Interview With Lawyer Phillip Kaplan On Police Immunity In Ellison Case

Dec 15, 2014

Sarah Whites-Koditschek: Can you give me an overview of what the judges in the 8th Circuit would have heard last week in terms of qualified immunity and whether the police officers in this case should stand trial?

Phillip Kaplan: "The judge in the District Court felt that one the facts were in such dispute that he was not able to tell what actually happened and whether there was any reasonable reason or cause for the police officers to enter the apartment or to do anything after they were all outside. Well, once the court makes that finding that there’s no objectively reasonable cause for the entry into the apartment and he also finds there’s no objective reason for these officers to believe that they were either in fear of their lives by being thrown over the banister or that he was going to attack them. That’s what the three judges heard. In addition there was considerable argument with regard to the law, as to what qualified immunity is.

The two officers who approached first, say they found an apartment in disarray, that Mr. Ellison was at least shaking or somewhat nervous, that there was a coffee table in front of him, that it was shattered and that other parts of the apartment were in such disarray that they felt they had to inquire further and it is clear however, he said he had no need for any help, and no need for any assistance.  That the matter then escalated somewhat, it led to a scuffle and by the time the two back-up officers came, all four were outside of the apartment,  or at least  by the time of the shooting, all four were outside the apartment and able to retreat. A critical issue then was Mr. Ellison waving his cane over his head and did he pose an imminent danger to the four police officers who were outside.

So what you have is four police officers against a 67-year-old guy whose got a cane. And was it objectively reasonable for Lesher to have shot him based on just that fact pattern?"

Sarah Whites-Koditschek: So what is qualified immunity and what impact would that determination have on the outcome of this case?

Phillip Kaplan: "We know what immunity is. That is, there are some public officials that are immune from being sued. Judges for example are immune. In most cases, prosecuting attorneys are immune. With regard to other public officials there is a doctrine called qualified immunity that means that in some circumstances when a public official acts in a reasonable manner in apprehension of some set of facts which give that person an objective reason to feel that they were in, that somehow their life was in danger, then that actor gets what’s called qualified immunity and can’t be sued in that situation."