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November 11, 2014 Articles

Qualified Immunity in Excessive-Force Cases Post-Plumhoff

As more cases are litigated, courts should be better able to flesh out the factors that may determine whether the conduct violates a person's constitutional and statutory rights.

By Ashley J. Heilprin

Consider a police officer attempting to make an arrest who faces a fleeing or resistant suspect. The officer fires several shots toward the suspect to subdue him. The bullets strike and kill the suspect. How do our courts address these situations? Does it matter whether the individual was a committing a misdemeanor or felony? Does it matter whether other people were in the vicinity and the suspect's conduct was putting those people in danger? What other factors should the court consider in determining whether the officer's use of force was reasonable? These are all questions that a court often faces in section 1983 suits involving Fourth Amendment constitutional claims of excessive force by police officers.

The Supreme Court recently affirmed that police officers, like other public officials, receive qualified immunity when the officers reasonably could have believed their actions did not violate clearly established law. See Plumhoff v. Rickard, 134 S. Ct. 2012, 2023 (2014). Even if the police officer's conduct violated the Constitution or a clearly established statutory right, the police officer is immune from liability if a reasonable officer would have believed that his or her actions did not violate clearly established law. See e.g., Liu v. Phillips, 234 F.3d 55, 58 (1st Cir. 2000) (holding that an officer unaware of clearly established law was entitled to qualified immunity where he reasonably acted upon the direction of his superior); V-1 Oil Co. v. Wyoming, Dep't of Environmental Quality, 902 F.2d 1482, 1489 (10th Cir. 1990) (holding that although the law was clearly established, an officer was entitled to qualified immunity for an unconstitutional warrantless search, where the officer was prevented by extraordinary circumstances, i.e. improper legal advice, from knowing the correct legal standard).

Ramifications of the qualified-immunity defense are particularly important in the midst of mass public outcry against police misconduct. Recent news events involving the use of lethal force against unarmed suspects in the United States has led to national unrest and garnered international attention. These incidents have set off a firestorm of debates on policing and undeniably raise the question of when an officer's conduct to subdue a suspect becomes an unlawful use of "excessive force."

Determining whether the force used was reasonable in any situation is a fact-intensive inquiry and involves balancing individual and governmental interests. Graham v. Connor, 490 U.S. 386, 396–97 (1989). In its last term, the Supreme Court addressed qualified immunity and the use of lethal force to subdue a fleeing suspect in Plumhoff v. Rickard. The Plumhoff decision is helpful to plaintiffs and defendants alike in understanding the why the Court determines what constitutes "clearly established law," and in turn, whether an officer will be granted qualified immunity when using lethal force.

The Supreme Court's Decision in Plumhoff 

Following a traffic stop near midnight on July 18, 2004, Donald Rickard led several West Memphis, Arkansas, police officers on a high-speed chase, with one passenger in his car. Eventually Rickard's vehicle spun out in a parking lot. To avoid being cornered in a parking lot by the officers, Rickard put his car in reverse. Two officers got out of their vehicles and approached Rickard's car; one of the officers, with a gun in his hand, pounded on one of Rickard's windows. Then, Rickard hit a police cruiser. Rickard continued to accelerate although his car was flush against the police cruiser. One of the officers fired three shots into Rickard's car and Rickard continued fleeing down the street. Two additional officers fired another twelve shots toward Rickard's vehicle. Subsequently, Rickard lost control of the vehicle and crashed into a building. Both Rickard and his passenger died from gunshot wounds and injuries from the final crash.

Rickard's surviving daughter filed suit against the six individual police officers, the mayor, and the police chief of West Memphis pursuant to 42 U.S.C. § 1983. She argued that the Fourth Amendment did not allow the officers to use deadly force to end the chase, and that even if the officers could fire their weapons they were excessive in firing 15 rounds. The U.S. District Court for the Western District of Tennessee held that the officers' conduct violated the Fourth Amendment and violated clearly established law at that time. The U.S. Court of Appeals for the Sixth Circuit affirmed the district court's decision on the merits.

The Sixth Circuit opinion collapsed the Fourth Amendment reasonableness test with the qualified-immunity test and assessed the officers' behavior in the July 2004 incident in light of the 2007 decision in Scott v. Harris, 550 U.S. 372 (2007)Estate of Kelly A. Allen v. City of W. Memphis, 2012 U.S. App. LEXIS 21005 (6th Cir. 2012) [login required]. The Supreme Court granted certiorariresolving the issue of what constitutes clearly established law and encouraging lower courts to conduct separate analyses for these two tests.

Writing for the Court, Justice Alito noted that although Pearson v. Callahan, 555 U.S. 223, 236 (2009) did not require rigid application of the Saucier v. Katz, 533 U.S. 194, 201 (2001) two-part qualified-immunity test, i.e. (1) whether a constitutional right would have been violated on the facts alleged, and (2) whether the right was clearly established, the Saucier approach was beneficial in developing constitutional precedent. The Supreme Court went on to address whether the conduct itself violated the Fourth Amendment. Finding that it did not, the Court reversed the lower courts' decisions and held that the officers were reasonable in using deadly force in response to a high-speed chase. The Court noted that the high-speed chase led by Rickard's conduct posed a public-safety threat, lasting over five minutes, exceeding 100 miles per hour, and passing over two dozen other motorists. The Court concluded that when Rickard accelerated his vehicle, a reasonable police officer could have concluded that Rickard intended to flee and pose a threat to others. The Court further held that if the officers were justified in using deadly force to end the public-safety threat, they were justified in shooting until the threat ceased. The Court held that the officers did not fire more shots than necessary.

The Court "did not consider later decided cases [establishing a constitutional right] because they 'could not have given fair notice to [the officer]’.'' Plumhoff, 134 S. Ct. at 2023 citing Brosseau v. Haugen, 543 U.S. 194, 200 (2004) (per curiam). Thus, instead of relying on the 2007 Scott decision to determine whether the officers' conduct violated clearly established law, the Supreme Court turned to the 2004 Brosseau decisionin which the court granted qualified immunity to a police officer who fired a shot at a driver who had just fled. The test for what constitutes “clearly established law” must be evaluated in the context of the time of the incident. The Court found that the conduct in Brosseau was not materially dissimilar from the conduct in Plumhoff v. Rickard. Rickard's daughter was unable to show any controlling authority or "robust consensus of cases" between the February 21, 1999, incident giving rise to the Brosseau suit, and the July 18, 2004, incident giving rise to her ownsuit. Therefore, the Court concluded that even if the police officers' conduct violated Rickard's Fourth Amendment rights, the officers were still entitled to qualified immunity, because there was no clearly established law at the time of the incident that precluded the officers' conduct.

Implications for Future Litigants

In determining whether a police officer used excessive force in violation of the Fourth Amendment, the Court conducts "a careful balancing of the nature and quality of the intrusion on the individual's Fourth Amendment interests against the countervailing governmental interests at stake." Plumhoff, 134 S.Ct at 2020, citing Graham v. Connor, 490 U.S. 386, 396 (1989) (internal quotations omitted). The Court noted,

[A] defendant cannot be said to have violated a clearly established right unless the right's contours were sufficiently definite that any reasonable official in the defendant's shoes would have understood that he was violating it. In other words, "existing precedent must have placed the statutory or constitutional question" confronted by the official "beyond debate." Plumhoff, 134 S.Ct. at 2023.

The Supreme Court has instructed lower courts "not to define clearly established law at a high level of generality." Plumhoff, 134 S.Ct. at 2023. Given the implicit nature of the Fourth Amendment balancing test and the fact-intensive inquiry, section 1983 plaintiffs may have difficulty in showing that the law regarding the reasonableness of lethal force in any particular scenario was "clearly established." Any inconsistencies among the circuits—or lack of precedent entirely—will be resolved in favor of finding there was no clearly established law, and therefore, that the officer's conduct is entitled to qualified immunity. While this serves as a tactical advantage to defendants in section 1983 cases, police officers in the line of duty may have difficulty in determining whether there is clearly established law related to a particular scenario. Following Plumhoff, defendants are no less likely to be faced with lawsuits in this area of the law, because of the high level of specificity required in determining the clearly established law. See Plumhoff, 134 S.Ct. at 2023.


Given the Supreme Court's insistence that lower courts define "clearly established" law with specificity, there are inherent challenges to ensuring that there is a clear standard by which police officers should abide. Hopefully, as more excessive-force cases are litigated, courts will better flesh out the factors that may determine whether the conduct violates a person's constitutional and statutory rights. In doing so, the courts will create a greater body of "clearly established law" pertaining to these important civil rights, and aid all officers and suspects alike in gaining a better understanding of whether an officer is entitled to qualified immunity.

Keywords: civil rights litigation, qualified immunity, excessive force, police

Ashley J. Heilprin is an associate with Stone Pigman in New Orleans, Louisiana.

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