By Julianne Baggett.
On October 18, 2021, the U.S. Supreme Court issued two per curiam opinions extending qualified immunity protections to law enforcement officers accused of using excessive force—one case coming from the Ninth Circuit and the other from the Tenth Circuit. These opinions come as a surprise to some after a decision reached by the Court last November seemed to take a step back from the stringent requirements of qualified immunity. The cases here illustrate that the Court is still inclined to continue to apply the doctrine as it stands, and may even be poised to expand its protections, despite nationwide calls to seriously reconsider it.
What is Qualified Immunity?
Before defining qualified immunity, it’s necessary to first discuss the law typically avoided by its application: 42 U.S.C. § 1983. Section 1983 establishes an individual’s right to bring suit when their constitutional or statutory rights are violated by someone acting under state authority (i.e., law enforcement officers). There are no immunities mentioned in the plain language of Section 1983, so qualified immunity effectively functions as a judicially-created Section 1983 workaround.
Qualified immunity is a doctrine that provides state actors an avenue to avoid liability for their misconduct—even when such misconduct violates a person’s rights. Under the doctrine, law enforcement officers can avoid liability for rights violations unless it was “beyond debate” at that time that the officer’s actions were in violation of “clearly established law.”
In practice, to defeat qualified immunity protections, a plaintiff must cite a prior case with functionally identical facts where a court ruled those actions were unconstitutional. This exacting standard has led to judicial hairsplitting over particular conduct and specific facts presented by each case. As an example, a prior case established that officers violated a person’s rights by setting a police dog on a suspect who surrendered by lying down. A court held that a subsequent case where the suspect had surrendered by sitting and raising his hands was not similar enough to defeat qualified immunity.
Qualified immunity has long been widely criticized, but the doctrine has been the subject of more recent condemnation after the murder of George Floyd. A recent decision left many hopeful that the Court was beginning to relax the doctrine’s strict standards and would then begin to view cases more favorably towards plaintiffs.
Taylor v. Riojas – Qualified Immunity v. Egregious Conduct
In September 2013, Trent Taylor was in custody for six days. The first cell Taylor was placed in was covered floor to ceiling in feces. Taylor did not eat or drink for four days out of fear of contamination. He was then moved to a freezing cold cell which required him to use a drain in the center of the floor to dispose of bodily waste—which immediately overflowed and oozed sewage onto the cell floor. Although the conditions of Taylor’s six-day confinement clearly violated his Eighth Amendment rights, the Fifth Circuit held that the prison officials were protected by qualified immunity because previous court rulings weren’t sufficiently similar. Thus, officers were not provided fair warning that their actions were unconstitutional.
The U.S. Supreme Court held that the Fifth Circuit erred in granting qualified immunity to the officers. The Court stated that no reasonable correctional officer could have thought that confining Taylor in such conditions for such a long period was constitutionally permissible. Therefore, the “particularly egregious facts” should have put the correctional officers on notice that the conditions offended the Constitution.
Taylor seemed to signal that the Court could be more willing to rule for plaintiffs on qualified immunity cases, but the Court’s newest opinions instead suggest Taylor was merely a narrow exception.
Qualified Immunity Continues
City of Tahlequah v. Bond
In City of Tahlequah v. Bond, the estate of Dominic Rollice brought suit against officers who had shot and killed him during a response to a 911 call. The Tenth Circuit denied qualified immunity to the officers based on its own cases. These cases established that officers could be liable for recklessly or deliberately creating a situation in which deadly force was needed, even if the shooting itself was objectively reasonable. The court reasoned that by cornering Rollice in a garage, the officers had recklessly created a situation which led to the killing. Thus, their conduct was not protected by qualified immunity since it was clearly established to be unlawful.
The U.S. Supreme Court ruled that the Tenth Circuit erred by refusing to extend qualified immunity to the officers. The Court pointed to factual distinctions between the case involving Rollice and the precedential cases (e.g., distance between the officers and the suspect, the way officers spoke with the suspect, and the location of the interaction). Therefore, since a reasonable officer could have “missed the connection” between those cases and the case at hand, qualified immunity applied.
Rivas-Villegas v. Cortesluna
Rivas-Villegas v. Cortesluna also pertained to police officers responding to a 911 call. Cortesluna brought suit against an officer who caused him injuries by placing a knee on Corestluna’s back for “no more than eight seconds” while he was being restrained. The Ninth Circuit ruled that qualified immunity did not apply since a prior Ninth Circuit case established that placing a knee on the back of a suspect who is lying face-down and not resisting was use of excessive force.
The U.S. Supreme Court reversed the Ninth Circuit’s decision because the precedential case was “materially distinguishable.” Again, the Court pointed to factual distinctions between the precedential case and Rivas-Villegas (e.g., officers’ state of mind, severity of injuries, whether the suspects had a weapon, and the nature of the 911 complaint). Therefore, qualified immunity applied because the prior case wasn’t similar enough to provide notice to the officer that the specific force he used was excessive.
Where Does Qualified Immunity Stand?
The Bond and Rivas-Villegas cases demonstrate that the Court is not quite as willing to distance itself from the controversial doctrine as some hoped it was. In fact, one article suggests that the Rivas-Villegas case could suggest that the Court is willing to provide even broader protections to government officials than it already does. As the article points out, the Court twice alluded to the possibility that circuit court precedent may not clearly establish law for the purposes of Section 1983 claims. Could it be that the Court is saying that circuit court cases are not precedent for qualified immunity cases?
One thing is for certain: the Court is very deliberate with the language it uses. While such phrases in Rivas-Villegas are worrisome, an earlier U.S. Supreme Court case is still good law and it indicates that circuit court precedent can be used to challenge qualified immunity. And although the Court may not be willing to part with qualified immunity, Congress could eliminate the doctrine and states can individually eliminate it at the state level.