husband that she might be a danger to herself. She accused one officer of using excessive force by slamming her into a wall while she was being handcuffed, and she also challenged the officers’ decision to take her to a hospital for an involuntary mental health check after she told them she was not suicidal. In a September 2019 opinion, Thapar, Cook, and Judge Karen Nelson Moore, a Bill Clinton appointee, all agreed that the officer accused of excessive force was not entitled to immunity.

But Thapar split with his colleagues on whether the police should get immunity for taking the woman into custody in the first place. The officers said they had gone to check on her after her ex-husband made comments that suggested she might be suicidal. Cook wrote that there was evidence the woman was drunk, but nothing else to indicate she might harm herself; the woman’s ex had taken a gun out of the house with the woman’s approval.

Thapar dissented, writing that he would have sided with the officers given the circumstances taken together — the ex-husband’s concerns, the fact that the woman’s ex took her gun away, and the fact that the woman was intoxicated when the officers arrived.

“Courts must remember that law enforcement officers must protect the public in an uncertain and dangerous world, not the cold crucible of the courtroom,” Thapar wrote.

In June of this year, Thapar broke with another one of his colleagues confirmed under George W. Bush, Judge Julia Smith Gibbons, in a case where a prisoner accused a guard of threatening him with a knife. In a 2–1 decision, Gibbons and Judge Ronald Lee Gilman, a Clinton appointee, ruled that the prisoner’s case could go forward; Gibbons wrote that it was too early in the case for the court to decide if the guard was protected by qualified immunity.

Thapar disagreed, writing that he would grant immunity. The Supreme Court had said that minimal uses of force didn’t fall under the Constitution’s prohibition against cruel and unusual punishment, he wrote, so “a prisoner ought not be able to bring a claim when only threats are involved.”

In the 9th Circuit, which covers the western United States, the majority of active judges are still Democratic appointees, but Trump has made inroads moving the court to the right — the Senate confirmed 10 judges to the court in his first term, at times over objections from Democratic home state senators.

In June 2019, a three-judge panel ruled that officers in San Bernardino County, California, were not entitled to immunity against claims that they used unconstitutional force when they knelt and stepped on a man’s back to hold him still while they applied restraints in the backseat of a police car. The man died, and his family filed a lawsuit.

In December 2019, a majority of the 9th Circuit’s active judges voted against reconsidering the panel’s decision, which meant the family’s case could go forward. An autopsy concluded the man’s death was caused by a methamphetamine overdose, but the man’s family presented analysis from an expert who said his death was likely caused by suffocation from the pressure that officers placed on his back.

Judge Daniel Collins, confirmed in May 2019, wrote a dissent siding with the officers. Collins — joined by another Trump appointee, Judge Daniel Bress, and two George W. Bush appointees — wrote that the panel was wrong to rely on an earlier excessive force case where the 9th Circuit ruled in 2003 that officers were not entitled to immunity for “squeezing the breath from a compliant, prone, and handcuffed individual.”

Collins wrote that there were enough differences between the two cases that the officers couldn’t have been on notice they were violating “clearly established” law — for instance, the man who died in the 2003 case tried to communicate to officers that he was choking and needed air, but there was no evidence that the man who died in the latest case made a similar plea that officers ignored. Collins wrote that the panel continued a “troubling pattern of ignoring” Supreme Court decisions about qualified immunity.

The 9th Circuit doesn’t release a breakdown of how judges voted when the court denies a request to reconsider a case, so it’s not clear how the other nine Republican appointees who were active judges on the court at the time and did not join Collins’ dissent voted; they included a mix of Trump and George W. Bush appointees.

In the 8th Circuit, a George W. Bush appointee, Chief Judge Lavenski Smith, made clear in a September 2019 decision that he supported qualified immunity for police, but disagreed with the extent to which one of his Trump-appointed colleagues, Judge Ralph Erickson, was applying it.

Erickson had written a 2–1 decision granting immunity to an officer accused of using excessive force for shoving a handcuffed woman against a tractor-trailer during a strip search. He wrote that the woman’s injuries were “fairly minor,” the level of force used was minimal, and there wasn’t any previous case to put the officer on notice that their use of force under the circumstances violated the law.

Smith dissented, writing that he wouldn’t characterize the “forceful pushing” by the officer as minimal. The woman was already handcuffed and there was no evidence she’d resisted the officer, the judge noted.

“Qualified immunity appropriately protects officers from suit and liability for inadvertent harm caused by negligent acts as they enforce the law,” Smith wrote. “Those putting their lives on the line for the safety of the public deserve no less. But it provides no litigation shield for unnecessary, intentional acts violative of clearly established rights.”

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