Spats McGee’s Primer on Civil Rights Litigation and Qualified Immunity In the weeks and months that followed the shooting of Michael Brown and the riots in Ferguson, Missouri, anyone who watched the mainstream media news could have easily come away with the impression that police officers everywhere had suddenly gotten trigger-happy. As a result, one of the internet discussions in which I frequently found myself embroiled during that time period involved the question of “why police aren’t held accountable.” This invariably involved a discussion of qualified immunity, why the police have it, and whether it applies to private citizens who carry concealed firearms. The short answer to the second part is easy. No. Private citizens carrying firearms do not get qualified immunity. The answer to the first part is somewhat more complicated. Before I launch into that discussion, let me lay out my caveat and my bona fides. My caveat: I’m a lawyer, but I’m not your lawyer. What follows is commentary based upon my education and experience, but it is not legal advice. If you need legal advice, go hire a lawyer licensed in the applicable jurisdiction, and buy some. My bona fides: I am an attorney and I’ve been practicing in litigation for almost fifteen years as of this writing. To be more specific, I was a civil rights defense lawyer (among other things) for about 10 years of my career. When someone asked me what I did, I said, “You know what a civil rights lawyer is?” He invariably said, “yes,” and I would respond, “I’m the other guy.” Whenever there was a claim that the police or a government official had violated someone’s rights, I was one of the lawyers who got called out to defend it. One of the first questions in my head was always, “Is this a QI case?” I: Overview: In order to understand qualified immunity, you have to put it in context. It’s one of a number of immunities out there. Some immunities are absolute, but qualified immunity is not. In this context, “qualified” means “limited.” Why do we have these immunities? Generally speaking, it’s because we as a society have historically believed that there are some functions that a person needs to be able to perform his or her job duties without fear of reprisal in the form of litigation. For example, judicial immunity is absolute. If a criminal court judge had to worry about being personally sued every time he sent someone to jail, you can bet dollars to doughnuts that he’d send a lot fewer people to jail than without that immunity. The same holds true for prosecutorial immunity. Qualified immunity works a little differently. It’s a limited immunity, a qualified one. It is a framework designed to provide “ample protection to all but the plainly incompetent or those who knowingly violate the law.” Malley v. Briggs, 475 U.S. 335, 341 (1986). In short, qualified immunity protects officers who make reasonable judgments, even if mistaken. It protects those who occasionally and inadvertently cross the constitutional line. It does not protect those who intentionally violate the constitutional or statutory rights of others, those who do so repeatedly, or those who turn a blind eye to such actions. Stop and think about this: Do you really want officers worrying about the contours of Fourth Amendment jurisprudence when things go south on a 3 a.m. traffic stop? The reality of our society is that if your job involves putting people in handcuffs: (1) some of those people will take umbrage at your attempts to handcuff them; and (2) you will eventually be sued for it. Qualified immunity recognizes that officers make split-second, life-and-death decisions, and that officers have to have some confidence that they can make those decisions at that moment, without having to hesitate for fear of litigation. Hesitation can get an officer killed. In the civil rights context, you’ll see cases that name defendants in ways like “John Smith, in his individual capacity and in his official capacity as a police officer for the City of Mammoth Springs, Missouri.” In actuality, that names two defendants: John Smith (the individual) and Mammoth Springs, Missouri (which is "John Smith in his official capacity"). I call it “a suit against the badge.” The political subdivision which issued him the badge is one defendant, subjected to liability, and its policies are in question. This is not totally unlike the practice of suing an employer for the acts of its employee. For example, if a truck owned by the (fictitious) company, Reckless Beer, hits my car, I’m likely to sue Reckless Beer. I’ll allege that its driver was negligent and that the driver’s negligence should be passed along (imputed) to the company under a doctrine called respondeat superior. While that doctrine doesn’t apply to those entities which employ police officers, the practice of suing both is still employed. It gives the plaintiff a chance at recovering from the employing party (like a city), which will have much deeper pockets than an individual officer. In Parts II and III of this article, I’ll lay out some of the history behind qualified immunity and explain a little bit about municipal liability. Both of those are necessary to understand qualified immunity, which will be more fully explained in Part IV. II: History: Historically speaking, there is a doctrine called “sovereign immunity.” In simplest terms, it means “you can’t sue the king.” Then Congress enacted the Civil Rights Act of 1871. One part of that Act is now known as 42 U.S.C. § 1983. Section 1983 is a “conduit” statute which allows lawsuits against government officials. It reads as follows: 42 U.S.C.A. § 1983. In other words, any government actor who deprives another person of their constitutional or statutory rights “under color of law” may be sued. That means that anyone who claims that their rights were violated under any of their rights enumerated in the Bill of Rights can claim “Mr. Jones, acting in his capacity as a government official, violated my rights under X, Y, and Z” and file suit. Most States have analogous civil rights provisions in their codes, so an action under 42 U.S.C. § 1983 is often accompanied by at least State law constitutional and common law claims. For example, a Plaintiff who brings a Fourth amendment excessive force claim will often bring State constitutional and battery claims. So there’s a federal statute that makes “a person” liable to another person for constitutional or statutory violations. . . . Sure enough, it wasn’t long before some bright lawyer argued on behalf of a city that “my client isn’t a person.” If I had worked in civil rights litigation prior to 1978 and represented some government branch, I would have argued the same thing. The argument worked for a while, but in 1978, the Supreme Court of the United States (“SCOTUS”) said: Monell v. Dep't of Soc. Servs. of City of New York, 436 U.S. 658 (1978). This all means that a potential plaintiff with § 1983 in play can sue: (1) the acting official; and (2) the political subdivision for whom #1 works. If you’ll look at the names of ordinary cases, you’ll see things like “Smith v. Jones” or “City of Velvet Ridge v. Snotnose Development Company.” If you read the style of civil rights cases, though, you’ll see that the named Defendants often include both official, government entities (like counties and cities) and an individual Defendant. Things like “Joe Smith v. Mike Johnson, acting individually and in his official capacity as police officer for the City of West Fencepost, Arkansas.” As noted above, this the legal form for suing both an individual and an employing government agency. From a purely practical (and the lawyer’s) perspective, the employing body is the big fish. Given a choice between: (a) judgment against some guy who makes $35K per year, with 3 kids and an ex-wife; or (b) a city with a multi-million dollar budget and risk coverage, who would you rather hook for a judgment? A judgment doesn’t mean anything unless you can collect. There’s a catch, though. (There always is.) In order to explain it, I need to make sure that everyone understands a little bit about damages. There are two kinds of damages in the legal world: compensatory and punitive. Compensatory damages are those damages designed to compensate the Plaintiff, to “make the plaintiff whole,” and they include the (alleged) constitutional or statutory violation, lost wages, medical bills, pain & suffering, and the like. Punitive damages are those damages designed to punish the defendant and keep him from continuing to do whatever bad act got him sued. They’re usually calculated in multiples of the compensatory damages, so a $100K compensatory judgment may have another $250K in punitive damages tacked on. So what’s the catch? Municipalities are immune from punitive damages, that’s what. City of Newport v. Fact Concerts, Inc., 453 U.S. 247 (1981). The line of reasoning by SCOTUS in City of Newport revolved, in part, around the ideas that: (1) punitive damages, by definition, are intended to punish a tortfeasor; and (2) if punitive damages against the municipality itself are allowed, the ones who are ultimately punished are the taxpayers, not the individual bad actor. So we’re left with a situation in which there are multiple claims and defendants, but each is entitled to different defenses and is exposed to different, but overlapping damages. In Kentucky v. Graham, 473 U.S. 159 (1985), SCOTUS delineated the difference between individual and official capacity suits: “Personal-capacity suits seek to impose personal liability upon a government official . . . . [while official capacity suits] represent only another way of pleading an action against an entity of which an officer is an agent.” In other words, possible defendants include: 1. The employing subdivision – The employing subdivision is subjected strictly to exposure for compensatory damages; but can only be held liable if a “policy, practice or custom” led to the constitutional deprivation. See Kentucky v. Graham, supra. 2. The individual Defendant – The individual defendant faces exposure to both compensatory and punitive damages, but may be entitled to qualified immunity. The individual defendant may also be unable to pay for punitive damages. With all of that straightened out, let’s take a look at municipal liability (which can also apply to States, agencies, counties, and the like), and then individual liability, which is where QI plays a role. III: Municipal Liability: I’m not going to spend a whole lot of time on municipal liability, because it is pretty straightforward. First of all, the principle that an employer is responsible for the acts or omissions of its employees, known as respondeat superior, does not apply in constitutional litigation. The Plaintiff must turn to "policy, practice or custom" in order to set the hook on a governmental employer. Monell v. Dep't of Soc. Servs. of City of New York, 436 U.S. 658, 691 (1978). Under Monell, a governmental subdivision cannot be held liable for the actions of one of its employees solely because that employee is a one-time tortfeasor. A plaintiff has to be able to show: (1) that a policy, practice or custom of the governmental subdivision; (2) was the moving force behind; (3) a constitutional deprivation. Realistically, nobody with a lick of sense will have a written policy that says, for example, “Search homes without warrants whenever you feel like it.” That being the case, if a Plaintiff can show some widespread pattern of “searching homes without warrants,” to use the same example, and that supervisors and command personnel knew about it, then he may be able to make out a “practice or custom” claim. It’s not just about the written policies. On the other hand, if one officer is going out and searching homes without warrants just for the hell of it, and nobody else in his agency knew about it, it’s going to be very hard to make out a practice or custom claim. (It’s also a quick way for an officer to find himself without: (a) qualified immunity; (b) the services of the city attorney’s office; and (c) a job.) Above, I mentioned the practice of naming both an individual officer and the employing subdivision (like a city) as defendants in a case. In doing so, the Plaintiff is claiming that John Smith should be held personally liable for whatever rights of the plaintiff were allegedly violated, and that the employing party has some policy, practice, or procedure that has led to the violation of the plaintiff’s rights. If a lawsuit names a natural person only in their official capacity, then the individual’s assets are not at stake. The other defendant is John Smith, individually. In this case, John Smith (in his individual capacity) may be entitled to Qualified Immunity. Municipalities, in and of themselves, do not get QI as a defense. It’s an “individual capacity” defense. Given those parameters, city attorneys’ offices spend a great deal of time drafting policies and procedures that meet constitutional muster. That’s how they win lawsuits. They put together constitutionally sound policies, and then use them to fight the “policy, practice or custom” fight. Mind you, it is possible that a court could find: (a) that a violation of rights occurred, but (b) that the violation could not have been the result of the city’s policies, practices or customs. In that case the city gets out, and the only remaining questions are: (1) whether to hold the individual officer liable; and (2) if so, for how much money? IV: Individual liability: Qualified immunity recognizes that some folks would never get to work if they had to go to trial every time they get sued. Look at police officers. There are only two kinds of officers in this world: those who have been sued and those who will be. Nonetheless, society needs for police officers to be able to work rather than spending all of their time defending themselves against lawsuits, some of which will be frivolous. In order to foster this, and as an “ideological descendant” of the concept of sovereign immunity, our courts have recognized that many municipal officers are entitled to qualified immunity. So what are the contours of QI? First of all, understand that QI is more than an immunity from liability. It is an immunity from the burdens of trial. Up until Pearson v. Callahan, 555 U.S. 223, 236 (2009), a court had to follow a pretty strict analytical framework: a. Figure out if there was a constitutional violation. If not, stop there, no personal liability for defendant. b. Figure out whether the right allegedly violated was clearly established at the time. If not, stop there, no personal liability for defendant. In other words, pre-Pearson, the two-step approach had to be followed, and had to do so in the right order. However, Pearson relaxed the order a bit and pointed out that it really doesn't matter in what order the trial court answers the questions: (a) was there a constitutional violation?; and (b) was the right that was allegedly violated clearly established at the time? As you might imagine, then, the first step for any defendant is to show that the Plaintiff’s rights were never violated. Makes sense, right? If there was no constitutional violation, the lawsuit’s over. What if there was at least an arguable constitutional violation, though? That’s when the lawyers really start looking hard at qualified immunity: Burton v. St. Louis Bd. of Police Comm’rs, 731 F.3d 784, 791, (8th Cir. 2013)(internal citations omitted) All of that means that, even if there’s been a violation of rights, if the defendant officer can demonstrate facts sufficient to get qualified immunity prior to trial, judgment in his favor will be granted. Basically, this involves: (1) doing discovery; (2) taking depositions; and (3) writing a Motion for Summary Judgment. In simplest terms, an MSJ is a motion that says, “Judge, based on these undisputed facts, we win, no matter what else the other side could prove.” It’s not automatic that a police officer will get qualified immunity. The officer has to demonstrate that he’s entitled to it. The exact contours of the QI defenses will vary from right to right, as the lawyers try to demonstrate that: (1) there was no constitutional violation; or (2) that the right was not clearly established at the time of the alleged violation. With respect to the first prong of this analysis, if there was no constitutional violation (either because the Plaintiff didn’t actually have the right he says was violated, or because that right wasn’t violated), neither the city nor the officer will be held liable. As far as the second one goes, if the plaintiff’s claim is based on vague or newly-developed caselaw, I would argue that even if the plaintiff has the right which he claims was violated, and even if it was violated, it wasn’t a clearly established right. For example, as of this writing, there is a fairly recent case from SCOTUS which says that a DWI defendant has a right to refuse a blood draw unless there’s a warrant, and that the State cannot criminalize that refusal. If there was an officer who charged a defendant with Refusal to Submit to Chemical Testing under a blood-draw scenario, and was therefore sued for it, I would argue that the caselaw was only recently established. Hence, the constitutional or statutory right was not "clearly established" at the time of the alleged violation. That’s one route to qualified immunity. The other, particularly in connection with excessive force claims under the Fourth Amendment, is simply a question of reasonableness. The Fourth Amendment doesn’t prohibit all searches and seizures, just the unreasonable ones. In a recent case, the 8th Circuit Court of Appeals, in ruling on the claim of qualified immunity in an excessive force case, put it this way: Ellison v. Lesher, No. 13-3371, 2015 WL 4645667, at *4 (8th Cir. Aug. 6, 2015)(internal citations omitted) So what does all that mean? In short: “Look at the situation from the perspective of the officer on the scene and ask, ‘Were the officer’s actions reasonable?’” When defending an excessive force case, the officer’s attorney will often use affidavits, demonstrating those facts necessary to support his claim that the officer’s actions were reasonable. That would be things like: · It was a very cold night at approximately 28* Fahrenheit. · As I approached the Plaintiff, I noticed that he was sweaty, in spite of the temperature. · I directed the Plaintiff not less than 4 times to remove his hands from his pockets. · The Plaintiff did not remove his hands from his pockets. · I observed that the Plaintiff’s right jacket pocket was much larger than his left one. · Based on my training, observations and experience, I believed that the plaintiff had a weapon in his right pocket. It’s important to understand that all of the facts in support of a Motion for Summary Judgment (the “based on these, we win” motion) have to be undisputed. If the judge decides, based on these undisputed facts, that the officers' actions were reasonable, then QI will be granted, and we're done (unless and until a notice of appeal is filed). However, if there are “genuine issues of material fact” (real disputes, not merely theoretical, about facts which could alter the outcome of the matter), then summary judgment will be deemed inappropriate and then we’re off the races with a trial. The facts developed at trial may then be used to support a claim of QI. Using the facts laid out above, for example, the Plaintiff might dispute whether he removed his hands from his pockets. If the jury finds that he did not do so, that becomes a fact that the police officer may use in support of his claim for immunity. If the Plaintiff claims that the facts listed above are in dispute, such as whether he refused to remove his hands from his pockets, then a trial may be appropriate, so that a jury can determine whether he actually removed his hands from his pockets. On the other hand, if all of those facts are undisputed (and this is where video recordings can be incredibly helpful), then the court can find that the officer’s actions were reasonable, and grant judgment to the defendant. IV: Conclusion When you first hear the term “qualified immunity,” it may sound like one of those arcane legal doctrines that shouldn’t have any application in our modern world. As a guy who has spent a large part of his career beating the QI drum as long and as loudly as I can, I’d have to disagree with that. It’s a doctrine that allows our police officers to do their jobs with some measure of assurance that nobody can come and take their homes as long as they abide by the law as they know it, keep up on legal developments, and behave reasonably.