everyone was outraged and everyone agreed it would be a tough case to win.
“Take it to a jury though,” Bobby said. “Who the hell is going to believe the cops when they said they were in fear for their lives? I mean, it was dark. The dude in the room wouldn’t even have been able to see them.”
“And,” Carmen cut in, “the guy who was in the room will testify that he wasn’t in any danger. It’s just some trigger-happy cop making an assumption. And don’t forget it was a noise call. I mean, you don’t go on a noise disturbance thinking you need to be on guard and ready to shoot someone.”
I listened to what they had to say. They were right on a visceral level. The whole thing stunk. But the counter-arguments kept running through my head.
“Yeah,” I said, “but what if the noise disturbance is a domestic? Some guy beating the shit out of his wife and waving a gun around?”
Renaldo said, “But that’s not what this was.”
“But the cops didn’t know that when they got there. It could have been anything.”
Carmen said, “Sure, but when they pulled up and saw all the cars, they knew it was a party. Unless they think people invite all their friends over to watch a domestic dispute.”
She had me there.
I was scrambling to argue the other side. I said, “Sure, but as they’re walking around the side of the house, they look in the window and they see two guys standing there. One guy’s got a gun in his hand and is waving it in the direction of the other guy.”
“So what?” Renaldo pointed his finger at the table, pounding it down as he made his points. “Not that I’m in favor of guns, but I have a constitutional right to own one and keep it in my home. Two, there’s no evidence he was doing anything threatening with the gun, he was maybe being careless by waving it around, but that’s not a crime. And three, let’s not forget it was Halloween and everyone is wearing fucking costumes. The goddamned cops don’t even take two seconds to think about that? Now that’s bullshit. It’s absolutely fucking unbelievable.”
“You tell him, Renaldo,” Carmen laughed.
Bobby took a swallow of beer and said, “But I’d leave out the word ‘bullshit’ when you argue to the judge. But keep fucking unbelievable.”
I shook my head, drank my beer, and said, “I know it. It’s insane. It’s hard to come up with a bulletproof story for the cops.”
“Nice pun,” Carmen smiled.
“Yeah, but still,” Bobby spoke slowly as he thought it through. “It’s still a tough case. What’s the standard for qualified immunity? No reasonable officer would have thought his actions were constitutional? Something like that?”
“I think that’s right.” Renaldo nodded his head.
“Ask Ben.” Bobby leaned across Renaldo and tapped Benjamin Cross on the shoulder, “Hey Ben.”
Ben and Liz stopped gabbing at each other for the first time since we’d gotten there. I turned to look at the two of them and I could see something in Liz’s eyes like fright or shock. It was as if she’d been caught doing something she knew she shouldn’t have. As though she was feeling guilty just by talking to him.
No one else seemed to notice or care. “Hey, Ben,” Bobby asked again. “You just took the bar exam, what’s the standard for qualified immunity?”
Ben thought about it for a second. Then he said, “It’s got two parts. First, was the constitutional right clearly established? And second, could a reasonable officer have believed his conduct was lawful?” Then he smirked and added, “I think in Burns v Reed the Supreme Court stated that qualified immunity, quote, ‘provides ample support to all but the plainly incompetent or those who knowingly violate the law.’”
“Whoa!” Carmen gasped, mocking him. “Look at the big brain on Ben.”
But he seemed to take himself seriously. He smiled and raised his eyebrows. I could tell he was proud of himself for knowing the case. I caught a quick flick of his eyes toward Liz. Checking to see if she was impressed. I had a sudden urge to throw something at him. Maybe a punch. But instead, I returned to the conversation.
“So with a standard like that, unless the guy knowingly violated the law or is so absolutely incompetent that no officer anywhere would ever do the same thing in the same circumstances, we lose.”
“Sad, but true.” Bobby leaned his chair back against the wall behind him and