@Ganymede said in The Art of Lawyering:
Second, in a civil context, defendants are liable, not "guilty." Most of these cases were decided without going to trial, as far as I can tell. To answer your question, though, in cases where there is a trial, my inkling is that such cases involved facts which were borderline, so juries leaned towards favoring law enforcement. In my experience, excessive force cases rarely make it to juries, and are usually decided by motion or through settlement.
Can a borderline case even make it to a jury? The way that qualified immunity seems to work in practice is that law enforcement can only be held liable if there exists a previous court case where under almost the exact same circumstances law enforcement was held liable.
It's my understanding that if the circumstances are novel, like say the police officer deciding to remove your eye with a spoon, then even though the use of force is objectively crazy, many US courts would rule that QI applies because there's no settled case law on police removing your organs with a spoon.
For instance take Mullenix v Luna where the supreme court ruled that shooting a motorist to death didn't have an established precedent. Scalia even argued it wasn't deadly force.
What makes Mullenix particularly annoying to me is that even if he had hit the engine instead of the driver, it probably wouldn't have worked:
https://www.youtube.com/watch?v=TcUO4y9d1dg
The engine is the single most durable thing in a car.