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What is ‘clearly established’ law?

A recent case involving law enforcement provides an opportunity for a closer look

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Officers should learn from the Partridge decision and remember the tactical considerations discussed.

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This article was featured in Lexipol’s Xiphos newsletter, a monthly legal-focused law enforcement newsletter authored by Ken Wallentine. Subscriptions are free for public safety officers, educators and public attorneys. Subscribe here!

PARTRIDGE V. CITY OF BENTON, ARK., 70 F.4th 489 (8th CIR. June 12, 2023); [and, denial of en banc review, Partridge v. City of Benton, Arkansas, No. 21-3001, Not Reported in Fed. Rptr., 2023 WL 6053542 (8th CIR. Sept. 18, 2023).]

In July 2019, we talked about the case of Partridge v. City of Benton, Arkansas (929 F.3d 562 (8th Cir. 2019)). We revisited that case a few months ago, and shortly after that article was published, veteran officer and attorney Michael Brave and I chatted about the various judges’ opinions on whether the officers in Partridge were entitled to qualified immunity. We discussed whether the law governing the officers’ conduct was “clearly established,” and, if so, whether the clearly established issue was “beyond debate.”

We talk about qualified immunity in almost every issue of Xiphos, principally because the question of whether an officer is subject to trial in a civil rights case often turns on whether the officer is entitled to qualified immunity.

To begin, here’s a brief recap of the reported facts and the case history: 17-year-old Keagan Schweikle was depressed after being suspended from school. His mother reported he threatened to shoot himself and left the house armed with a handgun after ingesting cough syrup and possibly marijuana. An officer, using a police service dog, located Schweikle a short time later.

The officer saw Schweikle had a gun in his right hand and ordered him to drop the gun. Schweikle raised the gun to his right temple and the officer repeated his commands. Schweikle did not respond verbally but began to move the gun away from his head. The officer fired, striking Schweikle twice and killing him.

Schweikle’s parents sued. As is the case in most lawsuits alleging excessive force, the core question is if the officer’s actions were objectively reasonable in light of the facts and circumstances as he reasonably perceived them. The parents claimed Schweikle “simply began to move the gun away from his head” in response to the officer’s repeated orders to drop the gun.

The trial court granted qualified immunity to the officer, stating it would have “been nearly impossible for [the officer] to tell whether Schweikle was moving the gun away from his head to comply with [the officer]’s order or if he was repositioning the gun to aim it at the officers.”

In its first published decision, the appellate court reversed the district court’s decision (though the case still bounced back and forth with the trial court for a few years), observing Schweikle had to move the gun in some fashion to comply with the order to drop the gun. Because the district court granted qualified immunity and no trial had yet been held, the facts available to the first appellate panel that reviewed the case were limited and did not resolve whether Schweikle was moving the gun in the direction of the officer or away from him. Nor did the record contain any information about the officer’s subjective belief about the threat Schweikle posed as he moved the gun from his temple.

These initial decisions did not mention the action-reaction time issue relevant to this event, likely due to neither party submitting the information into the evidentiary record. But, as Blair et al. (2011)[1] noted in a study using scenario role players, “it took police officers who were pointing a handgun directly at a person with a gun visible in hand–at the person’s side or pointed at the person’s head–an average of .39 seconds to shoot after the person initiated a movement of the weapon toward the officer.”[2] In 2022, Dr. Michael Kantor published his research on the speed of a seated subject holding a handgun at the side and found the subject could raise and fire the handgun in as little as a quarter of a second.[3] Unaimed fire can be even faster — as little as one-tenth of a second.[4]

The appellate court cited several prior cases granting qualified immunity to officers who believed subjects posed serious threats justifying deadly force, based on the officers’ perceptions (even if mistaken) that subjects pointed a gun in their direction. In this case, the court simply did not have the factual record to make an informed ruling on qualified immunity. Nonetheless, the court stated Schweikle may have slowly lowered the gun while pointing it away from the officer. If true, it would be “so obviously an attempt to comply with commands to drop the [gun] that a reasonable officer would have known that opening fire would constitute excessive force.”

In the most recent published appellate decision, a forensic pathologist opined that it was “highly unlikely” Schweikle pointed his gun at the officers before being shot. The pathologist believed it would have required “a very awkward, highly atypical, unnatural twisting of the wrist” for Keagan to point the gun at the officers. While Schweikle pointing his gun at the officers may have been “anatomically possible,” it would have required “a very abnormal movement.”

Countering the pathologist’s opinion, the defendant officers pointed out there was no eyewitness testimony that Schweikle did not point his gun at them. However, the appellate court did not equate a lack of eyewitness testimony with a lack of evidence. In a 2-1 decision, the appellate court again reversed the district court’s second grant of qualified immunity to the officers, holding that a jury could believe the pathologist’s testimony, which would support a reasonable inference Schweikle did not point his gun at the officers: “That suffices to survive summary judgment.” The dissenting judge in the second appellate decision stated he would have agreed with the district court and granted the officers qualified immunity.

I invited Michael Brave to share his explanation of the doctrine of qualified immunity for Lexipol readers, followed by our comments about the Partridge case, and how it relates to questions surrounding qualified immunity.

A primer on qualified immunity from Michael Brave

Over 35 years ago, the U.S. Supreme Court stated, “Qualified immunity protects all but the plainly incompetent or those who knowingly violated the law” (Malley v. Briggs, 475 U.S. 335, 341 (1986), see also District of Columbia v. Wesby, 138 S.Ct. 577, 589 (2018)); White v. Pauly, 580 U.S. 73, 79 (2017)). To begin with, that’s a hard standard for a plaintiff to meet. Moreover, the burden is on the plaintiff to specifically identify and show the law allegedly violated by an officer was “clearly established” at the moment of the alleged violation (Rivas-Villegas v. Cortesluna, 142 S.Ct. 4, 8 (2021); Olivier v. Baca, 913 F.3d 852, 860 (9th Cir. 2019)).

To defeat an officer’s qualified immunity defense, a plaintiff generally “must locate a controlling case that squarely governs the specific facts at issue, except in the rare obvious case in which a general legal principle makes the unlawfulness of the officer’s conduct clear despite a lack of precedent addressing similar circumstances” (West v. City of Caldwell, 931 F.3d 978, 983 (9th Cir. 2019), quoting City of Escondido v. Emmons, -–– U.S. ––, 139 S. Ct. 500, 503–04 (2019)). A right is clearly established only if relevant precedent “has placed the … constitutional question beyond debate” (Ashcroft v. al-Kidd, 563 U.S. 731, 741 (2011)).

The “clearly established” standard also requires the legal principle to clearly prohibit the officer’s conduct in the particular circumstances before him. The rule’s contours must be so well defined that it is “clear to [every] reasonable officer that his conduct was unlawful in the situation he confronted” (District of Columbia v. Wesby, 138 S.Ct. 577, 590 (2018); Saucier v. Katz, 533 U.S. 194, 202 (2001)). It is not enough that the rule is suggested by then-existing precedent. The precedent must be clear enough that every reasonable official would interpret it as establishing the particular rule the plaintiff seeks to apply (District of Columbia v. Wesby, 138 S.Ct. 577, 590 (2018); see Reichle v. Howards, 566 U.S. 658, 666 (2012)).

One unresolved question looms large in the world of qualified immunity. The Supreme Court has not yet stated what precedents — other than their own — qualify as controlling authority for purposes of qualified immunity. The court has set a higher bar for assessing whether the law was “clearly established.” Clearly established means that, at the time of the officer’s conduct, the law was “‘sufficiently clear’ that every “reasonable official would understand that what he is doing” is unlawful (District of Columbia v. Wesby, 138 S.Ct. 577, 589 (2018)). Obviously, there are thousands of court decisions that apply “clearly established law” as established by federal circuit courts, even though not specifically found to be clearly established by SCOTUS.

The Supreme Court has also articulated a “fair notice” requirement in the qualified immunity analysis. The plaintiff must show the officer had “fair notice … in light of the specific context of the case, not as a broad general proposition” (see Brosseau v. Haugen, 543 U.S. 194, 198 (2004)).

The back-and-forth history of Partridge in the federal courts

  • The initial decision: On March 9, 2018, the federal district court granted the defendant officers’ request to dismiss the case, agreeing the officers were entitled to qualified immunity (Partridge v. City of Benton, Arkansas, No. 4:17-CV-00460 BSM, Slip Copy, 2018 WL 11216398 (E.D. Ark. Mar. 9, 2018), aff’d in part, rev’d in part and remanded, 929 F.3d 562 (8th)). One federal judge ruled in favor of qualified immunity on the grounds the law was not clearly established.
  • The first appeal: On July 3, 2019, three appellate judges agreed the use of deadly force was not objectively reasonable, holding it was clearly established, for qualified immunity purposes, that shooting a non-resisting, non-fleeing minor as he moved his gun in compliance with officers’ commands was excessive (Partridge v. City of Benton, Arkansas, 929 F.3d 562 (8th Cir. 2019)). Three federal judges opposed qualified immunity on the grounds the law was clearly established. Read Ken’s analysis from Xiphos.
  • On remand: On August 30, 2021, on remand, the district court judge ruled, once again, that the officers were entitled to qualified immunity, noting the use of deadly force was reasonable even if Schweikle had no intention of firing upon the officers and only inadvertently pointed the muzzle at them while attempting to comply with the order to drop the gun (Partridge v. City of Benton, Arkansas, No. 4:17-CV-00460-BSM, Slip Copy, 2021 WL 4076378 (E.D. Ark. Aug. 30, 2021), rev’d and remanded, 70 F.4th 489 (8th 2023)). Again, the initial federal judge ruled in favor of qualified immunity on the grounds the law was not clearly established.
  • The second appeal: On June 12, 2023, two appellate judges again reversed the federal district court decision and held the officers were not entitled to qualified immunity. One appellate judge dissented and would have granted qualified immunity based on his opinion that the law governing the officers’ conduct was not clearly established (Partridge v. City of Benton, Arkansas, 70 F.4th 489 (8th 2023)). Read Ken’s analysis from Xiphos.
  • The petition for en banc rehearing: Just last month, on Sept. 18, 2023, the 8th Circuit Court of Appeals denied petition for rehearing by the three-judge panel and by the entire court (an en banc rehearing). Two judges dissented and would have granted the petition for en banc hearing (Partridge v. City of Benton, Arkansas, 2023 WL 6053542 (8th 2023)).
  • Doing the math: The federal district court judge ruled the law was not “clearly established” and granted qualified immunity twice. Two appellate judges twice opined to the contrary. Another appellate judge opined against qualified immunity once, then opined in favor of qualified immunity in the second appeal. On the petition for en banc rehearing, nine judges voted against rehearing the decision denying qualified immunity, while two judges voted in favor.

What does this all mean? Eleven judges cannot agree on whether the law was clearly established at the time the officers confronted Schweikle. So, what is the court’s message for the officer on the street? Confusion? Uncertainty? How can it be found the clearly established law was “beyond debate” and guided the officers’ actions? The Supreme Court held that a right is “clearly established” only if relevant precedent “has placed the constitutional question beyond debate” (Ashcroft v. al-Kidd, 563 U.S. 731, 741 (2011)). That’s certainly not the case in the matter of Partridge v. City of Benton. I’m standing by to see whether the defendants petition the Supreme Court to consider the case or whether they take the case to trial.

Now, with ALL that, also consider established human factors, including action/reaction times, as well the law (in some circuits) that is clearly established, including:

  1. Officers are not often afforded the luxury of armchair reflection;
  2. The Fourth Amendment does not require omniscience;
  3. Officers do not have to wait until a gun is pointed;
  4. And officers need not be absolutely sure of the nature of the threat or subject’s intent to cause them harm;
  5. And consider “mistake-of-fact” officer-involved shootings [e.g., subject reaching for waistband, quick or furtive movements, pointing cell phone, knife, as an officer reasonably perceives the person as an immediate threat of death or serious bodily harm].

Though we’ve tried to encapsulate a complicated collection of judicial decisions and it may be challenging to discern clear rules from the courts, officers should still learn from the Partridge decision and remember the tactical considerations discussed here. Special thanks to Michael Brave for his insightful contributions.

Sources

1. Blair JP, Pollock J, Montague D, et al. (2011) Reasonableness and reaction time. Police Quarterly, 14(4), 323-343.

2. Taylor PL. (2021) “Engineering resilience” into split-second shoot/no shoot decisions: The effect of muzzle-position. Police Quarterly, 24(2), 185-204.

3. Kantor M, Lewinski W, Garg H et al. (2022) Kinematic Analysis of Naive Shooters in Common Law Enforcement Encounters. Journal of Forensic Biomechanics, 13(5):405. Accessed Oct. 30, 2023, from https://www.researchgate.net/publication/365503339_Kinematic_Analysis_of_Naive_Shooters_in_Common_Law_Enforcement_Encounters.

4. Kliem V, Blake D. (2022) Force Science Validates Legacy Research Findings. Force Science News. Accessed Oct. 26, 2023, from https://www.forcescience.com/2022/12/force-science-validates-legacy-research-findings.

A police officer and former prosecutor, Ken Wallentine is Chief of Law Enforcement for the Utah Attorney General. Traffic detentions and passenger issues are discussed in his new book, Street Legal: A Guide to Pre-trial Criminal Procedure for Police, Prosecutors, and Defenders, published by the American Bar Association Press.
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