The Development of Qualified Immunity, How It Has Shielded Unprecedented Police Misconduct, and What Lies Ahead

The recent death of George Floyd in the custody of the Minneapolis Police Department has sparked grief and outrage nationwide. While much of the discussion in the wake of Floyd’s death has concerned criminal liability for the responsible police officers¹—and rightfully so—the tragic incident has also sparked renewed advocacy for changes to laws that hinder the ability of victims of police misconduct to recover damages in civil lawsuits: most notably, the doctrine of qualified immunity.²

Qualified immunity has long operated to “protect[] government officials from liability for civil damages insofar as their conduct does not violate clearly established statutory or constitutional rights of which a reasonable person would have known.”³ In the words of the Supreme Court, the doctrine “balances two important interests—the need to hold public officials accountable when they exercise power irresponsibly and the need to shield officials from harassment, distraction, and liability when they perform their duties reasonably.”⁴ As a near-automatic response to any civil rights suit, defendant police officers invoke the doctrine, because it “protects all but the plainly incompetent or those who knowingly violate the law.”⁵

The requirement that a plaintiff in a civil rights case must prove that his or her constitutional rights were “clearly established” allows defendant police officers to argue that regardless of how offensive or dangerous their conduct, they must be shielded from liability because no precedent outlaws their specific conduct. This article reviews the origins of qualified immunity, summarizes the Supreme Court’s recent applications of the doctrine, collects examples of cases in the Seventh Circuit and Northern District of Illinois that illustrate how qualified immunity has protected defendant police officers who have engaged in unprecedented police misconduct, and examines developments we might still see in 2020.

Origins of Qualified Immunity (Pierson v. Ray)

The Supreme Court created the qualified immunity doctrine in 1967 through its decision in Pierson v. Ray.⁶ In Pierson, police officers had arrested the plaintiffs, fifteen white and black clergymen who attempted to use segregated facilities at an interstate bus terminal in Jackson, Mississippi.⁷ The plaintiffs were charged with violating Mississippi state law criminalizing “congregat[ing] with others in a public place under circumstances such that a breach of the peace may be occasioned thereby, and refus[ing] to move on when ordered to do so by a police officer.”⁸

After the state dropped the charges, the plaintiffs sued the arresting officers for false arrest and imprisonment. One of the defendant officers argued that “his actions were judicial and he was immune from any civil liability.”⁹ The Supreme Court clarified that “[t]he common law has never granted police officers an absolute and unqualified immunity.”¹⁰ Rather, the Court explained that police officers are protected by a qualified immunity, because “[a] policeman’s lot is not so unhappy that he must choose between being charged with dereliction of duty if he does not arrest when he has probable cause, and being mulcted in damages if he does.”¹¹ The Court provided the example that qualified immunity would “excus[e the police officer] from liability for acting under a statute that he reasonably believed to be valid but that was later held unconstitutional on its face or as applied.”¹² In this way, the doctrine of qualified immunity was born.

Recent Supreme Court Applications of Qualified Immunity

The Supreme Court’s recent opinions about qualified immunity demonstrate that plaintiffs must meet a demanding standard to prove that the defendant police officers violated their clearly established constitutional rights.

In Kisela v. Hughes,¹³ the plaintiff brought an excessive force claim after she was shot by police officers. The defendant officers had arrived on the scene in response to reports that a woman was “hacking a tree with a kitchen knife.”¹⁴ Seeing the plaintiff carrying a large knife at her side, the officers told her twice to drop the knife. When she did not comply, the officers shot her four times.

The district court granted summary judgment to the defendants, applying qualified immunity. The Ninth Circuit reversed, finding “the constitutional violation was obvious” based on “analogous” precedent.¹⁵ In its review, the Supreme Court sided with the district court, finding that “not one of the decisions relied on by the Court of Appeals supports denying [the officers] qualified immunity.”¹⁶ Distinguishing Deorle v. Rutherford,¹⁷ the Court observed that “Deorle involved a police officer who shot an unarmed man in the face.”¹⁸ Likewise distinguishing Harris v. Roderick,¹⁹ the Court stated that Harris dealt with the actions of an FBI sniper who shot a retreating man during the Ruby Ridge standoff, and found that “a reasonable police officer could miss the connection between the situation confronting the sniper at Ruby Ridge and the situation confronting [the officers].”²⁰

In a scathing dissent, Justice Sotomayor, joined by Justice Ginsburg, condemned the majority for sending “an alarming signal to law enforcement officers and the public … that [officers] can shoot first and think later [and] palpably unreasonable conduct will go unpunished.”²¹ Justice Sotomayor first criticized the majority opinion for sidestepping entirely any inquiry into the reasonableness of the officers’ conduct.²² She then outlined a long history of cases—including Deorle and Harris—that “make clear that a police officer may only deploy deadly force against an individual if the officer has probable cause to believe that the person poses a threat of serious physical harm, either to the officer or to others.”²³ Applying that clearly established standard to the facts at hand, Justice Sotomayor concluded that the officers acted unreasonably in shooting the plaintiff, “who posed no objective threat of harm to officers or others, had committed no crime, and appeared calm and collected during the police encounter.”²⁴ Finally, Justice Sotomayor asserted that the majority’s holding “rests on a faulty premise: that [the cases cited by the Ninth Circuit] are not identical to this one.” Id. According to Justice Sotomayor, “that is not the law, for our cases have never required a factually identical case to satisfy the ‘clearly established’ standard.”²⁵

The following year, the Supreme Court again reversed the Ninth Circuit’s refusal to apply qualified immunity. In City of Escondido, California v. Emmons,²⁶ the plaintiff alleged that the defendant police officers used excessive force against him. The officers had responded to a 911 call reporting a domestic disturbance at a married couple’s apartment. After the officers knocked on the door, no one responded. A few moments later, the plaintiff opened the door and came outside. One of the officers, Robert Craig, told the plaintiff not to close the door, but he did so anyway then tried to walk past the officers. Craig stopped the plaintiff, quickly took him to the ground,²⁷ and handcuffed him. The officers then placed him under arrest for “resisting and delaying a police officer.”²⁸ Eventually, the officers learned that the plaintiff was the resident’s father, not her husband.

The district court granted summary judgment based on qualified immunity, finding the law “did not clearly establish that Officer Craig could not take down an arrestee in these circumstances.”²⁹ The Ninth Circuit reversed and remanded for trial stating, “The right to be free of excessive force was clearly established at the time of the events in question.”³⁰ The Ninth Circuit pointed to Gravelet-Blondin v. Shelton, which held based on abundant case law that the “failure to fully or immediately comply with an officer’s orders” does not “justif[y] the application of a non-trivial amount of force.”³¹

In a per curiam opinion,the Supreme Court reversed, holding, “Under our cases, the clearly established right must be defined with specificity.”³² The Court continued:

Specificity is especially important in the Fourth Amendment context, where the Court has recognized that it is sometimes difficult for an officer to determine how the relevant legal doctrine, here excessive force, will apply to the factual situation the officer confronts. Use of excessive force is an area of the law in which the result depends very much on the facts of each case, and thus police officers are entitled to qualified immunity unless existing precedent squarely governs the specific facts at issue.³³

Criticizing the Ninth Circuit, the Court found that it was not enough to cite a single case (Shelton) that “described the right to be free from the application of non-trivial force for engaging in mere passive resistance.”³⁴ Instead, “the Court of Appeals should have asked whether clearly established law prohibited the officers from stopping and taking down a man in these circumstances.”³⁵ While the Court left open the possibility of “the rare obvious case, where the unlawfulness of the officers’ conduct is sufficiently clear even though existing precedent does not address similar circumstances,” it ultimately concluded that “a body of relevant case law is usually necessary to clearly establish the answer.”³⁶
Kisela and Emmons require plaintiffs to present a multitude of cases nearly identical to their own to avoid the application of qualified immunity. However, this requirement creates a paradox given the Supreme Court has also held that courts need not examine whether the defendant violated the plaintiff’s constitutional rights before finding that the right was not clearly established. In Pearson v. Callahan,³⁷ the Supreme Court receded from its prior decision in Saucier v. Katz:³⁸ whereas Saucier required courts to first decide whether a constitutional violation occurred then decide whether the law was clearly established, Pearson gave lower courts discretion to skip the first prong altogether. While the Court acknowledged that Saucier’s procedure “promotes the development of constitutional precedent,” it concluded that the benefit was outweighed by “a substantial expenditure of scarce judicial resources on difficult questions that have no effect on the outcome of the case,” and the “risk of bad decisionmaking [when] the briefing of constitutional questions is woefully inadequate.”³⁹

Lower courts thus have the Supreme Court’s express permission to simply dispose of civil rights claims on qualified immunity grounds without creating precedent that dissuades police officers from engaging in the same conduct or allows recovery in the future. Together, Kisela, Emmons, and Pearson ensure that police officers can continue to use the excuse that they had no reason to believe their conduct violated clearly established constitutional law.

Application of Qualified Immunity in the Seventh Circuit and Illinois Federal Courts

Consistent with Kisela and Emmons, the Seventh Circuit and district courts in the Northern District of Illinois routinely have applied qualified immunity to shield defendant police officers from liability because the plaintiff failed to present any prior cases with substantially identical facts. Consider the following examples:

Mason-Funk v. City of Neenah:⁴⁰ the plaintiff, a hostage victim, managed to escape, run to his car, and retrieve a handgun, which he held at his side in a lowered position. The defendant police officers responding to the scene saw the plaintiff, mistook him for the hostage-taker, and shot him without warning. Applying qualified immunity to shield the police officers, the Seventh Circuit stated, “No existing precedent squarely governs the facts and circumstances that confronted [the officers]. Consequently, the officers were not on notice that their use of deadly force on an armed individual, without warning in a dangerous and chaotic hostage situation, violated any clearly established right. Funk fails to cite to any precedent … which involved a hostage situation.”⁴¹
 

Brown v. Morsi:⁴² the plaintiff was driving her car down the alley behind her home in Chicago with her two children (ages eight and one) in the backseat when she encountered the defendant police officers’ squad car. After the officers told her, “B-tch, move that f-cking car back,” pointed their guns at her, and opened her car door, the plaintiff fled, reversing her car down the alley back into the street. As she slowed to a stop, the officers intentionally hit the plaintiff’s car with their squad car. The officers admitted that at the time, they knew the plaintiff’s children were in the backseat. While the court acknowledged that the officers “may have violated Plaintiff’s Fourth Amendment rights,” it held that they were protected by qualified immunity.⁴³ The court characterized plaintiff’s alleged constitutional violation as “a brief, moderately-paced pursuit of Plaintiff … [followed by a] colli[sion]—at moderate speed, and without setting off either car’s airbags—with Plaintiff’s car,” and found that “[n]o precedent squarely governs these facts.”⁴⁴ The court disregarded the plaintiff’s citations to Supreme Court precedent addressing an “extremely dangerous high-speed chase” and out-of-circuit precedent addressing “intentional collisions by police vehicles … where the suspect fled on a motorcycle or bicycle—facts clearly distinct from a two-car collision.”⁴⁵

Carlson v. Mordt:⁴⁶ the defendant police officers went to the plaintiff’s house with an arrest warrant based on an unpaid fine for driving under the influence of alcohol. After learning that the plaintiff previously had been arrested for domestic battery and assault, the police officers brought a dog that “had been trained to ‘bite and hold’ to apprehend a person, and releases [sic] the person only on command.”⁴⁷ When the officers arrived at the plaintiff’s home, he hid in the attic. The officers announced that the dog would be sent into the attic and released the dog, who found the plaintiff and bit his arm. The officers then forced the plaintiff to lie face down on the floor and handcuffed his hands behind his back. Suddenly, the dog attacked the restrained plaintiff again, biting his buttocks and legs. The officers next to the plaintiff backed away, and the attack continued until a dog belonging to the plaintiff’s co-resident attacked the police dog. The court held that qualified immunity shielded the officers from the plaintiff’s excessive force claim because he did “not come forward with any cases establishing the unlawfulness of using a police dog to effect an arrest when the intended arrestee has a history of arrests for assaultive crimes, has hidden from the police in a location that would provide a strategic advantage to him against the police, and where the police have informed him that they were using a dog to search for him.”⁴⁸

As these cases illustrate, the Seventh Circuit and district courts in the Northern District of Illinois have expansively applied the doctrine of qualified immunity to shield police officers from civil liability if the plaintiff cannot identify case law clearly establishing that the defendants’ conduct, under substantially identical circumstances, violated his or her constitutional rights.

Possible Reform in 2020

On June 4, 2020, in response to the “brutal killing of George Floyd by Minneapolis police” and “a long line of incidents of egregious police misconduct,” United States Representatives Justin Amash of Michigan and Ayanna Pressley of Massachusetts introduced the Ending Qualified Immunity Act.⁴⁹ The bill proposes an addition to 42 U.S.C. § 1983 stating:

It shall not be a defense or immunity to any action brought under this section that the defendant was acting in good faith, or that the defendant believed, reasonably or otherwise, that his or her conduct was lawful at the time when it was committed. Nor shall it be a defense or immunity that the rights, privileges, or immunities secured by the Constitution or laws were not clearly established at the time of their deprivation by the defendant, or that the state of the law was otherwise such that the defendant could not reasonably have been expected to know whether his or her conduct was lawful.⁵⁰

Senators Kamala Harris of California, Edward J. Markey of Massachusetts, and Cory Booker of New Jersey are pursuing similar measures.⁵¹

The push for legislative reform may have been motivated by—in addition to George Floyd’s death—the Supreme Court’s silence. On May 18, 2020, the Supreme Court denied three petitions for writ of certiorari relating to the doctrine of qualified immunity. Among them was the Ninth Circuit case of Jessop v. Fresno.⁵² Perhaps chastened by the Supreme Court’s reversals in Kisela and Emmons, the Ninth Circuit held that police officers who stole $225,000 worth of property were protected by qualified immunity because there was no clearly established law holding that the Fourth or Fourteenth Amendments prohibit officers from stealing property seized pursuant to a warrant.⁵³ While the court noted that case law “suggests that the City Officers’ alleged theft of Appellant’s property could [] implicate the Fourth Amendment,” it concluded that the facts of those preceding cases “vary in legally significant ways from those in this case.”⁵⁴ Ultimately, the Ninth Circuit held that “[a]lthough the City Officers ought to have recognized that the alleged theft of Appellants’ money and rare coins was morally wrong, they did not have clear notice that it violated the Fourth Amendment—which, as noted, is a different question.”⁵⁵

Jessop is a chilling consequence of Kisela and Emmons. If a police officer’s theft of property seized pursuant to a warrant is not a clearly established constitutional violation because no previous case has so held, the doctrine of qualified immunity seems virtually limitless. But, as Justice Sotomayor observed in her dissent in Kisela, the Supreme Court’s application of qualified immunity was not always so obsessed with factually identical precedent. In Hope v. Pelzer,⁵⁶ for example, the Court clarified that “officials can be on notice that their conduct violates established law even in novel factual situations.” At issue in Hope was the horrifying and inhumane treatment of a state prisoner, who was handcuffed to a hitching post in the hot sun and taunted by the defendant prison guards. Rejecting the defendants’ invocation of qualified immunity based on a “lack of federal law by which the guards’ conduct should be evaluated,” the Court instructed that the “salient question … is whether the state of law … gave [the defendants] fair warning that [their conduct] was unconstitutional.”⁵⁷ The Court concluded that the “obvious cruelty inherent in the practice should have provided [the defendants] with some notice that their conduct was unconstitutional.”⁵⁸ The Court also relied on binding Circuit precedent outlawing “several forms of corporal punishment” and “physical abuse.”⁵⁹

The standard in Hope seems to strike the proper balance: the focus is on whether the officers in question should have understood that their conduct violated the plaintiff’s constitutional rights, rather than the existence of case law addressing substantially identical conduct. At times, officers must make split-second decisions under high-pressure circumstances. It would be unjust to hold them liable for decisions that are mistaken in hindsight, but not so clearly wrong that the officer should have known his conduct was unconstitutional. The proposed Ending Qualified Immunity Act, for example, goes too far by eliminating any protection for police officers who could not reasonably have been expected to know their conduct was unlawful. But it is also unjust to require plaintiffs to identify prior cases with substantially identical facts as a prerequisite to recovering civil damages.

As of June 1, 2020, the Supreme Court is still considering ten cert petitions relating to qualified immunity. Hopefully, the Court will take the opportunity to review one or more of these cases and modify the doctrine before Congress eliminates it altogether. A retreat from Kisela and Emmons back towards the fair warning standard set forth in Hope will increase the likelihood that civil rights victims obtain fair compensation for their suffering. More to the point, such a paring back of qualified immunity might give police officers pause before violating the Constitution and prevent even unprecedented police misconduct, while limiting the liability of those who reasonably believed their conduct was lawful.

Valerie Brummel is an attorney with Riley Safer Holmes & Cancila LLP in Chicago.