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