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Posts Tagged ‘Qualified Immunity’

Are We Witnessing the End of Qualified Immunity?

Posted on: September 19th, 2018

By: Sun Choy

For many decades, qualified immunity has served as a powerful defense to end civil cases against public officials, including law enforcement officers for the alleged use of excessive force.  Given the many high-profile deaths involving the use of force by officers, progressives have again called for the end of qualified immunity.  Even some conservatives are now calling for an end to qualified immunity.  In a recent National Review article, the author lays out a conservative rationale to end qualified immunity, which is primarily based on the “plain meaning” of the statutory language of 42 U.S.C. § 1983.  With progressives and conservatives joining forces, is it only a matter of time before the Supreme Court ends qualified immunity?

If you have any questions or would like more information, please contact Sun Choy at [email protected].

New Potential SCOTUS Justice: Friend or Foe of Qualified Immunity?

Posted on: July 10th, 2018

By: Sara Brochstein

President Trump announced his decision to nominate Judge Brett Kavanaugh to fill the Supreme Court vacancy created by Justice Anthony Kennedy’s retirement.  Should he be confirmed, Judge Kavanaugh could have significant impact on the preservation of qualified immunity, which continues to come under fire of late.   Essentially, the defense of qualified immunity protects 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. Given the current climate with unending allegations of excessive use of force by police, the call for reconsideration of the expansive protection offered by qualified immunity has become widespread.  And whether officers remain entitled to qualified immunity under the current parameters of the doctrine has substantial effect on civil litigation outcomes and potential damage awards.

Such a hot button issue continues to present itself to the Supreme Court.  In fact, just one year ago, Justice Clarence Thomas wrote separately in the Court’s decision in Ziglar v. Abbasi, stating that in an appropriate case, the Court should reconsider its qualified immunity jurisprudence.   It will be interesting to see how the Court evolves in its decisions to uphold officers’ entitlement to qualified immunity, especially given continuing outspoken public perception on the issue.   However, if Judge Kavanaugh’s recent dissent in Wesby et al. v. District of Columbia et al. is any indication of his views of qualified immunity and the position he would take as a Justice, it appears qualified immunity could endure as a strong  defense given that the Supreme Court ultimately sided with the dissent.

If you have any questions or would like more information, please contact Sara Brochstein at [email protected].

To Shoot or Not to Shoot – The Ninth Circuit Says That Is The Question (for the jury)

Posted on: July 6th, 2018

By: Owen Rooney

On June 25, 2018 the U.S. Supreme Court denied certiorari in Estate of Lopez v. Gelhaus, arising out of the shooting in Sonoma County, California of a 13 year old who was holding a toy AK-47 gun.

In the mid-afternoon of October 22, 2013 two deputies for Sonoma County were on patrol in a high crime area with known gang activity.  No active crime was reported. They observed the child walking at a normal speed on the sidewalk with the “gun” pointed down. The deputies disagreed whether the child was holding the gun in his left or right hand.   One deputy chirped the siren briefly and activated the lights.  The deputies also disagreed whether the child looked over his shoulder in response to the chirp of the siren. After stopping, one deputy yelled “drop the gun” from a distance of approximately 65 feet.  The child did not drop the gun and rotated his body clockwise. As the child turned, one deputy saw the gun come around and shot and killed the child without issuing any additional warnings.  The orange tip on the toy gun that is required by federal law had been removed.

The child’s estate filed suit against Sonoma County and the deputy who shot the child for excessive force.  The deputy asked the court to dismiss the lawsuit based on qualified immunity.

The District Court denied defendants’ Motion and the Ninth Circuit affirmed.  The case primarily turned on the number of times that the deputies had shouted for the child to put down his “weapon” and to what extent Andy had pointed the gun at the deputies.  The Court of Appeal noted that one of the deputy’s perspective would be different depending on whether the child had turned to his right or left, a factual dispute that could not be resolved on appeal.  Of note, the District Court only concluded that the gun barrel “was beginning to rise” from its position of having been pointed straight down; thus, the Court opined it was unknown if this posed an imminent threat to the deputies.

As the dissent pointed out, the precise angle that the gun was pointed is “not material” to the qualified immunity analysis because an officer need not delay firing if a person reasonably suspected of being armed makes a furtive movement, harrowing gesture, or serious verbal threat.  The dissent further noted that the District Court seemed to create a spectrum as to how far a suspect can raise their weapon before an officer can use lethal force.

The Ninth Circuit  has a long history of being reversed by the Supreme Court so there are some observers who are surprised that this decision was left intact.  The next procedural step is a trial and one can surmise that additional appeals will follow the end of any jury trial in this case.

If you have any questions or would like more information, please contact Owen Rooney at [email protected].

Qualified Immunity and The First Amendment – Why Plaintiffs Continue To Struggle Proving “Clearly Established Case Law”

Posted on: October 3rd, 2017

By: Bradley T. Adler and Will Collins

The recent Eleventh Circuit decision Gaines v. Wardynski, 2017 U.S. App. LEXIS 18276, No. 16-15583 (11th Cir. Sept. 21, 2017), is a good reminder of the importance and value of qualified immunity as a defense to litigation in the Eleventh Circuit Court of Appeals (federal appeals court covering Georgia, Florida and Alabama).  In Gaines, a school teacher, Lynda Gaines, filed a Section 1983 claim against the school superintendent, Dr. Casey Wardynski, alleging violations of her First Amendment right of freedom of speech and freedom of association.  After Gaines filed suit and before discovery commenced, Dr. Wardysnki filed a motion to dismiss based on qualified immunity.  The district court denied the motion and Dr. Wardysnki appealed.

In short, Gaines’ claim arose out of a dispute in May of 2013 when Gaines’ father, a county commissioner, “blasted” the Hunstville City Board of Education and Dr. Wardynski for recent actions they were taking.  Gaines, who was a teacher in the Huntsville school system at the time, alleged that, after the article was published, she was denied a promotion to one of three open teaching positions in retaliation for her father’s comments. While the district court denied Dr. Wardynski’s motion for summary judgment based on qualified immunity, the Eleventh Circuit reversed.  Through its decision, the Eleventh Circuit reminded practitioners that, in order for a constitutional right to be clearly established by law under the doctrine of qualified immunity, the clearly established law must be specifically particularized to the facts of the case. The Eleventh Circuit concluded in Gaines that the case law that the district court and Gaines cited “was not particularized to the facts of the case, but rather merely set out First Amendment principals at a high level of generality.”  As a result, the Eleventh Circuit concluded that the defendants had not violated a clearly established constitutional right.

As a part of its decision, the court emphasized that whether a right is clearly established turns on whether the governmental official had fair warning.  According to the court, there are three methods for a plaintiff to show fair warning: (1) citing a materially similar case already decided; (2) pointing to a broader clearly established principle that should control the novel facts of the situation; and (3) where the conduct of a situation so obviously violates the constitution, prior case law is unnecessary.

Here, the court quickly moved past the second and third methods, which are rare and generally involve cases of egregious conduct. Instead, this decision turned on whether there was a materially similar case already decided. The Eleventh Circuit stressed that the “materially similar case” analysis is not a general inquiry, but rather must (1) be particularized to the facts; (2) be particularized to the context; and (3) give notice to the governmental official.  As a part of its analysis, the Eleventh Circuit stopped short of saying that the facts must be directly on point, but emphasized the facts must be close enough to put the “question beyond debate” and must come from a previously-issued decision of the United States Supreme Court, the governing federal court of appeals, or the applicable state supreme court.

In the end, the Gaines decision emphasized just how difficult it is for a plaintiff to overcome qualified immunity because of the level of particularity required for a case to be materially similar in facts and context.  As a result, when government officials are facing suits for constitutional violations, it is critical for them to remember to assess the potential use of a qualified immunity defense at the outset of the case.

If you have any questions or would like more information, please contact Bradley Adler at [email protected] or Will Collins at [email protected].