A rape, a shooting, alleged harassment: How legal shields can protect police from lawsuits
Nine years ago, after Shari Martin was sexually assaulted in an Iowa hotel, the on-duty police officer who attacked her was fired, arrested, convicted and sent to prison.
It was justice for Martin – but only in the criminal sense. Martin and her lawyer say full justice will be achieved only if the Muscatine Police Department is held accountable in civil court for the crimes of its officer.
If Martin had been the victim of a murder or physical assault, she or her estate could have sued the department for monetary damages.
But this was a rape. Iowa law provides special protections from lawsuits against employers, including police departments whose officers commit serious crimes, and sexual assault isn't recognized as a violation of that law. That means the Muscatine Police Department could be legally shielded from liability.
Martin and her attorney want to change that in Iowa and are pursuing an appeal to the state Supreme Court. The officer "used his position to enable him to commit the rape," lawyer M. Leanne Tyler argued.
"It is not fair," Martin said in an interview with the Paste BN Network. "And it doesn't make sense.”
Around the country, similar cases are attempting to eliminate or weaken civil safeguards for police or their employers.
In many cases, qualified immunity laws shield the officers from liability. Those laws put the onus on everyday citizens to prove officers or other officials violated a “clearly established” law. To proceed with their cases, plaintiffs must point to a nearly identical case already on the books.
In other cases, such as Martin's, the challenge is respondeat superior – a law that can protect any employer, including police departments, from paying damages if the conduct is deemed outside the scope of normal duties.
Focusing on two states – Iowa and Missouri – and three lawsuits challenging different laws shows the difficulty of successfully suing public officials through civil courts.
- One case is Martin’s.
- Another is a shooting by police that left a man paralyzed.
- The third involves a Black couple who were allegedly harassed by local police and city officials after moving to a white neighborhood, and officers allegedly beat the husband.
Together, the cases show the wide range of situations – and various laws – where government officials can be protected.
US Supreme Court: Qualified immunity gives 'officials breathing room'
Qualified immunity may be the most well known legal justification that blocks civil damages for people harmed or killed by police. Under qualified immunity, all government workers – not just police officers – are granted wide immunity from civil suits.
The legal justification for federal qualified immunity rests chiefly on the premise that fear of being sued would “dampen the ardor of all but the most resolute, or the most irresponsible [public officials], in the unflinching discharge of their duties,” according to a 1982 Supreme Court decision.
Opinion: A bad cop sexually assaulted me. Qualified immunity protected him and his boss.
The high court also wrote: “[T]he doctrine of qualified immunity gives government officials breathing room to make reasonable but mistaken judgments about open legal questions.”
In addition to the federal law, many states have adopted versions of qualified immunity for public officials.
Activists have long tried to end such immunity. Their calls were amplified after Minneapolis police officer Derek Chauvin's May 2020 murder of George Floyd. That killing prompted some state and federal lawmakers to attempt to scrap the immunity altogether.
Backlash was swift from the officer ranks, unions and some members of the public. Few states – save for Colorado and New Mexico, as well as the city of New York – have taken steps to reduce the power of qualified immunity since 2020.
Lawmakers in a smattering of other states from Vermont to Wisconsin to Florida and Washington state have considered changing their laws to preclude use of qualified immunity as a defense or create separate state actions, according to Jay Schweikert, a Cato Institute research fellow who focuses on criminal justice.
And several states, including Iowa in 2021, have broadened qualified immunity laws, making it easier for officers to get cases against them dismissed.
A Paste BN Opinion series: Faces, victims, issues and debates surrounding qualified immunity
In October 2021, the U.S. Supreme Court dismissed challenges out of California and Oklahoma to federal qualified immunity. And many changes have been rejected in state courts or by voters, such as in California last year.
In the U.S. Congress, the George Floyd Justice in Policing Act of 2021 would have eliminated qualified immunity for police officers. The Floyd Act passed the U.S. House last year but failed in the U.S. Senate. There has been no significant congressional action on it since then.
Qualified immunity was the chief sticking point that doomed a compromise bill, Schweikert said.
Federal qualified immunity dates back to a 1967 Supreme Court decision and is a standard developed for cases brought by civilians under the federal civil rights law known as Section 1983.
Qualified immunity depends on two questions:
- Did the defendant's actions violate the plaintiff's constitutional rights?
- Was that law "clearly established" at the time?
If the answer to either question is no, the law enforcement officer or official has immunity.
Some experts believe the U.S. Supreme Court has pushed the bar to overcome qualified immunity higher over the years. Justices Clarence Thomas and Sonia Sotomayor have criticized such immunity as too high a hurdle for the public to overcome.
A police officer committed rape on duty. Is his department shielded from damages?
Martin was on the way home from a night of drinking with her boyfriend on Feb. 16, 2013, when Muscatine police pulled over and arrested her boyfriend on suspicion of drunken driving.
Muscatine’s practice is to give courtesy rides to passengers after a drunken driving arrest. Officer Thomas A. Tovar, who was at the scene, was responsible for getting Martin safely to the Clarion Hotel.
Inside the hotel, Tovar, who had deactivated his vehicle camera and body-worn microphone, used Martin's key to enter the room, then proceeded to rape Martin, who was barely conscious, according to interviews and trial transcripts from his criminal case.
Martin told investigators that she somewhat recalled Tovar, still in his uniform and wearing his gun, on top of her and hearing police chatter over his radio directing him to another call, according to the criminal trial transcript and Martin's filing to the Iowa Supreme Court.
Tovar lied about his whereabouts and his delay in responding to the next call and kept all systems that would track his whereabouts deactivated until he arrived, the court documents say.
In Muscatine, police immediately investigated, found Tovar's DNA in the hotel room and moved to fire him, but he resigned instead. He was charged with third-degree sexual abuse, convicted and given a sentence of up to 10 years.
Tovar testified at trial, three years after the rape, that he turned off the camera "because I obviously didn't want the police department to know what I was doing that I shouldn't have been."
Later, Tovar testified: "I was trying to cover my tracks because I had just had an affair and I didn't want my wife to find out about it, and I didn't want to lose my job over it. ... I was just trying to hide my affair."
That was in 2016. Martin, who said she has received therapy over the years, has been trying ever since to win damages against the Muscatine Police Department.
“There's been many times where I just want to ignore it and walk away,” Martin said. “But there's other women out there who are suffering more than I am, and they deserve a lot of compensation, and I want this to change."
Martin filed suit against Tovar and the city of Muscatine in Muscatine County District Court while the criminal case wrapped up, claiming she was owed damages for the assault.
A judgment of $5,000 was ordered against Tovar. But the city of Muscatine and the police department were not held liable. Their attorneys argued that Iowa law does not recognize sexual assault as falling under the responsibility of Tovar's employer – the Muscatine Police Department – even if committed while on duty.
However, Tyler, Martin's attorney, counters that "the department needs to be responsible because of the special powerful position officers have."
While different from qualified immunity, which protects the officer, the doctrine of respondeat superior can shield the officer's department from paying out damages if Martin can't prove his job gave him the "access" or "authority" to commit the rape, Tyler said.
She notes that Tovar was on the job at the time of the sexual abuse and claims Muscatine should have known Tovar’s capacity to rape because of his long history of on-the-job misconduct.
“I want to make the police departments responsible if (officers) raped or sexually assaulted someone while on duty and during their official time of duty," Tyler said.
Winning the case, Tyler said, could put Iowa in line with other states such as New Mexico, Louisiana, California, Delaware, Indiana and Vermont.
Tyler’s chief argument is known as "aided by agency," meaning the department’s knowledge of previous improper on-the-job conduct should make it responsible for Tovar’s assault on Martin. But the city contends that argument is flawed under state law.
A brief from the city, filed in November, said overturning a lower court decision to rule in Martin’s favor would be tantamount to new state legal theory. That should be taken up by the Legislature, they wrote.
Read: Martin's appeal
Read: Muscatine's response
A man was paralyzed after being shot by police. Can he sue for damages?
It was almost 1 a.m. on April 7, 2021. Waterloo, Iowa, police received a call that a man, later identified as Marcelino Alvarez-Victoriano, had been walking toward the city’s downtown with a rifle or shotgun.
What Alvarez-Victoriano was holding was a pellet gun, also known as an air gun. Authorities say he pointed the pellet gun at Black Hawk County deputies and advanced toward them. While police reports state that deputies asked Alvarez-Victoriano to put the gun down, a review of the incident by the county prosecutor also noted deputies could not understand Alvarez-Victoriano because he was speaking Spanish.
Waterloo police officer C.J. Nichols arrived at the scene and shot Alvarez-Victoriano in the back, according to the Black Hawk County Attorney's Office's review. Nichols then fired additional shots at Avarez-Victoriano because he allegedly appeared to be getting up before the pellet gun was out of his reach, the review states.
Black Hawk County prosecutors, the Iowa Division of Criminal Investigation and Waterloo police have declined to provide video evidence of the incident to the Des Moines Register, part of the Paste BN Network. Alvarez-Victoriano's attorney, Molly Hamilton, told the Register she has not been able to obtain video evidence either.
Alvarez-Victoriano is charged with two counts of assaulting law enforcement officers. He's paralyzed from the waist down, Hamilton told the Register.
In the released review of the incident, Black Hawk County Attorney Brian Williams deemed the shooting justified because Nichols allegedly did not know Alvarez-Victoriano was holding a pellet gun, not a rifle.
Williams also released still photos that appear to show Alvarez-Victoriano allegedly pursuing a Black Hawk County Deputy, Blake Dodd, with the pellet gun in his hand before Nichols shot him.
Alvarez-Victoriano filed a lawsuit in September 2021 in state court against Nichols, the city of Waterloo and its police department, alleging Nichols was not justified in the shooting and used excessive force, therefore violating Alvarez-Victoriano's civil rights.
Attorneys for the defendants have used Iowa’s new qualified immunity law to argue for the lawsuit's dismissal, even before Alvarez-Victoriano and his lawyer can get the evidence they requested to argue their case.
Attorneys Bruce Gettman Jr. and Bradley Strouse, hired on behalf of the city, its police department and Nichols, cited a section of Iowa's qualified immunity statute requiring that plaintiffs "must state with particularity the circumstances constituting the violation and that the law was clearly established at the time of the alleged violation."
Hamilton and her client neither offered "particularity regarding the circumstances constituting the violation" as required, nor showed violations of clearly established law, provisions that "considerably" raised the bar for plaintiffs, Gettman Jr. and Strouse wrote.
Hamilton withdrew the lawsuit in January and had planned to file an amended petition. Gettman Jr. and Strouse resisted, asking the court to dismiss the lawsuit with prejudice – meaning Hamilton and her client could not refile the lawsuit in the same court – based on Iowa's new qualified immunity law. Legislators approved the law, promoted under the "Back the Blue" banner, in June 2021.
In court filings, Hamilton and prosecutors had gone back and forth on how retroactive Iowa's qualified immunity law is. Alvarez-Victoriano was shot and paralyzed before its passage, but he filed suit after its approval.
“Does the law apply to the actual event, or the lawsuit itself? That’s what our big dispute is about,” Hamilton said.
On Feb. 9, First District Judge Joel A. Dalrymple sided with Gettman Jr. and Strouse and dismissed the lawsuit with prejudice.
Read: Alvarez-Victoriano's petition
Read: Waterloo's response
Couple claim they endured a year of 'repeated harassment'; officials say they have immunity
A few years ago, Aaron Fletcher, who is Black, had heard from a buddy that he was selling his home in a mostly white neighborhood about 15 miles from downtown Kansas City, Missouri.
It was a dream home, Fletcher and his wife, Tammy, said in a Paste BN Network interview. Nothing big or fancy, but it had land and would allow Aaron Fletcher to expand his paint-sales business. The couple was thrilled, and said they seemed welcomed in the Sugar Creek, Missouri, neighborhood.
But the day after they moved in – March 4, 2018 – the couple was visited by the city fire chief and the mayor, who carried a list of items that needed to be inspected at the house, according to the Fletchers and the civil complaint filed in federal court in Missouri. The Fletchers said they complied and fixed everything on the list, but no one – not the mayor, fire chief or any inspector – ever came to see if the fixes had been done.
The Fletchers say in a five-count civil rights complaint that the inspection began 13 months of "repeated harassment … about building codes, phantom business license requirements, dog ordinances, zoning laws, traffic ordinances, interference with utility billing, and other matters."
The Fletchers were the victims of “an orchestrated effort by one or more of the Sugar Creek employees, officials or agents to force the Plaintiffs to leave town based on their race, origin or other equally protected class," the complaint says. The Fletchers are represented by Edward Foster and Kenneth Caldwell of the Caldwell Law Firm in Kansas City.
The complaint also includes allegations that police randomly followed the couple, arrested Tammy Fletcher when they showed up to pay an outstanding water bill and, on several occasions, roughed up and arrested Aaron Fletcher.
City officials deny the Fletchers' claims.
In April 2019, according to the complaint and the couple, Aaron Fletcher was followed, pulled over and, with Fletcher's hands in the air, police smashed his window, yanked him from his vehicle and began "beating him into submission."
The beating, caught on video, ended with Aaron Fletcher being placed in a neck restraint under the knee of an officer in an act similar to the scene that played across the nation when Floyd was killed in Minneapolis.
The couple, who said their finances have been drained since the incident because of its impact on Fletcher's work, have since moved to a remote area in Kansas.
"You don't have a (dead) body, but it's pretty much they killed me," Aaron Fletcher said, referring to Floyd's killing. "They took my livelihood... I've seen changes in myself; they've killed me as far as my finances go, my source of making a living."
The city, in a response filed by attorney David Baker, representing Sugar Creek, denies the Fletchers' entire complaint and claims that, even if it were true, qualified immunity at the state and federal levels shields all defendants – the city, mayor, building official, code enforcement officer, public works director, fire chief, police chief and a police sergeant and detective.
Because of the defendants' official capacities, Baker wrote, "punitive damages may not be awarded against a governmental entity."
Later in the same filing, Baker writes that "any and all actions or acts committed by them or on their behalf were discretionary in nature, were objectively reasonable under the circumstances then existing, and were not in violation of clearly established law," the standard set by the U.S. Supreme Court.
Foster said Wednesday that the case is pending in federal district court in Missouri, and the lawyers continue taking depositions from the parties to the suit.
Read: The Fletchers' complaint
Read: Sugar Creek's response
Experts: Qualified immunity challenges have become more difficult
The battle against qualified immunity has become more difficult over the several last decades, experts said.
Many challenges to immunity are dismissed at the outset as frivolous. Many more go nowhere, even if justified, because the people trying to bring them do not have legal representation to help them navigate the legal intricacies of the court system or can't afford to pursue their cases further.
The U.S. Supreme Court, meanwhile, has whittled at civilians' ability to challenge the doctrine with each successive case, using a narrower lens to view similarities to existing cases, according to Schweikert.
“Qualified immunity looks very different today than it did when it was sort of first invented in the 1960s," Schweikert said.
The three cases – as well as many more across the country, some by indigent plaintiffs and prisoners – show the difficulty of overcoming the hurdles as they are currently set, according to Des Moines civil rights attorney Glen Downey.
In Iowa, the state's new qualified immunity law has made it easier for the defense to get judges to simply dismiss cases as being without merit or as falling outside the new law.
"It gives the state the ability to shortcut having to respond to merits of lawsuits, and just dump them," Downey said.
Schweikert said that while qualified immunity is a decades-old doctrine, few Americans had heard of it before Floyd's killing shed light on the protections given to police.
Joseph Schreiber, of the Houston-based law firm Schreiber | Knockaert, has argued that, together, qualified immunity and respondeat superior make it nearly impossible for people who have been violated to see justice in civil court. Congressional Research Service made a similar connection.
"Such overbroad immunity removes the largest incentive for cities to clamp down on rogue officers," he wrote. "Qualified immunity, in its current form, and the prohibition against respondeat superior impair access to justice and leave mass protests as the only viable outlet to bring change."
Contributing: Des Moines Register reporter William Morris.
Eric Ferkenhoff is the Midwest criminal justice reporter for the Paste BN Network.
Andrea Sahouri covers social justice for the Des Moines Register. She can be contacted on Twitter: @andreamsahouri.