August 31, 2016 Practice Points

Seeking Damages Against a Public Official: The Significant Hurdle of Qualified Immunity

Attorneys should recognize this heavy burden in civil actions seeking damages against police officers to protect against meritless claims and avoid unnecessary motion practice.

By Ronald Hedges

Plaintiffs who seek damages from public officials must overcome, among other things, arguments that officials are entitled to qualified immunity. Pauly v. VasquezCiv. No. 15-783 JCH/KBM (D.N.M. Aug. 10, 2016), demonstrates how difficult that might be.

Pauly arose from what the judge characterized to be the “offensive and unprofessional” behavior of a police officer who took images on his cell phone of a decedent who had been shot by another officer and who texted the images to friends. The decedent’s father and brother commenced a civil-rights action against the texting officer and others on the theory that taking and texting the images violated a right of privacy under the Fourteenth Amendment. The officer, the only defendant left after others had been dismissed, moved to dismiss on the basis of qualified immunity, arguing that the right was not “clearly established” at the time of the imaging and texting. The court granted the motion.

“A right is clearly established if the ‘contours of the right’ are ‘sufficiently clear that a reasonable official would understand that what he is doing violates that right.’” Pauly at 5 (citations omitted). The court held that the plaintiffs had failed to show that the constitutional right asserted—“a privacy right of close family members to control dissemination of ‘death scene photographs’”—had been clearly established. In so holding, the court rejected the plaintiffs’ reliance on, among other things, case law that addressed statutory and common law, rather than constitutional, rights in images of decedents.

Pauly demonstrates that a plaintiff bringing a civil-rights claim against a public official carries a heavy burden to satisfy a court that the official has a “fair and clear warning” of what the Constitution requires of him or her. Absent controlling precedent from the Supreme Court, the relevant court of appeals, or “the weight of authority from other courts,” a plaintiff cannot prevail. Attorneys should recognize this heavy burden in both the prosecution and defense of civil actions seeking damages against police officers to protect against meritless claims and avoid unnecessary motion practice.

Ronald Hedges is with Dentons in New York, New York.

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