Qualified Immunity: How “Qualified” Is It?

by H. Troy Nicks, J.D., Instructor, Central Virginia Criminal Justice Academy, Email: troy.nicks@lynchburgva.gov

Federal civil rights legislation provides that a citizen may bring a lawsuit for money damages resulting from a state or local law enforcement officer’s alleged violation of that citizen’s rights under the U.S. Constitution. This type of lawsuit is commonly referred to as a “1983” suit, referring to the applicable U.S. Code citation.[1]  That statute refers to persons acting “under color of “state law. Accordingly, a defendant in a 1983 suit may be found liable for actions taken as a law enforcement officer but not for actions taken in his or her private capacity.[2]

A defendant officer in a 1983 lawsuit may be able to claim a defense called “qualified immunity”. The lawsuit may be dismissed before trial if the grounds for qualified immunity can be established. If pretrial disposition is not possible, qualified immunity may be successfully raised as an affirmative defense during trial.

Obviously, it’s preferable for a defendant officer to achieve a pretrial dismissal of a 1983 suit. Winning a pretrial motion for summary judgment on grounds of qualified immunity has the obvious benefit to a defendant officer of ending the lawsuit substantially sooner than proceeding to trial. Depending on the facts of the case and various demographic issues, it may also be preferable for a defendant officer to avoid the uncertainties of a jury trial which is frequently the plaintiff’s choice of forum.

This article will discuss some of the potential difficulties involved in establishing this defense prior to or during trial. But first, a review of the requirements for successfully claiming qualified immunity is in order.

Two “Prongs”

Grounds for qualified immunity exist if:

1. The defendant’s actions did not violate the plaintiff’s Constitutional rights, or
2. The defendant did violate the plaintiff’s Constitutional rights, but the law defining the violation was not “clearly established” at the time of the incident in question. ^2.5

Appellate decisions refer to these two requirements as “prongs” when analyzing qualified immunity.

The first prong was determinative in a case involving a school shooting threat.[3] There, the U.S. Supreme Court upheld a trial court’s decision that defendant officers in a 1983 suit were entitled to qualified immunity on grounds that their entry into a home without a warrant or consent was justified as an emergency. The facts involved officers who were investigating a teenager who was rumored to have made threats to “shoot up” his school. The officers went to the juvenile’s home and spoke with his mother on the front porch. When asked if there were firearms in the home, the mother’s abrupt response was to run inside the house. The Court held that her unusual response, together with other factors, clearly justified the officers’ decision to enter the home to ensure their own safety and that of others who might be in the home.  In a notably blunt reversal of the Ninth Circuit’s ruling against immunity, the High Court stated, “No decision of this Court has found a Fourth Amendment violation on facts even roughly comparable to those present in this case” and then proceeded to uphold a finding of immunity on the basis of the first prong.

Qualified immunity was upheld on the basis of the second prong in a 4^th Circuit case where officers attempted to take a man into custody for a mental health evaluation.[4] When directed to come with the officers, the man’s response was to sit and wrap his arms and legs around a post. When three officers were unable to separate the man from the post within a few minutes, he was Tased three times and died a short time thereafter.   The Court noted that the man had committed no crime, had made no threatening acts or statements and was not attempting to escape. The Court then concluded that the officers’ infliction of a Taser’s high pain level was disproportionate and amounted to excessive force in violation of the Fourth Amendment. However, the Court further ruled that that no controlling law involving similar facts had clearly been established that placed the officers on notice that their actions in this situation would be a Constitutional violation. The officers were therefore granted qualified immunity on the second prong of the defense. However, the Court also emphasized that “(w)hile qualified immunity shields the officers in this case from liability, law enforcement officers should now be on notice that such Taser use violates the Fourth Amendment.”[5]

Neither prong of qualified immunity was established by defendant officers in another 4^th Circuit decision involving false arrest allegations.[6] In that case, plaintiffs entered a store that was unlocked, then called 911 when they realized it was closed. They waited at the store for defendant officers to arrive. After taking plaintiffs' statements, defendants entered the store, where nothing appeared missing. Plaintiff husband was thrown up against a wall, handcuffed, and put in the back of a police car when he tried to leave to go turn off the stove at his residence. Plaintiff wife, on the phone with 911 to have the fire department turn off the stove, was handcuffed and sprayed twice in the eyes with pepper spray from close range when she approached defendants and her husband. The Court held that the officers did not have an objectively reasonable belief that their arrest of the plaintiffs on several charges was supported by probable cause and that their use of pepper spray under the circumstances amounted to excessive force. The Court further denied immunity, ruling that the plaintiff’s 4^th Amendment rights were violated, and that the relevant law was clearly established at the time in question.

Pretrial Issues

As noted above, an important goal of the defense in a 1983 suit is to obtain dismissal of the matter without going to trial. That objective is initiated by the defense filing a pretrial motion for summary judgment on grounds of qualified immunity. However, such a motion can succeed only in the following situations:

1. There is no dispute between the parties as to the material facts, and grounds for qualified immunity are substantiated as a matter of law on either of the two prongs, or
2. There is a factual dispute, but the facts shown by the defendant’s pretrial evidentiary material is so one-sided that there remains no genuine factual issue requiring resolution by a jury or bench trial. In that posture, the trial judge may proceed to rule on legal issues that decide the motion.[7]

In many cases, pretrial pleadings and discovery material of the opposing sides support conflicting versions of the event in question, and the resolution of differences in factual detail may be pivotal in the trial’s outcome. Although a policy aspect underlying the doctrine of qualified immunity is to protect officials from the burden of trial, it is a limited protection which must yield to the stronger principle of preserving the plaintiff’s right to a jury trial.[8]  In such cases, the trial judge cannot properly resolve the factual conflicts but instead must submit those matters to a jury (or if a bench trial, the judge must defer resolution until moving from pretrial proceedings into the trial itself).

If a trial judge denies a motion for summary judgment on factual issues, the defense ordinarily cannot seek appellate review of the ruling at that stage of the case. So, the result again is failure to achieve the defense goal of avoiding exposure to jury deliberations.

Even if pretrial filings do not raise factual conflicts, the defense may not have a strong position relative to the first prong of qualified immunity because it appears likely that the officer’s actions violated the plaintiff’s Constitutional rights as a matter of law. If the focus shifts to the second prong, the question of “clearly established law” may involve two aspects.

The first aspect of the second prong involves the issue of which level of court decisions are authoritative. Although U.S. Court of Appeals opinions reflect the view that their decisions carry sufficient authority to establish controlling law on this issue, the U.S. Supreme Court has noted that it has not held that any decisions other than its own are authoritative in this area.[9]However, there is an obvious risk in ignoring clear guidelines regarding police procedure that are set forth by decisions of the relevant U.S. Court of Appeals; for Virginia officers, that is the 4^th Circuit. The same is true regarding decisions of Virginia’s appellate courts, in cases where U.S. Constitutional issues are involved.

The second aspect of the second prong involves the degree of specificity necessary for precedent cases to clearly establish the law that controls a given factual situation. While there does not have to be a case directly on point, existing precedent must place the lawfulness of the particular action beyond debate. This is especially true in cases involving allegations of excessive force. In such a case, the U.S. Supreme Court this year reversed a Ninth Circuit decision that denied immunity to officers handling a domestic altercation.[10]  In overturning the trial judge’s finding of immunity, the Ninth Circuit’s decision had failed to conduct any comparison of precedent to the facts of the case being reviewed. Instead, the decision merely announced that “the right to be free of excessive force” was clearly established. The Supreme Court therefore returned the case to the Ninth Circuit for an adequate analysis of that issue.

Jury Questions

When the procedural posture of a case requires factual resolution by a jury, does a panel of citizens also sort out the complex issues surrounding Constitutional violations as interpreted by appellate decisions? Although appellate courts have approved variations of tailored jury instructions and special verdict forms, there appears to be no clear consensus regarding the best approach.

In the appeal of a 1983 suit where the jury returned a verdict in favor of defendant officers, the 4^th Circuit held that it was error to submit the ultimate issue of qualified immunity to the jury.[11]  That case involved an officer who arrested the plaintiff for obstruction of justice during police response to a domestic altercation. The trial judge’s instructions to the jury identified the qualified immunity doctrine and allowed the return of a verdict for the defendant officers if the jury found that the evidence supported either prong. On appeal, the Court held that the correct procedure would have been to “submit factual questions to the jury and reserve (for the judge) the legal question of whether the defendant was entitled to qualified immunity on the facts found by the jury.”

The foregoing method of submitting specific factual questions to the jury is accomplished by special verdict forms, also referred to as interrogatories. In a hypothetical case where a plaintiff and an officer both testify that the officer struck the plaintiff with a police baton but differ as to the circumstances, a special verdict form could include a number of questions such as the following:

               We, the jury, find by a preponderance of the evidence that the defendant struck the plaintiff with a police baton only after the plaintiff, while holding a knife, advanced toward the defendant.

               Yes ______ No ______

The foregoing use of a special verdict form clearly establishes the jury’s resolution of the credibility of conflicting testimony. That forms a record of fact-finding upon which the trial court and appellate courts may then apply legal principles in order to decide the ultimate issue regarding qualified immunity.

Conclusion

It appears that in cases where juries obviously have rejected plaintiffs’ testimony claiming police misconduct, perjury charges seldom follow. That may be a result of the fact that resolving credibility in a civil trial to a level of preponderance is one thing, but proving a felony charge of perjury beyond a reasonable doubt is quite another. Also, Virginia’s perjury statute incorporates a “two witness” rule.[12] Hence, prosecutors are generally disinclined to pursue such situations.

 Certainly, citizens deserve a means of regressing wrongs committed by police. However, the lack of general deterrence regarding false claims against police would seem to create a financial motive for pursuing a claim where there is essentially “nothing to lose”. This type of case is almost certainly going to involve officers denying the plaintiff’s story, and that means the plaintiff will get the case to a jury. Having the availability of qualified immunity as an affirmative defense certainly has value, but in many cases that benefit has substantially less value than guaranteed pretrial disposition by a judge.

 

[1] 42 USCS § 1983. “Every person who, under color of any statute, ordinance, regulation, custom, or usage, of any State … subjects, or causes to be subjected, any citizen of the United States … to the deprivation of any rights, privileges, or immunities secured by the Constitution and laws, shall be liable to the party injured in an action at law.”

[2] Also, 1983 lawsuits against officers typically involve additional claims based on state tort law and related defenses such as sovereign immunity.  This Article does not discuss those state-based issues.

^2.5 Pearson v. Callahan_ 555 U.S. 223 (2008)

[3] Ryburn v. Huff, 565 U.S. 469 (2012).

[4] Estate of Armstrong v. Village of Pinehurst, 810 F.3d 892 (4th Cir., 2016). That case is discussed in detail in Police Taser Use, Vol. 3, No. 1 of this Bulletin.

[5] Another “one-trip ticket” case is Wilson v. Prince George’s Cty, 2018 U.S. App. LEXIS 16, where the 4^th Circuit found that an officer’s use of deadly force against a knife-wielding was excessive force under the circumstances, but further found second-prong immunity. That case is discussed in Police Deadly Force Against Citizens Wielding Knives, Vol. 3, No. 2 of this Bulletin.

[6] Park v. Shiflett, 250 F.3d 843 (4th Cir. 2001).

[7] Stewart v. Prince George’s County, 75 Fed. Appx. 198 (4th Cir. 2003) In that case involving police use of force to subdue an arrestee at a Target store, video surveillance completely contradicted the version of the event described in affidavits by three witnesses for the plaintiff.

[8] Pritchett v. Alford, 973 F.2d 307, 313 (4th Cir. 1992) That case opined that “(b)ecause qualified immunity is designed to shield officers not only from liability but from the burdens of litigation, its establishment at the pleading or summary judgment stage has been specifically encouraged…This does not mean, however, that summary judgment doctrine is to be skewed from its ordinary operation (which is) appropriate only if (1) there are no genuine issues of material fact, and (2) on the undisputed facts the defendant as movant is entitled to judgment as a matter of law.”

[9] City & Cnty. of San Francisco v. Sheehan, 135 S. Ct. 17 (2015).

[10] City of Escondido v. Emmons, 202 L. Ed. 2d 455 (2019). This case, like the preceding cited case, also notes that SCOTUS has not specifically held that Circuit opinions are controlling on second prong issues – instead, SCOTUS typically addresses the issue by “assuming, without deciding” that Circuit decisions can be controlling.

[11] Willingham v. Crooke_ 412 F.3d 553 (4th Cir. 2005).

[12] §18.2-434; Keffer v. Commonwealth, 12 Va. App. 545 (1991).