“Confirmed Judges, Confirmed Fears” is a blog series documenting the harmful impact of President Trump’s judges on Americans’ rights and liberties. It includes judges nominated in both his first and second terms.
Trump Tenth Circuit judge Allison Eid wrote a 2-1 decision that upheld a grant of qualified immunity to a police officer who shot a mentally ill man in the eye with pepper spray, causing him to lose the eye, despite the absence of a physical threat. Obama judge Gregory Phillips dissented, while Obama judge Nancy Moritz concurred, in the August 2025 decision in Herold v Christensen.
What happened in this case?
Police were called to the home of Cheryl Herold in St. George, Utah, where Herold lived with her mentally ill son Benjamin. The first two officers to arrive soon reported that they were “fine” and were talking with Benjamin in the garage when Sergeant Michael Christensen arrived.
At one point, Benjamin retrieved a soda from the refrigerator and some shoving occurred. As instructed, Benjamin put his hands behind his back and was taken to the floor. He lay on his back with one side against a box barrier. The three officers restrained him and all four yelled and cursed. At one point Christensen told Benjamin to roll over on his stomach and repeated the command even though one of the other officers said Benjmain couldn’t do so because of the positioning. Benjamin managed to raise his left arm.
At that point, Christensen shot Benjamin in the face with a pepper gun from less than three feet away, even though there was no physical threat to him/ This violated his training and a department manual since it could be lethal. The shot hit Benjamin in the right eye, causing pain and the loss of the eye. He was taken for treatment and the incident ended.
Benjamin later sued Christensen in federal court for use of excessive force. The trial court granted qualified immunity to Christensen and entered summary judgment in his favor. Bejamin appealed to the Tenth Circuit.
How did Trump judge Eid and the Tenth Circuit majority rule and why is the result harmful?
Trump judge Eid wrote a 2-1 opinion that affirmed the lower court, claiming that the record and past precedent showed that “clearly established law” at the time of the incident did not show that Christensen had behaved improperly. The result was to affirm the complete dismissal of Benjamin’s claim.
Judge Phillips strongly dissented. He explained that based on the record and past precedent, Christensen had violated “clearly established law” in using excessive force, that summary judgment based on qualified immunity was improper, and that Benjamin’s case should go forward. Established law provided “fair warning” to Christensen, Phillips went on, that his use of deadly force against Benjamin was improper.
The ruling by Trump judge Eid clearly harmed Benjamin Herold in his search for compensation and justice as a result of the serious injury that the police officer caused. It also threatens similar results in future cases concerning qualified immunity for the use of deadly force, particularly in the Tenth Circuit, which includes Utah, Colorado, Kansas, New Mexico, Oklahoma, and Wyoming. . In addition, the decision illustrates the importance of our federal courts to health, welfare and justice and the significance of having fair-minded judges on the federal bench.