Jack Weinstein Judge Jack Weinstein. NYLJ Photo/David Handschuh.

Finding that qualified immunity has evolved to the point where it can protect police officers who intentionally flout constitutional rights, a federal judge in Brooklyn declined to grant it to four police officers who broke into a man’s house without a warrant while responding to a child abuse report that turned out to be false.

Qualified immunity has recently “come under attack” as being too protective of police officers and standing at odds with the original intent of Section 1983 of the federal civil rights statute, U.S. District Judge Jack Weinstein of the Eastern District of New York said.

“The law, it is suggested, must return to a state where some effective remedy is available for serious infringement of constitutional rights,” Weinstein said.

Weinstein said he finds the U.S. Supreme Court’s expansion of the doctrine in police brutality cases “particularly troubling” and that it protects “all but the plainly incompetent.”

When weighing whether or not an officer is entitled to qualified immunity, the judge said, courts should apply the standard established under a 2001 Supreme Court ruling to first analyze if a constitutional violation occurred, rather than “skipping” to whether a right has been clearly established.

Weinstein made the ruling in an excessive force case brought by Larry Thompson, whose sister-in-law called 911 on the night of Jan. 15, 2014, and said her two-week-old niece was being abused at Thompson’s apartment in the Crown Heights section of Brooklyn.

According to court papers, Thompson’s sister-in law suffers from mental illness and lived at the apartment with Thompson and his family.

New York City police officers Pagiel Clark, Paul Montefusco, Gerard Bouwmans and Phillip Romano were dispatched to the scene to investigate the child abuse report, but Thompson refused to open the door for the officers unless they produced a warrant.

When Montefusco attempted to enter the apartment, Thompson tried to block his path; Thompson alleges that Montefusco threw him to the ground while other officers kicked and punched him, while the defendants say that Thompson was resisting arrest.   

The baby at Thompson’s apartment, who had red marks on her buttocks, was inspected at a hospital, but it was determined the red marks were caused by diaper rash.

Thompson was arraigned on a charge of obstructing governmental administration, but the Brooklyn District Attorney’s Office moved to dismiss the charge.

Weinstein said police officers can enter a home without a warrant to render emergency aid, but that an unsubstantiated 911 call does not justify warrantless entry.

The judge allowed claims of unlawful entry, false arrest, excessive force, malicious prosecution, denial of a right to a fair trial and failure to intervene to move forward and set a September trial date.

David Zelman, a Brooklyn solo attorney, represents Thompson.

When the case was transferred to Weinstein following the death of U.S. District Judge Sandra Townes, who previously presided over the case, Zelman said the judge’s initial take appeared to be that the officers had the right to enter Thompson’s apartment, and thus he emphasized to the judge that there was minimal corroboration for the child-abuse accusation and that his client “did absolutely nothing wrong.”

“All he did is say, ‘You need a warrant to come in my house,’” Zelman said of Thompson. “I don’t look these cases with dollar signs in my eyes. I look at these and see if I can prove my case.”

Assistant Corporation Counsels Kavin Thadani and Matthew Bridge of the city’s Law Department appeared for the officers. A Law Department spokesman said it is “considering our legal options.”

While denials of qualified immunity are not uncommon, the fact that a federal district judge would use a ruling to level a broader critique of how the courts have applied the doctrine doesn’t happen frequently, said UCLA School of Law professor Joanna Schwartz, whose work is cited in Weinstein’s 29-page ruling.

Also among those who have spoken out on qualified immunity is Judge Jon Newman of the U.S. Court of Appeals for the Second Circuit who said in a 2016 column published by The Washington Post that the doctrine should be abolished altogether.

Schwartz said the Supreme Court’s original policy justifications for qualified immunity, established in a 1967 ruling, were to shield police officers from financial liability so they would not be disinclined to perform their jobs.

However, she said, the balance has shifted over the years away from governmental accountability to a stronger emphasis on protecting police from liability.

And, as Weinstein noted in his ruling, the doctrine appears to have moved away from the high court’s original policy goals, as police officers tend to be indemnified and that invoking a qualified immunity defense also uses government resources for litigating the defense.  

“The court has really shifted its explanation of why the doctrine exists over the years,” Schwartz said.