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Qualified Immunity: Basic Principles

Qualified Immunity: Basic Principles. defense only for individuals sued in individual capacity defense only to $$ actions immunity not just from liability, but from suit and burdensome discovery interlocutory appeal if denied. Qualified Immunity. Harlow v. Fitzgerald (1982)

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Qualified Immunity: Basic Principles

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  1. Qualified Immunity: Basic Principles • defense only for individuals sued in individual capacity • defense only to $$ actions • immunity not just from liability, but from suit and burdensome discovery • interlocutory appeal if denied

  2. Qualified Immunity • Harlow v. Fitzgerald (1982) • “[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.”

  3. “Extraordinary Circumstances” • In Harlow, the Court indicated that there may be some cases where, although the law was clearly established, "if the official pleading the defense claims extraordinary circumstances and can prove that he neither knew nor should have known of the relevant legal standard, the defense should be sustained."

  4. “Extraordinary Circumstances” • Reliance on advice of counsel or prosecutor • Armstrong v. City of Melvindale (6th Cir. 2006) • Cox v. Hainey (1st Cir. 2005) • Sornberger v. City of Knoxville (7th Cir. 2006)

  5. “Extraordinary Circumstances” • Effect of “reliance on advice of counsel” as defense on atty/client privilege ? • In re County of Erie (2d Cir. 2008) • Ross v. City of Memphis (6th Cir. 2005)

  6. “Extraordinary Circumstances” • Reliance on statute • Kay v. Bemis (10th Cir. 2007) • Way v. County of Ventura (9th Cir. 2006) • Cooper v. Dillon (11th Cir. 2005) • Connecticut v. Crotty (2d Cir. 2003) • But see Boles v. Neet (10th Cir. 2007) • Lawrence v. Reed (10th Cir. 2005)

  7. Supervisory vs. Line Officers • Hunt v. Tomplait (5th Cir. 2008) • Deputy Tomplait was not a mere bystander in the execution of the search warrant • He actively led the search team without reading the search warrant or pursuing additional information about the residence described in the search warrant

  8. Supervisory vs. Line Officers • Killmon v. City of Miami (11th Cir. 2006) • When an officer is present with a fellow officer and both observe the same course of events, it is unreasonable for an officer to rely upon the fellow-officer rule to determine that probable cause exists • the “just following orders” defense has not occupied a respected position in our jurisprudence • officers may be liable under §1983 if there is a reason why any of them should question the validity of order

  9. Supervisory vs. Line Officers • KRL v. Moore (9th Cir. 2004) • Lead investigator would have greater responsibility for ensuring that the warrant was not defective. • Fact that a judge and a prosecutor had approved the warrant does not make reliance on it reasonable.

  10. Supervisory vs. Line Officers • Sorensen v. City of New York (2d Cir. 2002) • low-level employees have been granted qualified immunity where they followed orders promulgated by their superiors • immunity has been granted only when the orders were facially valid • strip search policy here clearly unlawful

  11. Supervisory vs. Line Officers • Lawrence v. Bowersox (8th Cir. 2002) • jury found lower-level officer not liable because he followed orders and conduct not malicious and sadistic • But supervisor not entitled to qualified immunity where he orchestrated an unnecessary pepper spray shower

  12. Supervisory vs. Line Officers • Ramirez v. Butte Silver Bow County (9th Cir.), aff’d by Groh v. Ramirez (U.S. 2004) • What's reasonable for a particular officer depends on his role in the search

  13. Supervisory vs. Line Officers • officers who lead the team that executes warrant are responsible for ensuring that they have lawful authority for their actions. • must actually read the warrant and satisfy themselves that they understand its scope and limitations, and that it is not defective in some obvious way

  14. Supervisory vs. Line Officers • Line officers, on the other hand, are required to do much less. • They do not have to actually read or even see the warrant • They may accept the word of their superiors that they have a warrant and that it is valid • Line officers here acted reasonably

  15. Supervisory vs. Line Officers • DeToledo v. County of Suffolk (D. Mass. 2005) • assumed without deciding that by July 26, 1998, the law was reasonably clear in banning strip searches of those arrested for serious non-violent felonies • But qualified immunity for low-level officers who complied with long established policy

  16. Structure of Analysis • Mandatory Constitutional-Question-First Approach • Siegert v. Gilley (1991) • Sacramento v. Lewis (1998) • Conn v. Gabbert (1999) • Wilson v. Layne (1999) • Saucier v. Katz (2001) • Brosseau v. Haugen (2004) • Scott v. Harris (2007)

  17. But see • Bunting v. Mellen (U.S. 2004) • Morse v. Frederick (U.S. 2007) • Brosseau v. Haugen (U.S. 2004) • Scott v. Harris (U.S. 2007)

  18. Structure of Analysis • See Pearson v. Callahan, 128 S. Ct. 1702 (2008), granting cert. in Callahan v. Millard County, 494 F.3d 891 (10th Cir. 2007) (argued Oct. 14th) • In addition to the questions presented by the petition, the parties are directed to brief and argue the following question: ‘Whether the Court's decision in Saucier v. Katz, 533 U. S. 194 (2001) should be overruled?’

  19. Heightened Pleading • Leatherman (1993) • Crawford-El v. Britton (1998) • Swierkiewicz v. Sorema (2002) • Hill v. McDonough (2006) • Jones v. Bock (2007)

  20. Heightened Pleading • Bell Atlantic Corp. v. Twombly, 127 S. Ct. 1955 (2007) • [W]e do not require heightened fact pleading of specifics, but only enough facts to state a claim to relief that is plausible on its face. Because the plaintiffs here have not nudged their claims across the line from conceivable to plausible, their complaint must be dismissed.

  21. Heightened Pleading • Erickson v. Pardus, 127 S.Ct. 2197 (2007) • It was error for the Court of Appeals to conclude that the allegations in question, concerning harm caused petitioner by the termination of his medication, were too conclusory to establish for pleading purposes that petitioner had suffered ‘a cognizable independent harm’ as a result of his removal from the hepatitis C treatment program

  22. Cases in the Circuits • Iqbal v. Hasty (2d Cir. 2007), cert. granted sub nom Ashcroft v. Iqbal • We believe the Court is not requiring a universal standard of heightened fact pleading, but is instead requiring a flexible ‘plausibility standard,’ which obliges a pleader to amplify a claim with some factual allegations in those contexts where such amplification is needed to render the claim plausible

  23. Questions presented on cert. • 1. Whether a conclusory allegation that a cabinet-level officer or other high-ranking official knew of, condoned, or agreed to subject a plaintiff to allegedly unconstitutional acts purportedly committed by subordinate officials is sufficient to state individual-capacity claims against those officials under Bivens. • 2. Whether a cabinet-level officer or other high-ranking official may be held personally liable for the allegedly unconstitutional acts of subordinate officials on the ground that, as high-level supervisors, they had constructive notice of the discrimination allegedly carried out by such subordinate officials.

  24. Cases in the Circuits • Majority of circuits have now abandoned heightened pleading (even where qualified immunity is raised) • But see A.P. ex rel. Bazerman v. Feaver (11th Cir. 2008) (“While Rule 8 allows a plaintiff a great deal of latitude in the manner in which a complaint presents a claim, . . .this court has implemented more stringent pleading requirements in § 1983 actions in which qualified immunity is likely to be raised as a defense.”)

  25. Clearly Established Right: What Law Controls ? • Wilson v. Layne • decisions of Supreme Court • controlling authority from jurisdiction: Court of Appeals and highest court of state • law of other jurisdictions: consensus of persuasive authority

  26. What Law Controls ? • Most circuits will look to law of other circuits if no binding precedent from own jurisdiction • But see Pabon v. Wright (2d Cir. 2006) • Vinyard v. Wilson (11th Cir. 2002)

  27. Defining the Contours of the Right • Malley v. Briggs (1986) : qualified immunity protects "all but the plainly incompetent or those who knowingly violate the law" • Saucier v. Katz (2001) : dispositive inquiry is whether it would be clear to a reasonable officer that his conduct was unlawful in the situation he confronted • Hope v. Pelzer (2002): salient question is whether law gave fair warning that conduct was unlawful • Brosseau v. Haugen (2004) : “[T]his area is one in which the result depends very much on the facts of each case. None of [the cases relied on to clearly establish the law] squarely governs the case here; they do suggest that Brosseau's actions fell in the ‘hazy border between excessive and acceptable force.’”

  28. Cases in the Circuits • Vinyard v. Wilson (11th Cir. 2002) • court identifies three ways in which “fair and clear notice” can be given

  29. “Fair and Clear Notice” • words of a federal statute or federal constitutional provision may be so clear and the conduct so bad that case law is not needed to establish that the conduct cannot be lawful • case of “obvious clarity”

  30. Examples • Hope v. Pelzer (U.S.) • Groh v. Ramirez (U.S.) • Asociacion de Periodistas de Puerto Rico v. Mueller (1st Cir. 2008) • Orem v. Rephann (4th Cir. 2008) • Brannum v. Overton Co. School Bd. (6th Cir. 2008) • Irving v. Dormire (8th Cir. 2008) • Tekle v. U.S. (9th Cir. 2006) • Moretta v. Abbott (11th Cir. 2008) • Reese v. Herbert (11th Cir. 2008) • Hadley v. Gutierrez (11th Cir. 2008)

  31. “Fair and Clear Notice” • some broad statements of principle in case law are not tied to particularized facts and can clearly establish law applicable to different sets of detailed facts

  32. Examples • Demayo v. Nugent (1st Cir. 2008) • Iko v. Shreve (4th Cir. 2008) • Brown v. Miller (5th Cir. 2008) • Landis v. Baker (6th Cir. 2008) • Brown v. Fortner (8th Cir. 2008) • Phillips v. Hust (9th Cir. 2007) • Hydrick v. Hunter (9th Cir. 2006)

  33. “Fair and Clear Notice” • more fact-specific precedent may be needed to clearly establish law • facts of case should not be “distinguishable in a fair way” from those confronting official in present case

  34. Examples: Case law specific enough • Weigel v. Broad (9th Cir. 2008) • Galvez v. Bruce (11th Cir. 2008)

  35. Examples : Case law not specific enough • Buckley v. Haddock (11th Cir. 2008) • Chaney v. City of Orlando (11th Cir. 2008)

  36. Role of Judge/Jury: Judge Decides Immunity Issue • Pitt v. District of Columbia (D.C. Cir. 2007) • Rodriguez-Marin v. Rivera-Gonzalez (1st Cir. 2006) • Zellner v. Summerlin (2d Cir. 2007) • Curley v. Klem (3d Cir. 2007) • Willingham v. Crooke (4th Cir. 2005) • Hale v. Kart (6th Cir. 2005) • Warlick v. Cross (7th Cir. 1992) • Littrell v. Franklin (8th Cir. 2004) • Keylon v. City of Albuquerque (10th Cir. 2008) • Cottrell v. Caldwell (11th Cir. 1996)

  37. Role of Judge/Jury • Jury May Decide “Objective Reasonableness” Where Material Facts in Dispute • Husain v. Springer (2d Cir. 2007) • Oliveira v. Mayer (2d Cir. 1994) • McCoy v. Hernandez (5th Cir. 2000) • Bollinger v. Oregon (9th Cir. 2008) • Torres v. City of Los Angeles (9th Cir. 2008) • Trujillo v. Large (10th Cir. 2006)

  38. Qualified Immunity & Fourth Amendment Excessive Force Claims • Saucier v. Katz (2001) • inquiries for excessive force and qualified immunity remain distinct • Graham protects officer who makes reasonable mistake of fact as to how much force was needed • Qualified immunity protects officer who makes reasonable mistake as to legal constraints that apply to particular police conduct

  39. Brosseau v. Haugen (2004) • summary reversal of Ninth Circuit opinion on second prong of qualified immunity analysis • Graham and Garner “are cast at a high level of generality” • insufficient to give “fair warning” of clearly established rights in other than “obvious” cases

  40. Brosseau v. Haugen (2004) • “[T] his area is one in which the result depends very much on the facts of each case. None of [the cases relied on to clearly establish the law] squarely governs the case here; they do suggest that Brosseau's actions fell in the ‘hazy border between excessive and acceptable force.’”

  41. Post-Brosseau Cases :Graham and Garner Enough to Give Fair Warning: Qualified Immunity Denied • Whitfield v. Melendez-Rivera (1st Cir. 2005) • Bennett v. Murphy (3d Cir. 2005) • Kirby v. Duva (6th Cir. 2008) • Bouggess v. Mattingly (6th Cir. 2007) • Griffith v. Coburn (6th Cir. 2007) • Sallenger v. Oakes (7th Cir. 2007) • Moore v. Indehar (8th Cir. 2008) • Craighead v. Lee (8th Cir. 2005) • Blankenhorn v. City of Orange (9th Cir. 2007) • Adams v. Speers (9th Cir. 2007) • Walker v. City of Orem (10th Cir. 2006) • Dukes v. Miami-Dade County (11th Cir. 2007) • Baltimore v. City of Albany(11th Cir. 2006)

  42. Post-Brosseau Cases Graham and Garner Did not Give Fair Warning: Qualified Immunity Granted • Berube v. Conley (1st Cir. 2007) • Hill v. Nigro (3d Cir. 2008) • Waterman v. Batton (4th Cir. 2005) • Kenyon v. Edwards (8th Cir. 2006) • Blanford v. Sacramento County (9th Cir. 2005)

  43. Scott v. Harris, 127 S.Ct. 1769 (2007) • Scott decided on 4th Amendment merits question • The Court held that “[w]hen opposing parties tell two different stories, one of which is blatantly contradicted by the record, so that no reasonable jury could believe it, a court should not adopt that version of the facts for purposes of ruling on a motion for summary judgment.” • police officer’s attempt to terminate a dangerous high-speed car chase that threatens the lives of innocent bystanders does not violate the Fourth Amendment, even when it places the fleeing motorist at risk of serious injury or death.

  44. Scott v. Harris, 127 S.Ct. 1769 (2007) • In Scott, once the Court decided that the videotape eliminated any genuine issue of material fact as to the threat presented by Harris’ driving, the question of the objective reasonableness of Scott’s use of force was a “pure question of law.”

  45. “Pure Question of Law” • Dunn v. Matatall (6th Cir. 2008) • Harris v. Green (E.D. Ark. 2008) • Sharp v. Fisher (M.D. Ga. 2008), aff’d, 532 F.3d 1180 (11th Cir. 2008).

  46. Impact on Deadly Force Instructions • Garner is just another excessive force case confined to its particular facts • deadly force is not different and calls for no special instructions to jury • Pre-Scott : 3d, 7th & 9th Circuits included separate Garner language in Model Jury Instructions for deadly force cases • 9th Cir. had held in Monroe v. City of Phoenix, 248 F.3d 851 (9th Cir. 2001), that it was an abuse of discretion to not give a Garner deadly force instruction where no dispute that deadly force was used • 8th Cir. also has case law saying it can be reversible error to not give Garner deadly force instruction (Rahn v. Hawkins, 464 F.3d 813 (8th Cir. 2006)

  47. Impact on Deadly Force Instructions • Post-Scott: • Acosta v. Hill (9th Cir. 2007) • Blake v. City of New York (S.D.N.Y. 2007) • no special instruction needed in deadly force cases

  48. Some Post-Scott cases:Abney v. Coe (4th Cir. 2007) • daytime, heavy traffic • Abney driving a motorcycle • speeds did not exceed 55 m/p/h limit • Dept. policy prohibited use of PIT to terminate pursuits • officer was of opinion that had he intentionally rammed Abney’s motorcycle, it would have been excessive force

  49. Abney v. Coe (4th Cir. 2007) • Holding: Summary Judgment for officer • The Court of Appeals found that the record supported the conclusion that Abney’s driving “put other motorists at substantial risk of serious harm,” and thus, Deputy Coe was “eminently reasonable to terminate the chase in order to avoid further risks to the lives of innocent motorists.”

  50. Beshers v. Harrison (11th Cir. 2007) • pursuit at speeds of 55-65 mph • Beshers rammed by Harrison; killed • Only question after Scott was whether Harrison’s action was reasonable

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