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Qualified Immunity

Posted on Wednesday, April 01, 2009 at 12:00PM
Posted by Michael P. Stone Marc J. Berger

Government officials, including peace officers, are shielded from federal civil rights liability for their discretionary official acts by a doctrine known as qualified immunity. Under this doctrine, government officials cannot be held individually liable for federal civil rights violations unless their conduct violated a “clearly established … right of which a reasonable person would have known.” (Harlow v. Fitzgerald (1982) 457 U.S. 800, 818.)

The inquiry whether the right violated was “clearly established” must be conducted from the perspective of the specific conduct of the government official. While liability is not conditioned upon the official’s exact action having previously been held unlawful, the right alleged to be violated “must be sufficiently clear that a reasonable official would understand that what he is doing violates that right.” (Creighton v. Anderson (1987) 483 U.S. 635, 640.) Properly interpreted, the qualified immunity protects “all but the plainly incompetent or those who knowingly violate the law.” (Malley v. Briggs (1986) 475 U.S. 335, 341.)

The definition of the scope of conduct protected by qualified immunity is constantly evolving. Given the infinite factual variations of official misconduct that come before the courts under civil rights law, the courts must develop this doctrine on a case-by-case basis, and cannot be expected to formulate a one-size-fits-all test for the applicability of the immunity.

The qualified immunity doctrine shields individual government officials from the whole range of possible constitutional and civil rights violations, including First Amendment, Search and Seizure, Excessive force, Self-incrimination, Right to Counsel, Cruel and Unusual Punishment, Due Process and Equal Protection.

One area that has recent and sufficient appellate decisions to allow some level of clarity and understanding regarding the scope of the immunity doctrine is excessive force.

In the context of an excessive force case, liability generally depends on the well-established, objective, “reasonableness” test established in Graham v. Connor (1989) 490 U.S. 386. This test assesses whether the officers’ actions were “objectively reasonable” in light of the facts and circumstances confronting them, without regard to their underlying intent or motivation.

The “reasonableness” of a particular use of force must be judged from the perspective of a reasonable officer on the scene, and its determination must consider the fact that police officers are often forced to make split-second decisions about the amount of force necessary in a particular situation. (Id. at pp. 396-397.) The qualified immunity doctrine protects the individual officer from liability unless the victim can also show that the officer acted in subjective bad faith.

The federal civil rights statute that most often sets the stage for an excessive force claim is 42 U.S.C., section 1983., which provides for liability of “every person” acting under the color of state law who violates rights “secured by the Constitution” and by federal statutes.

Harlow v. Fitzgerald: The modern rule of qualified immunity was formulated in Harlow v. Fitzgerald (1982) 457 U.S. 800. In Nixon v. Fitzgerald (1982) 457 U.S. 731, the Supreme Court reaffirmed the doctrine of absolute immunity of the highest level of government officials, holding that it was essential to the ability of government to secure the services of individuals to carry out official policy that the president and certain other high executive officials must be protected from any individual civil liability for their official acts.

In Harlow v. Fitzgerald, the Court simultaneously rejected an assertion that the president’s absolute immunity extended to certain lesser executive officials, such as the counsel to the president. The Court held that while these lesser executive officials were not entitled to the same absolute immunity as the president, it was nevertheless essential to grant them some degree of immunity “to shield them from undue interference with their duties and from potentially disabling threats of liability.” (457 U.S. at 806.)

This was then referred to as “qualified or good faith immunity.” (Id. at 807.)

In Harlow, qualified immunity was defined as protection from liability for discretionary functions of government officials unless the conduct violates “clearly established statutory or constitutional rights of which a reasonable person would have known.” (Id. at 818.) The basis for this rule was the need to “avoid excessive disruption of government.” (Id.)

Over time, this immunity expanded to cover the broad spectrum of government officials at all levels, across the full range of constitutional and federal rights that can be the subject of a federal civil rights lawsuit.

Saucier v. Katz: In Saucier v. Katz (2001) 533 U.S. 194, the Supreme Court addressed this qualified immunity in the context of an excessive force case, and had to address the issue of what is a “clearly established right.”

The Supreme Court observed that the analysis that needed to be applied to a qualified immunity determination was furnished by the Court in Graham v. Connor, which tested a use of force for objective reasonableness … in light of the circumstances the officer faced on the scene (533 U.S. at pp. 199-200), with reference to “the severity of the crime at issue, whether the suspect poses an immediate threat to the safety of the officers or others, and whether he is actively resisting arrest or attempting to evade arrest by flight.” (Saucier, 533 U.S. at 205, citing Graham, 490 U.S. at 396.)

The Supreme Court in Saucier recognized that an officer who passed the Graham test was free from liability and obviously did not also need to meet a test for qualified immunity. If the officer fails the Graham test, liability does not automatically apply; rather, the facts must still be analyzed to determine whether a suspect’s “clearly established” constitutional right was violated before liability could be imposed, and this analysis was not fully part of the Graham test.

Specifically, the Graham test protects an officer who makes a reasonable mistake of fact. For example, an officer who uses force because he reasonably expected a suspect to fight back would generally be protected from liability even if it turns out the suspect did not have any such intention. (Saucier, 533 U.S. at 205.) But the qualified immunity test contains “a further dimension” that is not in the Graham test, which protects an officer from a reasonable mistake of law. (Ibid.)

“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 in those circumstances. If the officer’s mistake as to what the law requires is reasonable, however, the officer is entitled to the immunity defense.” (Ibid.)

Where an officer’s justification for using force is based on perceptions reasonably made on the scene but mistaken in retrospect, then the officer is protected by the Graham test itself.

But where the officer makes a decision in the field to use a level of force that turns out in retrospect to be disapproved by legal precedent, the qualified immunity test protects the officer from liability as long as it was reasonable under the given circumstances to be mistaken about the what the law permits.

Qualified immunity operates “to protect officers “from the sometimes ‘hazy border between excessive and acceptable force,’ (citation), and to ensure that before they are subjected to suit, officers are on notice their conduct is unlawful.” (Id. at 206.)

Brosseau v. Haugen: In Brosseau v. Haugen (2004) 543 U.S. 194, the Supreme Court reversed a Ninth Circuit decision and granted qualified immunity to an officer who used deadly force in a dangerous incident. A felony suspect capped a half-hour foot chase by locking himself into the driver’s seat of a Jeep.

Officer Brosseau shattered the window of the Jeep in an unsuccessful effort to grab the keys, but the suspect got the Jeep started and drove off, in defiance of Officer Brosseau’s orders, whereupon the officer shot the suspect in the back. (Id. at 195-196.) Officer Brosseau claimed to have acted to protect the safety of other officers on foot, occupied vehicles in the suspect’s path, and other citizens. (Id. at 197.)

In a similar case, Tennessee v. Garner (1985) 471 U.S. 1, the Supreme Court had found a Fourth Amendment violation where an officer fatally shot a fleeing unarmed teenage burglary suspect in the back. (See Brosseau, 543 U.S. at 197.) Clarifying the standard of liability under the facts of that case, the Court in Garner had explained that “where 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.” (Garner, 471 U.S. at 11.)

The Brosseau Court compared the case to numerous other cases that involved an officer’s decision “to shoot a disturbed felon, set on avoiding capture through vehicular flight, when persons in the immediate area are at risk from that flight,” and found that the earlier cases held that there was no Fourth Amendment violation when an officer shoots a fleeing suspect who presented a risk to the safety of others. (Brosseau, supra., at p. 200.)

The Court concluded, “This area is one in which the result depends very much on the facts of each case,” so by no means was it “clearly established” that the suspect had a constitutional right to be free from the use of force when trying to flee. (Id. at 201.)

Application of qualified immunity usually does not defeat the plaintiff’s entire case. Subject to a different set of governmental immunities, the plaintiff can often still impose liability on the government itself by showing police misconduct resulted from a policy or established practice of tolerating similar abuses, or inadequate training. But, qualified immunity is one of the most difficult obstacles to a plaintiff’s recovery of damages from an individual officer.

What qualified immunity means to officers and trainers: As a government employee, qualified immunity works against officers who have an occasion to sue their employers for wrongful discipline or for a constitutional violation in the workplace, such as an unreasonable drug test or locker search.

But as an officer in the field, qualified immunity protects the officer from most of the worst risks of civil liability for excessive force and other violations that can occur in citizen contacts. To obtain the maximum benefit of the law, however, officers must pay careful attention to the training they receive about the use of force – both reasonable and excessive, and for standards and guidelines for the search and detention of suspects.

Law enforcement agencies widely recognize that their training curricula must be designed to assist officers in understanding any clear legal rules or established guidelines that govern their decisions about using force in the field. Courts will generally hold an officer responsible for having knowledge of the information in the agency’s training curriculum, whether or not the officer properly assimilated that information.

So, for the field officer, the legal training on use of force is not only designed to keep the officer in good standing with his or her supervisors, it can make the difference between liability or a successful defense if a disgruntled citizen brings civil rights litigation.

Even though the study of case precedent is less exciting than the physical and tactical challenges of field training, the prospect that an officer may need to rely on the qualified immunity doctrine means he or she must give full attention and consideration to the legal aspects of the use-of-force curriculum. STAY SAFE.

ABOUT THE AUTHORS: Michael P. Stone is the firm’s founding partner and principal shareholder. He has practiced almost exclusively in police law and litigation for 30 years, following 13 years service as a police officer, supervisor and police attorney.

Marc J. Berger is the firm’s senior writs and appeals specialist.

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