The Police and Qualified Immunity
Oct. 14, 2022
Objectively Reasonable Actions Under the Circumstances?
Public officials will not be held personally liable so long as their actions are reasonable. Anderson v. Creighton, 483 U.S. 635, 646 (1987). In other words, the officers in the case at bar only have immunity if their actions are deemed reasonable under the circumstances.
The immunity analysis is a two-pronged analysis: whether the officer violated a plaintiff’s constitutional right and, if yes, whether the constitutional right was clearly established in light of the specific context of the case. Saucier v. Katz, 533 U.S. 194, 201 (2001). The first step employs the Graham analysis:
[T]he test of reasonableness under the Fourth Amendment is not capable of precise definition or mechanical application,” Bell v. Wolfish, 441 U.S. 520, 559 (1979), however, it’s proper application requires careful attention to the facts and circumstances of each particular case, including the severity of the crime at issue, whether the suspect poses an immediate threat to the safety of the officers or others, and whether he is actively resisting arrest or attempting to evade arrest by flight. See Tennessee v. Garner, 471 U.S at 8–9, 105 S.Ct., at 1699–1700.
Graham v. Connor, 490 U.S. 386, 396 (1989) (Emphasis added)
The question in all Fourth Amendment cases is whether the force was “objectively reasonable” under the circumstances. Graham, 490 U.S. at 397. In the Ninth Circuit, the “most important Graham factor is whether the suspect posed an immediate threat to the safety of the officers or others.” Mattos v. Agarano, 661 F.3d 433, 441 (9th Cir. 2011). Because the inquiry is inherently fact specific, the “determination whether the force used to effect an arrest was reasonable under the Fourth Amendment should only be taken from the jury in rare cases.” Headwaters Forest Def. v. County of Humboldt, 240 F.3d 1185, 1205-06 (9th Cir. 2000), judgment vacated on other grounds, 534 U.S. 801 (2001); see also Torres V. City of Madera, 648 F.3d 1119, 1125 (9th Cir. 2011) (summary judgment “in excessive force cases should be granted sparingly”); Liston v. County of Riverside, 120 F.3d 965, 976 n. 10 (9th Cir. 1997) (finding that excessive force is “ordinarily a question of fact for the jury”); Chew v. Gates, 27 F.3d 1432, 1443 (9th Cir. 1994) (“[W]hether a particular use of force was reasonable is rarely determinable as a matter of law.”).
The second step of the analysis is whether the constitutional right violated was clearly established; i.e., whether a reasonable official would have understood that what he is doing violates that right. Mattos v. Agarano, 661 F.3d 433, 442 (9th Cir. 2011). Police officers “can be on notice that their conduct violates established law even in novel factual circumstances.” Hope v. Pelzer, 536 U.S. 730, 741 (2002) In excessive force cases, the inquiry remains whether, under the circumstances, a reasonable officer would have had fair notice that the force employed was unlawful, and [whether] any mistake to the contrary would have been unreasonable.” Boyd v. Benton County, 374 F.3d 773, 781 (9th Cir. 2004) (quoting Drummond v. City of Anaheim, 343 F.3d 1052, 1060 (9th Cir. 2003).
This Court in Mattos was concerned about over-applying qualified immunity in Fourth Amendment cases.
The Supreme Court has made “clear that officials can still be on notice that their conduct violates established law even in novel factual circumstances. Hope v. Pelzer, 536 U.S. 730, 741, 122 S.Ct. 2508, 153 L.Ed.2d 666 (2002). We are particularly mindful of this principle in the context of Fourth Amendment cases, where the constitutional standard – reasonableness – is always a very fact-specific inquiry. If qualified immunity provided a shield in all novel factual circumstances, officers would rarely, if ever, be held accountable for their unreasonable violations of the Fourth Amendment. See Deorle, 272 F.3d at 1286 (“Otherwise, officer would escape responsibility for the most egregious forms of conduct simply because there was no case on all fours prohibiting that particular manifestation of unconstitutional conduct.”). That result would not properly balance the competing goals to “hold public officials accountable when they exercise power irresponsibly and the need to shield officials from harassment, distraction, and liability when they perform their duties reasonably.” Pearson, 129 S.Ct. at 815.
Mattos, 661 F.3d at 442
In Blankenhorn v. City of Orange, 485 F.3d 463 (9th Cir. 2007), the 9th Circuit was considering whether, among other things, qualified immunity applied to the acts of officers who gang tackled the plaintiff after he allegedly resisted arrest.
In assessing the state of the law at the time of Blankenhorn’s arrest, we need look no further than Graham’s holding that force is only justified when there is a need for force. We concluded that this clear principle would have put a prudent officer on notice that gang-tackling without first attempting a less violent means of arresting a relatively calm trespass suspect – especially one who had been cooperative in the past and was at the moment not actively resisting arrest – was a violation of that person’s Fourth Amendment rights. This same principle would also adequately put a reasonable officer on notice that punching Blankenhorn to free his arms when, in fact, he was not manipulating his arms in an attempt to avoid being handcuffed, was also a Fourth Amendment violation. . . .
Therefore, we conclude that the state of the law was “clearly established” at the time of Blankenhorn’s arrest and gave the arresting officers sufficiently fair notice that their conduct could have been unconstitutional. . . .
Blankenhorn, 485 F.3d at 481 (Emphasis added)
This Court concluded that the gang tackle and punches used while taking Blankenhorn into custody did not entitle the officers to qualified immunity. Id.
The Tenth Circuit in Morris v. Noe, 672 F.3d 1185 (10th Cir. 2012), addressed the qualified immunity issue in a case involving the front takedown of a suspect. Police responded to a “domestic dispute.” Police were taking statements in the front yard of a home when Plaintiff’s husband (Morris) arrived and got into a brief conversation with one of the parties (Bell). Morris began backing up toward the police officers with hands raised after Bell began approaching him. The officers threw Morris to the ground and handcuffed him. Id. at 1190. The court addressed two immunity issues: did the officers have probable cause to arrest and if the officer had probable cause, was excessive force used. Id. at 1191. Prior to addressing immunity as it applied to the excessive force claim, the court addressed the second Graham factor.
The second factor weighs heavily in Plaintiff’s favor. Morris posed little immediate threat to the safety of the officers or Bell. Admittedly, Morris “walk[ed] toward the group of officers and Bell,” which might present some threat. Furthermore, Morris was a large man and he asked Bell a potentially confrontational question: “Why was you talking to Mama that way?” But Morris carried no weapon, made no overt threats, and did not get within reach of Bell. . . . Furthermore, none of the officers gave Morris any warning to calm down. . . . At the time he was taken down, Morris was backing away from Bell in an apparent attempt to de-escalate the encounter. On these facts, Morris posed little threat to officer or bystander safety.
Morris, 672 F.3d at 1196
The court further brought up the fact that Morris was neither resisting arrest or fleeing. Id.
In analyzing the immunity issue, the Court discussed the issue of whether a right is clearly established in an excessive force claim.
. . . “Ordinarily, in order for the law to be clearly established, there must be a Supreme Court or Tenth Circuit decision on point, or the clearly established weight of authority from other court must have found the law to be as the plaintiff maintains.” Klen v. City of Loveland, Colo., 661 F.3d 498, 511 (10th Cir. 2011). Because the existence of excessive force is a fact-specific inquiry, however, “there will almost never be a previously published opinion involving exactly the same circumstances.” Casey, 509 F.3d at 1284. Thus, we have adopted a sliding scale: “The more obviously egregious the conduct in light of prevailing constitutional principles, the less specificity is required from prior case law to clearly establish the violation.” Pierce v. Gilchrist, 359 F.3d 1279, 1298 (10th Cir. 2004). In fact, we do not always require case law on point. “[W]hen an officer’s violation of the Fourth Amendment is particularly clear from Graham itself, we do not require a second decision with greater specificity to clearly establish the law.” Casey, 509 F.3d at 1284.
Morris, 672 F.3d at 1196, 1197
The 10th Circuit concluded that a constitutional right was clearly established if the force is clearly unjustified based on the Graham factors.
Here, as we discussed above, the first Graham factor only marginally supported using force against Morris, and the second two factors weighed heavily against it. So a reasonable officer would know based on his training that the force used was not justified. . . .
Morris, 672 F.3d at 1198
Whether or not a public official such as a police officer has qualified immunity requires application of the Graham factors, were the actions of the officer reasonable under the circumstances. The analysis further requires the officer to be on notice; i.e., that the law was clearly established that the acts of the officer were unlawful.