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A car at the scene of a fatal police shooting of this car's passenger Feb. 24, 2016, in the parking lot of Roma’s Ristorante and Lounge in East Troy.

CHICAGO

Activists and politicians on both sides of the political spectrum are calling for an end to qualified immunity, a practice they say largely protects police from accountability when officers are sued for unconstitutional acts.

Meanwhile, a federal appeals court is reviewing whether a Walworth County sheriff’s deputy fits under the qualified immunity doctrine after he fired into a vehicle during a botched East Troy drug bust in February 2016, killing the car’s passenger.

Then-deputy Juan Ortiz shot and killed Christopher J. Davis, who died two weeks before his 22nd birthday as he sat in the passenger seat next to the driver, Jose G. Lara, who eventually pleaded guilty to two drug and fleeing charges.

Ortiz later became a detective at the sheriff’s office. Dan Necci, the district attorney at the time of the shooting, ruled the shooting justified.

Doretha Lock-Davis, Christopher Davis’ mother, sued Ortiz and other law enforcement officials and jurisdictions over “deliberate indifference and negligence” leading to her son’s death, also alleging some officers destroyed squad-car camera video recordings.

But the attorney representing Ortiz is asking the U.S. 7th District Court of Appeals in Chicago to overrule a lower court’s decision and decide that Ortiz is covered under qualified immunity.

Qualified immunity is a Supreme Court doctrine that shields officers from liability—even if rights are violated—unless there is “clearly established” law from a prior case with the same circumstances.

Proponents of the doctrine say it protects officers who have to make quick decisions.

A bill before Congress

Justin Amash, a conservative congressman from Michigan, tweeted June 3 that he and Ayanna Pressley, a House Democrat from Massachusetts, were introducing a bill to end qualified immunity.

Amash and Pressley in a letter said qualified immunity “sharply narrowed” when police can be held legally accountable, “even for truly heinous rights violations.”

Congress allowed people to sue state and local officials who violated rights as part of the Civil Rights Act of 1871, according to the letter. But in 1967, the Supreme Court “began gutting” the law when it created the qualified immunity doctrine.

“The brutal killing of George Floyd by Minneapolis police is merely the latest in a long line of incidents of egregious police misconduct,” the letter states. “This pattern continues because police are legally, politically, and culturally insulated from consequences for violating the rights of the people whom they have sworn to serve.”

Walworth County arguments

Samuel Hall, an attorney representing Ortiz, is asking the appeals court to reverse the lower court’s decision because, “It was not clearly established in February 2016 that deputy Ortiz seized Davis under the Fourth Amendment,” when he shot into the vehicle and “unintentionally” struck Davis, the appeal states.

The Fourth Amendment protects against unreasonable searches and seizures.

The appeal argues the lower court’s decision did not adequately spell out the Fourth Amendment right at issue.

Legal precedent allows officers to use deadly force when they “reasonably” believe they are under threat by weapons—in this case a vehicle, the appeal states.

Ortiz’s side also brings up that a purpose of qualified immunity is to allow for “reasonable errors” so officers are not always afraid of being sued, according to the appeal.

His side also argues neither the Supreme Court nor this appellate court have addressed the specific situation for when an officer fires to stop a moving vehicle and accidentally hits a passenger.

Nate Cade, the attorney representing Lock-Davis, argued in his response to the appeal that Ortiz “seized” Davis under the Fourth Amendment as soon as he shot him.

He wrote that Ortiz “bends the facts to shape his argument,” and that means the court should deny his case for qualified immunity.

The response argues Ortiz made incorrect statements about when the car accelerated and the direction it was going.

Ortiz also was on notice, the response argues, that firing into a moving vehicle when deadly force was not appropriate or necessary was not lawful.

Cade wrote that as the lower court noted, it was possible Ortiz was responsible for the danger he found himself in because he moved toward the vehicle’s intended path out of the parking lot.

“Ortiz also cannot rely on qualified immunity because he created the danger that led to him shooting into the vehicle purportedly to save his life,” the response states.

Also at issue is whether the appeals court has jurisdiction to rule on this matter.

Cade said in an email that a decision on this matter won’t come for months. After the final brief came from Ortiz’s side June 1, he said in six to eight weeks they could hold oral arguments in Chicago and three to six months likely would pass after that for a decision.

That depends, in part, on the judge who will write the opinion, he added. And a decision could come faster if the court rules that it doesn’t have jurisdiction on this case, which Cade said was “rare.”