Opinion: Should an enraged, off-duty cop enjoy qualified immunity?

If government officials were not doing their job when they violated someone’s civil rights, should they escape lawsuits over their unlawful conduct?

In Colorado and neighboring states, the answer is unclear.

As a result, a police officer acting on a personal grudge could face no accountability for unconstitutional actions. It’s a dangerous situation created by some federal courts’ application of “qualified immunity.”

But a case coming out of New Mexico is an opportunity for the 10^th U.S. Circuit Court of Appeals, based in Denver and responsible for Colorado and five other states, to show some common sense. 

Qualified immunity shields government workers from lawsuits for violating constitutional rights unless the victims can show that their rights were “clearly established.” In practice, this means that if Colorado residents want to sue police officers for violating their rights, they have to identify an earlier decision by the Supreme Court or the 10^th Circuit holding that precisely the same conduct under the same circumstances is unconstitutional. 

But when the Supreme Court created qualified immunity, the goal was to shield government employees from lawsuits based on tough decisions they had to make as part of their jobs. The Court never meant qualified immunity to be a “license to lawless conduct.”  

“Lawless conduct” perfectly describes what Mario Rosales was subjected to in Roswell, New Mexico. Mario was driving home when he legally passed a pickup truck. The driver he passed was Sheriff’s Deputy David Bradshaw, who was off duty, in plain clothes, driving his personal vehicle, and with his toddler.

Bradshaw’s temper flared at the sight of a yellow Mustang passing him. He tailed Mario all the way home and blocked him in his driveway. 

Mario sat in his car for a while, but the pickup truck didn’t leave. Fearing for his safety, Mario put his lawfully owned handgun in his pocket, the handle still clearly visible outside the pocket, and stepped out of the car. 

Mario remained calm as the deputy yelled and cursed at him from the truck. Bradshaw raged on and pointed a revolver at Mario, even though the deputy’s toddler was seated between the two men, in the front passenger seat of the truck. Mario put his own weapon back in his car, but Bradshaw continued to berate Mario in his driveway. Another deputy soon arrived and convinced Bradshaw to leave. 

Bradshaw was convicted of aggravated assault and child abuse, while Mario was not ticketed. The county dismissed Bradshaw from his job and has argued that he acted outside the bounds of his employment. Mario sued Bradshaw and the county for violating his constitutional rights, but a federal district court tossed the case out, concluding that Bradshaw is cloaked with qualified immunity. 

The district court’s decision in Mario’s case shows how far the qualified-immunity doctrine has stretched. What was supposed to cover only close-call, on-the-job decisions now applies to criminal conduct motivated by personal rage.

There is no question that Bradshaw’s conduct was beyond the pale, and Bradshaw has never argued that his job authorized him to do what he did. He is not eligible for qualified immunity in the first place, and even if he were, qualified immunity would not apply because the law was clear: a government official pointing a gun at a nonthreatening person is unconstitutional. 

Still, the courthouse doors were closed to Mario and they could be closed to people who face similar situations in Colorado, New Mexico, Kansas, Oklahoma, Utah, and Wyoming. 

Mario is appealing his case, not just to stand up for his own rights, but also to make sure law enforcement agencies and officers are accountable everywhere. The 10^th Circuit should reverse the decision and make clear that a badge does not permit lawless behavior that courts have determined was both criminal and unconstitutional. 

Marie Miller, of Arlington, Va., is an attorney with the Institute for Justice, a non-profit public interest law firm that defends constitutional rights nationwide.