The Supreme Court Maintains Its Aggressive Qualified Immunity Campaign

The Court continues to summarily reverse circuit court denials of qualified immunity to law enforcement officers, as borne out by two per curiam decisions in its 2021-22 Term, one out of the Ninth Circuit and one out of the Tenth Circuit, both handed down on October 18, 2021.

Reversing the Ninth Circuit

The Ninth Circuit case, Rivas-Villegas v. Cortesluna, 142 S. Ct. – (2021)(per curiam), involved a volatile domestic violence situation (reported by a woman’s two teen-age children in a 911 call) where the woman’s boyfriend (the plaintiff) had a knife which responding officers were in the process of removing from plaintiff’s pants when one of the officers placed his knee on the side of plaintiff’s back for no more than eight seconds. Thereafter the plaintiff sued the officer for the use of excessive force in violation of the Fourth Amendment. Reversing the district court, the Ninth Circuit (with a dissent by Judge Collins) ruled that the officer may have violated clearly settled Ninth Circuit precedent and was thus not entitled to qualified immunity.

In turn reversing, the Supreme Court determined that the Ninth Circuit case on which the Ninth Circuit panel relied was materially distinguishable from the present case because the earlier decision did not involve a volatile situation: officers there responded only to a noise complaint. In contrast, here the officers were responding to a report of serious domestic violence possibly involving a chainsaw. As always, the Court warned about the need for fact specificity for clearly settled law purposes. Furthermore, the Court observed: “[N]either [plaintiff] nor the Court of Appeals identified any Supreme Court case that addresses facts like the ones at issue here.” Thus, the officer did not have fair notice that his conduct violated the Fourth Amendment.

Reversing the Tenth Circuit

The Tenth Circuit case, City of Tahlequah v. Bond, 142 S. Ct. – (2021)(per curiam), also involved a domestic violence situation, this one stemming from a 911 call from decedent’s ex-wife regarding his intoxicated state in her garage where the decedent kept his tools, and which he would not leave. After the officers arrived, the decedent grabbed a hammer, causing the officers to back up and draw their guns. Though they yelled at him to drop the hammer, he did not but instead took a position indicating he was about to throw the hammer at the officers or charge them. They then shot and killed him. His estate sued under §1983 alleging excessive force. The district court found qualified immunity protected the officers but the Tenth Circuit reversed on the ground that “Tenth Circuit precedent allows 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.”

The Supreme Court reversed the Tenth Circuit and, without deciding the Fourth Amendment issue on the merits, found that the officers did not violate clearly settled Fourth Amendment law. It noted that none of the Tenth Circuit decisions relied upon by the Tenth Circuit panel established that the officers’ conduct here was unlawful. The Tenth Circuit case most relied on by the panel was materially different from the present case because there the officers “responded to a potential suicide call by sprinting toward a parked car, screaming at the suspect, and attempting to physically wrest a gun from him.” In contrast, here the officers engaged decedent in conversation, followed him at a distance and did not yell until he picked up a hammer. Thus, the officers were entitled to qualified immunity because neither the Tenth Circuit nor the estate “identified a single precedent finding a Fourth Amendment violation under similar circumstances.”

Comment

Some of you may recall that decades ago I predicted in prior editions of my Treatise, Civil Rights and Civil Liberties Litigation: The Law of Section 1983 (2021-22 edition; West, Westlaw) that the Court’s qualified immunity decisions in Harlow v. Fitzgerald, which eliminated the subjective part of qualified immunity as a matter of policy, and in Mitchell v. Forsyth, which made denials of qualified immunity motions for summary judgment immediately appealable, would convert qualified immunity into absolute immunity. The Court’s qualified immunity decisions, especially in the last decade but even before then, have borne out this prediction. You can search on this blog for my comments on these decisions (search “qualified immunity”).

Nahmod Law