A couple weeks ago, Nathan Burney drew up a cartoon for The Watch that explained the concept of qualified immunity. This is the protection given to state employees, including police, from lawsuits alleging violations of constitutional rights. Before even getting in front of a jury, a plaintiff must not only show that his rights were violated, but that a reasonable person in the public employee’s position should have known that the actions in question were in violation of the Constitution. It’s a tough hurdle to overcome. And even then, the plaintiff could still fail to persuade a jury.

A couple recent appeals court decisions demonstrate just how difficult it can be for a victim to win compensation.

The first comes from Ferguson, Mo., where Henry Davis sued three police officers for allegedly beating him in a jail cell while he was compliant and subdued. While the evidence suggests that Davis was initially uncooperative, the appeals court ruling notes that testimony supports the contention that this wasn’t the case when the officers began beating him. Davis was then charged with “property damage” for bleeding on the officers’ uniforms.

That brings us to this amazing passage from an opinion by the U.S. Court of Appeals for the Eighth Circuit:

The district court granted summary judgment dismissing these claims on a narrow ground. “Qualified immunity shields police officers from liability for civil damages where their conduct does not violate clearly established statutory or constitutional rights of which a reasonable person would have known.” . . . Noting that, until recently, some of our decisions suggested that an excessive force claim will not lie if the plaintiff suffered only “de minimis injuries,” the court concluded that the police officers were entitled to qualified immunity because, “as unreasonable as it may sound, a reasonable officer could have believed that beating a subdued and compliant Mr. Davis while causing only a concussion, scalp laceration, and bruising with almost no permanent damage did not violate the Constitution.

The court overturned the district court judge’s opinion. But it’s remarkable that it would need to. Here are a few other things to keep in mind:

  • Davis is fortunate to have attorneys willing to appeal that decision.
  • He could still lose in front of a jury.
  • Even if he wins, the officers could appeal.
  • Even if he wins the appeal, the officers likely won’t be paying a dime. Unless the jury specifically calls for punitive damages, the award will be paid for by the people of Ferguson.
  • The appeals court ruled against Davis’s claim against the city of Ferguson, finding that the city is protected by sovereign immunity. To get past sovereign immunity, Davis would have to show that Ferguson police have demonstrated a pattern and practice of constitutional violations. (This incident happened in 2009.) Despite the numerous reports of precisely that, including one from the Department of Justice, Davis lost here. It seems doubtful that the DOJ report would have been released in time to be admitted into evidence. But this shows how tough it is to establish a pattern or practice of violations, even in jurisdictions where that’s clearly the case.

The other case involves Benny Starks, about whom I wrote in my series on bite mark evidence. Starks spent 20 years in prison after he was convicted of the rape and assault of a 69-year-old woman in 1986. He was convicted primarily due to testimony from bite mark analysts Russell Schneider and Carl Hagstrom, testimony from blood serologist Sharon Thomas-Boyd, and an identification by the victim. (The victim initially described her assailant as clean-shaven and 18-19 years old. Starks at the time was 26, and had a mustache and beard.) Schneider and Hagstrom claimed to have found a bite mark on the victim that matched Starks’s teeth “to a reasonable medical certainty.”


In 2000 Starks was granted a new trial after DNA testing done on semen found in the victim’s underwear excluded him as the source. But local prosecutor Michael Mermel cited the bite mark evidence, and insisted Starks was still guilty. He added that if the semen sample had been taken from the victim’s vagina instead of her underwear, he’d be convinced of Starks’s guilt. Starks remained in prison.

Six years later, Starks’s attorneys found a vaginal swab taken shortly after the crime that was thought to have been lost. It too was tested for DNA. Again, Starks was excluded. Mermel then went back on his word. He again cited the bite mark evidence in affirming Starks’s guilt, this time speculating that the victim must have been sexually active around the time of the attack, even though she insisted that she hadn’t been, or that Starks must have held the victim down and bit her while someone else raped her. Mermel resigned in 2011 after receiving national publicity for his absurd theories in this and other DNA exoneration cases. A new DA was elected the following year. That DA quickly dropped the charges against Starks and declared him innocent.

Subsequently, attorneys for the police, Thomas-Boyd and the city of Waukegan, Ill., have tried to get Starks’s certificate of innocence revoked, claiming that Starks still beat the victim, but that the victim lied about the rape in order to collect money from Starks. This theory is complicated by the fact that the victim has since died and that Starks wasn’t exactly wealthy.

Earlier this month, Judge Gary Feinerman of the United States District Court for the Northern District of Illinois rejected Starks’s lawsuit. What’s incredible is how much he concedes in the process. Starks, for example, alleges that one police officer fabricated evidence by doctoring the photo array presented to the victim so that she would identify Starks as her attacker. Although that identification cemented Starks as the main suspect in the eyes of the victim and law enforcement, the photo array itself was never introduced at trial. Because it was never used at trial, Feinerman rules that it never actually violated Starks’s rights. Feinerman rules similarly on Starks’s other allegations of fabricated evidence — if the evidence itself wasn’t introduced at trial, it didn’t violate Starks’s right to due process. That it may have led to Starks’s arrest, incarceration while awaiting trial, or the decision to charge and prosecute him doesn’t matter.

Starks then alleges that one of the officers lied to the grand jury about the victim’s identification. Here Feinerman notes that grand jury witnesses, including police officers, have absolute immunity from civil liability for what they tell the grand jury — even if they outright lie.

Starks next alleges that another police officer lied on the stand about a critical piece of evidence. Feinerman again writes that even if this allegation is true, it doesn’t matter.

[T]here is no federal due process remedy when a police officer perjures himself on the stand because police officers, like other witnesses who testify in a criminal proceeding, have absolute immunity for the content of their testimony.

So a police officer who fabricates evidence that convicts an innocent person (and whether or not the battery allegations are accurate, it is undisputed that Starks was wrongly convicted of rape) isn’t liable if that evidence itself is never presented at trial. But even if the evidence itself is never presented in physical form, the officer can testify about the fabricated evidence — thus still getting the false but damning evidence in front of a grand or petit jury — and still be protected, because trial witnesses are protected by absolute immunity.

Feinerman then turns his attention to the bite mark analysts. Incredibly, the judge writes up a pretty thorough refutation of the validity of bite mark evidence.

There appears to be little, if any, scientifically valid data to support the accuracy of bite mark comparison, and the data that does exist is damning. A 2011 peer-reviewed article found that because skin easily distorts, it is a poor medium for bite marks; the article described an experiment in which a single “dentition” was used to produce nearly a hundred bite marks in both skin and wax, and the resulting skin marks not only failed to match the dentition that created them, but were often closer matches to other dentitions (those that did not create the marks).

A 2006 peer-reviewed article lamented the “disturbingly high false-positive error rate” of bite mark matching, as evidenced in part by a 1999 workshop conducted by the American Board of Forensic Odontology, in which experts who “attempted to match four bitemarks to seven dental models found 63.5% false positives.”… Sixty-three percent! The article also describes other studies with similarly alarming findings.

It is therefore doubtful that “expert” bite mark analysis would pass muster under Federal Rule of Evidence 702 in a case tried in federal court.

The problem is that because bite mark matching had and has been accepted in state courts across the country, Starks couldn’t argue that the entire field was fraudulent, and putting on bite mark evidence violated his rights. The courts had already said it was acceptable. Instead, his only option is to argue that the testimony of Hagstrom and Schneider was outside the mainstream of bite mark analysis at the time, so far outside the mainstream that it violated his due process rights. To do this, Starks enlists David Senn as an expert witness. Senn is critical of Hagstrom and Schneider, and in fact says that they misaligned the jaws of the biter in matching the photo of the bite to Starks. But Senn is a believer in bite mark evidence as a whole. In fact, Senn has been one of the field’s most vocal defenders.

Feinerman further finds that the testimony from Hagstrom and Schneider isn’t a violation of Starks’s due process rights because Starks had an opportunity to cross examine them at trial. Citing precedent, Feinerman notes that “hiring a practitioner of junk science” isn’t actionable.

Feinerman may be correct on the law, but the law here is the problem. The law overlooks the trust that jurors put in the judgment and discretion of prosecutors. There’s an inherent state endorsement of any expert witness prosecutors put on the stand. It overlooks that jurors also often look at defense expert witnesses as opinions for hire. And it overlooks a fact we’ve discussed frequently here at The Watch: Sounding convincing to a jury isn’t the same thing as scientific validity. In fact, the two are often at odds. Expert witnesses who speak in the careful scientific language of probabilities will often sound less convincing than witnesses who speak in absolutes and certainties that have no basis in science.

As for Starks’s contention (via Senn) that Hagstrom and Schneider performed their analysis by mistakenly aligning the upper teeth to the marks in the photo that were made by lower teeth, and vice versa, Feinerman rules that the very charlatan nature of bite mark analysis protects Hastrom and Schneider from liability.

[A]n accurate statement of fact would be: “Dentist Defendants determined that Starks’s mandibular dentition did not make what they thought was the maxillary portion of the bite mark on the victim, but which according to Senn was in fact the mandibular portion of the mark.” Accurately stated, the assertion could not lead a reasonable jury to find that Dentist Defendants knowingly and deliberately suppressed favorable evidence. The cited record material actually says the opposite: that Dentist Defendants oriented the bite mark the way they did precisely because it resulted in both the mandibular and maxillary portions’ matching the bite mark, in their opinion. That is the very essence of bite mark matching—and neatly illustrates why the entire endeavor is so unreliable.

Indeed, the very unreliability of bite mark identification works against Starks’s claim, for given such a high false-positive rate, who can say that any bite mark analysis has been “falsified,” let alone deliberately? It would be akin to saying that an astrologer “falsified” his conclusion that, because the planets are in a particular alignment, the defendant must have committed the crime, or to complaining that a palm reader grossly deviated from professional standards by mistaking the heart line for the head line.

Basically, because bite mark analysis is transparently fraudulent, you’re barred from arguing that any individual bite mark analyst can violate your due process rights by giving fraudulent testimony. And because so many state courts have always accepted bite mark testimony, and to date not a single court has found it invalid, you also can’t argue that the introduction of bite mark evidence in and of itself is a violation of your due process rights.

I’d describe this passage as “Kafka-esque,” except that I have too much respect for Kafka to think he’d put something so facially absurd in one of his works. And I’d here again say that as far as I can tell, Feinerman isn’t wrong on the law.

It’s also notable that the first court opinion to acknowledge that bite mark evidence is fraudulent does so only in passing, and does so in an opinion that ultimately denies a man wrongly convicted because of bite mark evidence from suing for damages.

Feinerman’s opinion boils down to this: Even if Bennie Starks was completely innocent; even if the police manufactured evidence against him, lied to the grand jury, and lied at trial; even if expert witnesses practicing a unscientific form of analysis falsely implicated him; even if he lost 20 years of his life due to all of this, no one is liable. Bennie Starks doesn’t get to collect a dollar from any of them. They all get off the hook. In fact, Feinerman’s opinion doesn’t even get to an analysis of qualified or sovereign immunity. To do that, he’d first have to find that Starks’s rights were actually violated. Feinerman rules that they weren’t, even if all the above is true. Let that soak in.

The criminal justice system is pretty aggressive about holding people accountable for their actions. Sometimes it holds people accountable for actions they didn’t commit. But it’s probably best at protecting its own from any accountability at all.