In October 2020, Scott’s daughter, Rochelle Scott, sued Smith, Huntsman, and the police department for violating her late father’s constitutional right to be free from excessive force. The police tried to block Rochelle’s case by invoking qualified immunity, but in March 2023, Nevada’s federal district court denied their request, and in July 2024, a three-judge panel for the Ninth Circuit Court of Appeals unanimously affirmed that denial. Both courts repeatedly pointed to a 2003 Ninth Circuit decision, Drummond v. City of Anaheim, as evidence that Scott’s rights were “clearly established.”
In Drummond, like in this case, police responded to a call to help a schizophrenic person who was hallucinating. In Drummond, like in this case, the person was agitated, but complied with the officers’ orders, and had not endangered himself or others or committed a crime. In Drummond, like in this case, officers forced the person to the ground and put a knee on the neck of a person experiencing a mental health crisis. And in Drummond, the Ninth Circuit held that the officers’ use of force was unconstitutionally excessive.
“The similarities between this case and Drummond are striking,” wrote Judge Roopali Desai in Scott’s case in the Ninth Circuit. The panel rejected the police officers’ attempts to split hairs between the two: While Desai acknowledged that officers “must be fairly on notice that their conduct was unconstitutional,” she warned that defining the “right allegedly violated” in too much detail would allow “officials, and future defendants, to define away all potential claims.”
Sure enough, the officers then appealed to the Supreme Court and argued that Drummond was different: In Drummond, they said, officers used their body weight against a prone person on the ground who was already restrained with handcuffs and not resisting. Here, they contended, they used their body weight against a prone person on the ground who was already restrained, but not with handcuffs, and they allege he was resisting. Their petition to the Supreme Court accuses the lower courts of “arm-chair quarterbacking” and “relying on 20/20 hindsight to scrutinize the officers’ actions from the peace of a judge’s chambers.”
Smith v. Scott didn’t come right out and say the officers are entitled to qualified immunity, but it isn’t subtle, either. The lower courts’ determination that Smith and Huntsman weren’t entitled to such immunity meant that Rochelle Scott could sue the police department to try and hold them accountable. The Court’s new order, which requires the Ninth Circuit to reconsider the case in light of Zorn’s demanding standard, probably means that she will never have the opportunity to do so. The orders betray the Court’s hostility towards the rights of victims of police brutality, and reveal qualified immunity as a misnomer: There’s nothing “qualified” about the extent of the protection the Court’s conservatives will extend to violent cops.