Qualified immunity ruling raises hurdles for plaintiffs.

Qualified immunity is often an issue in civil rights litigation. A government officer sued for money damages for violating the Constitution may claim either absolute or qualified immunity as a defense. The Supreme Court has recognized absolute immunity for relatively few officials: judges acting in a judicial capacity, (1) legislators acting in a legislative role, (2) prosecutors acting in a prosecutorial (as opposed to an investigative or administrative) capacity, (3) police officers testifying as witnesses, (4) and the president of the United States for conduct in office. (5)

All other government officers are entitled only to qualified immunity. According to the Court, an officer can be held liable if he or she violates clearly established law that a reasonable officer should have known. (6)

In 2001, in Saucier v. Katz, the Court prescribed a two-step inquiry for lower courts to use in qualified immunity cases: First, taking the facts most favorable to the plaintiff, do they show that the defendant violated a constitutional right? Second, is the right so clearly established that a reasonable officer would know that the conduct was unlawful in the situation that he or she confronted? (7)

The Court addressed the second part of this inquiry the next year in Hope v. Pelzer. (8) On two occasions, prison guards tied a prisoner to a hitching post; in one instance, they left him in the hot sun for more than seven hours with one or two water breaks but no bathroom breaks. The Eleventh Circuit found that the guards had violated the prisoner's Eighth Amendment right to be free from cruel and unusual punishment, but the court concluded that the guards were protected from liability by qualified immunity because the Supreme Court had never held that using a hitching post was unconstitutional.

In an opinion written by Justice John Paul Stevens, the Supreme Court reversed, stressing that a court can conclude that there is clearly established law even without a case exactly on point. The justices held that qualified immunity does not apply when a government officer has "fair notice" that the conduct is unconstitutional. A case on point is sufficient to create such notice, but it is not necessary in order to overcome qualified immunity.

The Court recently returned to this issue in Brosseau v. Haugen. (9) Interestingly, the case was decided in December, without briefing or oral arguments, based solely on the petition for certiorari and its opposition.

Rochelle Brosseau, a police officer in Puyallup, Washington, shot a suspect, Kenny Haugen, in the back as he was attempting to free from the police. Haugen got in a car to drive away when officers tried to arrest him. Brosseau repeatedly ordered Haugen to get out of the vehicle, but he refused, even after the officer reached into the car and struck Haugen on the head with the barrel of her gun.

When Haugen started the car and began to drive away, Brosseau fired a shot through the rear driver's side window and hit him in the back. Brosseau testified that she did this because she was "fearful for the other officers on foot who [she] believed were in the immediate area, for the occupied vehicles in [Haugen's] path, and for any other citizens who might be in the area." (10)

Haugen sued Brosseau for using excessive force. The district court granted summary judgment in favor of the officer based on qualified immunity. The Ninth Circuit reversed, concluding that qualified immunity was inappropriate because Brosseau violated Haugen's Fourth Amendment right to be free from excessive force, which was clearly established. (11)

The Supreme Court, in a per curiam opinion, said it "express [ed] no view as to the correctness" of the Ninth Circuit's conclusion that Brosseau had used excessive force. (12) Rather, the justices said, they were "exercis[ing] [their] summary reversal procedure here simply to correct a clear misapprehension of the qualified immunity standard." (13)

The Court found that the Ninth Circuit had mistakenly focused on the general principle that use of excessive force violates the Constitution. The appropriate inquiry, the Court noted, was whether "at the time of Brosseau's actions it was 'clearly established' in [a] more 'particularized' sense that she was violating Haugen's Fourth Amendment right." (14)

The Court emphasized the absence of any cases dealing with the specific situation of an officer using deadly force because of fear that a fleeing suspect might endanger others by driving away. The Court noted that the parties cited "only a handful" of relevant cases and concluded that "none of them squarely governs the case here.... The cases by no means 'clearly establish' that Brosseau's conduct violated the Fourth Amendment." (15)

Troubling implications

The Brosseau opinion is troubling for civil rights plaintiffs in several respects. First, as a procedural matter, the Court decided the case without briefs on the merits or oral arguments, prompting objections by the sole dissenter, Justice John Paul Stevens:

   The Court's attempt to justify its decision to
   reverse the court of appeals without giving
   the parties an opportunity to provide full
   briefing and oral argument is woefully unpersuasive....
   At a minimum, the Ninth Circuit's
   decision was not clearly erroneous,
   and the extraordinary remedy of summary
   reversal is not warranted on these facts. (16)

Second, the Court's emphasis on the lack of a case on point conflicts with its express holding just three years ago in Hope. In that case, the Court declared, "Although earlier cases involving 'fundamentally similar' facts can provide especially strong support for a conclusion that the law is clearly established, they are not necessary to such a finding." (17)

The Brosseau Court cited Hope, but its analysis ignored the standard articulated in that decision: whether the officers had fair warning that their conduct was impermissible. The Court's emphasis on the lack of cases on point is likely to cause renewed confusion in the lower courts about how to deter mine whether there is clearly established law that a reasonable officer should know.

Third, if the right at issue is stated specifically enough, there is not likely to be a case exactly on point. In Brosseau, the Court focused on whether it is permissible for the officer to use deadly force when a suspect is fleeing and might endanger others by driving away.

But the question could have been framed more generally: whether an officer's use of excessive force was reasonable under the circumstances. This is precisely the test that the Supreme Court previously approved. (18) The Brosseau Court's insistence on a highly specific inquiry will make it more difficult for civil rights plaintiffs to overcome qualified immunity,.

Finally, it should be noted that three of the justices--Stephen Breyer, Antonin Scalia, and Ruth Bader Ginsburg--questioned in a concurring opinion whether courts always should follow the two-step analysis prescribed in Saucier and other cases, inquiring first if there is a constitutional violation and then whether the right is clearly established. Breyer wrote, "I am concerned that the current rule rigidly requires courts unnecessarily to decide difficult constitutional questions when there is available an easier basis for the decision (e.g., qualified immunity) that will satisfactorily resolve the case before the court." (19)

Breyer's statement echoes those from some lower courts. The Second Circuit, for example, has declared: "We may, in an appropriate case, decline to rule on the question whether an asserted right exists where, as here, we conclude that it was not clearly established at the relevant time." (20)

The per curiam opinion simply said that "we have no occasion in this case to reconsider our instruction in Saucier v. Katz that lower courts decide the constitutional question prior to deciding the qualified immunity question." (21) But Brosseau is important because it indicates that three justices want to reconsider this approach.

Few issues in civil rights law arise more frequently than the question of whether an officer violated a clearly established right that a reasonable officer should know. Because state governments generally cannot be sued for damages and recovery from local governments is limited to instances in which their policies violate the law, often the only way a plaintiff can obtain damages is to sue the individual officers. Brosseau is the latest word from the Supreme Court on qualified immunity, but certainly not the last.

Notes

(1.) See, e.g., Stump v. Sparkman, 435 U.S. 349 (1978).

(2.) See, e.g., Bogan v. Scott-Harris, 523 U.S. 44 (1998).

(3.) See, e.g., Kalina v. Fletcher, 522 U.S. 118 (1997); Imbler v. Pachtman, 424 U.S. 409 (1976).

(4.) See, e.g., Briscoe v. LaHue, 460 U.S. 325 (1983).

(5.) See, e.g., Nixon v. Fitzgerald, 457 U.S. 731 (1982).

(6.) See, e.g., Harlow v. Fitzgerald, 457 U.S. 800, 818 (1982).

(7.) 533 U.S. 194, 201-02 (2001).

(8.) 536 U.S. 730 (2002).

(9.) 125 S. Ct. 596 (2004) (per curiam).

(10.) Id. at 598 (citation omitted).

(11.) 339 F.3d 857 (9th Cir. 2003), rev'd and remanded, 125 S. Ct. 596 (2004).

(12.) 125 S. Ct. 596, 598.

(13.) Id. at 598 n.3.

(14.) Id. at 599.

(15.) Id. at 600.

(16.) Id. at 604 (Stevens, J, dissenting).

(17.) 536 U.S. 730, 741.

(18.) See Graham v. Conner, 490 U.S. 386 1989); Tennessee v. Garner, 471 U.S. 1 (1985).

(19.) Brosseau, 125 S. Ct. 596, 601 (Breyer, J., concurring).

(20.) African Trade & Info. Ctr., Inc. v. Abromaitis, 294 F.3d 355, 359 (2d Cir. 2002).

(21.) 125 S. Ct. 596, 598 n.3.

ERWIN CHEMERINSKY is Alston & Bird Professor of Law at Duke University School of Law.