Qualified Immunity in Excessive Force Cases
Presented by:
Craig T. Jones
EDMOND JONES LINDSAY, LLP
The Candler Building, Suite 410
127 Peachtree Street, NE
Atlanta, GA 30303
Office 404-524-1080
Cell 678/643-0062
Written in September 2008
A.INTRODUCTORY DISCLAIMERS
This paper is meant to provide a brief overview of some of the issues which I have encountered in my handling of police excessive force cases, with particular emphasis on qualified immunity and the Fourth Amendment claims. In my career, I have had the good fortune of arguing two (2) excessive force cases in the U.S Supreme Court 1 –one being more fortunate than the other-and my purpose today is to give you strategic guidelines in how to approach the legal issues in these cases based on my own experience. Accordingly, I will be referring to my own cases-not because they encompass all of the relevant law in this area but because I can use them as a teaching tool to discuss strategies which have worked and not worked for me.
I am not a scholar, and this is not intended to be an exhaustive discussion of the law. I have neither the expertise nor the time to give anything more than a superficial analysis of the subjects discussed in this paper, but if there is anything we learn in law school, it is how to do legal research. Please use this as a starting point for your own research rather than a definitive statement of the law, which often changes at a faster rate than we in the trenches are able to absorb.
Since I am a plaintiff’s lawyer, my perspective will inevitably be skewed toward those issues which primarily affect plaintiffs, but most of you either represent plaintiffs or defend cases brought by them, this will hopefully be a beneficial exercise to both sides despite my obvious bias. Please note that I have made no attempt to be impartial, but any time I have made citations to the law, I have tried to report it as accurately as possible.
Another disclaimer is that this paper addresses federal claims only. State law is another beast altogether which could be the subject of an entire seminar itself, but I would be happy to address state law issues through questions at the end of the presentation, in the panel discussion this afternoon, or anytime you want to buy me lunch and pick my brain because I am always open to free food.
I will, however, take advantage of my prerogative as moderator and go off-topic from time to time if I feel that it enhances your understanding and appreciation of the seminar as a whole. Forgive me if I depart from my outline during the oral presentation, but you can always read the case law later. Even though my topic is excessive force claims, I will begin with a more general conversation about the constitutional underpinnings of police misconduct cases in general so that you will more clearly see where excessive force claims fall into the overall context of constitutional protections of citizens against overreaching by governmental officials.
B.THE CONSTITUTIONAL ORIGINS OF EXCESSIVE FORCE CASES
In order to make an excessive force claim or any federal constitutional claim, the first thing a lawyer needs to know is what provision of the Constitution is the source of the particular civil right being violated, because that constitutional amendment and the case law arising under it will determine the legal standard which must be satisfied in order to establish a constitutional violation. Not all injuries suffered by citizens at the hands of the state-even if theoretically actionable as torts-arise to the level of a constitutional violation. You must literally be able to pigeon-hole the alleged violation into a clearly defined legal category or else the Constitution provides no remedy. The Civil Rights Act of 1871, once called the Ku Klux Klan Act but now codified as 42 U.S.C. §1983, provides no substantive rights standing alone-it is merely a conduit which provides a right of action for violations of the United States Constitution or other federally-created rights.
Most interactions between individual citizens and individual officers will fall under the scope of the First, Fourth, Eighth and Fourteenth Amendments. The First Amendment may be implicated where an officer uses force or arrest powers to retaliate against the citizen’s exercise of free speech, and Bill Atkins will address that in his presentation this morning. The Fourth Amendment prohibits unreasonable searches and seizures of both persons and property, which covers both false arrest/malicious prosecution cases (also covered in Bill’s presentation) as well as the use of force against a free person at liberty. Tennessee v. Garner, 471 U.S. 1, 105 S. Ct. 1964 (1985); Graham v. Connor, 490 U.S. 386 (1989). The Eight Amendment applies to excessive force claims and conditions of confinement claims brought by convicted prisoners, so the defendants are typically prison guards and administrators rather than police officials per se. Hope v. Pelzer, 536 U.S. 730 (2002); Hudson v. McMillian, 503 U.S. 1 (1992). But the difference in setting between Fourth Amendment and Eight Amendment claims makes all the difference in the world, because the presence of the word “unreasonable” in the Fourth Amendment has led to the development of an objective reasonableness standard for evaluating the constitutionality of force used against free citizens in the course of an arrest, investigatory stop, or other “seizure” of the person, while the phrase “cruel and unusual” in the Eighth Amendment has come to require some level of subjective malice in order to make out a violation.
With respect to the use of force against pretrial detainees, the Eleventh Circuit has adopted the adopted the analysis set forth in Johnson v. Glick, 481 F.2d 1028, 1033 (2d Cir.1973), cert. denied, 414 U.S. 1033 (1973), which looks at both the objective reasonableness of the force used in proportion to the threat posed by the offender and whether the force was used in a good faith effort to restore order and discipline or maliciously for the purpose of causing harm. Bozeman v. Orum 199 F.Supp.2d 1216, 1229 (M.D. Ala. 2002); Danley v. Allen, ___ F. 3d ____, 2008 U.S. App. LEXIS 17837 (11th Cir. 8/22/08); see also McMillian v. Johnson, 88 F. 3d 1554, 1565 (11th Cir. 1996); Bell v. Wolfish, 441 U.S. 520, 535, 99 S. Ct. 1861, 1872 (1979) (holding that conditions of pretrial detention which amount to punishment violate the Fourteenth Amendment). Again, it is obviously more difficult to prove that a correctional officer acted maliciously or sadistically against an inmate in a jail setting than it is to prove that a patrol officer used more force than was reasonably necessary to effectuate an arrest during a traffic stop.
The point of these comparisons is not to provide an exhaustive treatment of the law but to simply illustrate why the factual context of the alleged violation is critical to determining what law applies and the likelihood that a claim will prevail. Due to time and space limitations, this paper will focus upon the most commonly litigated category of excessive force claims-those involving the use of force during an arrest or other seizure of a citizen at liberty, the validity of which is examined under the reasonableness standard of the Fourth Amendment.
[1] Hope v. Pelzer, 536 U.S. 730 (2002) (prison guards were given fair warning by Eighth Amendment law that it was cruel and unusual punishment to discipline inmate by restraining him to a ‘hitching post’ for prolonged periods after any risk posed by the inmate had subsided); Scott v. Harris, 127 S. Ct. 1769 (2007) (high-speed ramming of vehicle of fleeing traffic offender was not a Fourth Amendment violation due to risk to public safety posed by continued vehicular flight).
C.ANALYZING USE OF FORCE UNDER THE FOURTH AMENDMENT
Claims of excessive force against persons at liberty (as opposed to in a jail or prison context) are evaluated under the Fourth Amendment, which prohibits unreasonable searches and seizures of persons and property. Since the use of physical force, whether deadly or non-deadly, has the effect of seizing one’s body, any excessive force is viewed as an unreasonable seizure of the person, which is prohibited by the Fourth Amendment. Tennessee v. Garner, 471 U.S. 1 (1985); Graham v. Connor, 490 U.S. 386 (1989). The Garner case prohibits the use of deadly force against a fleeing suspect who does not appear to be armed or otherwise dangerous, and while the suspect in Garner was fleeing on foot, Garner’s prohibition against the use of deadly force to stop a nonviolent felony suspect who is merely fleeing was subsequently expanded to cover a fleeing felon in Brower v. County of Inyo, 489 U.S. 593 (1989) (while mere high speed pursuit is not a seizure, placing a roadblock in the path of a fleeing vehicle may constitute an unreasonable seizure under the Fourth Amendment).
In Garner, the Court ruled that it is a Fourth Amendment violation for a police officer to use deadly force to seize a fleeing felony suspect who “poses no immediate threat” to human life. 471 U.S. at 9-10.
…The intrusiveness of a seizure by means of deadly force is unmatched. The suspect’s fundamental interest in his own life need not be elaborated upon. The use of deadly force also frustrates the interest of the individual, and of society, in judicial determination of guilt and punishment … The use of deadly force to prevent the escape of all felony suspects, whatever the circumstances, is constitutionally unreasonable. It is not better that all felony suspects die than that they escape.
Where the suspect poses no immediate threat to the officer and no threat to others, the harm resulting from failing to apprehend him does not justify the use of deadly force to do so. It is no doubt unfortunate when a suspect who is in sight escapes, but the fact that the police arrive a little late or are a little slower afoot does not always justify killing the suspect. A police officer may not seize an unarmed, non-dangerous suspect by shooting him dead.
Id. at 9-10 (emphasis added).
Garner also articulated several factors to be considered in evaluating the reasonableness of using deadly force to apprehend a fleeing suspect:
Thus, if [#1] the suspect threatens the officer with a weapon or
[#2 ] there is probable cause to believe that he has committed a crime involving the
infliction or threatened infliction of serious physical harm, deadly force may be used [#3] if necessary to prevent escape, and if,
[#4] where feasible, some warning has been given.”
471 U.S. at 11-12 (numbering and bold print added for emphasis). In Scott v. Harris, we argued that these so-called Garner factors amount to bright-line preconditions for the use of deadly force. Applying the Garner preconditions to the facts of our case, we argued that (1) our client had not threatened the officer with a weapon (i.e., he had not used his car as a weapon by trying to hit anyone or run them off the road); (2) there was no probable cause to believe that our client had committed or threatened to commit a violent crime, because the officer who admittedly used deadly force against him had no information whatsoever about the reason Mr. Harris was being pursued; (3) the use of deadly force was not necessary because there were alternative methods of apprehension (i.e., they had his license tag number); and (4) while it was probably not feasible to give a warning in the circumstances of a high-speed pursuit, there was arguably a jury question on that point. The Supreme Court did not accept our approach, instead stressing the “totality of the circumstances” language of Garner, 471 U.S. at 8-9, which had been reiterated in Graham v. Connor, 490 U.S. at 396. Scott v. Harris, 127 S. Ct. 1769 (2007)
Reiterating the rationale of Garner, the Graham court held that all excessive force cases involving an arrest, investigative stop, or any other “seizure” of a person at liberty are governed under the reasonableness standard of the Fourth Amendment. That standard is an objective one–in other words, the reasonableness of the force must be judged from the perspective of a reasonable officer on the scene, not based upon hindsight, and should taken into account that police officers are often forced to make split-second judgments about the amount of force needed.
The test of reasonableness under the Fourth Amendment is not capable of precise definition or mechanical application,” [Cite omitted] however, its 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 (the question is “whether the totality of the circumstances justifie[s] a particular sort of … seizure”).
490 U.S. at 396 (emphasis added). In short, Graham required what was already implicit in Garner: that the force used be proportional to the threat whether the force in question was deadly or non-deadly.
However, Garner has recently been weakened-at least in the context of a fleeing motorist-by the Supreme Court decisions of Brosseau v. Haugen, 543 U.S. 194 (2004) (shooting of fleeing motorist was not unreasonable when there were officers and bystanders in or near the path of the fleeing vehicle and the suspect had previously acted violently toward the officer attempting to apprehend him).and Scott v. Harris, 127 S. Ct. 1769 (2007) (high-speed ramming of vehicle of fleeing traffic offender was not due to risk to public safety posed by continued vehicular flight). As the losing attorney in Scott v. Harris, I may be attaching more significance than warranted to the decision, which is arguably limited to the unusual circumstance where a plaintiff survives summary judgment in the Eleventh Circuit despite the existence of a patrol car videotape which is capable of being interpreted inconsistently with the findings of fact made by the trial court. In Scott, we argued that the trilogy of excessive force cases comprised by Garner, Graham and Brower which clearly established the legal principle that fleeing offenders cannot be subjected to the use of deadly force unless they are acting violently toward others, but the Court held that the force used in Scott (the deliberate high-speed ramming of the suspect’s vehicle) was reasonable as a matter of law given the inherent risk posed by a fleeing vehicle which is being driven in a dangerously unsafe manner whether the driver is attempting to harm other people or not. This decision not only narrows the scope of Garner-arguably limiting it to cases where an unarmed offender is fleeing on foot-but it also weakens Brower, which had applied Garner to the context of a fleeing motorist who was deliberately caused to crash by a blind roadblock, but it can also be argued that the principal holding on Brower was the conclusion that the crash was a seizure, which is still good law irrespective of whether the present Court would hold that such a seizure was unreasonable.
In Brower v. County of Inyo, the Supreme Court had held-in the same year that Graham v. Connor was decided-that a Fourth Amendment seizure occurs “when there is a governmental termination of freedom of movement through means intentionally applied”-regardless of whether the “means intentionally applied” is a bullet, a fist, or a deliberate high-speed collision. 489 U.S. at 597. Brower distinguished the case of a deliberate collision amounting to a seizure from the typical automobile negligence claim as follows:
Violation of the Fourth Amendment requires an intentional acquisition of physical control. A seizure occurs even when an unintended person or thing is the object of the detention or taking, [citations omitted] but the detention or taking itself must be willful. This is implicit in the word “seizure,” which can hardly be applied to an unknowing act…. Thus, if a parked and unoccupied police car slips its brake and pins a passerby against a wall, it is likely that a tort has occurred, but not a violation of the Fourth Amendment. If, instead of that, the police cruiser had pulled alongside the fleeing car and sideswiped it, producing the crash, then the termination of the suspect’s freedom of movement would have been a seizure.
Id. at 596-597 (emphasis added).
Despite the erosion of Garner and Brower, the third case of our “trilogy”-Graham v. Connor-remains the gold standard for judging the reasonableness of all force under the Fourth Amendment, whether deadly or otherwise. The Graham decision lists three (3) factors which should be included in consideration of the reasonableness of an officer’s use of force:
1) “the severity of the crime at issue,”
2) “whether the suspect poses an immediate threat to the safety of the officers or others,” and
3) “whether he is actively resisting arrest OR attempting to evade arrest by flight.”
Id. (emphasis added). These three (3) factors should be committed to memory and woven into any argument about the reasonableness of an officer’s use of force. As Graham says, there is no precise definition capable of mechanical application, and these factors are not the only factors to be considered, but the more you can rely upon these factors and be creative in coming up with your own arguments, the better your chances of establishing a constitutional violation.
In Scott v. Harris, the plaintiffs relied extensively on these three (3) factors in trying to uphold the denial of summary judgment. As to number one, we argued that the crimes at issue were misdemeanor traffic offenses, number two, that the suspect’s bad driving posed a potential threat but did not rise to such a level of immediacy that deadly force was the only option, and number three, that the suspect was merely fleeing rather than actively resisting or fighting the officer. In other words, we applied the standard as precisely and mechanically as possible despite the admonition of Graham to not do so, yet a textually literal argument was our best approach given the conservative makeup of the Court and the apparent agenda to reverse the Eleventh Circuit, which had carefully parsed those three (3) factors in ruling that there were genuine issues of material fact requiring jury resolution..
Given that the law is objective reasonableness and the facts are almost always disputed, one might think that these cases generally do go to the jury. However, the majority of Fourth Amendment excessive force cases-like most Section 1983 cases-never make it to trial because the defendant’s have a powerful defense in their arsenal, namely the defense of qualified immunity. The key to a successful Section 1983 plaintiff’s practice is the ability to overcome qualified immunity, which will be discussed in the following section.
D.OVERVIEW OF QUALIFIED IMMUNITY
The doctrine of qualified immunity protects public officials from monetary liability when their conduct does not violate clearly established law. To overcome the defense of qualified immunity, a plaintiff must show that the Defendant had ‘fair warning’ of what the law required. One way to show ‘fair warning’ is by pointing to a prior case with similar facts, but that is not the only way to do so. See, e.g., United States v. Lanier, 520 U.S. 259, 271 (1997) (recognizing that a general constitutional rule may apply with “obvious clarity to the specific conduct in question,” even though the challenged conduct has not previously been held unlawful); see also Hope v. Pelzer, 536 U.S. 730 (2002).
There are two steps to the qualified immunity inquiry. A court must first determine whether the facts alleged, taken in the light most favorable to the plaintiff, show that the government official’s conduct violated a constitutional right. If a violation can be made out, the court must then ask whether the right was clearly established. See Saucier v. Katz, 121 S. Ct. 2151 (2001).2 “The relevant, dispositive inquiry in determining whether a right is clearly established is whether it would be clear to a reasonable officer that his conduct was unlawful in the situation he confronted.” Id. at 2156. “The contours of the right must be sufficiently clear that a reasonable official would understand that what he is doing violates that right.” Anderson v. Creighton, 483 U.S. 635, 640 (1987). All that is required is that “in the light of pre-existing law, the unlawfulness must be apparent.” Id. (emphasis added) In Hope, supra, the Supreme Court ruled that the Eleventh Circuit had in some cases applied an overly restrictive standard in determining whether prior law was clearly established by requiring that the plaintiff point to a precedent with materially similar facts. 536 U.S. 730. Rather than requiring factually similar precedent, the Supreme Court noted that “the salient question that the Court of Appeals ought to have asked is whether the state of the law [at the time of the alleged conduct] gave [officials] fair warning that their alleged [conduct] was unconstitutional.” 121 S. Ct. at 2515-2516.
One way to show ‘fair warning’ is by pointing to a prior case with similar facts, but that is not the only way to do so. See, e.g., United States v. Lanier, 520 U.S. 259, 271 (1997) (citing Anderson v. Creighton, 483 U.S. 635, 640) (recognizing that a general constitutional rule “identified in the decisional law” may apply with “obvious clarity to the specific conduct in question,” even though the challenged conduct has not previously been held unlawful); see also Hope v. Pelzer, 536 U.S. 730, 739 (2002). A “rule already identified by the decisional law” can even be derived from dicta in view of Hope‘s reliance upon “the reasoning, but not the holding,” of prior litigated cases. 536 U.S. at 743. In order for the law to be clearly established, it is not necessary to show that “the very action in question has been held unlawful, but it is to say that in light of pre-existing law the unlawfulness must be apparent. Anderson, 483 U.S. at 640 (emphasis added).
As the Supreme Court ruled in Hope, a factually identical precedent is not required if “rule already identified by the decisional law” is articulated with sufficient clarity that it is not dependent upon the peculiar facts of the case from which it arose.
[I]f some authoritative judicial decision decides a case by determining that “X Conduct” is unconstitutional without tying that determination to a particularized set of facts, the decision on “X Conduct”can be read as having clearly established a constitutional principle: put differently, the precise facts surrounding “X Conduct”are immaterial to the violation. These judicial decisions can control “with obvious clarity”a wide variety of later factual circumstances.”
Vinyard v. Wilson, 311 F.3d 1340, 1351 (11th Cir. 2002) (citing Hope and Lanier) (emphasis added).
Therefore, the “salient question” in A Fourth Amendment excessive force case is not whether there is a binding precedent which is factually on “all fours” with your case, but whether the contours of the law which existed at the time of your incident were sufficiently clear to give a reasonable law enforcement officer “fair warning” that he or she could be liable for using the degree of force that was used under the circumstances. Hope, 536 U.S. at 741 (citing Lanier, supra). By way of illustration, I will demonstrate the process of arguing whether the law was clearly established by paraphrasing what was argued by both sides in Scott v. Harris, supra, in which the defendant officer admitted that he had used deadly force by deliberately ramming and causing catastrophic injury to a fleeing motorist who was only suspected of minor traffic violations. While I am giving this example in the context of arguing that the law was clearly established (i.e., the second prong of the Saucier v. Katz analysis, the Supreme Court ultimately decided the case based on the first prong of the standard, ruling that we had not established a constitutional violation in the first place and thus there was no necessity to go to the next step of determining whether the law was clearly established.
[2] It should be noted that the Supreme Court is presently revisiting its two-part Saucier analysis. When the Court granted certiorari in the pending case of Pearson v. Callahan, 07-751 (U.S. 2007), it directed the Court to brief the following question: “Whether the Court’s decision in Saucier v. Katz, 533 U.S. 194 (2001), should be overruled?” If Saucier were to be overruled, the salient question would presumably remain the same (i.e., whether the law gave fair notice that the subject behavior is unconstitutional) but courts would have leeway to decline ruling on constitutional issues where the case can be decided more narrowly. The flip side is that courts could also avoid ever ruling on those issues, thereby refusing to further develop of clarify the law so that it could put others on notice of what the Constitution requires.
E. ARGUING THAT THE LAW IS CLEARLY ESTABLISHED
In arguing Scott v. Harris, our expectation had been that Garner gave us a cause of action, and that the case would turn on whether the law was clearly established that Garner applied in the circumstances of our case. Instead, the Court ruled that we had no cause of action as a matter of law, and therefore the Court never got to the question of whether the law was clearly established. Nonetheless, the way we structured our arguments about the clarity of the prior law is instructive in how to craft such arguments in your own cases.
As the petitioner/appellant in the Supreme Court, Officer Scott argued that the holdings of the Garner/Graham/ Brower trilogy were couched in general terms which are too vague to clearly establish the law in this case, while we plaintiffs argued that those cases articulate an unambiguous rule which applies “with obvious clarity” to this case. Lanier, 520 U.S. at 271. We pointed out that the Court’s rulings in Garner, Graham and Brower are not limited by their terms to the specific facts of those cases-rather, they clearly and succinctly define the limits of force allowable under the Fourth Amendment. In conclusion, we synthesize the holdings of the three (3) cases we were relying on for the proposition that the supreme Court’s rulings in Garner, Graham and Brower clearly establish protections embodied by the Fourth Amendment, to wit: 1) deadly force may not be used to apprehend a fleeing offender unless the offender places the officer or others in immediate danger of death or serious bodily injury; and 2) any use of force by officers – deadly or otherwise – must be proportional to the threat posed by the offender. We argued that those principles applied with obvious clarity to the facts of this case and placed the defendant officer on notice that his conduct violated this clearly established law. The undisputed facts in the record reveal that: 1) Harris was being pursued for a simple traffic offense; 2) Scott used deadly force when he rammed the Harris in an effort to apprehend him; and 3) at the time that Scott used deadly force, no one was in immediate danger of being harmed. Once again, those three (3) ‘undisputed facts’ came straight from the language of Graham v. Connor. While our argument did not prevail, it was properly structured to put the highest possible clarity upon the Supreme Court’s previous pronouncements upon the subject, which we then reinforced by pointing out how the Eleventh Circuit had similarly analyzed other cases.
We relied heavily on the Eleventh Circuit’s analysis in Vaughan v. Cox, 343 F.3d 1323 (11th Cir. 2003), a case in which another Coweta County officer had used deadly force to terminate a high-speed pursuit-three (3) years prior to the incident in our case. Noting Hope’s admonition that courts “should not be unduly rigid in requiring factual similarity between prior cases and the case under consideration,” the Vaughn v. Cox court held that the state of the law in 1998 gave the officer “fair warning” that his alleged conduct was unconstitutional. Hope, 536 U.S. at 741.
In this case, the danger presented by [the fleeing offenders’] continued flight was the risk of an accident during the pursuit. Applying Garner in a common‑sense way, a reasonable officer would have known that firing into the cabin of a pickup truck, traveling at approximately 80 miles per hour on Interstate 85 in the morning, would transform the risk of an accident on the highway into a virtual certainty. The facts of this case bear out these foreseeable consequences. Thus, Deputy Cox is not entitled to summary judgment, on qualified immunity grounds, regarding Vaughan’s § 1983 claim predicated on the Fourth Amendment.
343 F. 3d at 1332-1333 (emphasis added). Likewise, we argued that a reasonable officer would know that ramming a vehicle at 80 to 90 mph on a two-lane road and knocking it off an embankment also “transform[s] the risk of an accident … into a virtual certainty”-with similarly “foreseeable consequences.” Id. Under these circumstances, a reasonable officer would make no distinction between deadly force thru the use of a firearm and deadly force thru the ramming of a vehicle.
We also cited a number of cases from other circuits which supported our argument that the law was clearly established. Robinette v. Barnes, 854 F.2d 909, 912 (6th Cir. 1988); Smith v. Freeland, 945 F.2d 343, 347 (6th Cir. 1992); Galas v. McKee, 801 F.2d 200, 203 (6th Cir. 1986); U.S. v. Aceves-Rosales, 832 F.2d 1155, 1157 (9th Cir. 1987); Acosta v. City and County of San Francisco, 83 F.3d 1143, 1147 (9th Cir. 1996); Frye v. Town of Akron, 759 F.Supp. 1320, 1325 (N.D. Ind. 1991).
Interestingly, we also cited a non-judicial source which had been cited in a dissenting opinion as evidence of the fact that the Fourth Amendment legal principle we were espousing was clearly established law because it had become part of the culture of law enforcement. Even before the Supreme Court’s decision in Brower, it was noted in the dissent to the Court’s Order dismissing the writ of certiorari in City of Springfield, Mass. v. Kibbe, 480 U.S. 257, 271 fn. 2 (1987) that nationally recognized law enforcement standards indicate that ramming the vehicle of a fleeing suspect was only a proper tactic under circumstances when deadly force was authorized. That footnote contained the following citation: “See International Association of Chiefs of Police, A Manual of Model Police Traffic Services, Policies and Procedures, Procedure 1.20, p. 91 (1986) (“[B]oxing in, heading off, ramming, or driving alongside the pursued vehicle… may be approved only when the use of deadly force would be authorized”). This reference to model law enforcement polices was not an isolated occurrence since the Court has considered policies, standards, and reports as evidence of whether the law is clearly established for qualified immunity purposes on other occasions. See Wilson v. Layne, 526 U.S. 603 (1999) (policies of United States Marshal Service); Hope v. Pelzer, supra (state departmental regulations and a Department of Justice report).
The defense position in Scott, not unlike that in Hope and most other Eleventh Circuit qualified immunity cases, was in essence a free-bite rule-that is, that the only way that the law could be clearly established before the date of the subject incident was if there had been a previous case holding an officer liable for violating the Fourth Amendment by finding that making intentional direct contact with a fleeing motorist at high speeds constituted the improper use of deadly force.3 This argument flies squarely in the face of Hope and Lanier, where the Court made clear that factually identical precedent is not required where prior rulings give fair warning of constitutional liability. While Scott does not precisely specify what aspect of the law he contends is not clearly established by the previously cited cases, a more particularized analysis of the case law as it existed on March 29, 2001 reveals that the law was sufficiently clear to place Scott on notice that his conduct violated Harris’ constitutional rights as far back as the 1980’s.
In arguing that the law was not clearly established, Scott cited a number of cases which ultimately granted qualified immunity to officers who had used deadly force to terminate a chase. (Petitioner’s Brief, pp. 27-28). However, an examination of these cases reveals that all the cases cited by Scott analyzed the officer’s use of deadly force under the Garner/Graham analysis discussed herein. Therefore, it is ironic that Scott suggests that that this analysis does not apply with obvious clarity to this case. Properly analyzed, the reasoning of the cases cited by Scott all support Harris’ argument that Scott’s use of deadly force to terminate the chase by ramming Harris’ car while no other persons were in immediate danger was unconstitutional under clearly established law.
In Smith v. Freeland, 954 F.2d 343 (6th Cir. 1992), a fleeing suspect drove off the road during the course of a pursuit. Id. at 344. After the officer thought the fleeing vehicle had become stuck, the officer moved his vehicle in close proximity to the fleeing vehicle. However, the fleeing vehicle accelerated rapidly and swerved toward the police officer. After the officer took evasive action, the fleeing vehicle again swerved at the police officer and then attempted to flee. The pursuit continued until the fleeing suspect went down a dead-end street. At the end of the dead-end street, the fleeing suspect attempted to turn around in a citizen’s yard. As the fleeing suspect made this turning movement, the officer attempted to block the fleeing suspect. When the officer placed his car in front of the fleeing suspect’s vehicle, there was a local swimming pool to his back and a gate to his side. Id. Thinking that the pursuit was over, the officer exited his patrol car to apprehend the suspect. However, the fleeing suspect backed-up his vehicle and smashed through the gate. As the suspect’s car was attempting to pass the police vehicle, the officer fired one shot which killed the suspect. Id. Analyzing those facts under Garner and Graham, the court found that the officer’s use of deadly force was reasonable under the Fourth Amendment due to the immediate danger that the suspect posed to the officer and public at the time of the shooting. Id. at 345-347.
Similarly, in Scott v. Clay County, 205 F.3d 867 (6th Cir. 2000), the fleeing suspect raced through a stop sign at an intersection, weaved off the pavement and took a turn at high speeds resulting in an officer deciding to initiate a pursuit. During the pursuit, the fleeing suspect narrowly missed hitting another officer who was outside of his patrol car. Id. at 872. The pursuit ranged at speeds of 85 to 100 mph and lasted over 20 minutes. The fleeing suspect admitted that he specifically drove at least one motorist off the road. During the chase, the fleeing suspect lost control of his vehicle and crashed into a guard rail. As the officer exited his vehicle, the suspect accelerated at the officer who was forced to jump out of the way. As the fleeing suspect attempted to get back on the highway he drove his vehicle at an approaching officer’s car. The original pursuing officer shot at the vehicle, striking the passenger. Holding that the officer was entitled to qualified immunity under the Garner/Graham/Brower analysis, the court concluded that the officer’s use of deadly force was reasonable because the undisputed facts indicated that the fleeing suspect: 1) had committed serious, life-threatening crimes; 2) was an immediate threat to the officer; and 3) was actively resisting arrest. Id. at 876-878.
In Cole v. Boone, 993 F.2d 1328 (8th Cir. 1993) the fleeing suspect was driving a tractor-trailer at speeds up to 90 mph, passed traffic on both shoulders of the highway in heavy traffic and attempted to ram several police cars. Id. at 1330. The pursuing officers attempted a rolling roadblock but were unsuccessful. Thereafter, the officers shot the tires of the tractor-trailer with a shot-gun which was successful, but failed to stop the vehicle. The officers set up a roadblock which left an escape route in case the fleeing suspect refused to stop. The fleeing suspect ran through the roadblock, but the officers were able to shoot holes in the radiator and tires. After a more than 50 mile pursuit which forced no less than 100 cars off the road and during which the fleeing suspect repeatedly attempted to ram police cars, the officer shot the driver to terminate the pursuit. Id. at 1331. In analyzing the constitutional liability of the officers, the court applied the Garner/Graham analysis. Based on the violent resistance of the fleeing suspect, the court easily found that the use of deadly force by the officer was reasonable. Id. at 1333-1334.
The most interesting case cited by Scott in support of his arguments was Weaver v. State, 63 Cal.App.4th 188 (Cal.App. 1998). In Weaver, a 14-year-old driving a stolen car threw what were believed to be drugs out of the car and led police officers on a wild, two-hour chase over freeways and through residential areas, even ramming a police vehicle. As the fleeing suspect was circling through residential streets, so many bystanders had come out of their houses that the pursuit route resembled a parade route. Id. at 208. Throughout the pursuit, the pursuing officer considered using the PIT maneuver but felt that the conditions were not right. Id. at 194. According to the officer, the PIT maneuver could not be used safely at speeds over 35 mph. Id. at 195. The officer further testified that the PIT maneuver is not intentional crashing or ramming. Id. However, after two hours of pursuit, the officer executed a PIT maneuver on the fleeing suspect at a point of the pursuit route where no pedestrians or motorists were present, causing the suspect to suffer serious injuries. The officer testified that he was traveling no more than 35 mph when he performed the PIT, but according to an accident report completed by another officer using aerial videotapes, the PIT was performed at a speed of 47-49 mph. Id. at 95. The plaintiff’s expert opined that if the officer was traveling over 35 mph when he performed the PIT maneuver, it would have been an application of deadly force. Id. at 198-199.
Reviewing that record under the Garner/Graham/Brower analysis, the Weaver court acknowledged that the dispute over the speeds of the vehicles (35 mph vs. 45-47 mph) created a genuine issue of material fact as to whether the PIT maneuver was the application of deadly force. Id. at 207-208. However, based on the prolonged nature of the pursuit and the aggressive driving of the fleeing suspect-which included the ramming of a patrol car– the court held that the use of the PIT maneuver in this case was reasonable under the Fourth Amendment even if it was found to be deadly force. Id. at 207.
In our reply brief, we argued that the cases offered by Scott provide no support for the argument that the law was insufficiently developed to provide Scott with fair warning that his conduct violated the Fourth Amendment. In fact, the reasoning of these cases clearly supports Harris’ position that the Garner/Graham/Brower trilogy provides the proper analysis of the case at bar-both in determining whether a constitutional violation occurred (under the first prong of Saucier) and whether the law was clearly established (under the second prong). Immunity was granted in the cases cited by Scott-not because of any lack of clarity in the governing law-but because the application of clearly established law to the undisputed facts illustrated that the officers’ conduct was reasonable under a Garner/Graham/Brower analysis.
In other words, we argued that the analysis used in those cases cited by the defense were proof that the state of the law in 2001 (when the incident occurred) was sufficiently developed to provide Scott with fair warning that his conduct violated Victor Harris’ clearly established Fourth Amendment rights because these cases all determined that an officer’s application of deadly force to terminate a pursuit is governed by Garner/Graham/Brower. Therefore, this trilogy of cases applies with obvious clarity to this case and clearly establishes the applicable law. At a minimum, these cases serve to further clarify that the holdings of Garner/Graham/Brower apply to cases where force is used to terminate a pursuit.
At oral argument, we had a strategic decision to make about which case to emphasize in our excessive force trilogy of Garner, Graham and Brower. Ideally, we wanted to stress the fact that there are black and white rules which officers can be trained to follow, and the more discretion and ad hoc balancing is required by officers in the field, the more difficult it is to argue that the law provides fair notice of what conduct is prohibited. After “focus-grouping” the issue in several moot courts, we ultimately decided to emphasize Garner over Graham because it was easier to argue that Garner provided a bright-line rule against the use of deadly force against nonviolent misdemeanor suspects who are merely fleeing-and then to point out that Brower, a Scalia decision, had made it clear that Garner applies to fleeing motorists. Witness the following passage from oral argument, which was one of the few times I was able to make a coherent point between questions from the Justices:
JUSTICE BREYER: Well, what is the standard? Am I supposed to apply — am I not supposed to apply Graham?
MR. JONES: Well, whether you apply Garner or Graham, the result is the same in this case. And let me explain why. What Graham did is it expanded the Garner rule, which you can’t use deadly force to stop a fleeing suspect who is merely fleeing, expanded that to include the entire range of use of force, deadly or nondeadly.
And with regard to the factors that are to be considered in determining whether the use of force is reasonable under Graham, the balance with respect to a fleeing suspect who is subjected to deadly force was already drawn by Garner. Garner created a bright light rule. Graham extended that to an ad hoc balancing test with all use of force applications. But with respect to deadly force and a fleeing suspect, Garner still provides a bright line rule.
Scott v. Harris , No. 05-1631, Official Transcript at pgs. 33-34 (U.S. 2/26/07) ( http://www.supremecourtus.gov/oral_arguments/argument_transcripts/05-1631.pdf ). Ultimately the Supreme Court rejected our analysis, which had previously prevailed in the District Court and the Eleventh Circuit. If nothing else, the Scott decision proves that the tides have shifted and the Supreme Court is now more conservative in its approach to these than the Eleventh Circuit-whose qualified immunity analysis I had succeeded in getting the Supreme Court to overrule just five (5) years earlier in Hope v. Pelzer.
[3] Actually, there was such a prior similar case, but it had been decided without opinion and we could only extrapolate from an unpublished District Court decision. In Lewis v. Brown, 250 F.3d 751 (11th Cir. 02/14/01) (table), the Court of Appeals affirmed the denial of qualified immunity to an officer who rammed a suspected speeder. The facts of this case were discussed in Alderman v. McDermott, 2004 WL 1109541 at 13-14 (M.D. Fla 01//27/04).
E.OTHER ELEVENTH CIRCUIT EXCESSIVE FORCE CASES
In Harrell v. Decatur County, 22 F. 3d 1570 (11th Cir. 1994), the Eleventh Circuit stated the Garner rule as follows: “Where the suspect is not a fleeing felon and poses no immediate threat to the officer or others, the use of deadly force is a violation of the suspect’s Fourth Amendment rights.” 22 F. 3d at 1573. Applying this standard, the Eleventh Circuit has granted qualified immunity where the undisputed facts showed that officers shot a man wielding a knife who advanced toward them and disobeyed commands to drop the knife, as well as where the suspect refused to drop a sawed-off shotgun at the scene of a disturbance. Compare Wood v. City of Lakeland, 203 F. 3d 1288 (11th Cir. 2000); Montoute v. Carr, 114 F. 3d 181 (11th Cir. 1997);
Even if Garner did not create a bright-line standard, the Eleventh Circuit noted in a pre-Hope case that “a narrow exception exists to the rule requiring particularized case law to establish clearly the law in excessive force cases. Where an excessive force plaintiff shows “‘that the official’s conduct lies so obviously at the very core of what the Fourth Amendment prohibits that the unlawfulness of the conduct was readily apparent to the official, not withstanding the lack of caselaw,’ the official is not entitled to the defense of qualified immunity.” Priester v. City of Riviera Beach, 208 F. 3d 919, 924 (11th Cir. 2000), citing Smith v. Mattox, 127 F. 3d 1416, 1419 (11th Cir. 1997).
Far more often, the Eleventh Circuit has required a high degree of factual similarity between prior case law and the incident being litigated. See Pace v. Capobianco, 283 F. 3d 1275 (11th Cir. 2002; Willingham v. Longhnan, 261 F. 3d 1178 (11th Cir. 2001). Ironically, the Eleventh Circuit’s denial of summary judgment in what eventually became the Scott v. Harris case was part of a trend away from factual similarity that was brought about in response to the Supreme Court’s decision in Hope v. Pelzer, 536 U.S. 730 (2002). Harris v. Coweta County, 433 F. 3d 807 (2005), rev’d sub nom Scott v Harris, 127 S. Ct. 1769 (2007); see also Vaughan v. Cox, 343 F. 3d 1323 (11th Cir. 2003). By applying the more liberalized approach to qualified immunity under Hope, the Eleventh Circuit found itself being reversed again for having gone too far in the other direction in view of the rightward shift in the composition of the Supreme Court which occurred between Hope (2002) and Scott (2007).
F.PROCEDURAL CONSIDERATIONS
1.When Qualified Immunity can be raised
Since qualified immunity is “an immunity from suit rather than a mere defense to liability…, ‘we repeatedly have stressed the importance of resolving immunity questions at the earliest possible stage in litigation.'” Saucier v. Katz, 533 U.S. 194, 201, citing Mitchell v. Forsyth, 472 U.S. 511, 526 (1985) and Hunter v. Bryant, 502 U.S. 224, 227 (1991) (per curiam). If raised in the pleadings stage via a Rule 12 motion to dismiss, then the first prong of the Saucier analysis requires the Court to determine whether the Complaint has sufficiently pled a constitutional violation. If raised via a Rule 56 motion for summary judgment, then the Court is “required to view all facts and draw all relevant inference in favor of the nonmoving party…” 533 U.S. at 201. Ordinarily, the issue of immunity should be decided by the court long before trial. 502 U.S. at 228.
Qualified immunity is a question of law to be decided by the judge, not the jury. Ansley v. Heinrich, 925 F. 2d 1339 (11th cir. 1991). In Johnson v. Breeden, 280 F.3d. 1308 (11th Cir. 2002), the Eleventh Circuit clarified the respective roles of the judge and jury in deciding the issue of immunity where there a material issues of disputed fact precluding summary judgment on that issue:
Even at the summary judgment stage, not all defendants entitled to the protection of the qualified immunity defense will get it. The ones who should be given that protection at the summary judgment stage are those who establish that there is not genuine issue of material fact preventing them from being entitled to qualified immunity. …but if the evidence at the summary judgment stage, viewed in the light most favorable to the plaintiff, shows there are facts that are inconsistent with qualified immunity being granted, the case … will proceed to trial. Defendants who are not successful with their qualified immunity Defense before trial can re-assert it at the end of the plaintiff’s case in a Rule 50(a) motion.
280 F. 3d at 1317. Accordingly, the judge can revisit the issue of qualified immunity if the evidence introduced at trial is at variance with the evidence which was deemed sufficient to create a material factual dispute at the summary judgment stage. A plaintiff who survives a motion for summary judgment must be extremely diligent to make sure that all pertinent facts which could possibly support a constitutional violation are introduced at trial-anything less could result in a directed verdict on the theory that the facts which were put forth to defeat qualified immunity at the summary judgment stage were not presented to the jury and thus could not be the basis of a verdict.
2.Interlocutory Appeals
Because qualified immunity exists to protect public officials not only from liability but from the burdens of litigation, the law allows a defendant to take up an immediate appeal of an interlocutory order denying qualified immunity. Mitchell v. Forsyth, 421 U.S. 511 (1985). However, the right of a defendant to immediate review of a denial of immunity is not absolute. In Johnson v. Jones, 515 U.S. 304 (1995), the Supreme Court held as follows:
This case concerns government officials‑‑entitled to assert a qualified immunity defense in a “constitutional tort” action‑‑who seek an immediate appeal of a district court order denying their motions for summary judgment. The order in question resolved a fact‑related dispute about the pretrial record, namely, whether or not the evidence in the pretrial record was sufficient to show a genuine issue of fact for trial. We hold that the defendants cannot immediately appeal this kind of fact‑related district court determination.
515 U.S. at 307.
[A] defendant, entitled to invoke a qualified immunity defense, may not appeal a district court’s summary judgment order insofar as that order determines whether or not the pretrial record sets forth a ‘genuine’ issue of material fact for trial.
Id. at 319-320. The Supreme Court reaffirmed that principle in Crawford El v. Britton, 523 U.S. 574 (1998):
We also declined to craft an exception to settled rules of interlocutory appellate jurisdiction and rejected the argument that the policies behind the immunity defense justify interlocutory appeals on questions of evidentiary sufficiency.
523 U.S. at 595.
To the extent that a defendant officer’s appeal is simply a re-argument of the facts which the District Court was required to accept in the light most favorable to the plaintiff, the Order is not immediately appealable and the appeal should be dismissed. We vigorously asserted that argument in Scott v. Harris and were unsuccessful; however, I recently received a jurisdictional question from the Eleventh Circuit asking the parties to brief that issue in another case, so perhaps the court is beginning to police its jurisdiction over these interlocutory appeals on its own initiative. The fewer interlocutory appeals there are in these cases, the more cases will go to trial and the greater the likelihood of settlement.