When a high-profile police excessive force trial wrapped up in September with frustration and disagreement inside the jury room, Dallas civil rights lawyers recognized a pattern.
Jurors wrestled over a legal principle they’d never heard of to determine whether some or all of the officers involved in the death of a Dallas man in 2016 were protected from legal responsibility. The shield is called qualified immunity, and it’s a concept even federal judges — magistrates to Supreme Court justices with extensive legal training — have difficulty interpreting. Police officers in North Texas and across the country use the shield to avoid civil lawsuits and verdicts against them.
Qualified immunity is meant to protect public officials such as police officers from financial ruin if they are sued for on-the-job conduct. Victim advocates and civil rights lawyers say the legal doctrine prevents bad officers from being held accountable for acts of police brutality in lawsuits brought by citizens seeking damages for injury and death. It does not apply to criminal cases against police officers.
Victims’ families often turn to civil court to seek justice because officers rarely are convicted in police brutality cases.
Officers found guilty in criminal court can be immune from civil litigation for the same act, adding more confusion to the concept of qualified immunity.
Federal jurors granted qualified immunity as a legal defense for three of the four Dallas officers sued by Tony Timpa’s family over his death in police custody. Timpa, 32, called 911 for help during a mental health crisis and died as an officer knelt on his back for about 14 minutes. Video footage shows other officers joking about waking him up for school as he became unresponsive.
One juror later voiced confusion about why the eight-person panel was asked to consider qualified immunity.
“I don’t understand why that question was even in there if no one really understands what it is,” juror Candice Higginbotham told the Dallas Morning News. “I never really heard or really knew what it was before that, and I want to say everybody else was pretty much on board with me there.”
The question rests on two key principles. First, did officers violate a person’s constitutional rights? Second, were they aware of existing case law that would have given them notice that their actions violated a person’s rights?
Answers to those questions — from both judges and juries — are inconsistent.
In the lawsuit over the 2017 death of 15-year-old Jordan Edwards, the courts ruled qualified immunity didn’t apply. Jordan was murdered by former Balch Springs police officer Roy Oliver, who fired into a car Jordan was a passenger in as the car drove away from him. A Dallas County criminal jury sentenced Oliver to 15 years in prison.
Qualified immunity did apply in the 2018 fatal shooting of 24-year-old O’Shae Terry by former Arlington police officer Bau Tran. The officer shot Terry as the man drove away during a traffic stop with Tran on the SUV’s running board. The ruling meant Tran was absolved of civil liability. He pleaded guilty last year to criminally negligent homicide in connection with the shooting in a separate court proceeding and was placed on deferred adjudication probation for six years. He won’t have a criminal conviction on his record if he successfully completes the requirements of his probation.
The shield also applied to former Dallas police officer Christopher Hess, who killed Genevive Dawes in 2017 when he shot at the vehicle she was driving slowly in reverse while trying to escape. The lawsuit against Hess was thrown out. A jury in 2020 found Hess not guilty of aggravated assault by a public servant in a separate criminal case.
Higginbotham, one of eight jurors in the Timpa trial, said there was a strong debate in the jury room over what qualified immunity meant.
An autopsy found Timpa’s cause of death was a homicide. Three Dallas officers were indicted in 2017 on criminal charges of misdemeanor deadly conduct in connection with Timpa’s death. Dallas County District Attorney John Creuzot dismissed the case after, he said, three medical examiners would not testify the officers acted recklessly.
Legal experts say the Timpa case making it to trial was rare. Having a jury decide the question of immunity also is rare. Judges often rule before trial that qualified immunity applies, leaving many families confused, angry and frustrated in their attempts to hold officers accountable and receive compensation for the loss of a loved one.
“When you actually have to sit in the shoes and have to endure this and try to learn this lingo on what’s going on, what’s what — it’s a lot to take in,” said Charmaine Edwards, Jordan Edwards’ stepmother. “And then you still got to deal with your feelings.”
‘All over the map’
Although data aren’t available to show how often the doctrine is invoked, critics of qualified immunity say it has had a wide-ranging impact on cases locally and nationally.
Created in the 1960s by the Supreme Court during the Civil Rights movement, the legal doctrine was intended to protect “all but the plainly incompetent or those who knowingly violate the law,” according to legal precedent. But determining which officers don’t deserve that broad protection has not been easy.
As U.S. District Judge Mark Pittman in Fort Worth put it during a 2022 court hearing: “These cases are all over the map.”
“And it’s one of the reasons that you run into a lot of problems when you have an area of judge-made law, not legislature-made law,” Pittman said.
In the hearing, unrelated to the Timpa case, Pittman pleaded with the 5th U.S. Circuit Court of Appeals to put themselves in his position of deciding whether lawsuits should move forward.
“I would just implore those judges, if they’re reading this transcript, to please, please, please give us some guidance as to how to handle these as judges because these are the most difficult cases; they take longer than they should.”
Justice sometimes lost
Although jurors found three Dallas police officers violated Timpa’s constitutional rights after he was detained, they held only one liable for his death — and it wasn’t the officer who knelt on him as he lay face down while restrained.
The verdict failed to provide a definitive win for either side.
“Seven years I waited for my son to get some justice, so that people would see that my son got no help,” Vicki Timpa said tearfully after the verdict. “There was some punishment. Not much, but there was some.”
Jurors awarded $1 million to her grandson, who was 8 when his father died. The jury didn’t award anything to his parents or his estate.
In Dallas, officers do not have to pay damages themselves. The city pays through insurance.
City of Dallas attorneys, who represented the officers, argued Timpa’s life of substance abuse, mental illness and heart conditions contributed to his death. Timpa had a large amount of cocaine in his system when he died, Dallas County’s chief medical examiner testified.
Asked on X whether the city won the case, Lindsay Gowin, the attorney who represented the officers, answered: “Technically, not entirely. Practically, abso-f–ing-lutely.”
Gowin declined to comment about the Timpa verdict or her social media post. The post was deleted after the Morning News’ inquiries.
Law enforcement groups argue qualified immunity allows officers to make split-second decisions during violent and volatile encounters without worrying about frivolous lawsuits and financial ruin.
Kevin Lawrence, executive director of the Texas Municipal Police Association, said police officers need some guarantee that as long as they’re trying to do the job properly, they have protection if something goes wrong.
“Otherwise, no one’s going to want to take on the job,” he said.
Emotions run high
Higginbotham and another juror said deliberations became contentious and the majority didn’t want to award the Timpa family any money. They told the Morning News after the trial that the other six were huffing, putting their heads down on the table and saying things like, “What are we going to do, are we going to read this again?”
Jurors worried the officers would pay out of pocket, seemingly unaware the city pays through insurance, Higginbotham said. The Timpa family’s lawyers weren’t allowed to tell the jury the city would pay any judgment against the officers.
Discussions grew especially tense when jurors talked about qualified immunity for several hours, Higginbotham said. She said the jury determined Officer Raymond Dominguez wasn’t shielded because he had the most experience patrolling the streets and had faced a previous, unrelated false report allegation. Disagreement broke out because other jurors said he didn’t use force and all four officers deserved immunity, she said.
Higginbotham said many jurors argued the officers didn’t act with malice and it was reasonable for them not to realize all that occurred as Timpa died. She countered that the officers’ job was to know, she said. Only she and one other person repeatedly read the instructions from the judge, she said.
The document jurors read says qualified immunity exists “to give government officials breathing room to make reasonable but mistaken judgments about open legal questions” and is meant for all but the “plainly incompetent” or those who knowingly violate the law.
In Timpa’s case, the document said, qualified immunity applies if a reasonable officer believed the restraint was lawful in light of “clearly established law and the information defendants possessed.” Officers are “presumed to know the clearly established constitutional rights of individuals they encounter,” and law at the time was that an officer engages in unreasonable force by continuing to kneel on the back of someone subdued, the document added. But even though the jury believed the other three officers violated Timpa’s constitutional rights, the jurors applied the shield and those cops were not civilly liable.
“We shouldn’t have been the ones to make that decision because I feel like we really didn’t understand it completely,” Higginbotham said.
Geoff Henley, an attorney who represents Timpa’s mother and son, said he’s spoken with Timpa’s family and other clients about qualified immunity for years. He knows not everybody understands.
“Is it frustrating as hell? Yes,” Henley said.
The federal jury ruled Officer Dustin Dillard, who knelt on Timpa, violated Timpa’s rights, but was protected by qualified immunity. Higginbotham said other jurors argued Dillard learned his lesson, seemed remorseful and didn’t deserve further damage to his life.
“I frankly can’t imagine how that conclusion was made,” Henley said, adding the verdict proved juries can’t be expected to fully understand qualified immunity.
The Supreme Court greatly expanded the legal doctrine in the 1980s and has, in recent years, made small clarifications. Legal experts say the court seems unlikely to revisit it anytime soon. Congress has not acted on demands from social justice and police reform advocates to abolish qualified immunity.
Only the most obvious and egregious instances of police misconduct tend to be punished in civil rights lawsuits, such as shooting a fleeing suspect in the back.
In the 2017 shooting death of Jordan Edwards, for example, Oliver responded to a loud party call in Balch Springs and fired a rifle into a car driving away from officers. A Dallas County civil jury found Oliver liable and awarded the Edwards family more than $21 million in damages.
U.S. District Judge Barbara Lynn ruled Oliver was not entitled to qualified immunity. The 5th Circuit, in upholding that ruling, said legal precedent held that “the use of deadly force against a fleeing (person) who poses insufficient harm to others” violated established law.
Charmaine Edwards said she tried not to think about the civil proceedings as her family waited years for the trial. She said she was sick to her stomach seeing other police shootings and injustices on the news. The pain from the criminal trial resurfaced with the civil proceedings, she said.
“You keep on opening that wound over and over again,” she said. “It’s never gonna fully heal because it’s gonna be something constantly that’s gonna rip the wound open a little bit and you gotta deal with it again.”
She said in some cases, like George Floyd’s 2020 murder in Minneapolis, cities appeared to take responsibility by quickly settling civil lawsuits. Balch Springs hasn’t, she said. Qualified immunity came under intense public and legal scrutiny after Floyd’s death. Some legal experts said Derek Chauvin, who knelt on Floyd’s neck for about nine minutes, might have been protected by qualified immunity had the city not settled the family’s lawsuit.
The Edwards family filed their lawsuit against both Oliver and Balch Springs, but a federal district court judge dropped the city from the suit in 2022 after finding the family did not prove assertions the police department’s use-of-force policies were unconstitutional and the city failed to properly train and supervise its officers, according to court records.
Charmaine Edwards questioned how the city could escape accountability despite hiring Oliver.
“It just don’t sit well with me,” she said. “Although Roy Oliver committed the crime, it goes farther than just him.”
Pittman, one of the federal judges who expressed frustration with qualified immunity, had his ruling granting qualified immunity in the 2017 fatal shooting of Tavis Crane overturned by the 5th Circuit.
Crane’s family sued the city of Arlington and Officer Craig Roper, whose appeals to prevent a trial were denied by the Supreme Court last year. The Crane family and city officials agreed on a possible $1.9 million settlement that is scheduled to be discussed in court this month, according to court records.
Arlington police Cpl. Elise Bowden pulled over Crane, 23, after his 2-year-old daughter threw a candy cane wrapper out the window. Bowden mistook it for drug paraphernalia, according to court records.
Roper arrived to help arrest Crane after Bowden saw he was wanted on five warrants, including one for violating parole on an evading-arrest charge. Police said Crane refused to get out of the car, and during a struggle with Roper, Crane backed into Bowden, then drove forward over her, police said. Roper then shot Crane, police said.
The Crane family has long disputed the police version and said Roper shot Crane before Bowden was run over. Roper used excessive force and caused Crane to lose control of the vehicle, according to the family’s lawsuit.
A grand jury declined to bring criminal charges against Roper, who as of October was still on the force.
Dee Crane, Crane’s mother, said the last several years have been an emotional roller coaster. As year after year passed, she felt she was “sitting on the sidelines” for their turn.
“Qualified immunity needs to be overturned,” she said. “In my case, the 5th Circuit Court said he wasn’t eligible for qualified immunity. Why is (qualified immunity) automatic? Because he wears a blue uniform? Really? That doesn’t make him a superhero — that’s just a uniform.”
Dee Crane said she wants more accountability — and for Roper to lose his job, not to be protected by the city “like he’s a fragile jewel.” She wants cities to implement police oversight boards and forums for police to hear from victims’ families and see Black people as humans.
“It’s all the police officers all over who get to go home and they all say the same thing,” Dee Crane said. “‘Oh, I was in fear for my life. I just wanted to go home at the end of the day.’ How about these parents [who] wanted to go not to the grave to visit their children? How about that?
“I’d rather have gone to jail to see my son than go to the grave to visit him.”