Court: “Law not clearly established”; refuses to clarify law

On Tuesday the Tenth Circuit issued its opinion in Estate of Reat v. Rodriguez, where a 911 operator continually failed to dispatch help to a motorist who was under attack. The operator actually instructed the motorist to return to the area of the attack, which resulted in the motorist’s shooting death.

In detailing the facts, the Tenth Circuit boldly described the operator’s conduct as “foolish” and “incompetent,” and the case “tragic.” Surely the Court would find a plausible violation of the motorist’s constitutional rights for conduct that subjected him to state-created danger . . .

And if you believe that, you should read more about the madding doctrine of qualified immunity, which allows public officials to freely violate your constitutional rights unless the law is clearly established.

The doctrine is not that different from the adage, “every dog gets one bite.” The theory being that a public official should not be accountable for violating your constitutional rights if a court has not defined that right with sufficient clarity to put the official on notice that what she’s doing is wrong.

But there’s a big problem with how courts clearly establish the law: there is no requirement that they do.

Instead, courts are free to issue opinion after opinion lamenting the lack of clarity without doing anything to resolve it. This failure to clarify the law (i.e., provide the notice necessary to hold public officials accountable), perpetuates a cycle where public officials can continually violate the law by citing the court’s own refusal to clarify it.

To borrow from a Tenth Circuit judge, I suggest that any effort to enter the arena of qualified immunity and consider the issue carefully is likely to leave you looking for the exits.

And so it goes for the Estate of Reat. The Court determined that while it had applied a state-created danger theory in a variety of contexts, it hadn’t done so in the context of a 911 operator, and for that reason, the law was not clearly established.

To add insult to injury, the Court refused to establish the law, which means the next time an incompetent 911 operator does something similar, they too can claim the law was not clearly established and leave yet another victim with no remedy.

And on and on it goes.

If you have questions about civil rights violations or qualified immunity, contact the attorneys at Bryan & Terrill Law, 918-935-2777.