Qualified Immunity in Excessive Force Cases: How to Beat the Defense

One of the most frequently misunderstood issues in excessive force cases against the police relates to the defense of “qualified immunity.”  What is qualified immunity and how can it be overcome?

The doctrine of qualified immunity is frequently raised as a defense in cases asserting that the police acted unconstitutionally.  Defense attorneys will almost always raise the defense in any case alleging that the police used excessive force.  Qualified immunity is a unique concept that can be unfamiliar to attorneys who do not regularly sue police for excessive force.

The qualified immunity defense was invented by judges for the purpose of shielding police from legal responsibility in cases where their use of force, even if excessive, might not be obviously unconstitutional to a reasonable officer.  Boiled down to its essence, the doctrine works like this: when the body of case law is “unclear” about whether a particular use of force by a police officer does or does not violate the Constitution, the officer can be held to have violated the Constitution but be immune from civil liability for doing so. In other words, if a reasonable officer would not have known that he or she was violating the Constitution, then the officer can be immune from legal responsibility even if the person’s constitutional right to be free from excessive force was violated.

The defense of qualified immunity is usually brought before the presiding judge by the defense lawyers in the form of a motion to dismiss the case before trial.  When a judge is asked to consider the defense of qualified immunity the judge is supposed to engage in a two-step process. The first question for the judge is whether the force violates the Constitution; that is, whether the force (viewing the facts in the light most favorable to the victim) was unreasonable and excessive. If the answer is “no,” the inquiry will ordinarily end with the judge dismissing the case. However, if the answer is “yes,” then there is a second question that must be won. That second question asks whether the excessiveness of the force was so “clearly established” that any reasonable police officer would have known it was excessive. If the answer is “no” then the police officer can be let off the hook by the judge even if what he or she did was a violation of the victim’s constitutional rights. The U.S. Supreme Court has stated that “qualified immunity gives government officials breathing room to make reasonable but mistaken judgments” and “protects all but the plainly incompetent or those who knowingly violate the law.”

Defeating the defense of qualified immunity can be one of the most important parts of the entire case.  In order to convince the judge that the right was “clearly established” it is generally necessary for the victim’s attorney to show the judge similar published cases where a court held that the force used in analogous circumstances was excessive. It’s usually not enough just to show the court that the constitutional right is generally established or that the force used is excessive as a matter of common sense. Rather, the victim’s attorney must be able to show the court one or more factually similar cases where analogous force in analogous circumstances was found to be excessive. This is because police are supposed to be on “notice” of the published decisions of other judges in other cases.  Thus, if a court has held that a certain kind of force in a certain situation is excessive, police officers are supposed to be aware from that point forward that such force is unconstitutional.

If there is any question about whether a certain kind or amount of force is unconstitutional, the attorney for the excessive force victim should be prepared to thoroughly research the case law in order to overcome the defense.  A healthy understanding of qualified immunity and a willingness to spend long hours researching prior cases for favorable rulings can be critical to overcoming the defense.

If you or a loved one was a victim of excessive force resulting in death of serious injuries, please contact Budge & Heipt to discuss your case.  There is no cost or obligation to do so.

If you or a loved one has been a victim of serious injury and/or death at the hands of police or in jail or prison, tell us about your case.