The United States Supreme Court has demonstrated remarkable understanding of the very difficult and dangerous challenges that confront law enforcement officers on the streets of America today. The Court’s strong interest in protecting our nation’s domestic sentinels is displayed in decisions which recognize and support a “qualified immunity” legal defense for officers who must defend themselves in lawsuits arising out of life and death street confrontations.
The Background and History of the Qualified Immunity Defense
In Harlow v. Fitzgerald,[1] the Supreme Court recognized the need for an objective qualified immunity defense to protect public officials, including law enforcement officers, from the often frivolous lawsuits that flow from their necessary official actions.
The Court eliminated entirely any consideration of the subjective intent of the public official at the time of an alleged constitutional transgression and focused exclusively on the actual objective facts related to the official’s conduct. By eliminating consideration of an official’s (including a law enforcement officer’s) subjective intent, the Court made it much more difficult for a trial judge to refuse to dismiss the case against an officer prior to trial.
The Court observed that the goal of the qualified immunity defense was to allow for the “dismissal of insubstantial lawsuits without trial.”[2] The Court ruled “that government officials … generally are shielded from liability … insofar as their [objective] conduct does not violate clearly established … constitutional rights of which a reasonable person would have known.”[3]
In Mitchell v. Forsyth,[4] the Court observed that unless lawsuit allegations involve a claimed violation of clearly established constitutional rights, the defendant pleading qualified immunity is entitled to dismissal before the commencement of discovery. The Court made clear that the qualified immunity defense is an “immunity from suit rather than a mere defense to liability; and … it is effectively lost if a case is erroneously permitted to go to trial.”[5]
The Court also ruled that denial of a public official’s qualified immunity defense by a trial court judge” is an appealable ‘final decision’….”[6] In so doing, the Court made clear that when a law enforcement officer’s claim of qualified immunity is denied by a trial court judge, that denial is subject to an immediate appeal to the appropriate court of appeals. The defendant law enforcement officer does not have to suffer the burdens of protracted discovery and trial before an appellate court can review the rejection of the qualified immunity defense.
In Anderson v. Creighton,[7] the Court observed that, “qualified immunity protects, ‘all but the plainly incompetent or those who knowingly violate the law’.”[8]
The Court stated, “We have recognized that it is inevitable that law enforcement officials will in some cases reasonably but mistakenly conclude [for example] that probable cause is present, and we have indicated that, in such cases, those officials … should not be held personally liable.”[9]
This statement makes clear that law enforcement officers are entitled to qualified immunity when they have a reasonable basis to believe that their conduct was constitutional, even if their actual conduct falls somewhat short of the constitutional standard.
Qualified Immunity and Officer-Involved Shootings
In Brosseau v. Haugen, [10] a Puyallup, Washington police officer, attempted to arrest Haugen for felony drug violations. Haugen entered a Jeep parked in the driveway of his mother’s home and locked its doors. The Jeep was facing the street. There were two vehicles parked in front of the Jeep. Each one had two passengers inside. One contained a three year old child.
Officer Brosseau pointed her firearm at Haugen and ordered him out of the Jeep but he ignored her. She hit the driver’s side window several times with her pistol. The window shattered and she hit Haugen in the head with the butt of her sidearm. Undeterred, Haugen started the Jeep and began to move forward. Brosseau jumped back and as the vehicle continued to move forward, she fired one shot through the rear driver’s side window. This shot hit Haugen in the back.
After being shot, Haugen maneuvered the Jeep out of the driveway and drove down the street for a short distance before stopping. He later pleaded guilty to felony eluding of a police officer. By so doing, he admitted that he was guilty of driving in a “wanton” and “willful disregard” for the lives of other people.
Haugen sued Brosseau in federal court pursuant to 42 U.S.C. §1983 and alleged that she used excessive force. Brosseau asserted the qualified immunity defense. The trial court judge ruled in her favor and dismissed the suit. The Ninth Circuit Court of Appeals reversed and remanded the case for trial.
The Ninth Circuit ruled that the shooting was excessive and violated the Fourth Amendment because Haugen did not represent a threat of serious bodily harm to Brosseau or others when he was shot. The Circuit Court also ruled that the state of the law was clearly established at the time and that no reasonable officer could believe that the shooting was lawful.
The Supreme Court reversed. The Court observed that the Ninth Circuit ruled that Officer Brosseau’s conduct violated both prongs of the two-part qualified immunity test:
1. that she violated the Constitution (Fourth Amendment) and
2. that the law in these circumstances was “clearly established.”
The Supreme Court expressed “no view as to the correctness of the Court of Appeals’ decision on the constitutional question itself.”[11] Instead, the Court jumped immediately to the second prong of the qualified immunity test, which asks the question, was the constitutional right alleged to be violated “clearly established?”
The Court framed the particular issue in this case by asking, “whether [it is permissible] to shoot a disturbed felon, set on avoiding capture through vehicular flight, when persons in the immediate area are at risk from that flight.”[12] The Supreme Court concluded that the law was “by no means clearly establish[ed]” [13]that Brosseau’s conduct in this case was unconstitutional. The case was dismissed on qualified immunity grounds.
The 2015 Supreme Court decision in Mullenix v. Luna[14] is also highly instructive. In Mullenix, a Texas Department of Public Safety (DPS) Trooper shot and killed Leija to end a high speed pursuit. Leija attempted to avoid arrest by engaging law enforcement officers in a dangerous high speed pursuit. During the chase which lasted 18 minutes, he traveled at speeds between 85 and 110 mph. He called a police dispatcher twice during the chase, claimed he had a firearm and threatened to shoot pursuing officers if they continued the pursuit. Police officials ordered the use of spike strips to be deployed under an overpass along the road that Leija was traveling on. An officer was positioned under the overpass to carry out the order.
Mullenix, the DPS Trooper, was positioned on top of the overpass and fired six rifle shots at Leija’s vehicle as it approached on the road toward the overpass. Leija was hit by four of those shots and died.
Mullenix was sued by Leija’s survivors, who alleged excessive force in violation of the Fourth Amendment. Mullenix asserted the qualified immunity defense but the defense was rejected by the trial court judge and the Fifth Circuit Court of Appeals. The Fifth Circuit ruled that Mullenix violated clearly established law by using deadly force upon a fleeing felon who did not present a sufficient threat of harm to officers or others. The Supreme Court reversed.
The Court was highly critical of the Fifth Circuit for using a much too broad generalized standard in determining that Mullenix violated clearly established law. The Court observed that the Circuit Court used the standard originating in Tennessee v. Garner, 471 U.S. 1 (1985) which held that deadly force is not permitted against an unarmed and non-dangerous fleeing felon. The Court ruled that the clearly established law inquiry “must be undertaken in light of the specific context of the case, not as a broad general proposition.”
The Court noted that, “Mullenix confronted a reportedly intoxicated fugitive, set on avoiding capture through high-speed vehicular flight, who twice during his flight had threatened to shoot police officers, and who was moments away from encountering an officer [under the overpass] at Cemetery Road. The relevant inquiry is whether existing [legal] precedent placed the conclusion that Mullenix acted unreasonably … ‘beyond debate.’” The Court ruled that clearly established law was not violated because it was not beyond debate that Mullenix acted outside the parameters of objective reasonableness. The case was dismissed in favor of Mullenix on qualified immunity grounds.
Conclusion
The Supreme Court’s decisions in Brosseau and Mullenix are significant for several reasons. First, they once again demonstrate the Court’s continued determination to give police officers the benefit of doubt when reviewing their split-second life changing decisions from the entirely safe contours of judicial chambers. Second, they reaffirm the Court’s willingness to use the qualified immunity defense to adjudicate police use of deadly force cases at the pre-trial stage of litigation and spare officers from the monetary and emotional burdens of protracted discovery and trial. Third, they demonstrates the extraordinary value of the qualified immunity defense to police officers who use deadly force in the performance of their duty, even in cases where the need for such force was not absolutely clear cut and obvious.
These cases were by no means “slam dunk” victories for the involved police officers. Nonetheless, the Supreme Court evaluated the efficacy of the officers’ assertion of qualified immunity in the particular circumstances of each case and ruled that their conduct did not violate clearly established law.
The value of the qualified immunity defense to law enforcement officers in use of deadly force cases cannot be understated. It is crucial for attorneys representing officers in civil rights litigation to completely understand the full contours of the qualified immunity defense and use it to successfully defend their police officer clients.
Footnotes
[1] 457 U. S. 800 (1982).
[2]Id. at 814. (Emphasis added).
[3] Id. at 807. (Emphasis added).
[4] 472 U.S. 511 (1985).
[5] Id. at 526. (Emphasis added).
[6] Id. at 530.
[7] 483 U.S. 635 (1987).
[8] Id. at 638 (quoting, Malley v. Briggs, 475 U. S. 335, 344-345). (Emphasis added).
[9] Id. at 641. (Emphasis added).
[10] 543 U.S. 194 (2004).
[11] Id. at 198. This statement by the Court makes clear that in deciding the applicability of the qualified immunity defense, the Court did not believe it was necessary to evaluate the first part of the two pronged qualified immunity test outlined by the Court in Saucier v. Katz, 533 U.S. 194 (2001), i.e. whether the facts most favorable to Haugen made out a violation of the Fourth Amendment? See also, Pearson v. Callahan, 555 U.S.223 (2009) in which the Supreme Court stated that lower courts were free to evaluate either of the two pronged qualified immunity test to determine whether qualified immunity would exonerate a public official.
[12] Id. at 200.
[13] Id. at 201. (Emphasis added).
[14] No. 14-1143. (Nov. 2015).
