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Posts Tagged ‘Qualified Immunity’

The End of Qualified Immunity?

Posted on: June 18th, 2020

By: Christopher S. Lee

Since its genesis in Pierson v. Ray, the qualified immunity doctrine has never been shy of critics. If you were to talk to the late Justice William Douglas (the lone dissenter in Pierson) about the growing movement striving to abolish immunity at the forefront of American jurisprudence today, it is hard to imagine that he would be at all surprised. The remaining eight justices in Pierson would tell you how qualified immunity is a pinnacle of public service and that a “policeman’s lot should not be 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.” Pierson v. Ray 386 U.S. 547 (1967). Yet, the intensity of the debates involving the qualified immunity doctrine has arguably reached its apex, and as of May 15, 2020, there were thirteen cert petitions pending in the United States Supreme Court urging the Court to reconsider the doctrine of qualified immunity. In light of the social movement sweeping the globe in relation to civilian-police relations, could this be the end of the road for qualified immunity?

The Supreme Court’s recent activity related to these thirteen cert petitions is instructive. Over the last few years, public interest groups, scholars, and lower judges have, metaphorically speaking, made a quiet whisper (at least in contrast to the raucous roar of the present movement) to the Supreme Court to reconsider the doctrine of qualified immunity. As a number of cert petitions continued to roll into the Supreme Court challenging the doctrine of qualified immunity, the Court nonchalantly, yet repeatedly rescheduled the conferences for these cases. It is certainly uncommon in recent history for the Court relist important petitions before deciding to grant or deny in the way it has done with these qualified immunity cert petitions. Many scholars and policy analysts speculate that this suggests the Court had been delaying these early petitions so it could consider them alongside several other high-profile cases raising the same issue.

At the May 15, 2020 conference, the Supreme Court ruled on three of the thirteen cases (the other ten were rescheduled to a later conference) denying cert in all three cases without comment from any of the justices. It was a move that stunned critics of qualified immunity, as Kelsay v. Ernst and Jessop v. City of Fresno are two of the three cases that were denied cert, and importantly, involved fairly liberal applications of qualified immunity in comparison to the thirteen cert petitions pending before the Court. Would this suggest that the Court was leaning towards upholding the doctrine in its entirety? Displaying the unusual continued delay on ruling on these cert petitions, the Court again delayed consideration of its qualified immunity docket on May 21, 2020, then again on June 4, 2020. It is hard not to believe that the tragic deaths of George Floyd, Breonna Taylor, and Ahmaud Arbery, and the social movements their deaths have fueled, have played a role in these delays and been weighing heavily in the minds of the justices. Also, what about the push from the legislative branch and bipartisan legislation that was presented to Congress earlier this month calling for “The End of Qualified Immunity?” Would not this be running in their minds as well?

It appeared to be a golden opportunity for the Court to steal the spotlight and exercise its inherent authority to weigh in the issue. Yet on the morning of June 15, 2020, the Supreme Court denied all of the remaining cert petitions raising the question of whether qualified immunity should be reconsidered; Justice Clarence Thomas was the only justice who expressed any desire to grant the cert petitions. Thus, the issue will not be heard in the Court’s term this October.

It is not entirely clear what motivated the Court to deny the petitions in the overwhelming fashion that it did. Citing to their prior criticisms of the doctrine, many anticipated that Justices Gorsuch, Sotomayor, and Ginsberg would also have been motivated to granted cert. It is impossible to know what is motivating the justices in their collective decision.  One hypothesis is that the Supreme Court, having seen the growing sentiment in Congress to pass legislation limiting and/or eliminating qualified immunity, decided to let the issue be resolved by the legislature. Perhaps the Court does not wish to further weigh into an issue that at its very core alleges the judiciary of having been too involved in policymaking in the first place.

With the judiciary out of the equation at least for the time being, all eyes will now turn to the remaining two branches of government. The sentiment around the oval office and chatter amongst advisors close to President Trump is that the president is unenthusiastic about legislation proposing to abolish qualified immunity. While proponents of qualified immunity unanimously view the rejection of the qualified immunity petitions as a win, we will nonetheless continue to monitor the activity of Congress and the ongoing debate as to qualified immunity in American jurisprudence.  If Congress does not act now, qualified immunity will likely be at the forefront during the Court’s next term.   

If you have questions or would like more information, please contact Christopher Lee at [email protected].

Qualified Immunity Applied to Employment

Posted on: October 3rd, 2018

By: Owen Rooney

In Kramer v. Cullinan 878 F.3d 1156 (9th Cir., 2018) the Ninth Circuit reversed the denial of a Motion for Summary Judgment, holding that that the employer’s public statement was not “stigmatizing” and defendant was entitled to qualified immunity.

Plaintiff served in dual roles as Executive Director of Public Radio and a related Foundation. He reported to Southern Oregon University President Cullinan who became concerned that plaintiff was engaged in costly projects and a potential conflict of interest existed in plaintiff serving in both capacities. The University system conducted an asset liability investigation which concluded that the projects could cause a financial strain on the university and that the projects were not aligned with the university’s interests. Plaintiff resisted the university’s efforts to remove him from both roles by trying to have the Board pass resolutions to keep him in both positions. The university president sought advice of counsel who authored a letter urging the Foundation not to adopt plaintiff’s resolutions and also raising the potential liability of plaintiff and the Directors. The letter was given to the Board members prior to voting on plaintiff’s resolutions, a meeting at which the press was present.  At the meeting, President Cullinan spoke, again raising the issue of possible legal liability, but expressing hope for an amicable resolution.

Thereafter, plaintiff’s annual appointment was not renewed. Following the grievance procedure, plaintiff filed suit, alleging, among other things, a civil rights violations for deprivation of his liberty without due process. The District Court granted summary judgment as to all claims except the civil rights cause of action. In reversing, the Ninth Circuit held that the letter did not actually impute bad faith, willful or wasteful conduct. Rather, the letter in question stated that “if” plaintiff had engaged in bad faith, willful or wasteful conduct, he would not be entitled to indemnity.

Secondly, the Court recognized that an employer’s statement about an employee may implicate a liberty interest. Thus, an employee charged with fraud, dishonesty or immoral conduct is entitled to a name-clearing hearing under the 14th Amendment. The Court also held that prior legal precedent was not sufficient to put the university president on notice that her conduct violated plaintiff’s constitutional rights because the prior cases did not involve the conditional language at issue here.

The take away is that qualified immunity is still alive in the Ninth Circuit and is applicable in an employment context.

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

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].