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Bar Journal 2017

Debatable or Not Debatable: A Clearer Test of Qualified Immunity

By Clark Crapster

In Mullenix v. Luna,1 the United States Supreme Court tightened the reins on the qualified immunity test and its application, resulting in what may be a significant alteration of qualified immunity jurisprudence in the future. The result of Mullenix is a test more in line with the original purposes of the qualified immunity doctrine, which had, over time, gradually become undermined.

QUALIFIED IMMUNITY TEST BACKGROUND AND ITS PURPOSE

The need for governmental officials to do their jobs, to enforce the laws and to maintain safety is so great that federal law does not permit 42 U.S.C. §1983 claims against officers individually unless the violation is clearly established in the governing case law.2 The purpose of this is to afford some protection from civil suits under §1983 to the necessary functions of government officials.3 This is important to prevent a chilling, or deterrence, effect upon attempts at quality law enforcement and other government actions which are fundamentally necessary to our way of life and society.4 Qualified immunity was therefore intended to give ample room for mistaken judgments by protecting all but the plainly incompetent or those who knowingly violate the law.5 Thus, the long standing rule has been that governmental officers who are sued in their individual capacities in an action under §1983 “are entitled to qualified immunity unless it is demonstrated that their conduct violated clearly established constitutional rights of which a reasonable person in their positions would have known.”6

Over the course of many years, however, the protection of all but the plainly incompetent began to gradually erode as various fact patterns emerged. The strict language in the original test as articulated in Hunter, for example, sometimes gave way to broader language, such as “fair warning in the law” as apparently being the same as “clearly established in the law.”7 That ultimately gave rise to what the Supreme Court, in Mullenix, would deem to be too much uncertainty for officers due to some courts defining established law at too high a level of generality. Understandably, the less precise and more malleable phraseology, like “fair warning” that developed before Mullenix, may have arisen as a way for courts to explain why obviously egregious and unacceptable conduct is not worthy of qualified immunity protection despite the absence of precisely on-point cases. But after Mullenix, this type of analysis may be unnecessary or even inappropriate. 

An example is the case of Hope v. Pelzer.8 The officers’ conduct in Hope was so egregious that it was beyond debate that it was a violation of the Constitution. The officials in Hope handcuffed the plaintiff to a hitching post without allowing him to have water or use the restroom for seven hours. The law already indicated that requiring prisoners to maintain uncomfortable positions for long periods of time was a violation of the Constitution.9 But there did not seem to be authority that was exactly on-point. The Supreme Court in Hope explained that the conduct at issue in that case was a violation under clearly established law.10 Citing to an opinion it had issued in 1996, the court held that there was no qualified immunity as there was “fair warning” under the existing case law that the conduct was violative, despite factual distinctions.11 

This type of language led to what has been called a “sliding scale” approach used by the 10th Circuit. In a 2004 qualified immunity case, the 10th Circuit, citing an 11th Circuit opinion, used the language of Hope as grounds for concluding that a sliding scale approach should be adopted.12 The premise is that some conduct is so patently wrong and illegal that there need not be a case on point.13 This premise does not necessarily mean, as a rule, that the more egregious the conduct, the less specificity is required (the “sliding scale” approach).14 But it nevertheless seemed to have led to that “sliding scale” rule. The court in Pierce described this concept as follows:

The degree of specificity required from prior case law depends in part on the character of the challenged conduct. The more obviously egregious the conduct in light of prevailing constitutional principles, the less specificity is required from prior case law to clearly establish the violation.15

The method, in turn, gave rise to an opportunity for plaintiffs to try to use a less demanding test. Plaintiffs were able to work with a hazy legal backdrop by arguing that exact on-point case law is not necessary. They were able to draw comparisons between factually distinct cases and argue that it was enough to put officers on “fair notice” such that the claim should proceed to the jury to determine whether there was a violation and resulting damages. Consequently, this has often been the nature of qualified immunity litigation for at least 10 to 15 years.  

2015 AND 2016: REIGNING IN THE TEST

The nature of qualified immunity litigation changed in November of 2015, when the Supreme Court accepted certiorari on two qualified immunity cases. By coincidence, both cases involved a man who passed away, and both men had the last name of Leija. The first case was Mullenix v. Luna, and the second was Aldaba v. Pickens

The court issued an important opinion in the Mullenix case, clarifying how to properly define and apply the qualified immunity test. In essence, the court explained that qualified immunity applies unless the case law squarely governs such that in light of the circumstances there is no debate that a constitutional violation occurred. It reversed the 5th Circuit’s de-nial of qualified immunity. In the Aldaba case, the 10th Circuit had also denied qualified immunity, similar to the 5th Circuit in Mullenix. Instead of issuing another opinion on qualified immunity, however, the Supreme Court vacated the 10th Circuit decision and remanded so that the 10th Circuit could decide whether qualified immunity should protect the officers in Aldaba in light of the opinion issued the same day in Mullenix. The 10th Circuit ordered supplemental briefing shortly thereafter and oral argument in May 2016. Seven months later, the three judges on the panel agreed that qualified immunity in fact should protect the officers in Aldaba.

CLARIFICATION IN MULLENIX

The court in Mullenix clarified the qualified immunity test in part by how it chose to describe it, and how it chose not to describe it.16 It also did so in its application of the test to the facts in Mullenix.17 As to the description of the law, the court did not cite or reference the language used over 10 years ago in the Hope case.18 This would later prove to be important to the 10th Circuit panel in Aldaba in the following year. 

What the Supreme Court did indicate was that some lower courts have been applying the qualified immunity doctrine too broadly.19 The Supreme Court clarified that, for qualified immunity to be denied, precedent must “squarely govern” such that it is “beyond debate” that a constitutional violation occurred in the specific context of the case, not in a general or broad sense.20 In other words, the violation must be so clear in light of existing case law that any reasonable officer would know it and there would be no room for debate on the question.21

How the court then applied the test was informative. Mullenix involved a suspect fleeing police in a vehicle on a highway in the plains of far west Texas, not far from Amarillo. Leija was speeding between 85 to over 100 mph.22 He called the dispatcher to say he would fire a gun upon police if they did not stop pursuit.23 A group of officers some miles away gathered at an overpass called Cemetery Road to try to stop the chase, taking position on the sides and placing spike strips on the highway under the overpass.24 One officer, Mullenix, intended, however, to use a high powered rifle from the top of the overpass to try to shoot the engine block and disable the vehicle.25 He was told to stand by and give the spikes an opportunity to work. But Mullenix did not do this and fired multiple times at Leija’s vehicle as it arrived, unfortunately striking Leija and not the engine block.26 

The Supreme Court found that, on these facts, Mullenix was entitled to qualified immunity. The reasons were that he faced circumstances that were unique from anything in the existing case law on use of deadly force or use of a firearm to disable a vehicle. It is true that Mullenix could have waited to see what happened as Leija drove under Cemetery Road overpass. Mullenix could have decided that the best choice was to wait and use the rifle only as a last resort. But the court refrained from second guessing in hindsight. The court considered information that was seemingly important to Mullenix, namely, that Leija had informed the officers he would shoot if they did not stop pursuit. The fact was that an officer in Mullenix’s position could reasonably fear that his fellow officers could be shot or struck by a vehicle or other debris. The Supreme Court, focusing on the circumstances and information the officers knew and faced at the time, found that the clearly established law actually revealed a “hazy legal backdrop,” without any case denying qualified immunity under the specific circumstances of the case.27

The dissent, in hindsight, disagreed with the decision of Mullenix to use his weapon. The dissent also agreed with the prior 5th Circuit holding which had concluded that Mullinex should have waited until after the use of spike strips before attempting a less conventional method. The majority opinion, however, pointed out that this was error, “Ultimately, whatever can be said of the wisdom of Mullenix’s choice, this Court’s precedents do not place the conclusion that he acted unreasonably in these circumstances ‘beyond debate.’”28

ALDABA: FOLLOWING THE CLARIFICATION IN MULLENIX

Further application of the proper test was demonstrated by the 10th Circuit’s revisiting of the qualified immunity issue in a case arising from the Eastern District of Oklahoma, Aldaba v. Pickens,29 after the Supreme Court vacated and remanded. In its December 2016 opinion, the 10th Circuit explained that the deceased, Leija, was at a hospital in Oklahoma being treated for double and severe pneumonia.30  Although he was cooperative at first, Leija later became aggressive and delusional.31 He had lost the ability to make informed decisions on his own about his health.32 He was refusing the necessary treatment and acting in a way that placed the nurses and doctors attending to him in fear of trying to physically subdue him. Thus, they called law enforcement.33 

Three officers arrived at the scene as Leija was starting to leave his hospital room.34 The doctor explained to the officers that Leija would die if allowed to leave the facility.35 The officers tried reasoning with Leija, but to no avail.36 Leija raised his arms and clenched his fists.37 He said that the blood coming from his empty IV portal was “his” blood, among other statements.38 Warnings were given about the use of a Taser but again, to no avail.39 A Taser shot was fired, but did not work properly.40 The officers then took Leija’s arms, but his strength kept them from keeping his arms behind his back.41 The Taser was used on his back as the patient was against the wall, still resisting the officers.42 Medical staff observed. The Taser did not stop him. The officers were then able to bring him to the ground on his stomach.43 As they struggled to keep his arms behind his back, a medical employee proceeded to give Leija a shot of Haldol and Ativan.44 Immediately after the shot was administered, Leija lost consciousness and all attempts to resuscitate failed.45

Judge Phillips, writing for the 10th Circuit panel and concluding that qualified immunity applied, first reiterated the proper qualified immunity test in light of Mullenix.46 The opinion notes that the Supreme Court in Mullenix might be trying to emphasize different parts of its prior opinions.47 More specifically, the Supreme Court in Mullenix seemed to be emphasizing the “beyond debate” and “squarely governs” language.48 Importantly, the Supreme Court in Mullenix did not cite the Hope decision’s “fair warning” language.49 The 10th Circuit therefore did not use the older sliding scale case law in its opinion. As the Supreme Court did in Mullenix, the 10th Circuit focused on what the officers were told by others and the specific circumstances they faced.50 There was no question that the officers had to stop Leija from leaving, which is clear from Phillips’s opinion, and which was in fact found by the district court. Looking at the unique circumstances the officers faced, the 10th Circuit held that the case law was not clearly established such that it was beyond debate that the conduct constituted a violation.51 The plaintiff had cited two very factually distinct cases involving egregious use of Tasers and force,52 but neither of the cases showed that what the officers in Aldaba did was a clear violation, if a violation at all, as they were acting according to a doctor’s urgent request and only used physical force after other efforts failed.53 

THE TEST MOVING FORWARD

In light of Mullenix, it is clear that the Supreme Court requires the “beyond debate” or “squarely governs” language, which more effectively protects the purposes of the qualified immunity doctrine by shielding officers from the fear of personal liability when they only make a mistake in judgment.54 A sliding scale should not be used, and, importantly, the 10th Circuit declined to do so in Aldaba. Therefore, plaintiffs who are trying to defeat qualified immunity in the absence of direct on-point case law will need to show that the conduct is so facially and shockingly egregious in and of itself that it is beyond debate such that every reasonable officer would know that it was a constitutional violation. The result may cause counsel suing governmental officials to spend less effort on futile attempts to convert “hazy legal backdrops” into “clearly established law.” Instead, the legal backdrop must squarely govern the circumstances the officers in question faced. If it is a hazy legal backdrop, then it will not be beyond debate, and will not be clearly established. 

1. 577 U.S. ___, 136 S. Ct. 305 (2015) (per curiam).
2. See Pearson v. Callahan, 555 U.S. 223, 231, 129 S. Ct. 808, 815, 172 L. Ed. 2d 565 (2009).
3. Id.
4. See Filarsky v. Delia, 132 S. Ct. 1657 (2012).
5. Hunter v. Bryant, 502 U.S. 224, 229, 112 S.Ct 532 (1991).
6. Murrell v. Sch. Dist. No. 1, Denver, Co, 186 F.3d 1238, 1251 (10th Cir. 1999).
7. See Hope v. Pelzer, 536 U.S. 730, 739-40 (2002).
8. 536 U.S. 730, 739-40 (2002).
9. Gates v. Collier, 501 F.2d 1291, 1305 (5th Cir. 1974).
10. Id.
11. Hope, 536 U.S. at 739-40.
12. Pierce v. Gilchrist, 359 F.3d 1279, 1298 (10th Cir. 2004).
13. Id.
14. Id.
15. Id. at 1298.
16. Mullenix v. Luna, 136 S. Ct. 305, 308-09 (2015).  
17. Id. at 308-12.
18. Id.
19. Id. at 308-09.
20. Id. at 308-12.
21. Id.
22. Id. 306-07; 310-12.
23. Id. 306-07.
24. Id.
25. Id. 306-07; 310-12.
26. Id.
27. Id. at 309-310.
28. Id. at 310-311.
29. 844 F.3d 870 (10th Cir. 2016).
30. 844 F.3d at 874-76.  
31. Id.
32. Id.
33. Id.
34. Id.
35. Id.
36. Id.
37. Id.
38. Id.
39. Id.
40. Id.
41. Id.
42. Id.
43. Id.
44. Id.
45. Id.
46. Id. at 876-77.
47. Id. at 874, n. 1.
48. Id. at 874.
49. Id. at 874, n. 1.
50. Id. at 876-77.
51. Id. at 877-80.
52. Id. at 878-80.
53. Id.
54. See Pearson, 555 U.S. at 231 (discussing purposes of qualified immunity).

About The Author
Clark Crapster is a civil litigation and appellate attorney who practices in both the Oklahoma and federal appellate courts. He argued in the 10th Circuit in the Aldaba matter for appellant Pickens and in other matters at the Tenth Circuit as well. He is at Steidley & Neal PLLC. In addition to defending federal and state constitutional related claims, he also works on employment litigation, legal malpractice and catastrophic injury cases.

Originally published in the Oklahoma Bar Journal OBJ 88 pg 975 (May 20, 2017)

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