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December 21, 2021

Understanding Qualified Immunity

Public officials — for example, police officers — have a get out of jail free card from civil lawsuits: qualified immunity.

The doctrine protects state actors unless the plaintiff can show that he or she was deprived of a constitutional right and the right was “clearly established” at the time of the violation. Qualified Immunity has been questioned extensively in recent years, including from conservative Supreme Court Justice, Clarence Thomas, and liberal Justice, Sonia Sotomayor.

Following the civil war, Congress passed Amendments to the Constitution and various statutes. Today, 42 U.S.C. § 1983, holds individual government employees (e.g. police officers) liable to citizens who are deprived of their rights and privileges. These rights date back to 1871 and mention nothing of “qualified immunity.” It was not until 1967 when the judicial branch, not Congress, extended the initial qualified immunity to police officers. Just years later, the Court started to reexamine qualified immunity. In 1982, Harlow v. Fitzgerald, 457 U.S. 800 (1982) held that officials are immune from liability unless they violate “clearly established” statutory or constitutional rights of which a reasonable person would have known.

“A ‘clearly established’ right is one that is sufficiently clear that every reasonable official would have understood that what he or she is doing violates the right.” Mullenix v. Luna, 577 U.S. 7, 11 (2015). The Supreme Court has instructed lower courts not to define clearly established law with a high level of generality. Id. at 12. And while a case directly on point is not required, “existing precedent must have placed the statutory or connotational question beyond debate.” Id. The inquiry is case-specific.

Take Jessop v. City of Fresno, 936 F.3d 937 (9th Cir. 2019). Property owners sued City police officer who stole hundreds of thousands of dollars from seized property (cash and rare coins). The Court was “deeply disturb[ed]” by the officers’ alleged theft of $225,000 but found the plaintiff failed to show that “it was clearly established that the [officers] alleged conduct violated the Fourth Amendment. Plaintiffs did not have their day in court. In doing so, the Court recognized that although “virtually every human society teaches theft is morally wrong,” that fact did not answer the legal question presented — qualified immunity.

Justice Sotomayor noted the Supreme Court’s “willingness to summarily reverse courts for wrongly denying officers the protection of qualified immunity but rarely intervenes where courts wrongfully afford officers the benefit of qualified immunity in these same cases.” She further wrote, “such a one-sided approach to qualified immunity transforms the doctrine into an absolute shield for law enforcement officers, gutting the deterrent effect of the Fourth Amendment.” Justice Sotomayor’s opinion in one case where the majority upheld qualified immunity was that the decision “tells officers that they can shoot first and think later, and it tells the public that palpably unreasonable conduct will go unpunished.” In June of 2020, Justice Thomas’ call for his Supreme Court colleagues to reexamine qualified immunity was rejected.

Defenders of qualified immunity argue there will be less who apply to be police officers due to concerns about having to be responsible for civil liability. A New York University Law Review found that, during its study period, 99.98% of dollars recovered by plaintiffs against officers were paid by the governments rather than individuals. All of the payouts that Pleban & Associates Law Firm won through verdicts or settlements, against officers, were paid by the government or an insurance carrier. Recently, our client was paid $5 million by a city arising from civil rights claims. This argument, in Missouri, is seemingly less persuasive since Missouri now requires employers to both defend and indemnify (e.g. pay for a settlement or verdict) law enforcement for these claims.

It is important that, in civil rights cases, your attorney understands qualified immunity. Pleban & Associates is routinely called upon to tackle these challenging issues.

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