Getting to trial in federal court now means beating qualified immunity

Winning civil rights requires careful case selection and assessment. In addition to deciding whether to take on a case, civil rights attorneys have to decide whether to prosecute cases in Federal or State Court.

While traditionally Federal Court was the preferred venue because of the robust body of case law establishing “objective reasonableness” as the standard of liability under Section 1983 and better discovery to prove notice of an officer’s violence propensities or Monell custom and practice liability, expansion of the qualified immunity doctrine has convinced many to prefer to file excessive force cases in State Court.

The challenge is that to prove liability under Civil Code Section 52.1, the liability standard looks more to the officer’s subjective state of mind. Cornell v. City & Cnty. of San Francisco, 17 Cal. App. 5th 766, 791, (2017) clarified the muddied case law on Civil Code 52.1 by holding: “circumstances indicate the arresting officer had a specific intent to violate the arrestee’s right to freedom from unreasonable seizure, not by whether the evidence shows something beyond the coercion ‘inherent’ in the wrongful detention.” Id. at 801-02. Further, a defendant need not recognize the unlawfulness of their act, but whether they acted with specific intent, i.e. “in reckless disregard of constitutional [or statutory] prohibitions or guarantees.” Id.

However, there still may be good reasons to file in Federal Court, especially in more rural jurisdictions, so knowledge of what conduct will violate clearly established law is helpful to determine whether there is a good chance you will have an opportunity to present your case to a jury.

Qualified immunity only serves to deny our clients’ Constitutional rights and there is good case law on our side in the 9th Circuit in most cases. When considering whether to take on a case or where it should be filed, it is important to research the key qualified immunity cases to show that the conduct of the police violates clearly established law, which is what is needed to defeat summary judgment and get your case to a jury.

Overview of qualified immunity cases

“[G]overnment officials are not entitled to qualified immunity if (1) the facts “[t]aken in the light most favorable to the party asserting the injury ... show [that] the [defendants’] conduct violated a constitutional right” and (2) “the right was clearly established” at the time of the alleged violation. Bonivert v. City of Clarkston, 883 F.3d 865, 871–72 (9th Cir. 2018) (“The relevant, dispositive inquiry in determining whether a right is clearly established is whether it would be clear to a reasonable officer that his conduct was unlawful in the situation he confronted.”). If a “genuine issue of material fact exists that prevents a determination of qualified immunity at summary judgment, the case must proceed to trial.” Serrano v. Francis, 345 F.3d 1071, 1077 (9th Cir. 2003).

Supreme Court “caselaw does not require a [prior] case directly on point for a right to be clearly established, [but] existing precedent must have placed the... question beyond debate.” Kisela v. Hughes, 138 S.Ct. 1148, 1152 (2018). The “contours” of the right must be “sufficiently definite that any reasonable official in the defendant’s shoes would have understood that he was violating it.” Id. at 1153.

Disputed issues of material fact preclude granting qualified immunity on summary judgment. Knox v. Southwest Airlines, 124 F.3d 1103, 1109 (9th Cir. 1997) (no qualified immunity where there are triable issues of fact); Act Up! Portland v. Bagley, 988 F.2d 868, 873 (9th Cir. 1993) (“If a genuine issue of fact exists preventing a determination of qualified immunity at summary judgment, the case must proceed to trial.”).

The 4th Amendment analysis is objective, not subjective

The Supreme Court has repeatedly held that the Fourth Amendment analysis is not a subjective one. See, e.g., Ashcroft v. al–Kidd, 131 S.Ct. 2074, 2080, (2011); Brendlin v. California, 551 U.S. 249, 261 (2007); Whren v. United States, 517 U.S. 806, 813 (1996). “The intent that counts under the Fourth Amendment is the intent [that] has been conveyed to the person confronted, and the criterion of willful restriction on freedom of movement is no invitation to look to subjective intent when determining who is seized.” Brendlin, 551 U.S. at 260–61. Recently, the Court again emphasized that “the Fourth Amendment regulates conduct rather than thoughts.” al–Kidd, 131 S.Ct. at 2080.

The Supreme Court directs that when considering summary judgment on claims of excessive force and qualified immunity arising from incidents recorded on video – a steadily increasing number – reviewing courts must view “the facts in the light depicted by the videotape.” Scott v. Harris, 550 U.S. 372, 381(2007). Defendants’ attempts to deny or minimize the abject barbarism depicted on this recording is the sort of “visible fiction” that the High Court directs lower courts to eschew. See id. at 382 (“Respondent’s version of the events is so utterly discredited by the record that no reasonable jury could believe him. The Court of Appeals … should have viewed the facts in the light depicted by the videotape.”)

Clearly established law prong requires notice to the officer, not identical prior precedent

The “clearly established” prong of the qualified immunity analysis is met if the law at the time of the violation gave the officer “fair warning” that his actions were unconstitutional. See Hope, 536 U.S. at 741. Qualified immunity may also be denied in “novel circumstances.” Hughes v. Kisela, 862 F.3d 775, 783 (9th Cir. 2017). “Otherwise, officers would escape responsibility for the most egregious forms of conduct simply because there was no case on all fours prohibiting that particular manifestation of unconstitutional conduct.” Id.

Recently, the Ninth Circuit plainly explained that officers are not entitled to qualified immunity simply because a case presented “specific factual circumstances” the court had “never before addressed.” Sandoval v. County of San Diego, 985 F.3d 657, 680 (9th Cir. 2021), cert. denied sub nom., 142 S. Ct. 711 (2021). This was not a new proposition but a reiteration of a well-established rule. See, e.g., Wilk v. Neven, 956 F.3d 1143, 1148 (9th Cir. 2020) (“Officials can still be on notice that their conduct violates established law even in novel factual circumstances – i.e., even without a prior case that had fundamentally similar or materially similar facts.”) Inouye v. Kemna, 504 F.3d 705, 715 (9th Cir. 2007) (“[T]he law may be clearly established even if there is no case directly on point. It is enough if, in the light of pre-existing law, the unlawfulness is apparent.”)

While deadly force is often the focus of civil rights cases, Federal law recognizes the limits on police uses of force in many areas including shooting into a moving vehicle, (Villanueva v. California, 986 F.3d 1158, 1172 (9th Cir. 2021)), use of tasers, (Bonivert v. City of Clarkston, 883 F.3d 865, 880 (9th Cir. 2018)), tackling and body weight (Andrews v. City of Henderson, 35 F.4th 710, (9th Cir. 2022)), pointing a firearm (Washington v. Lambert, 98 F.3d 1181 (9th Cir. 1996)), less lethal projectiles (Nelson v. City of Davis, 685 F.3d 867 (9th Cir. 2012)), baton strikes (Young v. Cnty. of L.A., 655 F.3d 1156, 1161 (9th Cir. 2011)), and use of canines. Smith v. City of Hemet, 394 F.3d 689, 700-, 704 n.7 (9th Cir.) (en banc), cert. denied, 548 U.S. 1128 (2005). The devil is in the details and audio and video evidence, police accountability, and witness testimony is key to achieving success.

In future articles we will discuss how the Courts are applying the facts to the law in each of these factual scenarios. This article is the first of that series.