After crashing his truck into police vehicles and a tree while being chased, 62-year-old James Driscoll Smith was arrested and lay facedown on the ground when an officer clubbed him four times, breaking one of his arms and several teeth, a federal appeals court said. But the court said Smith can’t sue for damages because the officer could have believed Smith was reaching for a gun.

The 2-1 ruling Tuesday by the 9th U.S. Circuit Court of Appeals is the latest decision shielding police from liability based on “qualified immunity,” which the Supreme Court declared in 1967. It prohibits damage suits against officers in federal court even if the officers had violated someone’s rights unless a ruling in a previous case, based on virtually identical facts, had found a rights violation.

For example, in 2019 another 9th Circuit panel ruled that police in Fresno could not be sued in federal court for allegedly stealing $226,000 they had seized with a search warrant during a gambling investigation, because no previous cases had declared such conduct by officers to be illegal.

In Tuesday’s case, the court majority said, Smith had shown “reckless conduct” during a six-minute vehicle chase in Elko, Nev., in November 2022, and it was dark when Officer Brian Olvera struck him. While Smith said his hands were stretched to his side, Olvera said one of Smith’s hands was near his waist.

In those circumstances, “we cannot conclude that any reasonable officer would have known that striking Smith in the head with a baton was unconstitutional,” said the majority opinion by Judges Morgan Christen and Danielle Forrest. Christen was appointed to the court by President Barack Obama, and Forrest by President Donald Trump.

In dissent, Judge Sidney Thomas, appointed by President Bill Clinton, said that even if Smith was armed, the appeals court has repeatedly ruled that police can use deadly force, like strikes to the head, only if a suspect can “reasonably be perceived to be taking furtive or threatening actions.”

Whether Smith was taking such actions, or was actually incapacitated, is a “disputed factual issue” that should be determined by a jury, Thomas said.

Smith is now serving a prison sentence for crimes against police during the vehicle chase. His lawyers declined to comment on the ruling. They could ask the full appeals court for a new hearing before a larger panel.

In defense of qualified immunity, the Supreme Court has said the liability shield allows officers to do their jobs without fear of punishment for split-second decisions made in good faith. Civil rights advocates say the doctrine has been used to immunize police from accountability.

The House of Representatives, then controlled by Democrats, voted along party lines in 2021 to abolish qualified immunity and instead allow police to be sued if they had caused harm by acting unreasonably, the standard for claims against private citizens. But the bill was defeated in the Senate.

The immunity doctrine applies only to lawsuits in federal court, and several states have passed laws allowing residents to sue officers in state court under the standards that apply to suits against civilians.

California has not gone that far. But SB2 by then-Sen. Steven Bradford, D- Gardena ( Los Angeles County), signed by Gov. Gavin Newsom in 2021, allows suits against police in state courts when an officer has intentionally interfered with an individual’s rights by “threat, intimidation, or coercion.”

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