WASHINGTON—Desiree Martinez was especially courageous when she reported the abuse she had been suffering at the hands of her boyfriend, Kyle Pennington. Why? Because Pennington was a police officer from a family of cops. But rather than protect her, Clovis, California, officer Channon High told Pennington about Desiree’s report while Desiree was trapped in a room with him. With this information, Pennington further abused Desiree.
After she was free of the relationship and when Pennington had been prosecuted for his crimes, Desiree sued High and other officers that enabled and protected her abuser. Her lawsuit has spent nearly a decade in court, with the 9th U.S. Circuit Court of Appeals recently granting High qualified immunity. Now, the Institute for Justice (IJ) is appealing the case to the Supreme Court, asking the justices to reject qualified immunity when officers break the rules and knowingly place someone in danger.
“Every reasonable officer would have known that a confidential domestic violence report should not be disclosed to its subject. It is preposterous that Officer High can count on qualified immunity for this kind of conduct” said IJ Senior Attorney Anya Bidwell.
Desiree filed her lawsuit in 2015. Taking nearly a decade weaving through courts is not unheard of in cases involving qualified immunity. New research published by IJ this year, Unaccountable, found that the median duration of a qualified immunity lawsuit was three years and two months, 23% longer than the typical federal civil suit up on appeal.
“It certainly is taking a lot of time,” said Desiree. “But it will be worth it in the end, if other victims will be protected.”
IJ’s petition for certiorari asks the Court to take up Desiree’s case and resolve a split among the appeals courts about whether qualified immunity analysis should see a difference between government officials making split-second decisions and those who have fair warning that they are violating a constitutional right. The Fifth and Tenth Circuits give officers using force under dangerous circumstances wider latitude, while the Eighth, Ninth, and Eleventh Circuits take a one-size-fits-all approach to life-and-death situations and those confronted from behind a desk.
“When an official knows what she or he doing is wrong, qualified immunity should never enter the equation,” said IJ Senior Attorney Patrick Jaicomo. “This case illustrates the sorts of evils that are sanctioned when it does.”
IJ’s Project on Immunity and Accountability is dedicated to the simple idea that if the people must follow the law, our government must follow the Constitution. IJ recently won a case at the Supreme Court, Gonzalez v. Trevino, about a Texas woman who faced retaliation for political opposition to her city’s mayor. The court overturned a Fifth Circuit decision that dismissed the case.