Law enforcement critics have launched concerted attacks on the doctrine of qualified immunity in an effort to mischaracterize the doctrine as allowing police officers to escape liability for clearly unconstitutional conduct.  Opponents of the doctrine frequently misrepresent the nature, extent, and intent of this very limited immunity in an effort to inflame the uninformed against the very law enforcement officers charged with protecting them.  The United States Supreme Court has recently decided two cases affirming the doctrine and providing the clear rationale for the continued necessity of protecting officers from personal liability where their conduct does not violate clearly established law.[i] 

Qualified immunity protects government officials from personal liability when their conduct does not violate clearly established rights “of which a reasonable person would have known.”[ii]  A right is “clearly established” when it is “sufficiently clear that every reasonable official would have understood what he is doing violates that right.”[iii]  While there is no requirement that a prior case exactly match the facts under review, sufficient legal authority must exist to place the question “beyond debate.”[iv]  After all, if reasonable legal minds with the benefit of hindsight and from the comfort of their offices and judicial chambers can disagree on whether an officer’s conduct in a given circumstance is appropriate, how then can society expect an officer to conduct perfect comprehensive legal analysis in the heat of the moment and potentially under threat of death or great bodily harm?  The inquiry must be fact specific to the those under review and broad generalizations and comparisons are insufficient to strip an officer of his or her limited immunity.  This is one of the reasons the qualified immunity doctrine exists.  It is well-settled that whether an officer has used excessive force depends on the specific facts of the case, including the severity of the crime at issue, whether the suspect posed an immediate threat to the safety of the officers or others, and whether the suspect was actively resisting arrest or attempting to flee.[v]  Using these well-defined and long-standing principles, the United States Supreme Court has re-affirmed its historical precedent by reversing two federal courts of appeal that denied officers entitlement to qualified immunity.

The Cortesluna Court reversed a decision of the Ninth Circuit Court of Appeal and held that officers were entitled to qualified immunity where they used non-deadly force to restrain a non-compliant suspect armed with a knife.  In that case, the trial court determined the officers were entitled to qualified immunity because their conduct did not violate a clearly established right.  The Ninth Circuit reversed the trial court, and held the officers were not entitled to immunity.  The appellate court reasoned that there was a similar case that placed the officers on notice that their conduct was unconstitutional, and therefore, they were not entitled to the benefits of immunity.  The Supreme Court conducted the fact-specific inquiry that its precedent requires, and reasoned the Ninth Circuit erred because there were significant factual dissimilarities between the case purportedly placing the officers’ on notice and the case under review. 

More specifically, the appellate court based its decision on a case in which an unarmed, compliant suspect in an excessive noise call was found to be the victim of excessive force where the officers pepper sprayed him, slammed him to the ground and intentionally dug a knee into his back causing long term injury.  However, the officers in Cortesluna were dispatched to a serious domestic violence incident where the victims were barricaded in a room.  Upon arrival, the officers found the suspect who carried a knife sticking out from his front pocket, they gave him repeated verbal commands to keep his hands raised.  When the suspect lowered his hands, one officer shot him with less-lethal beanbag rounds and ordered him to the ground.  Another office placed his knee on the left side of the suspects back for approximately 8 seconds while the knife was retrieved.  In finding the cases were sufficiently dissimilar to render the former case unpersuasive on the issue of qualified immunity, the Court compared and contrasted the two cases, noting the case under review involved: (1) an investigation into a more serious crime; (2) an armed suspect whom appeared to have just reached for the knife; and (3) placement of the knee for the limited time and purpose of recovery of the knife.  The implicit holding is that no reasonable officer would evaluate these cases similarly and the officers were not placed on notice that their conduct was improper, and therefore, they were entitled to immunity.[vi]

In Bond, the Court evaluated a case where officers responded to a call reporting an intoxicated man refusing to leave his ex-wife’s home.  Upon arrival, the suspect was non-compliant with verbal commands, armed himself with a hammer, held it as if to throw it or strike the officers, and then advanced on them.  Two officers fired their weapons, killing the suspect.  The trial court granted summary judgment on qualified immunity grounds, which the Tenth Circuit Court of Appeals reversed.  In determining the officers were immune from suit, the Supreme Court admonished the lower appellate court that it must not define clearly established law “at too high a level of generality.”[vii]  After reiterating that the precedent must be “so well defined that it is ‘clear to a reasonable officer that his conduct was unlawful to the situation he confronted,’” the Court reversed, and held the officers were entitled to qualified immunity.  None of the authority relied upon to purportedly establish the alleged unlawfulness of the officers’ conduct were remotely factually similar to place the officers on notice their conduct was unconstitutional, therefore, the officers were immune from suit.

Consistent with its long-standing precedent, the Supreme Court continues its detailed factual analysis of cases implicating the qualified immunity doctrine in the determination of when the immunity applies.  Far from the license to violate citizen’s rights that law enforcement opponents claim it to be, the qualified immunity doctrine continues to protect officers who act in good faith to resolve difficult situations that often require split second life or death decisions. 

Law enforcement executives and trainers should continue their efforts to manage and train officers to ensure that the minimum amount of force necessary to control the situation or to stop the threat is used and that officers consider the totality of circumstances prior to using any force.

[i] Rivas-Villegas v. Cortesluna, 595 U.S. _____ (2021); City of Tahlequah, OK v. Bond, 595 U.S. _____ (2021).

[ii] White v. Pauly, 580 U.S. _____ (2017).

[iii] Mullenix v. Luna, 577 U.S. 7, 11 (2015).

[iv] White, 580 U.S. at ___ (slip Op., at 6).

[v] Graham v. Connor, 490 U.S. 386, 396 (1989).

[vi] To be clear, the Court did not opine that the conduct was in fact improper.

[vii] E.g. Ashcroft v. al-Kidd, 563 U.S. 731, 742 (2011).