The Supremes Strike Again: the Qualified Immunity Iron is Hot

Qualified immunity is a strong affirmative defense for officers and officials in cases where constitutional violations are alleged.  But despite repeated exhortations by the Supreme Court that the analysis about whether a person would be on notice that his/her conduct was unlawful must be highly specific, district courts and even the Ninth Circuit continue to over-generalize this analysis.

In the case of City of Escondido v. Marty Emmons, decided per curium on January 7, 2019, the Supreme Court overturned the Ninth Circuit’s decision which denied qualified immunity by using a very general analysis of the Fourth Amendment.  The Ninth Circuit noted only that the right to be free from excessive force was clearly established at the time.  The Supreme Court found this was improper and emphasized that the inquiry must address the specific circumstances faced by officers at the time.

The Underlying Case

In April 2013, Maggie Emmons called 911 about a domestic violence situation at her apartment.  Escondido police department officers responded and arrested Emmons’ husband.  Emmons lived at the house with her husband, two children, and a roommate named Ametria.

On May 27, 2013, Escondido police received a call from Emmons’ roommate Ametria’s mother, who was on the phone with her daughter and heard yelling and screaming before the phone was abruptly disconnected.  Two Escondido P.D. officers responded to the house and their body cameras were activated. Dispatch informed the officers that there were two children living in the house and that calls to the apartment had gone unanswered.

At the apartment, officers knocked on the door. No one answered.  A side window was open, and officers told Emmons to open the door so that they could do a welfare check.  An unidentified man told Emmons to back away from the window.  Other officers arrived as backup.

A few minutes later, a man opened the door and exited the apartment.  Officer Craig told the man not to shut the door.  The man closed the door and tried to walk past Officer Craig, who stopped the man and took him to the ground.  Officer Craig did not use or display any weapon and he did not hit the man.  The video shows no audible noise indicating pain during the takedown and no sign of injury while lying on the ground.  After a few minutes, officers helped the man up and arrested him for the misdemeanor offense of resisting and delaying a peace officer.  The man turned out to be Emmons’ father, Marty Emmons.

Marty Emmons filed suit against Officer Craig and others under section 1983, alleging excessive force was used in violation of the Fourth Amendment.  The district court held the officers had probable cause to arrest Marty Emmons for the misdemeanor.  The Ninth Circuit did not disturb that finding.  The district court granted Officer Craig qualified immunity, finding that the law did not clearly establish an officer could not take down an arrestee in these circumstances.  The court noted that the officers were responding to a domestic dispute, and the situation escalated when they could not enter to conduct a welfare check.  Additionally, when Marty Emmons exited, the officers did not know if he was armed, if he had injured anyone inside, or anything else.

Ninth Circuit Review

The Ninth Circuit reversed and remanded for trial on the excessive force claim. The Ninth Circuit looked at the established law only broadly, in that the Fourth Amendment guarantees the right to be free of excessive force.  It did not look at the particular circumstances.

Supreme Court Review

The U.S. Supreme Court disagreed with the Ninth Circuit and reversed its decision.  It noted that the clearly established right must be defined with specificity.  In the Fourth Amendment context, it is often difficult for an officer to determine how the relevant legal doctrine will apply to the factual situation the officer faces.  Use of excessive force is an area of the law where the result depends on the facts of each case, so officers are entitled to qualified immunity unless existing precedent squarely governs the specific facts at issue.  The Supreme Court noted that lower courts may not simply decide there is a factual issue and remit the case for trial; An officer cannot be said to have violated a clearly established right unless the right’s contours were sufficiently definite that any reasonable officer in the defendant’s shoes would have understood that he was violating it.  Thus, instead of asking whether it was established that excessive force was unlawful, the court should have asked whether it was clearly established that a takedown of an arrestee in the circumstances of heightened tension at a domestic violence call was unlawful.  The answer here was no.

The Takeaway

Every officer and official charged with a constitutional violation should be using the affirmative defense of qualified immunity, examining the state of the law at the time of the challenged incident.  The key is to find whether there is any case addressing the specific circumstances at issue, defining it narrowly. While there may be a rare obvious case where the unlawfulness is clear, usually examination of precedent is needed to determine if the circumstances have been addressed and found unlawful by any court.

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