Author: Jim Chapman
Recently, the United States Supreme Court issued two opinions which establish that the doctrine of qualified immunity is alive and well and protects government actors from civil suits.
The first case is City of Tahlequah v. Bond, 595 U.S. ___ (2021). The facts of this case are as follows. On August 12, 2016, Dominic Rollice’s ex-wife, Joy, called 911. Rollice was in her garage, was intoxicated, and would not leave. Joy requested police assistance. The dispatcher asked whether Rollice lived at the residence, and Joy said that he did not. However, she explained that Rollice kept tools in her garage.
Thereafter, three police officers responded to the call. All three knew that Rollice was Joy’s ex-husband, was intoxicated, and would not leave her home. Joy met the officers out front and led them to the side entrance of the garage. There, the officers encountered Rollice and began speaking with him in the doorway. Rollice expressed concern that the officers intended to take him to jail; Officer Girdner told him that they were simply trying to get him a ride. Rollice began fidgeting with something in his hands, and the officers noticed that he appeared nervous. Officer Girdner asked if he could pat Rollice down for weapons. Rollice refused.
Police body-camera video captured what happened next. As the conversation continued, Officer Girdner gestured with his hands and took one step toward the doorway, causing Rollice to take one step back. Rollice, still conversing with the officers, turned around and walked toward the back of the garage where his tools were hanging over a workbench. Officer Girdner followed with the other officers close behind, but no officer was within six feet of Rollice. The video is silent, but the officers stated that they ordered Rollice to stop.
Nevertheless, Rollice kept walking. He then grabbed a hammer from the back wall over the workbench and turned around to face the officers. Rollice grasped the handle of the hammer with both hands, as if preparing to swing a baseball bat, and pulled it up to shoulder level. The officers backed up and drew their guns. At this point the video is no longer silent, and the officers can be heard yelling at Rollice to drop the hammer.
But, Rollice did not comply. Instead, he took a few steps to his right, coming out from behind a piece of furniture so that he had an unobstructed path to Officer Girdner. He then raised the hammer higher back behind his head and took a stance as if he was about to throw the hammer or charge at the officers. In response, Officers Girdner and Vick fired their weapons, killing Rollice.
Rollice’s estate filed suit against the three responding officers, alleging that the officers were liable under 42 U. S. C. §1983, for violating Rollice’s Fourth Amendment right to be free from excessive force. The officers moved for summary judgment, both on the merits and on qualified immunity grounds. The United States District Court for the Eastern District of Oklahoma granted the officers’ motion and dismissed the case. The District Court concluded that the officers’ use of force was reasonable, and even if not, qualified immunity prevented the case from going forward.
On appeal, the United States Court of Appeals for the Tenth Circuit reversed. The Tenth Circuit explained that precedent allowed an officer to be held liable for a shooting that is itself objectively reasonable if the officer’s reckless or deliberate conduct created a situation requiring deadly force. Applying that rule, the Tenth Circuit concluded that a jury could find that Officer Girdner’s initial step toward Rollice and the officers’ subsequent “cornering” of him in the back of the garage recklessly created the situation that led to the fatal shooting, such that their ultimate use of deadly force was unconstitutional. As to qualified immunity, the Tenth Circuit concluded that several cases clearly established that the officers’ conduct was unlawful.
On certiorari, the Supreme Court stated that it need not, and would not, decide whether the officers had violated Rollice’s Fourth Amendment rights or whether recklessly creating a situation that required the use of deadly force can itself violate the Fourth Amendment. Instead, the Supreme Court found that, on the record before it, the officers plainly did not violate any clearly established law.
The Supreme Court explained that the doctrine of qualified immunity shields officers from civil liability so long as their conduct does not violate clearly established statutory or constitutional rights of which a reasonable person would have known. Indeed, qualified immunity protects all but the plainly incompetent or those who knowingly violate the law.
Here, the Supreme Court found that the Tenth Circuit erred in finding that the Defendant officers violated clearly established law. Unlike the officers in the case upon which the Tenth Circuit relied in finding that the Defendant officers violated clearly established law, Officers Girdner and Vick, in this case, engaged in a conversation with Rollice, followed him into a garage at a distance of 6 to 10 feet, and did not yell until after he picked up a hammer. As such, the Supreme Court found that the officers had not violated clearly established law in any actions taken in regard to Rollice. Because the Supreme Court could not find a single precedent finding a Fourth Amendment violation under similar circumstances, the Supreme Court held that the officers were entitled to qualified immunity.
The second case is Rivas-Villegas v. Cortesluna, 595 U.S. ___ (2021). The undisputed facts are as follows. A 911 operator received a call from a crying 12-year-old girl reporting that she, her mother, and her 15-year-old sister had shut themselves into a room at their home because her mother’s boyfriend, Cortesluna, was trying to hurt them and had a chainsaw. The girl told the operator that Cortesluna was “always drinking,” had “anger issues,” was “really mad,” and was using the chainsaw to “break something in the house.” A police dispatcher relayed this information along with a description of Cortesluna in a request for officers to respond.
Rivas-Villegas responded to the scene along with four other officers. The officers spent several minutes observing the home and reported seeing through a window a man matching Cortesluna’s description. One officer asked whether the girl and her family could exit the house. Dispatch responded that they “were unable to get out” and confirmed that the 911 operator had “hear[d] sawing in the background” and thought that Cortesluna might be trying to saw down the door.
After receiving this information, Rivas-Villegas knocked on the door and stated loudly, “police department, come to the front door, Union City police, come to the front door.” Another officer yelled, “he’s coming and has a weapon.” A different officer then stated, “use less lethal,” referring to a beanbag shotgun. When Rivas-Villegas ordered Cortesluna to “drop it,” Cortesluna dropped the “weapon,” later identified as a metal tool. Rivas-Villegas then commanded, “come out, put your hands up, walk out towards me.” Cortesluna put his hands up, and Rivas-Villegas told him to “keep coming.” As Cortesluna walked out of the house and toward the officers, Rivas-Villegas said, “Stop. Get on your knees.” Cortesluna stopped 10 to 11 feet from the officers. Another officer then saw a knife sticking out from the front left pocket of Cortesluna’s pants and shouted, “he has a knife in his left pocket, knife in his pocket,” and directed Cortesluna, “don’t put your hands down,” “hands up.” Cortesluna turned his head toward the instructing officer but, then, lowered his head and his hands in contravention of the officer’s orders. Another officer twice shot Cortesluna with a beanbag round from his shotgun, once in the lower stomach and once in the left hip.
After the second shot, Cortesluna raised his hands over his head. The officers shouted for him to “get down,” which he did. Another officer stated, “left pocket, he’s got a knife.” Rivas-Villegas then straddled Cortesluna. He placed his right foot on the ground next to Cortesluna’s right side with his right leg bent at the knee. He placed his left knee on the left side of Cortesluna’s back, near where Cortesluna had a knife in his pocket. He raised both of Cortesluna’s arms up behind his back. Rivas-Villegas was in this position for no more than eight seconds before standing up while continuing to hold Cortesluna’s arms. At that point, another officer, who had just removed the knife from Cortesluna’s pocket and tossed it away, came and handcuffed Cortesluna’s hands behind his back. Rivas-Villegas lifted Cortesluna up and moved him away from the door.
Subsequently, Cortesluna brought suit under 42 U. S. C. §1983, claiming that Rivas-Villegas used excessive force in violation of the Fourth Amendment. The United States District Court for the Northern District of California granted summary judgment to Rivas-Villegas, but the United States Court of Appeals for the Ninth Circuit reversed. The Ninth Circuit held that Rivas-Villegas was not entitled to qualified immunity because existing precedent put him on notice that his conduct constituted excessive force. In reaching this conclusion, the Ninth Circuit relied solely on a single case in finding that Rivas-Villegas acted contrary to clearly established law. The Ninth Circuit acknowledged that the officers in this case responded to a more volatile situation than did the officers in other case upon which that court relied. Nevertheless, the Ninth Circuit reasoned that both the prior case and this case involved suspects who were lying face-down on the ground and were not resisting either physically or verbally, on whose back the defendant officer leaned with a knee, causing allegedly significant injury.
On certiorari, the Supreme Court disagreed and reversed. According to the Supreme Court, even assuming that controlling Ninth Circuit precedent provided clearly established law for purposes of § 1983, the case upon which the Ninth Circuit relied did not give fair notice to Rivas-Villegas. Accordingly, Rivas-Villegas was entitled to qualified immunity.
As it did in the first case discussed above, the Supreme Court explained that qualified immunity attaches when an official’s conduct does not violate clearly established statutory or constitutional rights of which a reasonable person would have known. A right is clearly established when it is sufficiently clear that every reasonable official would have understood that what he is doing violates that right. Although the Supreme Court’s case law does not require a case directly on point for a right to be clearly established, existing precedent must have placed the statutory or constitutional question beyond debate. This inquiry must be undertaken in light of the specific context of the case and not as a broad general proposition. Specificity is especially important in the Fourth Amendment context where it is sometimes difficult for an officer to determine how the relevant legal doctrine will apply to the factual situation the officer confronts. Whether an officer has used excessive force depends on 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.
Thus, to show a violation of clearly established law, Cortesluna had to identify a case that put Rivas-Villegas on notice that his specific conduct was unlawful. The Supreme Court determined that Cortesluna had not done so, and the Supreme Court further found that the facts of the case relied upon by the Ninth Circuit were materially distinguishable and, therefore, did not govern the facts of this case.
The Supreme Court noted that the situation in case relied upon by the Ninth Circuit the situation at issue here diverged in several respects. In the prior case, the officers were responding to a mere noise complaint, whereas here they were responding to a serious alleged incident of domestic violence, possibly involving a chainsaw. In addition, the arrestee in the prior case was unarmed. Cortesluna, in contrast, had a knife protruding from his left pocket for which he had just previously appeared to reach. Further, in this case, video evidence showed, and Cortesluna did not dispute, that Rivas-Villegas placed his knee on Cortesluna for no more than eight seconds and only on the side of his back near the knife that officers were in the process of retrieving. In contrast, the arrestee in the other case testified that the officer deliberately dug his knee into his back when he had no weapon and had made no threat when approached by police. These facts, according to the Supreme Court, materially distinguished this case from the case relied upon by the Ninth Circuit. Accordingly, the Supreme Court granted Rivas-Villegas’ petition for certiorari and reversed the Ninth Circuit’s determination that Rivas-Villegas was not entitled to qualified immunity.