Qualified Immunity and Excessive Use of Force Lawsuits
The concept of qualified immunity has recently become a topic of interest to the public. In the last few years, we have seen myriad examples where law enforcement officials have been found to have acted within the scope of their authority when arresting a suspect, even if that arrest resulted in injury or death. These cases are referred to as the use of “excessive force” by law enforcement. That is, the officer is accused of using more force than was reasonably necessary to arrest a suspect and that use of force resulted in an injury to the suspect. The term “qualified immunity” is often reported in the media, but the scope of qualified immunity is often not understood, even by lawyers. So, what exactly does “qualified immunity” mean, and how does it apply to law enforcement officers who are sued in civil court for violation of an individual’s civil rights?
Under the Fourth and Fifth Amendments to United States Constitution, a person may not be arrested without probable cause and may not be deprived of life, liberty, or property without due process of law or compensation. This has been interpreted to mean that if a person is injured by law enforcement during an arrest, the government can be held liable for that injury in civil court (i.e., a case where an injured plaintiff seeks monetary damages). In 1871, Congress passed a law (U.S. Code Section 1983), modified several times since, which states that a government official who violates an individual’s constitutional rights can be held civilly liable for that violation. However, courts have determined that liability is limited by an official’s “qualified immunity.” When qualified immunity applies is a fact-specific question, and a complicated one.
The concept of qualified immunity was created by the United States Supreme Court in the case of Pierson v. Ray in 1967 and has been modified and expanded over time. In the context of civil lawsuits filed against law enforcement officers (as opposed to criminal cases), the doctrine of qualified immunity protects officers from civil liability (e.g., monetary damages) if they perform their duties reasonably and act within the scope of their authority. It also applies to elected officials and those hired by the government as employees. In the context of law enforcement, qualified immunity protects officers sued in their individual capacity unless the act violates a constitutional right that was clearly established at the time of the act.
The United States Supreme Court established a two-part test to determine whether qualified immunity applies:
First, the officer must establish that their conduct did not deprive the plaintiff of a clearly established constitutional right. “Clearly established” means sufficiently clear to put a reasonable officer on notice that their conduct may violate a person’s rights. However, a constitutional violation does not occur every time someone feels that they have been treated unfairly. Rather, the officer must (or should) be aware that, by taking certain actions, they will violate a person’s civil rights. This is largely based on prior case law, and law enforcement officers are considered “on notice” that a court has determined a specific action was unconstitutional.
Second, the defendant must prove that the official’s conduct was objectively reasonable. Even if an official violates a person’s civil rights, the official may still be entitled to the protection of qualified immunity if the conduct was objectively reasonable. “Objectively reasonable” means, given the totality of the circumstances confronting the official, the action was justified.
For example, the Fourth Amendment is not violated by an arrest based on probable cause, even if the wrong person is arrested, if the arresting officer had a reasonable, good-faith belief that he was arresting the correct person. “The Constitution does not guarantee that only the guilty will be arrested, for if it did… § 1983 would provide a cause of action for every defendant acquitted—indeed, for every suspect released.”[1] Qualified immunity shields police officers from liability if, given the law and information known at the time, a reasonable officer could have believed the arrest was lawful.
The United States Supreme Court has stated that excessive force cases should be analyzed under the Fourth Amendment and its “reasonableness” standard. The reasonableness of a particular use of force must be judged from the perspective of a reasonable officer on the scene, rather than with the 20/20 vision of hindsight. As the Court has said, not every push or shove violates the Fourth Amendment and the amount of force used must be put in context of what was necessary in a particular situation.
Some considerations that may bear on the reasonableness or unreasonableness of the force used by law enforcement are:
the relationship between the need for the use of force and the amount of force used;
the extent of the plaintiff’s injury;
any effort made by the officer to temper or to limit the amount of force;
the severity of the security problem at issue;
the threat reasonably perceived by the officer; and
whether the plaintiff was actively resisting arrest.
Excessive use of force and qualified immunity cases are very fact-specific, and most outcomes turn on the testimony of fact witnesses (those people who witnessed or experienced the use of force). Therefore, a jury usually determines what is a “reasonable” use of force in a given situation because a jury decides “questions of fact” and determines who is telling the truth if the witnesses disagree about what happened.
In the recent past, it was common for juries to believe the testimony of law enforcement over the testimony of a criminal suspect. However, in the past several years we have seen a dramatic shift in who a jury will believe. This is in part due to technology—body-worn cameras and cell phone video have shed light on some cases where a fleeing suspect is shot from behind when the officer states they were resisting arrest and posed a danger to the officer.
Given the shift in public opinion towards the amount of force that is needed to arrest a suspect, and the increased use of technology to document use of force cases, the doctrine of qualified immunity has come under greater scrutiny. Because qualified immunity is a judicially created legal defense, there have been calls for Congress and state legislatures to change the definition of qualified immunity by passing new laws. For example, a bill recently failed to gain traction in the 87th Regular Session of the Texas Legislature. Colorado is the only state that has passed a law eliminating qualified immunity as a defense in a civil case, but New York City banned qualified immunity as a defense despite inaction at the State level. Conversely, Iowa and Arkansas have passed laws that strengthen qualified immunity. Congress has considered several bills to change or eliminate qualified immunity at the federal level (for example, the George Floyd Justice in Policing Act of 2020), but none have gained traction in the U.S. Senate.
While the future of qualified immunity remains unknown, it currently remains a valid defense in almost every state. As the discussion about qualified immunity continues, lawmakers are attempting to balance the need to hold government officials who break the law to account, while also protecting government treasuries from potential large jury verdicts. This is a difficult balancing act and one that government officials and attorneys should follow closely.
For more information about qualified immunity and how it may impact your government organization please contact Philip Arnold or any BHDA attorney.
[1] Sanchez v. Swyden, 139 F.3d 464, 468 (5th Cir. 1998).
https://www.bickerstaff.com/qualified-immunity-and-excessive-use-of-force-lawsuits/
