NJ STATE PBA LEGAL CORNER
By Robert A. Fagella, Esq., Paul L. Kleinbaum, Esq.
The modification or elimination of qualified immunity for law enforcement officers has been one of the hot button issues in the calls for policing reform in New Jersey and throughout the country. The issue has been debated in the NJ State Legislature, in Congress and in the courts. Recently, the U.S. Supreme Court issued two decisions reaffirming the doctrine of qualified immunity for law enforcement officers.
The doctrine of qualified immunity protects law enforcement officers from civil liability as long as their conduct does not violate a clearly established statutory or constitutional right of which a reasonable person would have known. As the Supreme Court has explained in its decisions, qualified immunity protects all but the plainly incompetent or those who knowingly violate the law. Whether a “clearly established” law exists has a very specific meaning according to the court. Qualified immunity applies unless a court has previously decided a prior case with a very similar factual basis as confronted by a law enforcement officer who is facing a challenge to its application. In two opinions, the Supreme Court concluded that the federal appeals court decisions, which held that the officers in those cases were not protected by qualified immunity, violated these settled principles.
In City of Tahlequah, Oklahoma v. Bond, a woman called 9-1-1 with a complaint that her ex-husband was in her garage, was intoxicated and would not leave. She requested police assistance. Three officers responded to the call and were aware that the woman’s ex-husband was intoxicated and would not leave her home. Although the woman’s ex-husband did not live in the home, he kept his tools in the garage. The officers believed that he had something in his hands and asked to pat him down for weapons. The ex-husband refused. When one of the officers took a step toward the doorway of the garage, the ex-husband stepped back and walked toward the back of the garage where his tools were stored. The officers ordered him to stop but he kept walking. He then grabbed a hammer and turned around to face the officers. He grasped the handle of the hammer with both hands as if prepared to swing a baseball bat and swung it up to shoulder level. The officers ordered the individual to drop the hammer. Instead, he raised the hammer behind his head and took a stance as if he intended to throw the hammer or charge at the officers. In response, the officers fired their weapons and killed him.
In the litigation that followed the incident, the officers were charged with use of excessive force. They raised qualified immunity as a defense and moved to dismiss the complaint. The Federal District Court granted their motion. However, the 10th Circuit Court of Appeals reversed and concluded that the officers were not entitled to the qualified immunity defense because, according to the court, a previously decided case had already clearly established that the officers’ conduct would be unlawful. In other words, according to this court, they should have known that their conduct was illegal.
In Rivas-Villegas v. Cortesluna, a police officer in California responded to a 9-1-1 call reporting that a woman and her two children had barricaded themselves in a room, afraid that the woman’s boyfriend would harm them. The call came from a crying 12-year-old girl reporting that she, her mother and her 15 year-old sister had shut themselves in a room because her mother’s boyfriend had a chainsaw. This information was relayed to the officers before they arrived.
The responding officers ordered the individual outside and onto the ground. When the individual was ordered to keep his hands up, he lowered them anyway. Another officer shot the individual with bean bag rounds from a shotgun. After the second shot, the individual raised his hands and complied with the order to get down. While removing a knife from the individual’s pocket, one of the officers placed his left knee on the suspect’s back near where he had the knife in his pocket. The officers were able to remove the knife and handcuff the individual.
In the ensuing lawsuit, the officer who placed his knee on the suspect’s back was charged with use of excessive force. The Federal District Court granted the officer’s motion to dismiss based upon qualified immunity grounds. However, the 9th Circuit Court of Appeals reversed the district’s court’s decision and found that the officer was not entitled to qualified immunity because existing case law put him on notice that his conduct constituted excessive force. He too, like the officers in the Tahlequah case, should have known his conduct was unlawful according to this court.
The Supreme Court unanimously reversed both cases and concluded that both appeals courts erred in rejecting the officers’ qualified immunity defenses. In both cases, the Supreme Court concluded that the case law upon which the appeals court relied did not give fair notice to the officers that their conduct violated the law. While the prior case law generally addressed the issues involved in both cases, their facts and conclusions were not sufficiently clear to give notice to the officers that what they were doing violated the law. The Supreme Court also noted that it is sometimes difficult for officers to determine how any relevant prior cases apply to the particular situations they are confronting. The court emphasized that the prior cases must be sufficiently similar to the facts confronting the officer in order to bar the officer from relying upon qualified immunity as a defense.
In both cases, the Supreme Court unequivocally confirmed the limited circumstances under which qualified immunity could be denied to law enforcement officers. However, the Supreme Court’s decisions do not mean that the doctrine of qualified immunity cannot be changed by legislation. Because the doctrine of qualified immunity is a judicial creation, state legislatures and Congress can adopt laws modifying or eliminating qualified immunity. In fact, a few states have ended qualified immunity or limited its application.
While both the NJ State Legislature and Congress have been debating bills which would modify or eliminate qualified immunity, to date the efforts have been unsuccessful. At least as of now, there does not appear to be any active efforts in New Jersey or in Congress to modify or eliminate qualified immunity. And, at least for litigation involving the application of the qualified immunity doctrine, the Supreme Court has sent strong signals that qualified immunity is very much alive and cannot easily be overcome. We will continue to keep the NJ State PBA and its membership apprised of any developments.