How and when police officers are shielded by immunity from lawsuits for alleged misconduct
The concept of Qualified Immunity (“QI”), in the context of policing and excessive-force cases, is amorphous. The basic concept of QI is that it shields police officers from a lawsuit if an officer’s actions do not violate a “clearly established” constitutional right under federal law. (See Harlow v. Fitzgerald (1982) 457 U.S. 800, 814.) Or put another way, if the law is unclear on how an officer should have acted in a particular situation, then the doctrine of QI says the officer is not put on notice that his conduct is wrong, and therefore, is immune from suit. And to put it yet another way, and the most practical way: if there’s not already precedent holding that an officer’s identical or near identical conduct rose to the level of a clear constitutional rights violation, then there’s a good chance the officer will be protected by QI.
In my review of recently litigated cases on the issue, it is clear that QI has emerged as one of the most significant, and most problematic, defenses in civil-rights cases. Some of the decisions seem to contradict each other, and the doctrine has changed dramatically over the years. I agreed to write this article primarily because I thought it might help firm up my own understanding of how and when QI comes into play.
In order for our clients to have a fair shot of protecting themselves against excessive force, there needs to be a serious review and roll-back of the QI doctrine. But for now, I have written this article for practitioners who are either in the middle of their first civil rights/excessive force case, or considering taking one of these cases. The focus of this article is to (1) help the reader develop an understanding of the QI doctrine, (2) provide some Ninth Circuit case law, and (3) discuss briefly QI procedural issues – specifically, the argument that QI should never be submitted to a jury.
What is a clearly established right?
As laid out in the Harlow case, in order for QI to apply, the officer’s conduct cannot violate a “clearly established” constitutional right which a reasonable person would have known. So, what does it mean for a right to be clearly established? While not a police excessive-force case, Padilla v. Yoo (9th Cir. 2012) 678 F. 3d 748 is a good (but creepy) example of just how clearly established a right must be in order for a defendant officer’s claim of QI to be defeated.
In Padilla, the plaintiff, who was suspected of terrorism, was tortured for almost two years without access to legal counsel or visitation of any kind. His torture consisted of threats of severe physical abuse, administration of psychotropic drugs, shackling for hours at a time, being dosed with noxious fumes, denial of medical care, stress positions, sleep deprivation, and other interrogation techniques.
To a reasonable person, his treatment would clearly seem to violate an established right; the right not to be tortured. This was not the case. Although the Ninth Circuit agreed with the plaintiff that “the unconstitutionality of torturing a U.S. Citizen was beyond debate,” the court established that Yoo, the assistant attorney general at the time, was protected by the QI doctrine because “it was not clearly established in 2001-03 that the treatment to which Padilla says he was subjected amounted to torture. (Id. at 764.) In short, Padilla stands for the proposition that a public official, even in the context of torture, is protected if the conduct is not clearly in violation of a federal right. (See also Chappell v. Mandeville (9th Cir. 2013) 706 F. 3d 1052 [holding that it was not clearly established that “being taped into two pairs of underwear and jumpsuits, placed in a hot cell with no ventilation, chained to an iron bed, shackled at the ankles and waist,” and being “forced to eat like a dog” was a violation of a constitutional right].)
So how does this “clearly established” doctrine play out in the context of everyday police excessive-force cases? Again – it’s a bit difficult. The U.S. Supreme Court, in Graham v. Connor (1989) 490 U.S. 386, ruled that excessive-force claims arising out of arrests, investigatory stops, or other seizures should be analyzed under the Fourth Amendment’s objective reasonableness standard. Presumably, the decision took the officer’s subjective state of mind out of the equation, and applied a strictly objective test in evaluating a particular officer’s use of force. The Court was silent on whether the issue of QI is applicable in excessive-force cases. Subsequent decisions appeared to completely separate the concept of QI and the Fourth Amendment, while others treated the concepts as basically the same thing. In other words, the courts who were treating the analysis as the same were saying that in applying the QI doctrine in an excessive-force case, you would just have to make the same reasonableness determination on the force used as you would for a Fourth Amendment violation.
The Supreme Court attempted to clear this issue up in Saucier v. Katz (2001) 533 U.S. 194, 121 S. Ct. 2151. The plaintiff in Saucier was a 60-year-old animal-rights advocate who was claiming excessive force was used on him when he tried to display a protest banner at an Al Gore speech given on an army base in San Francisco. The district court denied summary judgment, in short, because it treated the excessive-force analysis as the same as the QI analysis, and determined that the case would need to be tried as to the question of whether the force was reasonable. The Ninth Circuit affirmed the decision.
The Supreme Court reversed, based on the premise that there was no clearly established right that had been violated. The Court stated: “the relevant, dispositive inquiry in determining whether a right is clearly established is whether it would be clear to a reasonable officer that his conduct was unlawful in the situation he confronted.” (Id. at 2156.) The Court concluded that, because there was no specific case “demonstrating a clearly established rule prohibiting the officer from acting as he did,” the officer was protected by the QI doctrine. (Id. at 2160.) The Court went on to basically say that plaintiffs, in order to defeat QI, would need to produce specific cases to the Court, with similar facts, that were decided against the officer, in order to defeat QI.
This concept, that plaintiffs need to produce cases to prove that a right was clearly established, was reaffirmed by the Supreme Court in Brosseau v. Haugen (2004) 543 U.S. 194. In that case, the Ninth Circuit denied a QI defense to an officer who shot a suspect in the back who was attempting to flee the scene of a fight in a vehicle. The Supreme Court reversed – again – because they determined that there were no cases that “squarely governed” the situation confronting the officer. Unbelievably, the Court determined that shooting an unarmed person, in the back, while attempting to flee fell in the “hazy border between excessive and acceptable force.” (Id. at 200.)
More Ninth Circuit cases
So basically, while the lower courts have disagreed with when and how to apply the clearly established right analysis – defeating a QI claim could come down to having cases that support your view of the case. Here are some cases that might be helpful to have in your back pocket:
- Headwaters Forest Defense v. County of Humboldt (9th Cir. 2002) 276 F. 3d 1125 – Officers who applied pepper spray to the eyes and faces of non-violent protesters were not entitled to a QI defense because “[t]he law regarding a police officer’s use of force against a passive individual was sufficiently clear at the time of the events at issue in this case.”
- Wilkins v. City of Oakland (9th Cir. 2003) 350 F. 3d 949 – “First step is an inquiry into the objective reasonableness of the officer’s belief in the necessity of his actions; second step is an inquiry into the reasonableness of the officer’s belief in the legality of his actions.”
- Robinson v. Solano County (9th Cir. 2002) 278 F. 3d 1007 – Pointing a gun to the head of an apparently unarmed suspect during an investigation can be a violation of the Fourth Amendment, but the contours of the right were not clear in 1995.
Young v. County of Los Angeles (9th Cir. 2011) 655 F. 3d 1156 – It is clearly established that “to pepper spray an individual and strike him with a baton for disobeying a traffic officer’s order to get back in his car (and sitting instead on the curb eating broccoli) constituted a violation of the Fourth Amendment.”
- Torres v. City of Madera (9th Cir. 2011) 648 F. 3d 1119 – “[If] Officer Noriega knew or should have known that the weapon she held was a Glock rather than a Taser, and thus had been aware that she was about to discharge deadly force on an unarmed, non-fleeing arrestee who did not pose a significant threat of death or serious physical injury to others, then her application of that force was clearly unreasonable.”
- Tekle v. U.S. (9th Cir. 2007) 511 F. 3d 839 – “[A] reasonable officer would have known that an eleven-year-old child who was un-armed, barefoot, vastly outnumbered, and was not resisting arrest or attempting to flee should not have been kept in handcuffs for fifteen to twenty additional minutes.”
- Drummond ex rel. Drummond v. City of Anaheim (9th Cir. 2003) – “We need no deferral case directly on point to establish that kneeling on the back and neck of a complaint detainee, and pressing the weight of two officers’ bodies on him even after he complained that he was choking and in need of air violates clearly established law…”
- Marquez v. City of Phoenix (9th Cir. 2012) 693 F. 3d 1167 – “[A]s late as 2006 there was no case law even suggesting – let alone clearly establishing – that the use of an electronic control device on an individual suspected of domestic violence who was actively resisting arrest violated the Constitution.”
- • C.B. v. City of Sonora (9th Cir. 2015) 769 F. 3d 1005 – “[A]pplying handcuffs to [minor] and keeping him handcuffed for the approximately thirty minutes it took to drive to his uncle’s business, was an obvious violation” of the general standards prohibiting unreasonable use of force.
- Barnard v. Theobald (9th Cir. 2013) 721 F. 3d 1069 – Case rejects the claim that resistance by plaintiff entitled officers to qualified immunity as a matter of law because “[r]esistance, or the unreasonable perception of resistance, does not entitle police officers to use any amount of force to restrain a suspect.”
- Espinosa v. City and County of San Francisco (9th Cir. 2010) 598 F. 3d 528 – No qualified immunity for the use of deadly force where evidence that “illegal entry created a situation which led to the shooting and required the officers to use force that might have otherwise been reasonable.”
- Blankenhorn v. City of Orange (9th Cir. 2007) – A prudent officer should be on notice that “gang-tackling without first attempting a less violent means of arresting a relatively calm trespass suspect” is a violation of that person’s rights.
- San Jose Charter of Hells Angels Motorcycle Club v. City of San Jose (9th Cir. 2005) – “[T]he failure to develop any realistic non-lethal plan for dealing with the dogs is simply not the type of reasonable mistake in judgment to which a court should give deference in determining whether the officers are entitled to qualified immunity … The police officers’ opportunity to plan ahead distinguishes this case from the recent Supreme Court decision in Brosseau v. Haugen, … in this case, there was no element of surprise coloring the officers judgment.”
- Nelson v. City of Davis (9th Cir. 2012) 685 F. 3d 867 – “Pepperball projectiles, while a relatively new means of applying both pepper spray and concussive force to the target, merely combine two types of force that we have already recognized as unreasonable when aimed at individuals who pose no threat and have committed, at most, minor offenses.”
- Furnace v. Sullivan (9th Cir. 2013) 704 F. 3d 1021, 1030 – “We find that a significant amount of force was employed without significant provocation from Furnace or warning from the officers. We therefore conclude that QI was inappropriately granted at the summary judgment phase of this litigation.”
The QI Doctrine is a bar to trial; not to be decided by a jury!
So how do you guard against the QI defense? In addition to having cases to support your client’s case, one of the most important issues to keep in mind is that QI should effectively function as a bar to trial, rather than a defense to be used at trial. This is a distinction on which your judge (especially in the Ninth Circuit) may need to be educated. The U.S. Supreme Court looked at this issue in Mitchell v. Forsyth (1985) 472 U.S. 511. In that case, the Supreme Court, in no uncertain terms, clearly stated that the QI doctrine should be set forth by defendants before discovery even begins. QI is “an immunity from suit, rather than a mere defense to liability … it is effectively lost if a case is erroneously permitted to go to trial.” (Id. at 526.)
There is ample case law that would suggest that a QI defense could and should be dealt with as early as possible, and at the very least, through a summary judgment motion. (See Blissett v. Coughlin (2nd Cir. 1995) 66 F. 3d 531, 538 [a defendant should press a qualified immunity defense during pretrial proceedings so that such a claim can be disposed of by summary judgment where possible, or factual disputes material to the defense can be identified and presented to the jury]; see also McCardle v.Haddad (2nd Cir. 1997) 131 F. 3d 43, 51 [the defense can be waived “either by a failure to raise it in a timely fashion or by failure to raise it with sufficient particularity.”]; see also Saucier at 201 [the QI issue should be resolved “at the earliest possible stage in litigation[.]]”.) Thus, it is important to recognize that QI should be dealt with in pre-trial motions, and the argument should be made that failure to bring such a motion could be considered a waiver of the QI defense.
Does this mean that a court will ignore QI defenses at trial? Unfortunately, no. Despite the case law above, courts have also ruled that failure to bring a dispositive motion regarding QI, alone, is not enough to waive the defense. (See Stephenson v. Doe (2nd Cir. 2003) 332 F. 3d 68, 77.) In Stephenson, the Court ruled that defendants did not waive their right to assert a QI defense at trial because they asserted the defense in pretrial submissions and the filing of a Rule 50 motion. However, Stephenson made it clear that QI is not a question for the jury to decide: “[t]he court should charge the jury on excessive force, but not on qualified immunity. If the jury returns a verdict of excessive force against [the defendant], the court should then decide the issue of qualified immunity.” (Id. at 80.)
There are other cases out there that make it clear that the question of QI is a question of law to be decided by the judge. (See Zellner v. Summerlin (2d. Cir. 2007) 483 F. 3d 258.) If there are material issues of fact in dispute that are necessary to the determination, the jury can decide these factual disputes through special interrogatories. In fact, Zellner makes it clear that if the defendant wants the QI defense to survive throughout the jury trial, hoping to make a post-trial motion regarding QI once the jury has returned a verdict, then the defendant is responsible for requesting that the jury be asked the necessary questions for the court to determine the QI issue. (Id. at 368.)
The Ninth Circuit often disagrees
Of course, as is the case with everything QI related – there are cases that go the other way. And unfortunately, it appears that the majority of the Ninth Circuit decisions allow the QI question to go to the jury. (See Ortega v. O’Connor (9th Cir. 1998) 146 F. 3d 1149, 1156 [finding no error in “the district court’s ‘extra’ reasonableness test, which constituted an appropriate and proper instruction to the jury on the second prong of the defendants’ qualified immunity defense – whether a reasonable state official could have believed his conduct was lawful – the prong as to which the existence of factual disputes requires the jury’s determination.”].)
Notwithstanding the above, that QI is in essence a pre-trial issue only makes sense. QI is a complicated area of law – and quite simply, it should not, and cannot be decided by a jury. While the decisions may be against us – this is an argument that could and should be made to every judge dealing with this issue.
In sum, QI is confusing – especially in the Ninth Circuit. I believe there needs to be a major overhaul of the doctrine if our clients are to be adequately protected in court. Having said that, the key takeaway here is that today you need to be ready with cases that support your view of the case and include facts that mirror your case as closely as possible. In the end, QI is very much a defendant-friendly doctrine. For this reason alone, we should be ready to push the limits of argument in order to best serve our clients.
Shane Hapuarachy is an accomplished trial attorney at Cheong, Denove, Rowell and Bennett. In addition to police misconduct cases, Shane primarily handles medical malpractice and personal injury cases. He received his J.D. from Loyola Law School, a Master’s Degree in Public Policy from UCLA, and a Bachelor’s Degree in Communications Studies from UCLA. Prior to joining CDRB, Shane was an associate at Winston & Strawn, LLP for four years.
by the author.
For reprint permission, contact the publisher: Advocate Magazine