Qualified Immunity as relates to Officer Involved Shootings  

 

Dr. Peter A. Barone, Esq., Ph.D., JD, LL.M., MSM, CPP, CFSA

The use of deadly force by law enforcement officers is something that is very serious and very devastating to the victim, the victim’s family, the officer and the officer’s family. There are a multiplicity of situations and circumstances under which law enforcement officers use force, up to and including deadly force, to prevent the escape of dangerous suspects or to defend themselves or others against an apparent imminent risk of death or serious bodily harm. Because the use of deadly force, by its very nature, usually results in serious injuries, and often results in death, it is hardly remarkable that such use often results in the filing of lawsuits seeking substantial money damages by the victim and or their families. The victim, or the families of the victim, usually will find an attorney to file a law suit or they could also seek to involve the federal government to determine if the actions of the law enforcement officer violated their or their family members civil rights which could result in a state law suit, a federal law suit, and possible state and or federal criminal charges.

A law enforcement officer has to make split second decisions during a dynamic flowing and life threatening situation which unfolds in seconds. Due to the amazing amount of responsibility given to law enforcement officers when dealing with lethal situations the United States Supreme Court has been presented with numerous cases over the years with the task of interpreting if the officer’s actions, during this dynamically and unpredictably unfolding sequence of events, was reasonable, proper and legal. Via the review of numerous cases involving officers using force, and deadly force, the U.S. Supreme Court has set forth some important legal guidelines both for the use of deadly force itself, and for the inquiries which must be conducted before such use results in civil liability in a federal civil rights claim.

One of the area in which the United States Supreme Court has addressed in its’ decision involves the application by the lower courts in applying these guidelines and principles in the context of federal constitutional claims for use of deadly force against apparently armed or dangerous suspects. One of the most important defenses available to individual law enforcement officers who wind up finding themselves as defendants in state civil or federal civil rights lawsuits is that of qualified immunity. Qualified immunity is what is known as an “affirmative” defense, which means that it must be raised by a defendant, or else it is lost.

The essence of the concept is that, because police officers are often called upon to make difficult decisions, sometimes with only split seconds to respond, they ought not have to face civil liability or the burden of the litigation process, including discovery and trial, in circumstances where they have not acted in violation of clearly established law. Because the immunity involved offers the officer relief not just from civil liability, but also from the burdens of litigation, a trial court’s denial of a defendant officer’s motion for qualified immunity is, with some exceptions, subject to immediate appeal (Anderson v. Creighton, 1987) and (Mitchell v. Forsyth, 1985).

In circumstances where the defense of qualified immunity is upheld, an officer will not be found liable, even if their conduct, such as the use of deadly force, actually could be said to have violated the plaintiff’s federal civil rights, so long as an objectively reasonable officer could have believed, under the circumstances, that the conduct was lawful and this assessment is accomplished via the review and evaluation of the totality of the circumstances.

When we examine another one of the U.S. Supreme Court decisions’ which is the case of  Brosseau v. Haugen (2004) we see that the decision in this case illustrates the application of this principle in the context of the use of deadly force, and ruled that an officer who shot a fleeing felon motorist in the back was entitled to qualified immunity, when prior case law did not clearly establish that her conduct violated his Fourth Amendment rights.

An examination of this specific case reveals that an officer learned that a man was wanted on a felony no-bail warrant for drugs and other offenses, and heard a report of a "ruckus" at his mother's house. The suspect attempted to flee in a vehicle, getting into a Jeep and trying to start it. The officer ran to the Jeep with her handgun drawn and ordered him to stop. As the suspect fumbled with his keys, she hit the driver's side window several times with her handgun and, on the third or fourth try, broke the window. She had mace and a baton, but allegedly did not use them, instead trying to grab the car keys.

Either before he pulled away, or just after he started to do so, the evidence concerning this specific fact is conflicting, the officer shot him in the back. Because he did not stop, the officer believed she had missed him, but she did not take a second shot, believing the risk to be too great as he began to drive away and others being in the potential line of fire; however, the driver subsequently pulled over and passed out.

A federal appeals court ruled that the officer who shot the suspect did not act reasonably if there was no evidence that he posed a threat of serious harm to others or was armed with a weapon, overturning a grant of qualified immunity to the officer by the trial court  (Haugen v. Brosseau, 9th Cir. 2003). There was an appeal to the United States Supreme Court and the U.S. Supreme Court disagreed with the appellate court and they ruled that the officer was, indeed, entitled to qualified immunity.

The United States Supreme Court advised that qualified immunity shields an officer from suit when she makes a decision that, even if constitutionally deficient, reasonably misapprehends the law governing the circumstances she confronted. Because the focus is on whether the officer had fair notice that her conduct was unlawful, reasonableness is judged against the backdrop of the law at the time of the conduct. If the law at that time did not clearly establish that the officer's conduct would violate the Constitution, the officer should not be subject to liability or, indeed, even the burdens of litigation.

The Supreme Court noted that the parties had pointed to only a "handful of cases" relevant to the issue of whether shooting a disturbed felon, set on avoiding capture through vehicular flight, when persons in the immediate area are at risk from that flight was reasonable.

In two of the cases, the courts found no Fourth Amendment violation when an officer shot a fleeing suspect who presented a risk to others, including on the basis of the possibility that a speeding vehicle being used to flee could endanger others or that the suspect had proven that they would do almost anything to avoid capture. In a third case, the court found summary judgment inappropriate on a Fourth Amendment claim involving a fleeing suspect, ruling that the threat created by the fleeing suspect's failure to brake when an officer suddenly stepped in front of his just-started car was not a sufficiently grave threat to justify the use of deadly force.

The Court found that these three cases taken together "undoubtedly show that this area is one in which the result depends very much on the facts of each case," and that none of them "squarely governs the case here," while suggesting that the officer's actions fell in the "hazy border" between excessive and acceptable force. Since it was not "clearly established" that the officer's conduct violated the Fourth Amendment, she was entitled to qualified immunity.

The Court in Brosseau v. Haugen (2004) the Court was applying a method to be used to determine qualified immunity previously established in Saucier v. Katz, 2001. When examining that particular method we see that a trial court should first inquire, in response to a motion for qualified immunity, whether a constitutional right would have been violated on the facts alleged by the plaintiff, because if no right would have been violated, there is then no need for any further inquiry. Secondly, if a violation could be made out, based on the facts alleged, the court must then determine whether the right involved was clearly established.

The most important part of the ruling in Saucier v. Katz (2001) is that this second inquiry must be made in light of the case’s specific facts and context, not as a “broad general” proposition. The Court in Brosseau v. Haugen (2004), in applying this approach, therefore, focused its inquiry not on whether there was a broad general right clearly established not to be subjected to unreasonable use of deadly force, which, of course, there is, but whether it would be clear to a reasonable officer, in the specific circumstances confronted, that her conduct was unlawful in the those circumstances.

When there is clear and well-established law indicating that the officer’s actions in using deadly force would not be justified under the alleged circumstances, the motion for qualified immunity will be denied. See Lehman v. Robinson, No. 05-15636, 2007 U.S. App. Lexis 8978 (9th Cir.), holding that officers were not entitled to qualified immunity for shooting and killing a man sitting in his car with the tires shot out when they allegedly knew he had no gun, was only in possession of a pocket knife, was not suspected of any crime, and when the purpose of trying to get him out of his vehicle was to talk him out of possibly killing himself. Under these alleged circumstances, no use of deadly force would be justified, particularly when he was surrounded by a number of police vehicles and at least ten armed police officers.

Another such case is Adams v. Speers (2007) in which the court held that a California highway patrol officer was not entitled to qualified immunity in a lawsuit claiming that he shot and killed a teenage driver at the conclusion of a pursuit without warning and without reason to believe that he needed to do so to defend himself or others at that time.

In reverse of the holding in the Adams v. Speers (2007) case is that if it is clear that the officer’s use of deadly force was justified, qualified immunity will be granted. In Robinson v. Arrugueta, No. 04-10856, 415 F.3d 1252 (11th Cir. 2005), finding that an officer was entitled to qualified immunity for shooting and killing a suspect in a drug transaction investigation who was slowly moving a vehicle towards him, which threatened to crush him into another car.

In circumstances where the officer or officers who used deadly force seek qualified immunity, but there is a genuine issue of disputed material fact essential to the determination of whether there is or is not a constitutional violation, a federal appeals court will often rule that it cannot determine whether or not the officers were entitled to qualified immunity until the disputed factual issue is first decided.

The case of Green v. Taylor, No. 06-3583, 2007 U.S. App. Lexis 21593 (6th Cir.) illustrates this exact point. In that case, the court stated that if a vehicle had come to a stop with the engine running, and suspects in the car had their hands in the air or on the steering wheel when officers approached, then an officer who shot and killed a 16-year-old in the vehicle would not have acted reasonably. If, on the other hand, as the officer claimed, the car was backing up, and threatened the safety of the officers or others, the result could be different. Genuine issues of disputed material fact, therefore, barred qualified immunity for the officers.

In the case of Johnson v. Board of Police Commissioners, No. 4:06CV605, 2007 U.S. Dist. Lexis 40292 (E.D. Mo.), the court found that if the plaintiff’s version of events were believed, officers who allegedly pursued him without identifying themselves as police, shot him, beat him, and then shot him again were not entitled to qualified immunity, because the beating and shooting of a person who was already shot and was incapacitated, under these circumstances, would violate clearly established law. The officers, on the other hand, claimed that they had identified themselves as police and only shot him after he had shot at them a number of times, as well as denying that they beat him. Accordingly, further proceedings were required to resolve the factual dispute.

In Finks v. City of North Las Vegas, No. 04-15806, 135 Fed. Appx. 976 (9th Circ. 2005), factual issues concerning whether or not a man was holding a toy gun or otherwise threatening an officer before the officer shot and killed him barred granting summary judgment on the basis of qualified immunity to the officer in the surviving family’s federal civil rights lawsuit.

The defense of qualified immunity is granted or withheld not on the basis of hindsight, but on the basis of what the police officer reasonably believed at the time of the shooting, given what they knew and perceived then. See Bouggess v. Mattingly, No. Civ. A. 3:04CV-180, 426 F. Supp. 2d 601 (W.D.Ky. 2006), ruling, in a lawsuit over the fatal shooting of a suspect by an undercover officer, that the officer was not entitled to qualified immunity because of issues of fact as to whether, at the time of the shooting, he reasonably believed that the suspect was armed and would try to shoot him. The issue was not whether or not the suspect was actually armed, but what the officer reasonably believed.

To further illustrate this principle we examine the case of Blanford v. Sacramento County, No. 03-17146, 406 F.3d 1110 (9th Cir. 2005), In this particular case it is seen that the deputies who shot a sword-carrying schizophrenic man, rendering him paraplegic, after he appeared to be ignoring their orders to drop the weapon and attempted to enter a house, were entitled to qualified immunity. They did not then know that he could not hear their orders, or that he was attempting to enter his own home.  

We can also examine the case of Webster v. Beary, No. 06-12194, 2007 U.S. App. Lexis 8142 (11th Cir.), In this particular case the court found that deputies reasonably believed, at the time they shot at a car attempting to escape them by going in reverse, that a deputy who was positioned behind the car was in serious danger of harm, Due to the positioning of the deputy and the actions of the individual intentionally driving the vehicle towards the deputy they too were legally entitled to qualified immunity. The fact that officers may be mistaken in considering a particular individual to be a threat to themselves or others will not bar qualified immunity as a defense, provided that the mistake is reasonable under the circumstances.

An additional case that reflects the justification for officers being granted qualified immunity is the case of Flynn v. Mills, No. 1:03-CV-00515, 361 F. Supp. 2d 866 (S.D. Ind. 2005), In this particular case police officers were found to be entitled to qualified immunity for mistakenly shooting a witness to a shooting who was crawling towards other officers with a gun in hand. Under the circumstances, a reasonable officer could have believed that the witness was the shooter and that they had problem cause to arrest him and use deadly force against him.

                                                           References
Adams v. Speers, No. 05-15159, 2007 U.S. App. Lexis 442 (9th Cir.).
Anderson v. Creighton, 1987). #85-1520, 483 U.S. 635 (1987).
Brosseau v. Haugen, No. 03-1261, 543 U.S. 194 (2004).
Finks v. City of North Las Vegas, No. 04-15806, 135 Fed. Appx. 976 (9th Circ. 2005).
In Flynn v. Mills, No. 1:03-CV-00515, 361 F. Supp. 2d 866 (S.D. Ind. 2005).
Green v. Taylor, No. 06-3583, 2007 U.S. App. Lexis 21593 (6th Cir.).
Haugen v. Brosseau, #01-35954, 339 F.3d 857 (9th Cir. 2003).
Johnson v. Board of Police Commissioners, No. 4:06CV605, 2007 U.S. Dist. Lexis 40292 (E.D. Mo.),
Lehman v. Robinson, No. 05-15636, 2007 U.S. App. Lexis 8978 (9th Cir.),
Mitchell v. Forsyth, #84-335, 472 U.S. 511 (1985).
Robinson v. Arrugueta, No. 04-10856, 415 F.3d 1252 (11th Cir. 2005),
Saucier v. Katz, No. 99-1977, 533 U.S. 194 (2001).
Webster v. Beary, No. 06-12194, 2007 U.S. App. Lexis 8142 (11th Cir.).