Police Qualified Immunity-The Elements

Police Qualified Immunity

Brien Roche

In police abuse of force cases, the officer may raise a defense of qualified immunity. That defense is an affirmative defense. The burden rests on the defendants to prove it. Gomez v. Toledo, 446 U.S. 635, 639-641 (1980)

Police Qualified Immunity-The Elements

Under this defense, the officer may be immune from federal civil rights lawsuits. The immunity kicks in when a state or local official’s conduct does not violate clearly established law at the time of the violation. It may also be based upon the objectively reasonable belief the officer’s actions were lawful.

In making a claim under U.S.C. § 1983, the plaintiff has to show that the defendant deprived him of a federal right and secondly that person acted under color of state law. Monroe v. Pape, 365 U.S. 167, 171 (1961)

Qualified immunity was addressed in Pierson v. Ray, 386 Va. 547 (1967). In that case, the defense was defined by the common law requisites of good faith and probable cause. In Harlow v. Fitzgerald, 457 U.S. 800 (1982), the court rejected the subjective element of good faith. Instead it focused on the state of the law at the time of the conduct. In Saucier v Katz the Court applied a two part test: were the plaintiff’s constitutional rights violated and did the officer know their conduct violated the Constitution.

The defendant may try to assert that absent the existence of a case or a statute on point, the officer could not have been on notice of any illegality. In Mullenix v. Luna, 136 S.Ct. 305, 309 (2015), the court said that there was no requirement that there be a case directly on point. However it did say that existing case law needs to clearly define the issue. The general rules or general constitutional principles are not sufficient to put the government actor on notice that what he was doing was unconstitutional. However there is no requirement that an identical case clearly define the issue.

In Hope v. Pelzer, 536 U.S. 730, 741 (2002), the court stated that it expressly rejected a requirement that police cases be fundamentally similar to put the officer on notice as to what the status of the law is.

Police Qualified Immunity-Outrageousness Is the Best Counter

To confront the defense of qualified immunity, the plaintiff will have to show the outrageousness of the officer’s conduct. The more outrageous, then the less likely it is that qualified immunity will apply. In particular under that set of circumstances, the officer will have a difficult time proving that there is some statute that somehow insulates him. Likewise he will have a difficult time proving that he had an objectively reasonable belief that his actions were lawful.

An Escape Hatch

42 U.S.C. § 1983 is worded so as to state that where a state actor deprives a person of any rights, privileges or immunities secured by the Constitution and laws, then that person “…shall be liable to the party injured…” In the 1874 Revised Statutes of the United States, which were the first attempted codification of this Code section, the Code read a little bit differently. Between the words “shall” and “be liable” there was another phrase which said “any such law, statute, ordinance, regulation, custom or usage of the state to the contrary notwithstanding”. What that meant then in proper context was that the state actor “shall, any such law, statute, ordinance, regulation, custom or usage of the state to the contrary notwithstanding, be liable to the party injured.”

That wording of the statute means that any of the common law immunities from which qualified immunity is derived were expressly excluded. That is, the state actor was not protected by these immunities.