Qualified Immunity in Use-of-Force Cases: Guidance for Police, Part I — The Law

JOHN E.B. MYERS
Visiting Professor of Law
UC Law San Francisco

Use of force by police is of great importance to society and to police. This article addresses one significant aspect of the issue: qualified immunity from suit.

Section 1983 Lawsuits, Generally

Law enforcement is entrusted with authority to use force. Any use of force, from a verbal command to the discharge of a firearm, can lead to a lawsuit claiming the officer used excessive force. Such lawsuits typically assert two claims. First, the party claiming excessive force (the plaintiff) claims the officer (the defendant) violated the Fourth Amendment to the U.S. Constitution. Second, the plaintiff claims the officer violated state laws on battery, violation of state civil rights and related civil claims.

Most lawsuits claiming violation of the Fourth Amendment are brought under Title 42, Section 1983, of the of the U.S. Code. It allows a person to sue a police officer who allegedly used unlawful force while acting in the officer’s official capacity.

A 1983 lawsuit begins with the filing of a complaint that includes the facts most favorable to the plaintiff and typically downplays or ignores facts favorable to the officer. The officer, through their attorney, then files an answer or motion to dismiss. Either on a motion to dismiss, or a later filed motion for summary judgment, the defense may seek dismissal of the officer(s) on various grounds, including qualified immunity.

If the judge denies dismissal on qualified immunity grounds, this does not mean the officer loses the lawsuit. It simply means the case will proceed toward trial. At trial, the officer has a full opportunity to persuade the jury that the force used was reasonable and lawful.

The Qualified Immunity Defense

When an officer raises the qualified immunity defense, the plaintiff must show that the officer’s use of force violated the Fourth Amendment in a way that was clearly established as unlawful at the time the officer acted, i.e., if every reasonable officer in the same situation would understand the force was unlawful. It does not matter what the officer’s subjective belief was, nor that the officer thought the force was lawful. What matters is what a “reasonable” officer in the circumstances would have done. The “clearly established” rule gives officers advance notice of the types of force that are unlawful.

Critics of police favor abolishing qualified immunity. Fortunately, judges generally understand that qualified immunity is important to society. In a recent decision from the Second Circuit Court of Appeals in Eaton v. Estabrook,¹ the court explained qualified immunity “is essential to the efficacious administration of the executive function at the local, state, and federal levels.”

Who determines what force is clearly established as unlawful? The answer is the courts, not cops. For police officers in California, decisions from the U.S. Supreme Court and the Ninth Circuit Court of Appeals provide the most relevant guidance on what is clearly established.² The Ninth Circuit covers Alaska, Arizona, California, Hawaii, Idaho, Montana, Nevada, Oregon and Washington. When there are no court decisions directly on point from the Supreme Court or the Ninth Circuit, judges examine court decisions from circuit courts of appeal outside the Ninth Circuit.

Do most California police officers spend time studying the numerous court decisions published every year defining what uses of force are clearly established as unreasonable? Some do, but most don’t have time for such study. The purpose of this article is to provide guidance on what uses of force are clearly established as unlawful in the Ninth Circuit. Do not get your hopes up that there is a simple list of do’s and don’ts when it comes to force. There are rare cases where force is obviously unlawful.

Garner and Graham

Every academy recruit studies the U.S. Supreme Court cases Tennessee v. Garner³ and Graham v. Connor.⁴ Garner stands for the proposition that deadly force may be used only to stop a suspect who poses an immediate threat of death or serious injury to civilians or police. Graham evaluates the reasonableness of force in light of: (1) the severity of the crime; (2) whether the suspect poses an immediate threat to the safety of the officer or others; and (3) whether the suspect is actively resisting. The second factor is the most important: The greater the threat, the more force an officer can lawfully use. In addition to the three Graham factors, courts consider all the circumstances of the case — the totality of the circumstances.⁵

When there is no decision from the Supreme Court to determine the outcome of a case, judges consider lower court opinions — case law — with facts that are similar to the facts faced by the officer. As the Sixth Circuit put it in Rudlaff v. Gillispie,⁶ “Existing case law . . . must put the precise [use of force] ‘beyond debate.’”⁷ Cases with facts very similar to the facts facing the officer are deemed to give the officer notice of the unlawfulness of force.

The lawfulness of force is evaluated from the point of view of a reasonable officer on the scene, and not with the 20/20 vision of hindsight. Reasonableness takes into consideration that police often make split-second decisions in tense, uncertain, dangerous and rapidly developing situations — situations where officers act quickly and without all the facts.⁸ Judges realize it is not fair to Monday-morning-quarterback a cop’s use of force from the comfort and safety of the judge’s chambers where the judge has all the time in the world to evaluate the cop’s action and where the facts have been developed through months of discovery by lawyers. Force is evaluated from the perspective of a reasonable police officer on the scene at the moment.

The Graham factors — seriousness of the crime, danger to the public/police and level of resistance — do not have numerical values that are plugged into a formula to yield simple answers to the question: reasonable or unreasonable. Rather, the factors are considered in light of the degree and type of intrusion on the suspect’s Fourth Amendment rights and the government’s interest in effective law enforcement. The answer emerges from balancing competing values.

Seriousness of the crime: The first Graham factor is the seriousness of the crime. Serious crimes occur where no force is warranted. Consider a con man sitting at a desk cheating elderly people out of their life savings who goes peaceably when arrested. When judges talk about the seriousness of the crime, they have violence in mind. The Ninth Circuit often uses the seriousness of the crime as a proxy for the danger a suspect poses to police or civilians.

Threat to officer or others: The most important Graham factor is whether the suspect poses a threat to officers or others. For example, vehicle pursuits often pose a grave risk to the public, justifying force. Mere possession of a weapon, without additional facts, does not constitute an immediate threat. A mentally ill suspect is not for that reason dangerous. The Ninth Circuit holds that “officers may not use extreme force against an emotionally disturbed individual in circumstances that are neither dangerous nor urgent without first exhausting other, less forceful means.”⁹

When deadly force is justified, an officer does not have to attempt nonlethal force first. Of course, if nonlethal force will end resistance, officers prefer that approach.

Active versus passive resistance: The third Graham factor is whether the suspect is actively resisting arrest or attempting escape. Typically, more force is reasonable to control active resistance than passive resistance, although some force is lawful to overcome passive resistance.

What is the difference between active and passive resistance? Sometimes the distinction is clear. Often, however, the difference is fuzzy. Passive resistance includes lack of physical resistance or verbal antagonism. It is important to distinguish rude words from threatening words. In Rice v. Morehouse,¹⁰ the Ninth Circuit ruled that failing to immediately comply with commands, absent other concerning conduct, was passive resistance. In another Ninth Circuit case, repeated refusal to reenter a car was passive.¹¹ In Smith v. Hemet,¹² refusal to reenter a home and remove hands from pockets was passive resistance. Failing to exit a car can be passive resistance. In Trabucco v. Rivera,¹³ standing for 20 seconds after being ordered to kneel was passive resistance. Refusing to obey a lawful order is often passive. Failing to present one’s arms for cuffing, by itself, is passive resistance. On the other hand, a physical struggle to prevent cuffing is active resistance. In Moore v. Oakland County, Michigan, the Sixth Circuit ruled that physically struggling with and threatening officers while resisting handcuffs and acting erratically is active resistance.¹⁴ Failing to give up hands while on the ground, combined with other acts of defiance, can be active resistance. Active resistance is often characterized by physical force or verbal hostility coupled with failure to comply with commands.

Once active resistance ends, so must the force. In Spencer v. Pew,¹⁵ the Ninth Circuit wrote, “[E]very reasonable officer would recognize that full-body-weight compression of a then largely compliant, prone, and handcuffed individual despite his pleas for air involved a degree of force that is greater than reasonable.” In Jackson-Gibson v. Beasley, the Sixth Circuit wrote, “Surrendering to arrest by law enforcement is one way to stop actively resisting arrest. But it is not the only way. Complying with officers’ commands and doing nothing to resist arrest are also ways a suspect can stop actively resisting arrest.”¹⁶

Again, each case is analyzed on its own facts, and no hard and fast rules exist about the amount of force that can be deployed against active resistance. When a suspect uses physical and/or verbal aggression against police, coupled with failure to comply with lawful orders, resistance typically crosses the line separating active from passive resistance.

Stay tuned for Part 2, the conclusion of this article, in the January issue of PORAC Law Enforcement News.

About the Author

John E.B. Myers is visiting professor of law at the University of California College of Law, San Francisco, and a reserve police officer with the University of the Pacific, Stockton, and city of Ione.

References

1. 2025 WL 1888106 (2d Cir. 2025).
2. Ibid.
3. 471 U.S. 1 (1985).
4. 490 U.S. 386 (1989).
5. Williams v. City of Sparks, 112 F.4th 635, 643 (9th Cir. 2024).
6. 791 F.3d 638, 643 (6th Cir. 2015).
7. See City of Escondido, California v. Emmons, 586 U.S. 38, 43-44 (2019). (There must be a case where an officer acting under similar circumstances was held to have violated the Fourth Amendment. While cases don’t have to be exactly on all fours, “existing precedent must place the lawfulness of the particular action beyond debate.”); Waid v. County of Lyon, 87 F.4th 383, 387 (9th Cir. 2023).
8.  Waid v. County of Lyon, 87 F.4th 383, 389 (9th Cir. 2023). (Officers who shot a man “lacked the benefit of having time to fully assess the circumstances, and needed to make split-second decisions as they were being charged.”)
9.   Estate of Hernandez v. City of Los Angeles, 139 F.4th 790, 799 (9th Cir. 2025).
10. 989 F.3d 1112, 1125 (9th Cir. 2021).
11. Young v. County of L.A., 655 F.3d 1156, 1165 (9th Cir 2011).
12. 394 F.3d 689, 703 (9th Cir. 2005)
13. 141 F.4th 720, 729 (5th Cir. 2025).
14. Moore v. Oakland County, Michigan, 126 F.4th 1163, 1168 (6th Cir. 2025).
15. 15 117 F.4th 1130, 1144 (9th Cir. 2024).
16. 16 118 F.4th 848 at 856 (6th Cir. 2024).