Something I forgot to mention in Qualified Immunity Protects Enabling Domestic Violence post is that the officer who disclosed Desiree Martinez’s confidential report of domestic violence to her cop boyfriend on the phone was not only a female colleague who had completed domestic violence training and understood that confidential reports were meant to be confidential (i.e. not disclosed to anyone outside the investigation especially not the perpetrator), but she had also called the perp four days before to tip him off about the criminal investigation into him for assaulting his girlfriend which also lead to the perp beating Desiree Martinez and intimidating her into not testifying against him that day.
Ms. Martinez likely did not hear the phone call between Officer High and Mr. Pennington on September 3. However, the September 3 call happened the morning Ms. Martinez “was supposed to testify as a witness in his criminal preliminary hearing.” After the call, Ms. Martinez suffered “abuse and intimidation,” which stopped her from testifying.
Channon High did not make a “mistake” or a “snap judgment” she deliberately and maliciously chose to skirt her official duty and out the girlfriend of a fellow badge buddy over the phone for filing a domestic violence complaint against him and told him about the criminal investigation four days earlier knowingly damn well he would beat her black after she hung up. Qualified Immunity protected her from liability. The Court of Appeals for the 9th circuit acknowledged that Channon High:
- violated Martinez’s constitutional right to due process as no public official appeals for QI unless they have violated constitutional rights
- told the perp that Martinez was cheating on him with another officer which put Martinez at further risk of injury
- knew Martinez was trapped in a room with the perp when she disclosed the confidential report and made the cheating allegation over the phone
- In court’s words she “acted with deliberate indifference toward a foreseeable risk of future abuse” meaning she knew her colleague was violent, under criminal investigation for domestic violence and assault, and that his victim was trapped in a room with him and conveyed contempt for Martinez while talking to the perp.
However, because there was no “clearly established law” i.e. prior published case law with “sufficiently similar circumstances” in which an officer was liable for violating the substantive due process rights of their victim, Channon High was granted Qualified Immunity. She was not granted Qualified Immunity because she made a “snap judgment” in the line of duty or because she made a mistake in the line of duty but because in the prior similar case law the officers also lied about the level of danger to the victim which Channon High never had the opportunity to do because she didn’t talk to Martinez.
Under qualified immunity, constitutional rights are not clearly established unless there are published opinions on prior cases within the circuit or by SCOTUS denying qualified immunity to public officials under the exact same set of circumstances. Circuits with higher populations and higher publishing rates will have more established case law to deny qualified immunity than circuits with lower populations and lower publishing rates which makes the victim’s probability of successfully suing a public official contingent not on the merits of their case but on the location where their rights were violated. Furthermore, even published opinions from prior cases can be ambiguous and no help to victims even if the case involved similar circumstances. Victims not only start with their odds of success contingent on the location where their rights were violated but also with litigation process rigged in favor of public officials who are not only represented with taxpayer or union money but also get to file multiple interim appeals called interlocutory appeals at any time including before victims are allowed to make their full case before the court. A recent Institute for Justice report found, through algorithmic review of several thousand prior cases decided between 2010 and 2020, that officials made 96% of their appeals for qualified immunity before plaintiffs even get a chance to make their full case before the court or jury. Officials can also use interlocutory appeals to immediately appeal any denial of qualified immunity and present their case to different judges. Officials win in 54% of interlocutory appeals and only lose 26% of them with 16% resulting in no decision and only 4% the granting and denial of qualified immunity for different claims in the case. When officials win in district court the odds are even more lopsided: their victims only win the final judgment in 8% of cases. Even when victims win in district court and get to trial only 1.3% of post-trial judgments are decided in their favor.