‘Clearly Established’ Rule Makes Overcoming Qualified Immunity Nearly Impossible

This article was first published in the Detroit Legal News on June 2, 2022.

By A. Vince Colella

‍Moss & Colella P.C.

Recently, federal courts have demonstrated a dangerous trend of circumventing basic 4th Amendment rights by misinterpreting the “clearly established” law requirement in its analysis of qualified immunity cases. As a basic premise, where an individual has been the subject of excess or deadly force by a police officer, the officer is entitled to qualified immunity if the plaintiff is unable to show that a constitutional violation occurred. However, in the 1980s, despite the fact that leading treatises from the second half of the 19th Century contain no support for doing so, courts developed a “clearly established law” test that today is being perversely interpreted to dismiss legitimate claims of excess and deadly force. Baxter v Bracey, 140 S. Ct. 1862 (2020) Under this approach, courts have adopted a two-prong test: First, the plaintiff must show that the actions taken by the officer violated a constitutional right. Second, he or she must show that the right was clearly established at the time of the alleged harm. However, despite the fact that courts have the “choice” of analyzing these two prongs in any order, recent opinions suggest that the court can “skip” the first step and move directly to the second. Pearson v Callahan, 555 U.S. 223, 236 (2009). Herein lies the problem.

For example, should a court find that an officer violated a constitutional right, i.e., a right to be free from objectively unreasonable deadly force, but was unaware of the “rules of engagement,” the officer may be relieved of responsibility under the veil of qualified immunity. More specifically, even if a court finds that a subject had not committed a serious crime, presented no immediate threat of harm or serious bodily injury to the officer or others, and was fleeing as opposed to actively resisting, an officer could still assert immunity under the auspices that no prior case is exactly on point; therefore, the rules governing the officer’s conduct were not well established under the law.

Interestingly, our Supreme Court has provided safeguards to protect against perversion of the clearly established law requirement. Over the years, the court has reminded us that there are three avenues for showing that a right is clearly established. First, an on-point, controlling case can put the constitutional violation “beyond debate.” Mullinex v Luna, 577 U.S. 7, 12 (2015) (per curiam). Second, a “robust consensus of persuasive authority” can clearly define the contours of a constitutional right. Wilson v Layne, 526 U.S. 603, 617 (1999) And most importantly, there may be circumstances where neither controlling authority or a robust consensus of persuasive authority exist, but the violation remains blatantly “obvious.” Brousseau v Haugen, 543 U.S. 194 (2004) Unfortunately, courts are reluctant to find an obvious violation of constitutional law and have been requiring plaintiffs to cite cases possessing nearly identical facts to the officer conduct in question. An exercise akin to finding two snowflakes that are exactly alike.

The practical effect of abandoning the commonsense application of obvious principles of constitutional law has led to recent decisions that fly in the face of fundamental fairness. In Tennessee v Garner, 471 U.S. 1 (1985), the Supreme Court held it unlawful to use deadly force to apprehend an unarmed fleeing suspect. However, the opinion has been eroded by subsequent decisions to the extent that it is rarely cited. Despite the fact that nearly every police department in the country has adopted Garner in its practices and procedures training, officers are readily excused from its precedent due to “mitigating” factors that create an unreasonable subjective belief that a threat exists despite evidence to the contrary.

In Reynolds v Addis, 2022 U.S. App. LEXIS 9901 (6th Cir. Apr. 11, 2022), a City of Royal Oak, Michigan police officer shot and killed an unarmed young man three times in the back as he was running away from the officer. However, because the court determined that previous reports of an assault on the man’s parents with a knife and the sudden movement from a kneeling position to an upright one warranted an initial shot, all subsequent rounds were deemed justifiable. In Texas, a federal district court magistrate recently granted qualified immunity to an officer who fatally shot an unarmed man experiencing a mental crisis who simply failed to follow an officer’s commands to “get on the ground” and continued to “walk” toward the officer, despite finding a constitutional violation. Woods, et. al. v Harris County, et. al., 4:18-cv-01152 (S.D. Texas, May 26, 2022)

Should the courts continue to ignore basic constitutional violations for sake of finding precise factual similarities between cases, officers will be left with the uncertainty of what is acceptable police practices and civilians will face grave danger during police confrontations.
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A. Vince Colella is a co-founder of personal injury and civil rights law firm Moss & Colella.