Judge Willett’s Opinion and the “Catch” to Qualified Immunity

We’ve talked before about the doctrine of qualified immunity: what it is, the scope and boundaries of its application, and how, at times, it can serve as an impediment to genuine justice.

It’s important for us as civil rights attorneys to keep up on cases where qualified immunity plays a major role in legal decisions. It’s our job to track case law where qualified immunity is applied (or denied). A recent opinion by Judge Willett with the Fifth Circuit Court of Appeals emphasizes the uncertainties of qualified immunity as a legal standard and the legal implications when prior case law doesn’t yet exist.

A standard in qualified immunity without precedents

When the Texas Medical Board executed an administrative subpoena on the medical office of a physician named Dr. Joseph Zadeh, the ensuing raid included two federal Drug Enforcement Agency (DEA) officers. Dr. Zadeh asserted that the Board agents had exceeded the scope of their subpoena in executing their search of his offices. He sued, seeking damages for alleged violations of his constitutional rights.

The case eventually made its way to the U.S. Court of Appeals for the Fifth Circuit. That court concluded that the Board and its agents were entitled to the protection of qualified immunity because their conduct did not violate “clearly established” law. In other words, there was no identical precedent that found in favor of the plaintiff. No precedent meant no case for Dr. Zadeh even if, as the court acknowledged, it was sympathetic to the plaintiff’s claims.

Not all the jurists involved in that decision agreed with the court’s logic.

Judge Willett’s concerns

In an opinion “concurring dubitante,” Judge Don Willett registered his “disquiet over the kudzu-like creep of the modern immunity regime.” He objected to the court’s requirement that identical case law be established before qualified immunity can be pushed aside, noting that “it’s immaterial that someone acts unconstitutionally if no prior case held such misconduct unlawful.”

Judge Willett recognized the catch-22 nature of qualified immunity as it is applied in the courts: “Plaintiffs must produce precedent even as fewer courts are producing precedent. Important constitutional questions go unanswered precisely because those questions are yet unanswered.” Finally, Judge Willett distilled the issue down to a simple equation: “No precedent = no clearly established law = no liability” whose “imbalance leaves victims violated but not vindicated; wrongs are not righted, wrongdoers are not reproached, and those wronged are not redressed.”

In his taut and well-reasoned concurring opinion, Judge Willett captured the issue surrounding the potential abuse of qualified immunity.

A Supreme change needed in qualified immunity

We believe it is time for the doctrine of qualified immunity to be re-evaluated with the limits of its application more clearly defined. Victims of abuse by law enforcement and government agents deserve that kind of clarity. Realistically, achieving it is easier said than done.

The United States Supreme Court will have to be the agent of change. Qualified immunity has enjoyed special favor by the Supreme Court, but that position need not be permanent as more justices (such as Justice Clarence Thomas and Justice Sonia Sotomayor) express a growing concern about qualified immunity jurisprudence.

How long will our justice system live with the “yes harm, no foul” imbalance that too often leaves plaintiffs in the wake of court decisions that defer to the doctrine of qualified immunity regardless of the specific elements of a case? Too long, in our opinion.

It’s up to judges, such as Justice Willett, and to civil rights attorneys who see the damage done by qualified immunity to continue to speak up and advocate for a more balanced legal protection for both government agents and the people they serve.

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Excessive Force Victim Denied Constitutional Right to Access Courts

As civil rights attorneys, we pay close attention to important cases and rulings that highlight flaws in the legal system. We also pay attention when courts set precedent that shows promise of improvement.

We’ve addressed the potential dangers posed by the Qualified Immunity Doctrine. It’s just one facet of the legal system that government actors can hide behind when they’ve abused their power and used excessive force. Unfortunately, there are others. A recent excessive force case provides a textbook example of another failing in the system that allows government agents to hinder a victim’s pursuit of justice. This case demonstrates one of the challenges civil rights attorneys must face, as well as the kind of creative approach that is needed to penetrate seemingly invincible defenses.

A case of excessive force

In 2010, a New Jersey man, Emil Jutrowski, was pulled over and arrested by two New Jersey state troopers for driving under the influence of alcohol. (He later pled guilty to that charge.) Through a misunderstanding at the time of the arrest, an altercation occurred, and Jutrowski was handcuffed and immobilized face-down on the pavement.

The state troopers were joined by two New Jersey police officers who had observed the scuffle and stopped to offer assistance. Soon after, one of the four law enforcement officers kicked Jutrowski in the head, fracturing his eye socket. Jutrowski did not see which of the officers had kicked him and later could not conclusively identify the assailant. All four officers, in their incident reports and testimonies, admitted that Jutrowski had been kicked while apprehended—yet, none would admit to doing so, nor would they identify the officer who had.

A creative legal approach by civil rights attorneys

Jutrowski sued all four law enforcement officers for excessive force, but a federal judge dismissed the case because the victim was essentially asking the court (and as a result, a jury) to guess which individual defendant should be held liable. The Third U.S. Circuit Court of Appeals in Philadelphia agreed.

But the case is not over, thanks to Jutrowski’s perceptive and persistent counsel. Jutrowski has alleged conspiracy on the part of the four officers involved in the incident; claiming that they were acting in concert to deprive him of his constitutional right of access to the courts to pursue his claim for damages. The federal appeals court ruled that Jutrowski could pursue this avenue of redress.

We commend the attorneys in this case for going beyond the obvious and for finding a creative way to secure justice for their client. In our own pursuit of justice for our clients, we understand that approach and can relate to that commitment. We hope Jutrowski and his attorneys ultimately prevail in this case. That would be an important outcome for future excessive force victims and the civil rights attorneys who represent them.

If you or someone you know has been the victim of excessive force or another rights abuse, contact the civil rights attorneys at Cooper & Elliott.

Connect with us—we’re here to help.

The outcome of any client’s case will depend on the particular legal and factual circumstances of the case.

Qualified Immunity: A Necessary, But Not Absolute Privilege

Lately, it’s not surprising to turn on the news and see a case involving a police officer who’s been accused of using excessive force. The circumstances all vary but are nonetheless emotionally charged and often involve a legal doctrine known as qualified immunity. As Ohio civil litigation attorneys, we’d like to shed some light on qualified immunity and its legal implications.

The purpose of qualified immunity

Qualified immunity is a privilege often asserted by police officers, prison guards and other law enforcement or government agents to defend against a civil rights lawsuit. Its purpose is to strike a balance between the need for an official to act in difficult situations where split-seconds matter, and the need to protect the rights of those with whom the official comes into contact. The doctrine exists because we have to give government officials a certain amount of leeway to allow them reasonable discretion and personal safety in the performance of their jobs. No one would want to be a police officer if it meant the possibility of personal liability for every single action taken on the job.

However, qualified immunity is not a blanket protection for anything a person might choose to do in his or her official capacity.

Precedents determined by civil rights case rulings

Whether a defendant has qualified immunity depends on whether the defendant acted reasonably given the specific circumstances. When a defendant asserts qualified immunity, the defendant is saying, “Even if I violated the plaintiff’s constitutional rights, I can’t be liable because it wasn’t clear beforehand that my conduct was a violation.”  The question is usually decided in terms of legal precedent—what courts have specifically held in similar cases.

Imagine a situation in which an officer strikes a handcuffed suspect with a baton. Whether the officer’s actions are considered excessive will depend on the specific circumstances. Was the suspect standing or sitting peacefully, posing no threat to the officer or anyone else? In those circumstances, courts have held that the baton strike is excessive and therefore a violation of the suspect’s constitutional rights. But what if the suspect was kicking or head-butting the officer? Many court cases have held that it’s permissible to strike a restrained suspect in that situation in order to protect the officer and others. The question can become even more nuanced—What if it takes only one or two baton strikes to subdue the suspect, but the officer continues with several more strikes after the suspect no longer poses a threat? Courts faced with that scenario may hold that the later strikes violated the suspect’s constitutional rights, even if the first one or two did not. Whether an officer is immune can come down to specifics like how many times the officer struck the suspect. So, if we were representing a suspect in a civil rights case against the officer, we would want to know if a court decision had ever addressed the specific details of our client’s case.

Validating qualified immunity assertions

When we go to bat for a client who believes an official has gone beyond what the law allows and violated their civil rights, we frequently end up facing an assertion of qualified immunity. Handling such cases requires a close examination of any precedents that seemingly immunize the official. Sometimes we can prove the law was badly applied in those cases, or that the facts in our case are different enough that immunity shouldn’t apply.

We look for evidence that would indicate that the official knew or should have known their actions were violating our client’s rights. In other words, we look at whether courts have issued decisions in cases involving the same circumstances as our client’s, or circumstances that are similar enough that the same rule would clearly apply. We also look at the official’s training and prior incidents, if any.  If we can prove that the official should have known better, we can defend against qualified immunity.

Misuse of qualified immunity

While qualified immunity protects officers and government officials and enables them to carry out their duty to protect the community, there are facets of the provision that some defense attorneys abuse.

For example, a defendant can ask the judge to dismiss the case on qualified immunity grounds before trial by filing a motion to dismiss or motion for summary judgment.  Most of the time, if a judge rejects a defendant’s motion to dismiss or motion for summary judgment, the defendant has to wait until after trial to appeal the judge’s legal decision. But qualified immunity is different. If a judge rejects a qualified immunity defense, the defendant can immediately appeal, and the appeal must be resolved before the case can continue to trial.  Trials can be held up for a year or more as a result.

Qualified immunity was created for a reasonable purpose, but it can be abused and provide cover for acts that are true violations of a citizen’s constitutional rights. If you have a civil rights case against a government official, it’s important that your attorneys be experienced in exposing faulty qualified immunity assertions.

The outcome of any client’s case will depend on the particular legal and factual circumstances of the case.