497 lines
26 KiB
Plaintext
497 lines
26 KiB
Plaintext
March 1990
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PERSONAL LIABILITY: THE QUALIFIED IMMUNITY DEFENSE
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By
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Daniel L. Schofield, S.J.D.
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Special Agent
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and
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Chief of the Legal Instruction Unit
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FBI Academy
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Quantico, Virginia
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Law enforcement officers face many stressful situations
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inherent in their profession, including the threat of being sued
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and held personally liable for money damages because of their
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actions. Since officers are often placed in fast-breaking
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situations, they must decide whether to arrest or search with
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little opportunity to obtain prior legal advice. By its very
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nature, law enforcement inevitably places officers in situations
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where they must make difficult judgments, balancing the extent of
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the authority they exercise with the constitutional rights of the
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citizens they serve. Citizens rightly expect officers to
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understand the constitutional principles that govern their
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conduct. At the same time, law enforcement effectiveness often
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depends on officers' confidence and willingness to act swiftly
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and decisively to combat crime and protect the public.
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However, the fear of personal liability can seriously erode
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this necessary confidence and willingness to act. Even worse,
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law enforcement officers who have an unrealistic or exaggerated
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fear of personal liability may become overly timid or indecisive
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and fail to arrest or search to the detriment of the public's
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interest in effective and aggressive law enforcement. In order
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to accurately assess their potential exposure to personal
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liability, law enforcement officials must understand the
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constitutional law that governs their conduct. They must also
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understand the protection of qualified immunity that shields
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officers from personal liability for unconstitutional law
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enforcement activity that is deemed objectively reasonable.
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This article discusses recent court decisions that clarify
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the extent of protection from personal liability offered by the
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qualified immunity defense. The article's primary purpose is to
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allay officers' unrealistic concerns for personal liability that
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can inhibit law enforcement effectiveness and undermine morale.
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It discusses the following aspects of the immunity
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defense--immunity rationale and scope, the ``objective legal
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reasonableness'' test, the ``clearly established law''
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requirement, applicability to unconstitutional law enforcement
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conduct, and procedural considerations in asserting the defense.
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IMMUNITY RATIONALE AND SCOPE
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Immunity is a legally recognized exemption from liability.
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Recently, in the case of Forrester v. White, (1) the Supreme Court
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described the rationale for immunity as follows:
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``Suits for monetary damages are meant to compensate the
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victims of wrongful actions and to discourage conduct that may
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result in liability. Special problems arise, however, when
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government officials are exposed to liability for damages. To
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the extent that the threat of liability encourages these
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officials to carry out their duties in a lawful and appropriate
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manner, and to pay their victims when they do not, it
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accomplishes exactly what it should. By its nature, however,
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the threat of liability can create perverse incentives that
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operate to inhibit officials in the proper performance of their
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duties. In many contexts, government officials are expected to
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make decisions that are impartial or imaginative, and that above
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all are informed by considerations other than the personal
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interests of the decisionmaker. Because government officials are
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engaged by definition in governing, their decisions will often
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have adverse effects on other persons. When officials
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are threatened with personal liability for acts taken pursuant
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to their official duties, they may well be induced to act with
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an excess of caution or otherwise to skew their decisions in
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ways that result in less than full fidelity to the objective and
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independent criteria that ought to guide their conduct. In this
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way, exposing government officials to the same legal hazards
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faced by other citizens may detract from the rule of law instead
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of contributing to it.'' (2)
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These considerations have led courts to create both absolute
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and qualified immunity defenses. The Supreme Court has been
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``...quite sparing in its recognition of claims to absolute
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official immunity,'' (3) which is limited to officials whose
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special functions demand total protection from suit, such as
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judges and prosecutors, ``...intimately associated with the
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judicial phase of the criminal process.'' (4) While law
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enforcement officers do not receive absolute immunity protection,
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the U.S. Court of Appeals for the 10th Circuit held that law
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enforcement officers charged with the duty of executing facially
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valid court orders do enjoy absolute immunity from liability for
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damages resulting from conduct prescribed by that order. (5) The
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court found that enforcing a court order is intrinsically
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associated with a judicial proceeding. Also, it determined that
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the public interest in the enforcement of court orders essential
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to the effective function of the judicial process far outweighs
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the benefit to be gained by making law enforcement officers
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liable for decisions they are powerless to control. (6)
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Courts generally agree, however, that most law enforcement
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functions do not require absolute immunity protection. For
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example, in Malley v. Briggs, (7) the Supreme Court refused to
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expand the scope of absolute immunity to the decision of a Rhode
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Island State trooper to apply for an arrest warrant. In this
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case, the Court decided that a rule of qualified rather than
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absolute immunity would give police ``ample room for mistaken
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judgments,'' and yet not ``deter an officer from submitting an
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affidavit when probable cause to make an arrest is present.'' (8)
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The Court noted that a damages remedy for an arrest
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following an objectively unreasonable request for a warrant
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imposes a cost directly on the officer responsible for the
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unreasonable request and directly benefits the victim of the
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police misconduct. The Court commented on the trooper's
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expansive qualified immunity protection by noting, ``[O]nly where
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the warrant application is so lacking in indicia of probable
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cause as to render official belief in its existence unreasonable
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will the shield of immunity be lost.'' (9)
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Qualified immunity is designed to insulate responsible law
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enforcement officers ``from undue interference with their duties
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and from the potentially disabling threat of liability,'' and it
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shields from civil liability ``all but the plainly incompetent or
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those who knowingly violate the law.'' (10)
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IMMUNITY BASED ON ``OBJECTIVE LEGAL REASONABLENESS''
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In 1982, the Supreme Court adopted an objective standard for
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courts to use in determining whether immunity shields official
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action. The Court described the parameters of qualified immunity
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defense as follows:
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``[G]overnment officials performing discretionary functions
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generally are shielded from liability for civil damages insofar
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as their conduct does not violate clearly established statutory
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or constitutional rights of which a reasonable person would have
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known.'' (11)
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That standard was further clarified 5 years later when the
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Court defined ``objective legal reasonableness'' as the
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touchstone for a qualified immunity defense. That decision in
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Anderson v. Creighton (12) involved a suit against a Special Agent
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of the Federal Bureau of Investigation alleging an
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unconstitutional warrantless search. The U.S. Court of Appeals
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for the Eighth Circuit had rejected the Agent's claim for
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qualified immunity, concluding that the law was clearly
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established that persons are protected from warrantless searches
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of their homes unless the searching officers have probable cause
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and exigent circumstances. (13) The Agent sought review of that
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court of appeals decision in the Supreme Court. He argued that
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he was entitled to qualified immunity if he could establish as a
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matter of law that a reasonable officer could have believed the
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search to be lawful.
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The Supreme Court agreed with the Agent that the court of
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appeals had erroneously refused to consider whether it was
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clearly established that the circumstances confronting the Agent
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did not constitute probable cause and exigent circumstances. The
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Court made clear that the availability of the qualified immunity
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defense generally turns on the ``objective legal reasonableness''
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of the action in question assessed in light of the legal rules
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that were clearly established at the time that action was
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taken. (14)
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Law enforcement officers do not lose their qualified
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immunity simply because it is shown that they violated a
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generalized right, such as the right of citizens to be free from
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unreasonable searches and seizures. Instead, it must be shown
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that the law was clearly established in a ``particularized''
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sense, so that ``the contours of the right'' are clear enough for
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any reasonable officer to know that what he or she is doing
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violates that right. (15) This particularity requirement does not
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mean that law enforcement officers will always be protected by
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qualified immunity unless the very action in question has been
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held unlawful. Rather, it means that the illegality must be
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apparent in light of preexisting law before officers lose their
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immunity protection. (16) The Court held that law enforcement
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officials should not be held personally liable when they
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``...reasonably but mistakenly conclude that probable cause is
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present.'' (17) The ``objective legal reasonableness'' test
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applied to an allegedly unlawful search requires an examination
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of the information possessed by the searching officials. The
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relevant question to be resolved is whether a reasonable officer
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could have believed the Agent's warrantless search to be lawful
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in light of clearly established law and the information that the
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searching Agent possessed.
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THE ``CLEARLY ESTABLISHED LAW'' REQUIREMENT
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The unlawfulness of the challenged conduct must be apparent
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in light of preexisting law. (18) The Supreme Court has instructed
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that the actions of a reasonably competent officer should be
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assessed in the light of the legal rules that were ``clearly
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established'' at the time the action was taken. (19) A legal
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right is ``clearly established'' if the contours of that right
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are sufficiently clear that reasonable law enforcement officials
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would understand that what they are doing violates that right.
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Therefore, a qualified immunity defense will generally fail if
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the plaintiff proves that the law which an officer allegedly
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violated was ``clearly established'' at the time the challenged
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conduct occurred and that a reasonably competent officer should
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have known of that law.
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The Ninth Circuit Court of Appeals said that a determination
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of whether a legal right was ``clearly established'' requires
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courts to survey the legal landscape that existed at the time of
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the challenged conduct. (20) First, in the absence of binding
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precedent, courts should look to available decisional law from
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courts in other jurisdictions. (21) Second, comparisons to
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previously settled cases should not be limited to ``...looking
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for a repetition of the very action in question.'' (22) Third,
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courts should determine the likelihood that the Supreme Court or
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courts in the relevant jurisdiction would have reached the same
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result as the nonbinding precedent. (23) Fourth, courts should
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determine whether at the time of the incident there was a wide
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diversity of cases arriving at differing results, or any cases
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rejecting a similar claim. (24)
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The court said that law enforcement officers are charged
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with knowledge of constitutional enforcement developments and
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should not be allowed ``...to interpose lawyerly distinctions
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that defy common sense in order to distinguish away clearly
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established law.'' (25) However, courts agree that officers
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``...are not required to predict the future course of
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constitutional law.'' (26)
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The lack of binding precedent or the existence of
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conflicting decisions usually results in a finding that a law was
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not ``clearly established.''(27) For example, the 11th Circuit
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Court of Appeals ruled that two deputy sheriffs were protected
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from personal liability by qualified immunity for an allegedly
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unlawful seizure because their conduct did not violate clearly
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established law. (28) The court concluded the plaintiff had the
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burden of proving that the law allegedly violated by the
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deputies was ``clearly established'' at the time the detention
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occurred and that this burden was not met ``...simply by making
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general, conclusory allegations of some constitutional violation
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or by stating broad legal truisms.'' (29) Instead, the court said
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that ``plaintiffs must prove the existence of a clear,
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factually-defined, well-recognized right of which a reasonable
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police officer should have known.'' (30) The right allegedly
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violated must have been sufficiently particularized and clear so
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that reasonable officers in the deputies' position would
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understand that their particular seizure violated that right. (31)
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In that regard, the court held that the case authorities
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cited by the plaintiff failed to establish that the law was
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``clearly established'' because they involved seizures that were
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factually distinguishable from the deputies'. Moreover, other
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court decisions had actually determined that such seizures were
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constitutionally reasonable. Since the ``...line between the
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lawful and the unlawful is often vague, making it difficult for
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officers to know precisely which seizures are constitutional,''
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the court said qualified immunity protection should only be lost
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when a law enforcement officer engages in unconstitutional
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conduct that crosses a bright line. (32) The court then cautioned
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that this bright line is not to be found in legal abstractions,
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such as the general requirement that seizures be reasonable, but
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rather in specific prior cases involving concrete circumstances
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and facts similar to the case at issue.
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APPLICABILITY OF IMMUNITY DEFENSE TO UNCONSTITUTIONAL LAW
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ENFORCEMENT CONDUCT
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The Supreme Court in Anderson v. Creighton made it clear
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that qualified immunity will protect a law enforcement officer
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from personal liability if unconstitutional conduct meets the
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test of ``objective legal reasonableness.'' The Court held that
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extending qualified immunity to constitutional violations is a
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reasonable accommodation between governmental need and
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individual freedom, and is necessary to give conscientious law
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enforcement officers the assurance of protection that is the
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object of the immunity doctrine. (33) The Court stated that law
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enforcement officers should ``...know that they will not be held
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personally liable as long as their actions are reasonable in
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light of current American law.'' (34)
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Applying this ``objective legal reasonableness'' standard,
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Federal appellate courts have recently upheld immunity defenses
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for allegedly unconstitutional law enforcement conduct. For
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example, the Seventh Circuit Court of Appeals upheld a qualified
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immunity defense for a deputy sheriff who allegedly made an
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arrest without probable cause. (35) The court noted that ``even in
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the absence of probable cause for an arrest, qualified immunity
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provides officers with an additional layer of protection against
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civil liability.'' (36) A fourth amendment violation, although by
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definition unreasonable, does not foreclose an additional
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reasonableness inquiry for purposes of qualified immunity. (37)
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The court agreed that the right to freedom from arrest
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without probable cause is beyond a doubt clearly established.
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However, it also concluded that the Supreme Court's decision in
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Anderson ``mandates an inquiry into the facts surrounding the
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officer's action in order to determine whether in the light of
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preexisting law the unlawfulness was apparent.'' (38) Similarly,
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the Eighth Circuit Court of Appeals concluded that the defense of
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qualified immunity protects law enforcement officers in cases
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where they mistakenly conclude that probable cause to arrest is
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present. (39) Since actual probable cause is not necessary for an
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arrest to be objectively reasonable, the court said the issue is
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``not probable cause in fact but arguable probable cause.'' (40)
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Of course, unconstitutional police conduct that fails to
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meet the test of ``objective legal reasonableness'' is not
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entitled to immunity protection. In that regard, the Fifth
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Circuit Court of Appeals held that immunity is lost where it is
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objectively determined that no reasonable law enforcement officer
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could have believed that the action was constitutionally
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justified in light of clearly established law. (41)
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PROCEDURAL CONSIDERATIONS IN ASSERTING THE IMMUNITY DEFENSE
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In many cases, the ``objective legal reasonableness'' test,
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as clarified by the Supreme Court in Anderson v. Creighton, will
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allow law enforcement officers to successfully assert their
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qualified immunity from personal liability in a motion for
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summary judgment, thereby avoiding the protracted and
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time-consuming processes of litigation. (42) The Supreme Court has
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stated that a law enforcement officer's entitlement to qualified
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immunity is not a mere defense to liability, but an immunity from
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suit itself and the concomitant burdens of discovery. (43)
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Accordingly, a trial court's denial of an officer's motion for
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summary judgment based on qualified immunity raises a question of
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law that can be immediately appealed by the officer. (44) However,
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the defense of qualified immunity is not waived if an officer
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chooses not to take an immediate appeal; officers retain the
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right to assert at trial their qualified immunity based on
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``objective legal reasonableness.''(45)
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The Eighth Circuit Court of Appeals described the two-step
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process that courts should follow in deciding whether to grant
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qualified immunity on a motion for summary judgment prior to
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allowing a plaintiff the opportunity to conduct discovery:
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``...the trial court must first determine whether the
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law prohibiting the alleged police conduct was clearly
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established at the time it occurred....Second, a trial court
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must determine whether the police conduct, as alleged by the
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plaintiff, constituted actions that a reasonable officer could
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have believed lawful.'' (46)
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A law enforcement officer is entitled to dismissal of a suit
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prior to discovery where the trial court determines either: 1)
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That the relevant law was not clearly established, or 2) that
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another reasonable officer possessing the specific information
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available to the officer in question could have reasonably
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believed the actions taken were lawful. The court observed that
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when the litigants disagree as to the actions taken, some
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discovery may be necessary before a motion for summary judgment
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can be granted. (47) However, such discovery should only occur if
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there is a substantial factual disagreement as to what actions
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the law enforcement officers actually took, and should be
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limited to determining the applicability of the qualified
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immunity defense. (48)
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CONCLUSION
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The threat of personal liability is one of many risks
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associated with the law enforcement profession. An officer's
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discretionary decision to arrest or search inevitably increases
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the risk of a subsequent lawsuit. While this risk can be
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minimized by comprehensive departmental policies, thorough
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training, and attentive managerial controls, officers ultimately
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have a personal responsibility to insure that their conduct
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conforms to constitutional requirements. The qualified immunity
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defense does not excuse clearly unconstitutional or offensive
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police misconduct. It does, however, offer generous protection
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to conscientious officers who make objectively reasonable
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mistakes. The availability of a qualified immunity defense
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should be encouragement to responsible officers that they can
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perform their vital law enforcement functions without a constant
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fear of personal liability.
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FOOTNOTES
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(1) 108 S.Ct. 538 (1988).
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(2) Id. at 542.
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(3) Id.
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(4) Imbler v. Pachtman, 96 S.Ct. 984, 995 (1976).
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(5) Valdez v. City and County of Denver, 878 F.2d 1285, 1288
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(10th Cir. 1989). In Geter v. Fortenberry, 882 F.2d 167 (5th
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Cir. 1989), a police officer's testimony on the witness stand was
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afforded absolute immunity.
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(6) Id. at 1289. In Pleasant v. Lovell, 876 F.2d 787, 805
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(10th Cir. 1989), officers were afforded absolute immunity for
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their actions in assisting prosecutors in serving grand jury
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subpoenas.
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(7) 106 S.Ct. 1092 (1986).
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(8) Id. at 1097.
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(9) Id. at 1098 (citations omitted).
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(10) Id. at 1096.
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(11) Harlow v. Fitzgerald, 102 S.Ct. 2727, 2738 (1982). For a
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comprehensive analysis of the Harlow decision, see Higginbotham,
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``Defending Law Enforcement Officers Against Personal Liability
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in Constitutional Tort Litigations,'' FBI Law Enforcement
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Bulletin, vol. 54, Nos. 4-5, April and May 1985.
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(12) 107 S.Ct. 3034 (1987).
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(13) See, Creighton v. City of St. Paul, 766 F.2d 1269 (8th
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Cir. 1985).
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(14) 107 S.Ct. at 3038.
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(15) Id. at 3039.
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(16) Id.
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(17) Id.
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(18) Id. at 3038.
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(19) Id. at 3039.
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(20) Wood v. Ostrander, 879 F.2d 583 (9th Cir. 1989).
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(21) Id. at 591.
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(22) Id. at 592.
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(23) Id. at 593.
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(24) Id. at 595.
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(25) Id. at 593.
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(26) See, Lum v. Jensen, 876 F.2d 1385, 1389 (9th Cir. 1989).
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(27) Id.
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(28) Barts v. Joyner, 865 F.2d 1187 (11th Cir. 1989).
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(29) Id. at 1190.
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(30) Id.
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(31) Id.
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(32) Id. at 1194.
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(33) 107 S.Ct. at 3040-1.
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(34) Id. at 3042.
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(35) Hughes v. Meyer, 880 F.2d 967 (7th Cir. 1989).
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(36) Id. at 970.
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(37) Id. (citations omitted).
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(38) Id.
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(39) Gorra v. Hanson, 880 F. 2d 95 (8th Cir. 1989).
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(40) Id. at 97.
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(41) Melear v. Spears, 862 F.2d 1117, 1185 (5th Cir. 1989).
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See also, Masters v. Crouch, 872 F.2d 1248 (6th Cir. 1989).
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(42) The trial judge may determine that a factual dispute
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exists that precludes summary judgment. Id. at 1183.
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(43) See, Mitchell v. Forsyth, 105 S.Ct. 2806 (1985).
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(44) In Apostol v. Gallion, 970 F.2d 1335 (7th Cir. 1989), the
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court held that absent a finding of frivolity, trial is
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automatically put off pending an appeal of the district court's
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denial of an officer's claim of qualified immunity.
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(45) Hamm v. Powell, 874 F.2d 766, 770 (11th Cir. 1989).
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(46) Ginter v. Stallcup, 869 F.2d 384, 387 (8th Cir. 1989).
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(47) Id. at 387-88.
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(48) Id. at 388.
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----------
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Law enforcement officers of other than Federal jurisdiction
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who are interested in any legal issue discussed in this article
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should consult their legal adviser. Some police procedures ruled
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permissible under Federal constitutional law are of questionable
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legality under State law or are not permitted at all.
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