Wrestling with Qualified Immunity in §1983 Litigation

by John W. Bateman

Qualified immunity can be one of the most daunting and intimidating issues confronted in the litigation of constitutional rights. An issue heavily litigated at pre-trial stages, it is an affirmative defense always asserted by a defendant in civil rights actions filed under 42 U.S.C. § 1983. In a nutshell, qualified immunity protects government officials (such as city officials or police officers) from suit (not just liability) when a Plaintiff sues for violation of his or her constitutional rights. If the Plaintiff fails to allege the violation of a “clearly established” constitutional right, or, if the conduct of the officer was “objectively reasonable” in carrying out his discretionary duties, then the officer has immunity and the suit will be dismissed.

I.          Brief Outline of Qualified Immunity.

This issue is raised as an affirmative defense. Schultea v. Wood, 47 F.3d 1427, 1432 (5th Cir. 1995). However, because it serves as immunity from suit, not just liability, it becomes a threshold issue Plaintiffs must cross in order to maintain suit. Once raised, either the Defendant or the Court can then require a Plaintiff to file a responsive pleading under Rule 7 of the Federal Rules of Civil Procedure tailored to the assertion of qualified immunity. Schultea, 47 F.3d at 1433. A Plaintiff is not required to anticipate this defense in the pleading of his or her Original Complaint. Id. at 1430. If some minimal discovery is necessary to uncover facts to be relied upon or raised in support of a Motion for Summary Judgment on qualified immunity or Response thereto, the court may order such limited discovery as necessary. Id. at 1432, 1434.

Whether a defendant has qualified immunity will depend upon whether the plaintiff has met two hurdles. First, the plaintiff must allege the violation of a clearly established constitutional right.  Duckett v. City of Cedar Park, 950 F.2d 272, 277 (5th Cir. 1992). In other words, the plaintiff must not only allege 1) the deprivation of an actual right, but also 2) that this right was “clearly established” at the time of the alleged violation. Shipp v. McMahon, 2000 WL 178679, *4 (5th Cir. 2000). The second hurdle requires the plaintiff to show that the officer’s conduct was not objectively reasonable at the time of the incident. Duckett, 950 F.2d at 279-80. Often, cases are dismissed based upon the first hurdle. If the plaintiff succeeds in alleging the violation of a clearly established right, the plaintiff may be able to convince the court that a question of fact remains on the second stage—whether the officer’s conduct was objectively reasonable—such that the case continues to trial.

When is a constitutional right “clearly established?” A right is clearly established when the “contours” of the right are sufficiently clear so that a reasonable official would understand that what he is doing violates that right. Shipp, 2000 WL 1781679, *7. Parties don’t have to refer to case law with identical factual circumstances, but the unlawfulness of the alleged conduct must be apparent based upon pre11 The courts review the lawfulness of the alleged conduct as if a snapshot were taken at the time of the improper conduct. Shipp, *7.

Case law indicates that qualified immunity protects police and officials from suit except for those who are “plainly incompetent” or who “knowingly violated the law.” Cantu v. Rocha, 77 F.3d 795, 806 (5th Cir. 1996). Stated another way, the officer cannot know he violated someone’s rights or he cannot act with reckless disregard (some level of conscious indifference) with respect to a person’s clearly established rights. In answering this question, courts look to whether a reasonable officer (in the defendant’s shoes) knows he is violating the plaintiff’s rights. If reasonable minds can differ on the lawfulness of the officer’s conduct, then the rights are not “clearly established.” Blackwell v. Barton, 34 F.3d 298, 303 (5th Cir. 1994). Therefore, the officer has qualified immunity.

The policy behind qualified immunity is to shield official conduct from the “chilling specter of civil litigation” and to avoid liability so that the officer may exercise his discretion on behalf of the government. Shipp, *7. Ironically, citizens have no “mistake of law” defense, but those who are charged with knowledge and execution of the law are excused from civil liability for all but knowing violations of the law.

II.            Examples of Qualified Immunity Applied.

1.            Qualified Immunity granted. Shipp v. McMahon, 2000 WL 1781679 (5th Cir. 2000).

The Plaintiff moved in with her sister to escape an abusive husband. The Husband, Dalton Shipp, made threatening phone calls, and showed up at the sister’s house, harassing the Plaintiff. These instances were reported to Deputy Cropper at the Webster Parish Sheriff’s Office (WPSO). Deputy Cropper indicated that he would do nothing about the Husband. Not unexpectedly, the Plaintiff moved to her cousin’s house.

The Husband appeared at the cousin’s house, beat Plaintiff with a telephone, threatened to put her in the hospital if she told the police, and stole some items. Again, the Plaintiff called the Deputy Cropper, who took a report. Although he made no immediate effort to arrest Dalton Shipp, several days later he did approach Dalton, who was allowed to turn himself in. He plead guilty to two misdemeanor charges. As a condition of bail, he was ordered to stay away from Plaintiff and seek counseling. The Plaintiff also obtained a Temporary Restraining Order.

Unswayed by the court’s order, the Husband still threatened Plaintiff via telephone. Despite the Husband’s violation of the TRO and bail order, when Plaintiff reported this conduct to the WPSO, they responded that they couldn’t do anything about the phone calls. The Husband failed to appear at sentencing for his misdemeanor charges and a bench warrant was issued. Although he appeared in court on other unrelated charges, the deputies failed to arrest Dalton Shipp.

Four months later, Dalton found the Plaintiff at her other sister’s house and convinced her to get into the car with him. He sped off, grabbing Plaintiff as she tried to escape. The incident was immediately reported to the WPSO by the plaintiff’s mother. Unfortunately, the dispatcher who took the phone call at the WPSO was Betty Shipp, the Plaintiff’s mother-in-law (Dalton’s mother). Without inquiring into the incident, she hung up the phone. Although she advised Deputy Cropper of the matter, neither of them dispatched the information to alert other deputies.

Plaintiff’s mother also called the Minden Police Department, which dispatched an emergency alert and radioed the WPSO. The Plaintiff’s parents went to the Webster Parish courthouse where they observed Deputy Cropper, who indicated that he did not intend to apprehend Dalton. Plaintiff’s father “denounced” the deputy and told him that he was heading to Dalton’s house.

Deputy Cropper and another pursued Plaintiff’s father. When Plaintiff’s father and four deputies arrived at the house, no deputy made an attempt to enter the house. Plaintiff’s father attempted, but was restrained. At that point, Deputy Cropper knocked on the door, explaining that he had to ascertain whether Plaintiff was voluntarily in the house. There was no answer. Plaintiff’s father, who saw the silhouette of a person with a gun in a window, again attempted to approach the house. A shot rang out, the deputies retreated, and then another shot was fired.

Inside the home, Plaintiff had been raped and shot by Dalton, who also had shot himself. Plaintiff staggered to the door and screamed, but the deputies did not respond. Eventually, she staggered outside, holding her entrails in her hands. Plaintiff’s mother and a deputy raced to Plaintiff’s aid, but Plaintiff’s father was intercepted and cuffed by Deputy Cropper.

Plaintiff survived and underwent surgery. Her husband, Dalton Shipp, also recovered and was charged with aggravated rape, aggravated kidnaping, and attempted second degree murder. No deputy was disciplined.

The court granted qualified immunity. The Plaintiff alleged that her Equal Protection rights were violated because the WPSO’s practices and customs toward domestic abuse cases afforded those victims less protection; accordingly, those practices had a disproportionate impact on women. The court held that these rights were not clearly established at the time in question.

The Equal Protection clause forbids government policies that create neutral classifications yet have a disproportionate adverse impact upon a protected class, where the disproportionate impact can be traced to a discriminatory purpose. However, the court held that whether law enforcement policies that treat domestic assault victims differently was discrimination against a protected minority was a question left open in the Fifth Circuit; therefore, it was not clearly established. The court did recognize that five other circuits had adopted a three-part test affirming that such practices could violate the Equal Protection clause.

The Fifth Circuit did proceed to adopt this test, however. An Equal Protection claim exists when: 1) policies or customs adopted by law enforcement provide less protection to victims of domestic assault, 2) where discrimination against women is motivating factor in the policies, and 3) an injury is caused by operation of the policy or custom. At least, with respect to future plaintiffs in similar circumstances, it can now be alleged that the law is clearly established in the Fifth Circuit. However, this only gets a plaintiff past the first hurdle.

2.            Qualified Immunity denied. Jacobs v. West Feliciana Sheriff’s Dept., 228 F.3d 388 (5th Cir. 2000).

The decedent, Jacobs, was arrested for attempted second-degree murder after she shot her uncle in response to allegations that he had molested one of her sons years before. Shortly after her arrest, Jacobs informed the officers that she had attempted to commit suicide. Two defendants, the Sheriff and a deputy, were also told this shortly before the arrest. After her arrest, Jacobs was placed in a “detox” cell, used to isolate intoxicated persons or those who are on suicide watch. Accordingly, Jacobs was placed on suicide watch.

Although the detox cell could be observed from the control room, a substantial portion of the cell, including the bunk area, had a “blind spot” not observable from the control room. The cell also had “tie-off” points, or bars from which a rope could be suspended. Defendants acknowledged that the cell should not have such points. A previous inmate had hung himself in that very cell.

Jacobs was not given sheets the first night of her detention. For her second night, Jacob’s attorney requested she be left in detox cell and be provided a blanket. Instead of a blanket, she was given a sheet which she later used to commit suicide. At that time, Jacobs gave no indication that she was planning suicide.

Although Jacobs remained on a “precautionary” suicide watch as opposed to a “straight watch,” the court found few differences between the two. On a straight watch, detainees were checked every 15 minutes, but, in Jacob’s case, as many as 45 minutes elapsed from the last time Jacobs was checked until she was discovered hanging in her cell. Prior to the last check, the deputies had checked her several times. Jacob’s suicide was the third at the jail, second in this cell.

Plaintiffs, Jacobs’ sons, sued defendants (the sheriff and two deputies) in official and individual capacities, alleging that they violated Jacobs’ rights under the Fourteenth Amendment by exhibiting deliberate indifference to her obvious suicidal tendencies and failing to protect her from self-inflicted harm.

The court held that the law was well-settled that “a state officer’s episodic act violates a pretrial detainee’s due process rights to protection from harm if the officer has subjective knowledge of a substantial risk of serious harm, but responds with deliberate indifference to the detainee’s rights.” Because Plaintiffs alleged such conduct, the first hurdle was met. The court focused on the second hurdle: whether the officer acted “objectively reasonable” in light of this duty to not be “deliberately indifferent.” The court noted that more than negligent conduct or mere oversight is required. The Court then analyzed each officer’s conduct separately.

The Sheriff and senior deputy were not “objectively reasonable.” Both knew that Jacobs had already attempted suicide once and posed a serious risk to herself. Both acknowledged the existence of the blind spots and tie-off points in the cell (which should not be there), and knew of the previous suicide in that cell from a tie-off point. Both acknowledged that suicidal detainees should not have loose bedding, but both allowed Jacobs to have a sheet. The frequency of the checks that took place were insufficient measures to mitigate this conduct. Both officers knew of the substantial risk Jacobs posed to herself and of the “obvious inadequate” conditions of the cell. Overall, there was sufficient evidence from which a jury could conclude that the two were objectively unreasonable in light of the clearly established rights. The officers did not have qualified immunity.

The third deputy was new on the job. He was not involved in giving Jacobs a sheet or placing her in the detox cell. There was no evidence that he knew of the previous suicides at the jail or in this cell. Basically, this deputy simply followed orders. At the very most, the inadequate frequency of checking on Jacobs and his knowledge of her suicide risk was negligent, which is insufficient to support the finding of deliberate indifference. Thus, the officer was objectively reasonable with respect to his duty to not act deliberately indifferent and had qualified immunity.

III. Role in Pretrial Activity

It must be remembered that the underlying substantive law determines whether plaintiff alleges the violation of a clearly established right. Is the underlying substantive law sufficiently clear so that a reasonable official would understand that his conduct, as alleged by Plaintiff, violates Plaintiff’s rights? Sometimes, this sounds like an early attempt to resolve the merits of the dispute.

Therefore, a Plaintiff’s pleadings must allege facts with enough particularity to show how a reasonable officer would understand that he violated the Plaintiff’s rights. The Plaintiff can’t simply allege “my rights were violated.” Rather, a Plaintiff should allege something along the lines of: “the officer violated my rights, because, based upon facts A, B & C, no reasonable official would believe that his actions were lawful.” Because a Plaintiff is not required to anticipate this defense, the Plaintiff may wait to file a Reply to resolve any pleading issues.

Defendant should raise Qualified Immunity as an Affirmative Defense. In raising the defense, pleadings often focus upon how the claims alleged were not “clearly established” at the time of the incident, and how, even if they were, the officer acted objectively reasonable.

This immunity results in a very detailed factual inquiry. Therefore, documents from witnesses and all evidence must be collected and organized, keeping in mind what particular rights (whether under the Due Process clause, the Fourth Amendment, etc.) are being alleged. All evidence submitted in support of a Motion to Dismiss or for Summary Judgment or Response (based upon qualified immunity) should carefully detail all of the events surrounding the claim in question. As a defendant, you will argue that your facts support why defendant (or a reasonable officer in his position) believed his conduct to be lawful (i.e., the plaintiff pulled a gun on me, so I had to defend myself). As a plaintiff, you will detail the facts in a manner showing how no reasonable officer would believe what the defendant did was reasonable or lawful (i.e., no reasonable officer would have arrested me because the following facts do not support probable cause grounds for arrest under clearly established law).

 IV.            Current Developments.

The Supreme Court recently granted writ of certiorari in a case from the Ninth Circuit. Katz v. United States, 194 F.3d 962 (9th Cir. 1999). The Katz court dealt with qualified immunity in the context of claims of excessive force. The court held that the reasonableness inquiry for qualified immunity (whether an officer reasonably believed that the force used was reasonable) and the reasonableness inquiry for the underlying merits (whether a reasonable officer could have believed the force was necessary under the circumstances) were the same. This holding potentially makes a qualified immunity defense more difficult at the summary judgment stage, because summary judgment is improper where there are material questions of fact on whether the officer used excessive force. The Supreme Court may shed some light on Qualified Immunity, and, if the Court affirms Katz, may render the defense effectively unavailable for purposes of avoiding suit in excessive force cases.

1. When case law is considered, however, the Fifth Circuit only looks to precedent from the Fifth Circuit or the United States Supreme Court. Shipp, *7.