WHAT POLICE OFFICERS NEED TO KNOW ABOUT QUALIFIED IMMUNITY

MICHAEL P. STONE, ESQ.

Founder and Principal Partner

Stone Busailah, LLP

To police defendants: “Having a good defense to litigation against you means that you are probably going to trial; having immunity means you don’t even belong in court.” — Michael P. Stone
Now, more than ever, claims that police use excessive force are in the news. With the advent of security cameras, cellphone videos and police body cameras, civil rights lawsuits that once were almost impossible to prove are commonplace. The Civil Rights Act of 1871, codified as 42 U.S.C. § 1983, prohibits “any person” from violating constitutional rights while “acting under color of law.” In other words, it is unlawful for someone acting in an official governmental capacity, such as a police officer, to deprive a person of their constitutional rights. §1983 claims include those under the First, Fourth, Fifth, Eighth and 14th Amendments. A typical First Amendment lawsuit alleges retaliation in employment decisions. Fourth Amendment claims include those relating to allegations of unreasonable searches and seizures, and false arrests. But the most common Fourth (and 14th) Amendment claims relate to police use of force. Fifth Amendment claims are concerned with procedural violations (e.g., Miranda). Eighth Amendment claims usually relate to the use of force on a prisoner.

How Qualified Immunity Protects Police Officers
Many years ago, the United States Supreme Court created a species of qualified immunity to shield public officials performing discretionary functions from civil liability. Today, it plays an important role in defending state and local police under §1983. Qualified immunity gives police officers some amount of deference when making split-second judgment calls in rapidly evolving situations — for example, when using force against a combative or assaultive suspect. The Supreme Court has described the doctrine as strong — protecting “all but the plainly incompetent or those who knowingly violate the law.” When properly applied, it provides immunity, not only from damages, but also from having to defend against insubstantial and frivolous claims. Generally, the purposes of granting immunity from civil rights lawsuits are to allow government officials to act and make decisions without fear of being sued for money, prevent or defeat insubstantial claims, and reduce the cost of defending suits without resorting to trial. Over the years, I have invoked immunity on behalf of police defendants in civil rights trials in state and federal courts. It is a powerful defense tool.
Today, courts will apply a two-part analysis when determining whether a police officer is entitled to qualified immunity: (1) whether the facts alleged by the aggrieved person amount to a constitutional violation, and (2) if so, whether the constitutional right was “clearly established” at the time of the alleged misconduct. Recent Supreme Court decisions allow courts to skip the question of whether there was a constitutional violation and focus solely on whether the right was “clearly established.” See, if the right was not clearly established, then there can be no federal claim under §1983. Whether a right is clearly established depends on whether “the contours of the right are sufficiently clear,” so that every “reasonable official police officer would have understood that what he is doing violates that right.” When conducting this analysis, courts will look to see whether it is “beyond debate” that case law established the illegality of the conduct. A helpful way to look at this was set forth in the decision of United States v. Lanier, where the Supreme Court described qualified immunity as a type of “fair warning standard.” It is a way of saying to officers, “[i]f the federal law is clearly established, then you are on notice that you are expected to obey that federal law, and you are on further notice that if you do not obey clearly established federal law, you can be held personally liable for damages.” By contrast, if the federal law is not clearly established, then the officer is not given fair warning as to what the law is, and the resulting violation of federal law would not lead to the imposition of personal liability.
One legal scholar examined 18 qualified immunity cases that the Supreme Court heard from 2000 through 2015, all of which considered whether a particular constitutional right was clearly established. In 16 of those cases, many of which alleged police use of excessive force in violation of the Fourth Amendment, the court found that the government officials were entitled to qualified immunity because they did not act in violation of clearly established law. The Supreme Court emphasized that to be clearly established by case law, the right must be defined with specificity. This means that even a minor difference between the facts of the case being decided and the facts of the case that, it is claimed, establishes the illegality of the officer’s conduct may excuse an officer from liability.

The Qualified Immunity Defense in Practice
A Reuters team analyzed 529 federal court decisions, published from 2005 to 2019, in which police officers accused of excessive force in §1983 lawsuits raised a qualified immunity defense. Reuters found that courts are now granting qualified immunity in favor of police officers at a higher rate. In the first three years of the study, Reuters calculated that courts granted qualified immunity in 44% of cases, but in the last three years, that number rose to 57%. Reuters noticed this rise started in 2009, just after the Supreme Court allowed judges to focus solely on the “clearly established” analysis, and concluded that decision was contributing to the overall increase in the rate at which qualified immunity is granted to police officers. In the decade since the rise started, the Reuters analysis found that “courts have increasingly ignored” the question of whether excessive force was used, noting that when a “court declines to establish whether police used excessive force in violation of the Fourth Amendment, it avoids setting a clearly established precedent for future cases.”
A UCLA professor reviewed the dockets of 979 §1983 cases filed against police officer defendants — in five federal court districts over a two-year period — where qualified immunity could have been raised as a defense. The study measured the frequency with which qualified immunity motions (either to dismiss or for summary judgment) were brought by defendants and granted by courts, and whether the case was then dismissed before discovery and trial. Defendants brought 440 qualified immunity motions in a total of 368 cases. Courts granted 9.1% of the motions to dismiss on qualified immunity grounds, and 4.5% of the motions resulted in case dismissals. (When cases were not dismissed, they usually involved other claims where qualified immunity was not applicable.) Courts granted 13.8% of the summary judgment motions on qualified immunity grounds, and 9.5% of the motions resulted in case dismissals. Of the 979 cases in which qualified immunity could be raised, just 38 (or 3.9%) were actually dismissed on qualified immunity grounds prior to trial.

Legislation That Would Block Courts From Considering Qualified Immunity in Police Cases
Although qualified immunity was judicially created, it is a product of statutory interpretation, which allows Congress wide authority to amend, expand or even abolish the doctrine. During the last legislative session, numerous bills were introduced to do just that — all without success. For example, the Ending Qualified Immunity Act (H.R. 7085) would amend §1983 by abolishing both the “good faith defense” and the defense that the law was not clearly established at the time of the alleged misconduct. The Justice in Policing Act of 2020 (H.R. 7120) would eliminate qualified immunity, but only in cases brought against state and local police officers and federal investigative or law enforcement officers. The Reforming Qualified Immunity Act (S. 4036) would shift the burden on §1983 defendants to affirmatively show, with some particularity, that the conduct at issue was “authorized or required” by law, or that a court had issued a decision holding the conduct was “consistent with the Constitution of the United States and Federal laws” — and further, that the conduct was reasonable as a matter of law.
Even though, as the study above suggests, qualified immunity is not the panacea for police officers or bane to claimants claimed by its opponents, it is an important arrow in the quiver of police defendants in civil rights lawsuits — especially those of little or no substance. Even though none of the bills seeking to eliminate qualified immunity were enacted during this past legislative session, we may be just one viral video away from losing it. Now, more than ever, it is critical for police officers and their associations or unions to support lobbying efforts regarding this important legislative topic, and to practice “constitutional policing” always, because your conduct is probably being watched, overheard or filmed. So you need to look out for yourself, because nobody else owns that job.

About the Author
Michael P. Stone is the founder and principal partner of Stone Busailah, LLP. His career in police and the law spans 53 years. He has been defending law enforcement for 40 years in federal and state, criminal, civil, administrative and appellate litigation.