In September 2019, the City of Troy appealed U.S. Magistrate Daniel J. Stewart's decision that Cinthia Thevenin vs. The City of Troy et al. should continue. Stewart cited eyewitness testimony providing enough material question of fact to bring the case before a jury.
After hearing arguments last week, a three-judge panel of the Second Circuit Court of Appeals rejected the City of Troy's claims.
This decision upholds that there are "material questions of fact" and sets in motion that the lawsuit will go to trial. Citing discrepancies in French's testimony, eyewitness testimony, and expert analysis of bullet trajectories, the court wrote, "Under this version of the facts, as to which a rational jury could find that Thevenin posed no significant threat of death or serious physical injury to French or others at the time of the shooting, we conclude that it would have been clear to a reasonable officer in French’s position that, under Cowan, his conduct was unlawful. See Treubig, 963 F.3d at 224. Therefore, French is not entitled to summary judgment on the question of qualified immunity." 2
According to the summary judgement, "Defendant argues that French is entitled to qualified immunity because it would not have been clear to a reasonable officer, based on existing precedent, that French’s conduct was unlawful in the situation that he faced, even viewing the facts most favorably to plaintiff. We disagree."
Lawfare Journal defines qualified immunity as "a judicially created doctrine that shields government officials from being held personally liable for constitutional violations—like the right to be free from excessive police force—for money damages under federal law so long as the officials did not violate 'clearly established' law." Qualified immunity "is one of many structural factors that make it difficult to hold police officers accountable for wrongdoing. 3