by Risa S. .Christensen
Oftentimes we are asked questions about this doctrine and it is difficult to explain for the officer on the street so he or she can have an understanding. So what is qualified immunity and what does it mean to a law enforcement officer? Qualified immunity is one of the hardest concepts for law enforcement officers to understand (along with federal judges and most lawyers). Qualified immunity arose as a way to prevent lawsuits against governmental officials who acted in good faith but incorrectly. Often times a lawsuit combines both state law claims and federal civil rights claims in the same lawsuit. The qualified immunity defense only applies to the federal civil rights claims. The officer may have other state law defenses for the state law claims but those state law defenses are not part of this discussion.
What is qualified immunity?
It is a defense that must be asserted by a defendant. It is only available to individual defendants and not public entities.
What does it mean?
It is immunity from suit. If it applies, the civil rights claims are dismissed.
How is it applied?
The court is to determine whether qualified immunity applies for a defendant upon a motion brought by your attorney. The issue is a matter of law for the court to determine. It is designed to apply in cases where a defendant makes a reasonable mistake. If there are significant factual disputes as to what occurred, the court must defer ruling on the issue of qualified immunity and let the case proceed to the jury to determine the disputed facts and then determine post trial whether qualified immunity applies.
What kind of mistake is covered?
The mistake must be reasonable and in an area where the law is unsettled such that an officer could be confused as to whether his actions were permissible under the law.
What happens if my attorney doesn’t assert this defense?
Then you waive your right to the defense.
Should I always want to assert this in a lawsuit?
Yes. There is no downside to asserting this defense. Law enforcement officers act based upon their training which means the conduct should be reasonable, even if the law in the area is unsettled.
How do courts determine whether it applies to me in a lawsuit?
Your attorney will file a motion for summary judgment on the issue of qualified immunity. The court has to determine whether the facts when viewed favorably to the plaintiff show that the officer’s conduct violated a constitutional right. If no constitutional right is violated, there is no civil rights claim. If the constitutional right was violated, then the next step is to determine whether the right was clearly established within the confines of the facts of your case. If the area of law is not clearly established, qualified immunity should apply. For instance in an excessive force case, was the use of force reasonable under the circumstances and was it clear that the actions of the officer placed him on notice that his conduct was unlawful?
Does Qualified Immunity apply in a case of excessive force?
Yes. Not all excessive force claims involve factual disputes that prevent the qualified immunity defense from being applied. The usual case involves a factual dispute between the suspect/plaintiff and the officer as to what happened. In those cases, the jury is left to determine the facts; which requires a trial. If the facts are not disputed it is a question of law for the court to decide.
What about deadly force?
It can apply in the use of deadly force. Most agencies are taught about the case of Tennessee v. Garner, 471 U.S. 1 (1985) where Memphis Police Officers were dispatched to answer a “prowler inside call.” Upon arriving at the scene they saw a woman standing on her porch gesturing toward the adjacent house where someone was breaking in. An officer went behind the house and saw someone run across the backyard. The fleeing suspect stopped at a 6-feet-high chain link fence. The officer was able to see his face and hands, saw no sign of a weapon, and was “reasonably sure” that the suspect was unarmed. The officer called out “police, halt” and the suspect began to climb over the fence. The officer felt he would get away and shot him. In this case a statute authorized deadly force against a fleeing felon but did not differentiate against violent or non-violent crime. The statute was ruled unconstitutional.
The court did find that deadly force was permissible if the officer has probable cause to believe that the suspect poses a threat of serious physical harm, either to the officer or to others. It is not constitutionally unreasonable to prevent escape by using deadly force, if the suspect threatens the officer with a weapon or there is probable cause to believe that he has committed a crime involving the infliction or threatened infliction of serious physical harm, yet if feasible, a warning must be given by the officer before deadly force is used.
Can you provide some more examples of qualified immunity?
An officer was justified in using deadly force when the suspect violently resisted arrest, physically attacked the officer, and tried to grab the officer’s gun, thereby posing an imminent threat of injury or death. Billington v. Smith, 292 F.3d 1177, 1185 (9th Cir. 2002).
An officer’s use of deadly force was reasonable when the suspect pointed a gun at officers. Scott v. Henrich, 39 F.3d 912, 914 (9th Cir. 1994).
The doctrine of qualified immunity operates to “protect officers from the sometimes hazy border between excessive and acceptable force.” Saucier v. Katz 533 U.S. 194, 206 (2001). Saucier involved a case against a military policeman who used force against a demonstrator protesting a speech by the Vice-President.
The immunity inquiry is to acknowledge that reasonable mistakes can be made as to the legal constraints on particular police conduct. It is sometimes difficult for an officer to determine how the law applies to the factual situation the officer confronts. An officer might correctly perceive all of the relevant facts but have a mistaken understanding as to whether a particular amount of force is legal. If the officer’s mistake as to what the law requires is reasonable the officer is entitled to the immunity defense.
Qualified immunity is to protect all but the plainly incompetent or those officers who knowingly violate the law. Malley v. Briggs, 475U.S. 335, 341 (1986).
What is the latest case from the United States Supreme Court on Qualified Immunity?
The latest case from the United States Supreme Court is Pearson v. Callahan 552U.S. 1279 (2009). This case is important because it made qualified immunity an easier process for individual defendants to be able to acquire within the Federal Court. Prior case law required a rigid two step analysis; was there a constitutional violation and if so, whether the constitutional right was clearly established at the time of the event. Now the Federal Courts can simply go to either question to determine whether qualified immunity exists. For instance, maybe it’s difficult to determine whether there was a constitutional violation but you can show the area of law that gives rise to the conduct of the officer was not clearly established. In that case there would be qualified immunity.
Qualified immunity is alive and well and should be asserted by ever peace officer in any Federal civil rights case.
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