Part IX Qualified Immunity

Hi. I’m Tim Miller. This is Part IX of our podcast

series on use of force. Before we close, I would like to
discuss a legal defense to standing civil trial that a police
officer may raise. It’s called qualified immunity.

V. Qualified Immunity

If sued by a plaintiff for a constitutional violation, the

officer may request qualified immunity. Qualified immunity is a
defense to standing civil trial. It’s raised by the officer well in
advance of the actual trial on the merits. If granted, the
plaintiff’s claim of excessive force against the officer is
dismissed. But dismissal is qualified, however, by the officer’s
use of force being objectively reasonable.

A. The Rationale

The rationale behind qualified immunity for police officers

is two-fold. First, it permits officers to perform their duties
without fear of constantly defending themselves against
insubstantial claims for damages. Second, it allows the public
to recover damages when a reasonable officer would know that
the officer unreasonably violated a plaintiff’s constitutional or
federal legal rights. Qualified immunity is designed to protect
all but the plainly incompetent or those who knowingly violate
the law.

B. Getting Qualified Immunity

Law enforcement officers are entitled to qualified

immunity when their actions do not violate a clearly established
statutory or constitutional right. The objective reasonableness
test determines the entitlement. The officer is judged from the
perspective of a reasonable officer on the scene, rather than
with the vision of 20/20 hindsight.

Qualified immunity must be raised by the officer. It

protects the officer in an individual capacity; and not the
governmental entity employing the officer.
Part IX Qualified Immunity

C. Analyzing Claims of Qualified Immunity

Qualified immunity has two elements.

1. Did a Constitutional Violation Occur?

The first element is whether the officer violated a

constitutional right, under the plaintiff’s version of the facts.1 If
no violation occurred, there is obviously no basis for the
lawsuit, and the suit is dismissed.

2. Was the Right “Clearly Established?”

Assuming the court finds that the officer violated the

Fourth Amendment, the court examines the second element:
Was the right clearly established by law? To deny the officer
qualified immunity, the court must find a constitutional
violation that was clearly established by law. The Supreme
Court stated:

“Clearly established” for purposes of qualified

immunity means that the contours of the right
must be sufficiently clear that a reasonable official
would understand that what he is doing violates
that right. This is not to say that an official action
is protected by qualified immunity unless the very
action in question has previously been held
unlawful, but it is to say that in the light of pre-
existing law the unlawfulness must be apparent.

If the law was not clearly established at the time an

action occurred, an officer could not be reasonably
expected to anticipate subsequent legal
developments, nor could he fairly be said to “know”
that the law forbade conduct not previously
identified as unlawful.2

1
Since the defense of qualified immunity is raised well in advance of trial, and if granted
denies the plaintiff his day in court, the judge must consider the facts in a light most favorable
to the plaintiff.
2
Wilson v. Layne, 526 U.S. 603 (1999).
Part IX Qualified Immunity

Sometimes after examining both elements, the court finds

a constitutional violation, but that the law was not clearly
established at the time. Brooks v. City of Seattle is an example.
The Ninth Circuit held that in the specific context of that case,
it was constitutionally excessive to tase a pregnant woman
three times in less than one minute. However, the officers still
received qualified immunity because the law was not sufficiently
clear so that every reasonable officer would have understood
that what he was doing violated that right.

And sometimes the court simply holds that the law is not
clearly established without addressing whether or not the officer
violated the constitution. The Supreme Court held that courts
do not have to address the elements in any particular order. In
Cockrell v. City of Cincinnati, the court refused to decide
whether a misdemeant, fleeing from the scene of a non-violent
misdemeanor, but offering no other resistance and disobeying
no official command, had a clearly established right not to be
tased. The court expressed no opinion on the matter. It held
that the law was not clearly established and the officer received
qualified immunity.

E. Reasonable Mistakes Can be Made

An officer can have a reasonable, but mistaken belief as

to what the law requires, and still receive qualified immunity.
Moreover, officers can have reasonable, but mistaken beliefs as
to the facts. The following cases are illustrative:

1. Reasonable Mistakes About the Law

The case of Garner v. Memphis Police Department,3 was

part of the litigation that eventually resulted in Tennessee v.
Garner. The officer relied on a state statute that authorized all
necessary force to stop a fleeing felon. The Supreme Court later
declared the statute unconstitutional, in so much as it
authorized deadly force to stop any fleeing felon, but the officer
reasonably relied upon it at the time of the shooting.

3
Garner v. Memphis Police Department, 600 F.2d 52 (6th Cir. 1979).
Part IX Qualified Immunity

2. Reasonable Mistakes About the Facts

Officer may make reasonable, but mistaken beliefs about

the facts. In Hudspeth v. City of Shreveport, for example, an
officer mistook a silver object in the suspect’s hand for a
handgun. It turned out to be a cell phone.

F. Qualified immunity, denied.

It is not unusual for a court to deny an officer qualified

immunity, even if the officer did - in fact - act reasonably. The
reason for such a seemingly unfair result is because the judge,
in deciding whether to grant the officer immunity from trial,
must consider the plaintiff’s version of the facts. Why?
Granting qualified immunity to the officer denies the plaintiff
his day in court. Therefore, the judge must consider the facts
in a light most favorable to the plaintiff. In granting qualified
immunity to the defendant officer the judge says, in effect, “Mr.
Plaintiff, even considering the facts in your favor, no reasonable
jury could find for you.

At trial, however, the burden shifts back to the plaintiff.

Ellis v. Wynalda was discussed earlier. Officer Wynalda was
denied qualified immunity because at the time Wynalda shot
Ellis, a fleeing burglary suspect, Ellis had turned away. The
bullet struck Ellis in the back, and considering the facts in a
light most favorable to Ellis/plaintiff, the jury could find that he
did not pose an immediate threat of serious bodily harm.

But at trial the burden shifts. Recall that Ellis threw a

bag at Wynalda after the Officer ordered him to halt. Could a
reasonable officer believe that Ellis posed an immediate threat
at that time? The court thought so. If Wynalda had shot Ellis
while he was throwing the bag, that would have been
permissible as the actions of a reasonable officer facing a
dangerous felon. Expert witnesses may also testify that once an
officer makes a decision to pull the trigger, it takes about .30
seconds to stop and that within that time, Ellis could have
already turned away.
Part IX Qualified Immunity

VI. Conclusions About Use of Force.

A law enforcement officer triggers the 4th Amendment’s

objective reasonableness test when she terminates a suspect’s
movement by a means intentionally applied. The courts weigh
the nature of the intrusion against the countervailing interest at
stake. In short, “what did the officer do, and why did she do
it?” The more intrusive the seizure, the stronger the
governmental interest should be for effecting it. To find that
governmental interest, courts look to the Graham factors.
Courts look at the seriousness of the crime, the threat to the
officer or others, and whether the suspect is resisting or fleeing
from a lawful seizure. Threat is generally respected as the most
important.

Facts make force reasonable. Officers should articulate

what they saw, heard, smelled, tasted or touched at the scene.
By using good action verbs, the officer helps the court envision
what she was experiencing on the street. Experts will say that
officers often experience sensory deprivation in use of force
encounters. Tunnel vision and auditory exclusion are two
common physiological reactions to a perceived threat. But
officers should still try to tell their story with the sounds,
smells, and colors that they remember. While it may be
impossible to recall exactly what the suspect said, the officer
may still remember, “The suspect screamed at me”; that “his
face was beet red”; and that “he clenched his fists, like a boxer.”

The general rule is that the more intrusive the seizure,

the stronger the governmental interest should be for effecting it.
And since the Supreme Court stated that deadly force is
unmatched, there should be a compelling government interest
for using it. Over the years, it has been clearly established that
deadly force is a reasonable force option when the officer has
probable cause to believe that the suspect poses an immediate
threat of death or serious bodily harm to the officer or others.
While a warning adds to the reasonableness of any force
options, it is not always feasible.
Part IX Qualified Immunity

Batons, tasers, and oleoresin capsicum (OC) spray are

often called intermediate weapons and like any force option,
they must pass the objective test. Courts weigh the nature of
the intrusion against the countervailing governmental interest at
stake.

A baton is a reasonable force option against combative

suspects – meaning someone who poses an articulable threat of
harm to the officer. These are fights. Fights are dynamic
encounters, and while officers cannot always predict what will
happen in a fight, the Physical Techniques Division teaches
officers to strike at the suspect’s attacking limbs and large
muscle groups and to avoid areas like the head, neck, or spine -
unless deadly force is objectively reasonable.

Tasers in the dart-mode are reasonable when the suspect

poses an immediate threat to the officer or others. The key is to
be able to articulate facts that could lead a reasonable officer to
believe that the suspect poses a threat. In Draper v. Reynolds,
Officer Reynolds - with the help of his police car’s dash cam
video – the threat was articulable. In Bryan v. MacPherson, it
was not. Finally, while there may be facts supporting the initial
use of a taser, the facts may change, and the threat may also
diminish, as it did in Beaver v. City of Federal Way when a
back-up officer arrived.

Tasers have also been used to stop fleeing suspects, but

officers should be mindful that the temporary paralysis caused
by a taser in the dart-mode may cause secondary impact
injuries. Officer’s should remember the rule that the Graham
factors should not be considered in a vacuum; flight “alone”
may not be a sufficient basis for using a taser in the dart-mode.
The court in Cockrell held that the law was not clearly
established in a case where a police officer used a taser to stop
a fleeing jaywalker.

But the law is clear when a force option creates a

foreseeable risk of death or serious bodily harm. Tasing
someone in a tree, climbing over a fence, off of a raised
platform, or around flammable liquids, creates such a danger.
Part IX Qualified Immunity

Officer should be ready to articulate a very strong governmental

interest for using the taser under those circumstances, such as
when the suspect poses an immediate threat of serious bodily
harm.

And finally, OC and stun-drive tasers may used as pain

compliance tools in situations where suspects refuse to
cooperate in their arrest. These are cases where the accused is
charged with a minor crime. The officer is unable to point to
any articulable threat. Flight is not an issue. The suspect
simply refuses to get out of their car. Or, he refuses to get into
the arresting officer’s car. In other situations, protesters have
simply sat down and refused to leave. Another common factor
was time. The officer had plenty of time to choose a reasonable
force option. The issue? Could a reasonable officer believe that
the pain compliance tool was necessary to effect the arrest?

In Headwaters, OC was not necessary to remove

trespassing protestors. The protestors had been safely and
effectively removed by lesser means of force on prior occasions.
When the OC or stun-drive taser is necessary, officer are well
advised to give warning and to give the suspect time to
reconsider his decision.

That’s it. I hope you have found these podcasts helpful.

Our job at the Legal Division is to help you enforce the law
safely, effectively, and in accordance with our Constitution. If
you have comments, please send them to me. I’m at
[email protected]. God bless you.