Supreme Court Reverses Denial of Qualified Immunity in Excessive-Force Case

Posted on Friday, February 01, 2019 at 12:00AM

Messing Adam & Jasmine LLP

On January 7, 2019, the United States Supreme Court issued an important ruling reversing the Ninth Circuit Court of Appeals’ decision in City of Escondido v. Emmons. The Ninth Circuit had denied qualified immunity to two police officers who, the plaintiff claimed, used excessive force when responding to a domestic disturbance call.
It is well established that qualified immunity “attaches when an official’s conduct does not violate clearly established statutory or constitutional rights of which a reasonable person would have known” (White v. Pauly, 580 U.S. ____, 137 S.Ct. 548, 551 [2017] [per curiam]). The Supreme Court stated in Escondido v. Emmons, for the third time in the past year, that a decision on qualified immunity is a case-by-case determination that must be based on a factual inquiry, and ruled that denial of qualified immunity must be based on violation of a clearly established right that is defined with specificity. The Supreme Court faulted the Ninth Circuit for denying qualified immunity to the officers without conducting any meaningful factual analysis.
The facts of the case go a long way toward explaining why the Supreme Court found the Ninth Circuit’s decision “quite puzzling.” The events described were recorded on police body-worn camera video and were in the record.
The Escondido police responded to a 9-1-1 domestic violence call by Ms. Emmons, who lived with her husband, Brandon, her children and a roommate, Ms. Douglas. The officers arrested Brandon in connection with the incident. A few weeks later, the police received another call for a possible “domestic disturbance,” this time from Douglas’ mother, who was on the phone with her daughter when Douglas screamed for help. When the police arrived and knocked, no one answered, but they communicated with Emmons through a window and asked her to open the door for a welfare check. An unidentified man in the apartment told Emmons to back away from the window, and the officers were not allowed in. A few minutes later, a man opened the apartment door and came outside. It turns out that this man was Emmons’ father, Marty, though this appears to have been unknown to the officers at the time.
Officer Craig told Marty not to close the door, but he disobeyed and closed it, trying to move past the officer. Craig “stopped the man, took him quickly to the ground, and handcuffed him.” Craig did not hit Marty or take out his weapon, and the video does not offer any audible or visual indication that Marty was in any pain. The officers helped Marty up and arrested him for misdemeanor resisting and delaying a police officer. Marty subsequently sued Craig and Sergeant Toth — one of the officers who arrived as backup but did not have any physical contact with the man or otherwise participate in his arrest — alleging excessive force.
The trial court held that the officers had probable cause for the arrest and rejected the excessive-force claim, finding based on the video that the “officers acted professionally and respectfully in their encounter.” The trial court dismissed the claim against Toth because he had used no force whatsoever. The trial court also dismissed the claim against Craig, holding that the law did not clearly establish that the officer could not use a takedown to detain Marty under the circumstances presented — where the officers were responding to a domestic dispute, the suspect did not permit the officers to perform a welfare check, and the officers did not know whether Marty was armed or had hurt anyone inside when he left the apartment (and was noncompliant).
The Ninth Circuit reversed and remanded on the excessive-force claims against both officers based solely on the following conclusion: “The right to be free of excessive force was clearly established at the time of the events in question.”
The Supreme Court criticized the Ninth’s Circuit’s apparent failure to conduct any analysis before rendering a ruling. Regarding Toth, the Supreme Court found “puzzling” the appeals court’s decision to keep him in a case alleging excessive force in light of the trial court’s factual findings that he used no force at all. As to Craig, the court vacated and remanded for further analysis consistent with “repeated” Supreme Court guidance on qualified immunity that specificity of the clearly established law is required. In doing so, the court quoted from its 2018 decision in Kisela v. Hughes, 584 U.S. ___, 138 S.Ct. 1148 (2018): “Use of excessive force is an area of the law in which the result depends very much on the facts of each case, and thus police officers are entitled to qualified immunity unless existing precedent squarely governs the specific facts at issue…. An officer cannot be said to have violated a clearly established right unless the right’s contours were sufficiently definite that any reasonable official in the defendant’s shoes would have understood that he was violating it.” The Supreme Court added, “The [Ninth Circuit] should have asked whether clearly established law prohibited the officers from stopping and taking down a man in these circumstances.” Thus, the Ninth Circuit’s conclusion that “‘[Marty’s] right to be free of excessive force’ was clearly established,” without more, was inadequate to deprive the officer of immunity.
On remand of the claim against Craig, the Ninth Circuit was instructed to engage in the factual analysis it neglected earlier. If the Ninth Circuit is to deny qualified immunity, it must do so based on “identify[ing] a case where an officer acting under similar circumstances was held to have violated the Fourth Amendment,” citing District of Columbia v. Wesby, 583 U.S. ___ (2018). And in the absence of a directly comparable case, “… existing precedent must place the lawfulness of the particular [action] beyond debate.” Although Craig is not yet out of the woods, under the Supreme Court’s strict instructions, it is highly unlikely the case against him can continue.
Where a police officer’s actions are clearly proscribed by law, a court may not grant that officer qualified immunity if the officer is sued for excessive force. Yet, the Supreme Court has spoken in Escondido v. Emmons — a deprivation of qualified immunity to an officer requires not just a violation of clearly established rights of which a reasonable person would have known, but also that these clearly established rights be defined with specificity. Know the law and protect your rights!

About the Authors
Wendi J. Berkowitz is an experienced litigator, trial lawyer and negotiator at Messing Adam & Jasmine LLP, a PORAC LDF panel attorney firm that represents public safety officers employed by state and local jurisdictions. Over her three-decade career, she has been engaged in almost every area of civil litigation. Matthew Taylor is an associate at the firm who specializes in public-sector labor law and served as a police officer and investigator in New York City.

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