Self-Defense in Court: Understanding Qualified Immunity
Title:
Self-Defense in Court: Understanding Qualified
Immunity
Lesson Purpose:
To understand the defense of qualified
immunity in excessive force lawsuits.
Training Objectives:
At the end of this block of instruction, the
student will be able to achieve the following
objectives in accordance with the information
received in class:
1.
Define qualified immunity and key
concepts courts consider in excessive
force cases.
2.
Discuss how the defense of qualified
immunity impacts the law enforcement
firearms instructor.
Hours:
Four (4) Hours
Instructional Method:
Conference
Materials Required:
Lesson Plan
Pen/Pencil
Flip Chart/Markers
LCD Projector
Laptop
Screen
Training Aids:
PowerPoint slides
References:
Bivens v. Six Unknown Named Federal
Narcotics Agents, 403 U.S. 388 (1971).
Black's Law Dictionary, 6th Edition.
Brousseau v. Haugen, 543 U.S. 194 (2004).
Butz v. Economou, 438 U.S. 478 (1978).
Conn v. Gabbert, 526 U.S. 286 (1999).
Groh v. Ramirez, 540 U.S. 551 (2004).
Harlow v. Fitzgerald, 457 U.S. 800 (1982).
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Self-Defense in Court: Understanding Qualified Immunity
Hope v. Peltzer, 536 U.S. 730 (2002).
Liu v. Phillips, 234 F.3d 55 (1st Cir. 2000).
Lowe v. Letsinger, 772 F.2d 308 (7th Cir.
1985).
Malley v. Briggs, 475 U.S. 335 (1996).
Mimics, Inc. v. Vill. of Angel Fire, 394 F.3d 836
(10th Cir. 2005).
Nixon v. Fitzgerald, 457 U.S. 731 (1982).
Pearson v. Callahan, 555 U.S. 223 (2009).
"Qualified Immunity," Department of Justice
(DOJ), Civil Division, Torts Branch (September
2008).
Roska ex rel. Roska v. Sneddon, 437 F.3d 964
(10th Cir. 2006).
Rykers v. Alford, 832 F.2d 895 (5th Cir. 1987).
Saucier v. Katz, 533 U.S. 194 (2001).
Stone, Michael P. and Marc J. Berger, "The
Scope of Federal Qualified Immunity in Civil
Rights Cases," 2009 (2) AELE Mo. L.J. 501.
Tennessee v. Garner, 471 U.S. 1 (1985).
V-1 Oil Co. v. State of Wyo., Dep't of Envtl.
Quality, 902 F.2d 1482 (10th Cir. 1990).
Wilson v. Layne, 526 U.S. 603 (1999).
Prepared by:
Tara G. Harper
Date Prepared:
November 2011
NOTE: THIS LESSON PLAN IS THE WORK OF THE AUTHOR AND DOES NOT, IN
ANY WAY, REPRESENT THE VIEWS, OPINIONS OR ADVICE OF THE OFFICE OF
CHIEF COUNSEL, U.S. CUSTOMS AND BORDER PROTECTION AND/OR THE
DEPARTMENT OF HOMELAND SECURITY
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Self-Defense in Court: Understanding Qualified Immunity
I.
Introduction
A.
Opening Statement
Qualified immunity protects "all but the plainly incompetent or those
who knowingly violate the law."1 This should be good news for
officers in the field as well as the firearms instructors tasked with
the responsibility of training and arming these officers. Qualified
immunity protects officers who act reasonably and within the
bounds of the law. It is a protection from trial as well as liability.
Understanding what qualified immunity is and how it works is
important for officers to fully arm themselves.
B.
Training Objectives
C.
Reasons
Firearms instructors are a key part of an officer's defense of
qualified immunity. By training correct legal standards and staying
aware of case law, firearms instructors place officers on notice of
the legality of their conduct. This notice will help the officer make
the reasonable choice of conduct in the field and get them closer to
qualified immunity in the courtroom.
II.
Body
A.
History -- Harlow v. Fitzgerald2
1.
During Watergate, several civil rights lawsuits were filed
against President Richard Nixon and high-level members of
his administration. The allegations in the suits involved
abuses of executive powers which violated Constitutional
rights. Mr. Fitzgerald was employed with the Air Force
Financial Management Office. He was allegedly terminated
for threatening to publicly disclose corrupt purchasing
practices. Mr. Fitzgerald sued President Nixon and his
presidential counsel Bryce Harlow for retaliatory termination.
2.
Two cases resulted from Mr. Fitzgerald's lawsuits:
a.
Nixon v. Fitzgerald3
The U.S. Supreme Court affirmed the doctrine of
absolute immunity of the highest level of
governmental officials. The Court held that the
President and certain other high executive officials
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Self-Defense in Court: Understanding Qualified Immunity
must be protected from any individual civil liability for
their official acts in order for the government to secure
the services of individuals to carry out the official
policy of the United States.
b.
3.
B.
Harlow v. Fitzgerald4
(1)
The Supreme Court rejected the idea that the
President's absolute immunity extends to
certain lesser executive officials such as Mr.
Harlow, the counsel to the president.
(2)
While lesser officials do not have absolute
immunity, they do have some degree of
immunity. The Court referred to this immunity
as "qualified or good faith immunity."5
(3)
The court defined qualified immunity as
protection from liability for discretionary
functions of government officials unless the
conduct violates "clearly established statutory
or constitutional rights of which a reasonable
person would have known."6
In defining "qualified immunity" as it did, the Supreme Court
stripped any subjective considerations from the analysis.
What is Qualified Immunity?
1.
2.
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Qualified immunity is an affirmative defense which shields
public officials performing discretionary functions from civil
damages if their conduct does not violate clearly established
statutory or constitutional rights of which reasonable person
would have known.7
a.
Affirmative Defense: A matter asserted by defendant
(sued officer), which assuming the complaint to be
true constitutes a defense to it.8
b.
Discretionary function: Acts which requires exercise in
judgment and choice and involves what is just and
proper under the circumstances.9
"The defense is available in any suit for damages for alleged
violations of the Constitution and most federal statutes that
create an express or implied cause of action for damages."10
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Self-Defense in Court: Understanding Qualified Immunity
C.
3.
Qualified immunity will provide protection to an officer even if
the officer violated an individual's rights as long as the law at
the time did not clearly prohibit the officer's actions.
4.
Qualified immunity can protect on officer not only against
liability but trial and discovery as well.11
How Does Qualified Immunity Work? A two-step process!
1.
The origin -- Saucier v. Katz12
a.
b.
2.
D.
The Supreme Court initially decided that a qualified
immunity analysis must go through a two-part test in
this particular order:
(1)
Did the officer's conduct violate a constitutional
right?
(2)
If so, was the right violated clearly established
at the time of the officer's conduct?
After the Saucier decision, however, the Supreme
Court and several appellate courts expressed concern
and skepticism regarding the strict application of the
two-part test.
Recent events -- Pearson v. Callahan13
a.
While the Supreme Court continues to see value in
the Saucier analysis, the Court held that the two-step
process should no longer be regarded as "an
inflexible requirement."
b.
Courts may now, at their discretion, analyze either of
the two Saucier questions first depending on the facts
at hand and the usefulness of the analysis.
Other Key Concepts in Court
1.
Specific Right at Issue
a.
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The analysis of qualified immunity is fact specific and
"must be undertaken in the specific context of the
case, not as a broad general proposition."14
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Self-Defense in Court: Understanding Qualified Immunity
b.
2.
Examples:
(1)
"[W]hether a reasonable officer could have
believed that bringing members of the media
into a home during the execution of an arrest
warrant was lawful, in light of clearly
established law and the information the officers
possessed."15
(2)
Whether "use of a search warrant by
government actors violates an attorney's right
to practice his profession."16
Source of authority to make a right "clearly established"
The "clearly established" requirements asks if the officer had
"fair warning" or "fair notice" that his or her actions would
violate someone's constitutional rights.17
NOTE: What is "fair" varies by the facts of the case and
by circuit.
a.
b.
Constitutional Authority
(1)
Where the Constitution is specific, the text
alone can clearly establish what is considered
unlawful conduct.
(2)
Example: No reasonable officer could believe
that a warrant that did not particularly describe
objects subject to seizure could be valid given
the Fourth Amendment's language requiring
"particularity."18
(3)
However, when the text of the Constitution is
more general, the language will only clearly
establish lawful or unlawful conduct in the most
"obvious" of cases.19
Case law
(1)
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Supreme Court cases are not necessary to
"clearly establish" a rule of lawful conduct as
cases from courts of appeals are sufficient to
"clearly establish."
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Self-Defense in Court: Understanding Qualified Immunity
c.
3.
Cases in which there are egregious violations
of Constitutional rights, case law may not exist
to "clearly establish" the right at issue,
however, there are situations in which an
officer's conduct can be such that they should
know their conduct violates established law.
(3)
Supreme Court has identified two situations in
which existing case law does not "clearly
establish" a Constitutional rule of conduct:
(a)
When a circuit split on an issue exists20
(b)
"[W]hen an earlier case expressly
leaves open whether a general rule
applies to the particular type of conduct
at issue"21
Agency Policy
(1)
A violation of agency policy does not mean that
an officer cannot successfully use the qualified
immunity defense. However, courts have
examined policies to determine if laws were
"clearly established" at the time of the officer's
conduct.22
(2)
"A policy outlawing certain conduct undermines
the argument that a reasonable officer would
not have been on notice that her conduct was
unlawful."23
(3)
Policy will still be viewed in the context of case
law to determine if the law was "clearly
established."
Extraordinary Circumstances
a.
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(2)
If the officer's conduct does in fact violate a
Constitutional or federal right and the right is clearly
established, the defense of qualified immunity may
still be available to the officer if he can argue that due
to "extraordinary circumstances" he neither knew nor
should have know the appropriate legal standard.24
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Self-Defense in Court: Understanding Qualified Immunity
b.
The Supreme Court has not defined or provided
examples of "extraordinary circumstances" in the
qualified immunity context.
c.
The appellate courts apply the "extraordinary
circumstances" exception VERY RARELY.
d.
Some situations in which the appellate courts have
found "extraordinary circumstances:
(1)
Officer acting on advice of counsel.
Courts will consider several factors, including:
E.
(a)
"how unequivocal, and specifically
tailored to the particular facts giving rise
to the controversy, the advice was,
(b)
whether complete information had been
provided to the advising attorney,
(c)
the prominence and competence of the
attorney(s), and
(d)
how soon after the advice was received
the disputed action was taken."25
(2)
Officer relies on a state or local statute26
(3)
Officer relies on the advice of a superior
officer27
(4)
Officer acts directly at the behest of a judge28
(5)
Officer faces an emergency precluding further
factual investigation29
Qualified Immunity: A Defense to 42 U.S.C. § 1983 and Bivens
actions
1.
General Information
a.
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After Harlow, courts around the country filtered down
qualified immunity to all range of public officials, state
and federal and across all range of alleged
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Self-Defense in Court: Understanding Qualified Immunity
constitutional and federal rights that would fall under a
Bivens action or section 1983.
b.
2.
Courts must analyze each case and each
constitutional right to determine "clearly established"
and what a "reasonable person would have known."
42 U.S.C. § 1983 (State Officers)
"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 or
other person within the jurisdiction thereof 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, suit in equity, or other proper proceeding for
redress . . ."
3.
F.
Bivens actions30 (Federal Officers)
a.
The Supreme Court recognized a cause of action
against federal officers damages incurred directly
from a violation of the Constitution. However the
Court did not discuss any defenses that might be
available to federal officials sued under a
Constitutional claim.
b.
On remand, the Second Circuit used the standards for
defense that had been developed in lawsuits under 42
U.S.C. § 1983 against state and local officers. "The
Bivens defendants were required to prove that their
actions were taken in subjective good faith with an
objectively reasonable believe in their lawfulness."31
c.
The Supreme Court adopted this approach in Butz v.
Economou.32 The Court stated: "Surely, federal
officials should enjoy no greater zone of protection
when they violate federal constitutional rules than do
state officers."33
Case Law Example -- Brousseau v. Haugen34
1.
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Facts: Officers were engaged in a half hour foot chase with a
felony suspect. At the end of the foot chased, the suspect
locked himself into the driver's seat of a Jeep. Officer
Brousseau shattered the window of the Jeep in an effort to
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Self-Defense in Court: Understanding Qualified Immunity
grab the keys. The suspected started the Jeep and begin
driving off -- not complying with the officer's orders to stop.
Officer Brousseau shot the suspect in the back. The officer
claimed to have acted in an effort to protect the safety of
other officers on foot, occupied vehicles in the suspect's path
and other citizens.
G.
2.
The Ninth Circuit denied qualified immunity for Officer
Brousseau based on the violation of the suspect's clearly
established rights under Tennessee v. Garner.35
3.
The Supreme Court reversed the Ninth Circuit decision. The
Court found federal appellate court cases addressing facts
that were relevant to an officer's decision "to shoot a
disturbed felon, set on avoiding capture through vehicular
flight, when persons in the immediate area are at risk from
that flight."36
4.
The existence of the federal appellate cases means that
whether or not Brousseau violated the Fourth Amendment
was not "clearly established."
5.
"[F]or qualified immunity in an excessive force situation, the
inquiry into whether or not the use of force violated clearly
established law cannot be conducted in a vacuum, but must
consider the precise degree of force the officer actually used
under the particular circumstances shown in the case."37
What it means for Firearms Instructors?
1.
"[Q]ualified immunity protects the officer from most of the
worst risks of civil liability for excessive force and other
violations that can occur in citizen contacts. To obtain the
maximum benefit of the doctrine, however, officers must pay
careful attention to the training they receive about the legal
criteria for reasonable and excessive force . . ."38
2.
Firearms Instructors must include information in training
lessons that place officers on specific notice of use of force
in specific situations that has been tolerated by controlling
court decisions.39
3.
Providing current and correct legal training to officers on use
of force can "make the difference between liability or a
successful defense if a disgruntled citizen brings [in] civil
rights litigation" against an officer.40
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Self-Defense in Court: Understanding Qualified Immunity
III.
Conclusion
A.
Summary
During our session we defined qualified immunity and discussed
how it worked. We also discussed the important role Firearms
Instructors play in helping officers prepare for the qualified immunity
defense.
B.
Questions
C.
Closing Statement
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NOTES
1
Malley v. Briggs, 475 U.S. 335, 341 (1996).
2
Harlow v. Fitzgerald, 457 U.S. 800 (1982).
3
Nixon v. Fitzgerald, 457 U.S. 731 (1982).
4
Harlow, supra.
5
Id., at 807.
6
Id., at 818.
7
Harlow, at 818 (1982); also Black's Law Dictionary, 6th Ed. "immunity: qualified
immunity," 752.
8
Black's Law Dictionary., "affirmative defense," 60.
9
Id., "discretionary function," 467.
10
"Qualified Immunity," Department of Justice (DOJ), Civil Division, Torts Branch
(September 2008), at 4.
11
Id., at 5.
12
Saucier v. Katz, 533 U.S. 194 (2001).
13
Pearson v. Callahan, 555 U.S. 223 (2009).
14
Saucier, at 201.
15
Wilson v. Layne, 526 U.S. 603, 615 (1999).
16
Conn v. Gabbert, 526 U.S. 286, 291 (1999).
17
See Hope v. Peltzer, 536 U.S. 730, 739 and 741 (2002).
18
See Groh v. Ramirez, 540 U.S. 551, 563 (2004).
19
See Brousseau v. Haugen, 543 U.S. 194, 199 (2004).
20
Wilson, at 618.
21
Hope, at 741.
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22
Groh, at 564.
23
DOJ at 14, citing Groh, at 564.
24
Harlow, at 819.
25
V-1 Oil Co. v. State of Wyo., Dep't of Envtl. Quality, 902 F.2d 1482, 1489 (10th
Cir. 1990).
26
See Roska ex rel. Roska v. Sneddon, 437 F.3d 964, 971 (10th Cir. 2006);
Mimics, Inc. v. Vill. of Angel Fire, 394 F.3d 836, 846 (10th Cir. 2005).
27
See Liu v. Phillips, 234 F.3d 55, 58 (1st Cir. 2000).
28
See Lowe v. Letsinger, 772 F.2d 308, 314 (7th Cir. 1985).
29
See Rykers v. Alford, 832 F.2d 895, 899 (5th Cir. 1987).
30
Bivens v. Six Unknown Named Federal Narcotics Agents, 403 U.S. 388
(1971).
31
DOJ, at 1-2; citing Bivens, at 1347-1348.
32
Butz v. Economou, 438 U.S. 478 (1978).
33
Id., at 501.
34
Brousseau v. Haugen, 543 U.S. 194 (2004).
35
Tennessee v. Garner, 471 U.S. 1 (1985).
36
Brousseau, at 200.
37
Stone, Michael P. and Marc J. Berger, "The Scope of Federal Qualified
Immunity in Civil Rights Cases," 2009 (2) AELE Mo. L.J. 501, at 506.
38
Id., at 507.
39
Id.
40
Id.
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