The Journal of the Virginia Trial Lawyers Association, Volume 28 Number 2, 2020 9 Civil Rights

Qualified Immunity – The Vibranium Shield of Constitutional Law by Isaac A. McBeth

ne of the most memorable moments in the Even more recently, Judge Wynn of the Fourth Marvel Cinematic Universe (“MCU”) is the Circuit penned an op-ed for the Washington Post in Omoment in which Captain America receives which he branded the Supreme Court’s creation of his iconic shield from Howard Stark (Captain the defense as a “mistake” and noted the tendency America: The First Avenger for those of you who of the doctrine to promote unjust results.3 are not MCU fans). We learn that the shield is made Unfortunately, peering into the future does not of “vibranium,” a fictional alloy that is “stronger inspire hope that change is on the horizon. Notwith- than steel and a third the weight.” However, “stron- standing the current public outcry for reexamining ger than steel” proves to be the understatement of the doctrine, the Supreme Court recently declined the year because the shield demonstrates itself to to accept any of the eight pending appeals that be virtually indestructible to almost all forms of would have furnished an opportunity for the Court human and alien weapons and keeping Captain to consider the propriety of the defense and its America completely safe from harm. detrimental impacts on our bedrock judicial phi- In similar fashion, the Supreme Court decided losophy—equal justice under the law.4 Legislative to create a vibranium shield for law enforcement efforts to curtail the doctrine or eliminate it alto- officers in the form of qualified immunity to protect gether also seem unpromising, given that the notion them from the dangers posed by the Civil Rights of scaling back qualified immunity is a “nonstarter” Act of 1871.1 And what a shield it has proven for the Trump Administration.5 Accordingly, practi- to be—protecting officers from liability even in tioners have no choice but to carry the flag forward, instances involving breathtaking acts of violence. assuming the doctrine will remain as it is for the As time has passed, many eminent scholars and ju- indefinite future, and to prepare themselves for the rists have questioned the prudence of the Supreme challenges presented by facing an adversary who is Court’s decision. For example, in a concurring shielded by legal vibranium. This article will seek opinion, Judge Willett of the Fifth Circuit wittily to arm practitioners with the information needed remarked: to meet that challenge by providing an overview To some observers, qualified immunity of the qualified immunity doctrine and identifying smacks of unqualified impunity, letting nuanced issues within it that may aid in efforts to public officials duck consequences for overcome an assertion of the same. bad behavior—no matter how palpably Qualified Immunity-An Overview unreasonable—as long as they were the The primary source of relief for an individual first to behave badly. Merely proving a who has been victimized through an officer’s use constitutional deprivation doesn’t cut it; of excessive force is a claim asserted pursuant to plaintiffs must cite functionally identical federal law by way of 42 U.S.C. §1983 (“Sec- precedent that places the legal question tion 1983”). As an initial matter, it is important to “beyond debate” to “every” reasonable point out that an officer’s excessive use of force officer. Put differently, it’s immaterial may implicate various federal rights depending on that someone acts unconstitutionally if whether the use of force occurred in the course of no prior case held such misconduct a seizure or after the seizure has occurred. In the unlawful.2 10 The Journal of the Virginia Trial Lawyers Association, Volume 28 Number 2, 2020

former circumstance, the operative constitutional In short, frozen molasses traveling uphill is more provision will be the Fourth Amendment.6 In the likely to achieve meaningful forward progress than latter circumstance, the Fourteenth Amendment is the body of decisional law serving to illuminate the applicable.7 contours of what are (and are not) unconstitutional A victim of excessive force may seek relief under uses of force. For that reason, it is unsurprising that Section 1983 against three categories of defendants: the impact of qualified immunity in excessive force cases has been on an upward trend in favor of law • The individual officers directly involved in the enforcement officers since 2009.17 use of excessive force or who were bystand- If the legal standards of the defense alone were ers at the time with the ability to intervene and not enough to sound the alarm, consider also the failed to do so;8 threat it poses to the truth-seeking function of • Supervisory individuals who were aware that litigation and its tendency to prevent investigation the officers involved in the use of excessive in the events at issue. Specifically, because the doc- force posed an unreasonable risk of constitu- trine has been construed as immunity from suit— tional injury, but nevertheless failed to take rather than mere immunity from liability—district corrective action;9 and courts routinely stay discovery in litigation if the • Municipalities operating under a constitution- issue of qualified immunity has been raised through ally offensive “policy” or “custom” that is the a motion to dismiss.18 In other words, a plaintiff “moving force” behind the officers’ use of ex- must defeat an assertion of qualified immunitybe - cessive force.11 However, the Eleventh Amend- fore even being permitted an opportunity to obtain ment immunizes the Commonwealth and arms documents and other evidence to determine what of the Commonwealth (to include counties) actually occurred during a given incident with law from such suits in federal court for monetary enforcement officers. The full prejudice of this dy- damages, unless that immunity is waived by namic is felt in a situation in which the use of force the Commonwealth.12 at issue kills the victim or causes serious brain injury, thereby often eliminating the only witness to Qualified immunity is a judicially-created af- the matter other than the officers involved. In such firmative defense which enables public officials (in circumstances, depriving the plaintiff of access to their individual capacities) to evade liability for de- information through the discovery process is no dif- priving others of their federal rights so long as the ferent than depriving him or her of the legal claim illegality of the challenged conduct is not “clearly itself, because the information needed to plead a established” by existing law.13 With respect to the plausible suit and overcome an initial assertion of three categories of defendants listed above, the first qualified immunity is (and always will be) out of two categories of defendants are entitled to assert reach. defense of qualified immunity.14 The third category In essence, qualified immunity all but guarantees of defendants is not entitled to assert qualified im- a plaintiff’s inability to obtain relief unless: (a) the munity.15 challenged conduct violated “clearly established” As originally conceived, an assessment of quali- law; and (b) the plaintiff has enough information fied immunity was to proceed through a two-part prior to filing suit to ethically allege a fact pattern analysis: (a) whether the use of force at issue violat- satisfying that stringent standard. ed a constitutional right; and (b) if so, whether the right violated was clearly established in the law.16 However, in 2009, the Supreme Court endorsed an Breaking the Vibranium Shield analytical method in which lower courts bypass the However, even Captain America’s shield has its first prong of the analysis and proceed directly to limits. In the culmination of the Marvel’s ten-year the second.1 In other words, courts have no obliga- conspiracy to transform everyone into superhero tion to consider the constitutionality of the use of fans (Avengers: Endgame), we finally got to ob- force at issue and, theoretically, any use of force serve Thanos—the mad titan—unleash a barrage on that is not already clearly unlawful under existing Captain America that accomplished what so many decisional law may ever be actionable—no matter others had previously failed to accomplish. Namely, how egregious the conduct at issue. In essence, of- Captain America’s shield was cracked—albeit just ficers are at liberty to engage in gross constitutional slightly at first. But, as one crippling strike fol- abuses over and over again—without suffering any lowed another, greater and greater portions of the consequences—so long as the courts reviewing shield were separated from the whole until the those actions simply bypass the threshold issue of buckler was left utterly fractured. whether a constitutional violation occurred and in- So it goes with qualified immunity as well. With stead decide the issue of qualified immunity solely enough effort and perseverance, practitioners who on the basis of the second prong of Saucier test aim to overcome an assertion of qualified immunity (i.e., the absence of any prior decision establish- can make their own dents and cracks in the legal ing the use of force at issue to be unconstitutional). vibranium. Given its nearly indestructible constitu- tion, however, any efforts to do so are best served The Journal of the Virginia Trial Lawyers Association, Volume 28 Number 2, 2020 11 by considering all of the tactical options available given that battery is an intentional tort, an officer for assailing the defense besides simply resolving may not invoke sovereign immunity as a defense to to meet it head on (i.e., arguing that the illegality of the claim. Additionally, some courts have recog- the conduct at issue was clearly established at the nized that a person victimized by an officer’s use time of the events in question). of excessive force may seek recovery against the First, it is important to note that there is a officer’s through a theory of gross negligence (as a threshold burden that any defendant must satisfy claim for simple negligence would likely be barred to demonstrate his or her entitlement to quali- by the doctrine of sovereign immunity).25 fied immunity. Moreover, this threshold burden is different depending on whether the defendant is properly characterized as a public official or private Conclusion individual. If the defendant is properly labeled as a Civil rights litigation is not for the faint of heart. “public official,” he or she must demonstrate that The road to achieving favorable results for a client the challenged conduct falls within the scope of the often involves extensive pre-suit investigations, the discretionary duties imposed by his or her office.19 filing of multiple lawsuits, the pursuit of multiple Absent such a showing, qualified immunity is not appeals, and overcoming some of the most potent available. In contrast, a private individual must defenses available in tort law. However, for those demonstrate how the history and purposes of quali- who stay the course, they have a unique reward that fied immunity warrant extending the defense to him is theirs to cherish—the gratification that comes or her to be entitled to assert the defense.20 with facing the long odds and overcoming the high- Second, particularly in the context of excessive est levels of adversity for the sake of people who force cases, there are two concepts that have been otherwise will have no voice and for causes that referenced in recent Fourth Circuit decisional law go to the viability of our society and our ongoing that may aid in overcoming qualified immunity pursuit of equal justice under the law. in cases involving particularly egregious conduct. Specifically, the Fourth Circuit has commented that the unlawfulness of an officer’s use of force may be said to be “clearly established” where the Graham factors overwhelmingly suggest as much. In other words, even in the absence of factually analogous Endnotes case law deeming the use of force at issue to be 1. Pierson v. Ray, 386 U.S. 547, 557 (1967) (creating the unconstitutional, a court may still find the officer doctrine of “good faith” immunity); see also Harlow to have violated clearly established law where the v. Fitzgerald, 457 U.S. 800, 818 (1982) (creating the force at issue is blatantly unjustifiable after taking modern formulation of the doctrine of qualified im- into account the nature of the crime at issue (if munity). any), the threat posed by the suspect to the officers 2. Zadeh v. Robinson, 902 F.3d 483, 498 (5th Cir. 2018) (if any), and the suspects efforts to resist or flee (if (Willett, J. concurring). any). Additionally, the Fourth Circuit has left open 3. https://www.washingtonpost.com/opinions/ the question of whether it would employ the “fla- 2020/06/12/judge-i-have-follow-supreme-court-it- grantly unlawful” exception to qualified immunity should-fix-this-mistake/ that has been recognized in the Tenth Circuit.21 4. https://www.nbcnews.com/politics/supreme-court/ Under that doctrine, a claim of qualified immunity supreme-court-refuses-hear-cases-qualified-immuni- can be refuted by pointing to conduct that is so ty-police-n1231078 obviously unlawful that no prior explanation on the 5. https://www.cbsnews.com/news/white-house-reduc- point would be required to put a reasonable officer ing-immunity-cops-non-starter/ on notice.22 6. Orem v. Rephann, 523 F.3d 442, 445-46 (4th Cir. 2008) Third, if an officer’s assertion of qualified immu- (citations omitted). nity cannot be overcome, consider circumventing it. 7. Id. As noted above, municipalities being sued pursuant 8. Thomas v. Holly, 533 F. App’x 208, 221 (4th Cir. 2013). 9. Shaw v. Stroud, 13 F.3d 791, 802 (4th Cir. 1994). to Monell v. Department of Social Services cannot 10. Spell v. McDaniel, 824 F.2d 1380, 1389 (4th Cir. 1987). assert the defense of qualified immunity. Accord- 11. Federal Courts will deem Eleventh Amendment im- ingly, a municipality may be held liable for its role munity to have been waived by a removal to federal in causing a deprivation of federal rights even if court. By removing this case and voluntarily invoking the illegality of the individual conduct causing the the jurisdiction of this Court, Defendants have waived deprivation is not clearly established in decisional any Eleventh Amendment immunity they may have law. Moreover, Virginia law allows a victim of ex- possessed. Simpson v. Virginia, No. 1:16cv162, 2016 cessive force to seek recovery against the individual U.S. Dist. LEXIS 95579, at *16 (E.D. Va. July 21, officer under the common law tort of battery.23 Such 2016). a claim involves proving that the officer used more 12. Estate of Armstrong v. Vill. of Pinehurst, 810 F.3d 892, force than was reasonably necessary.24 Moreover, 907 (4th Cir. 2016). 12 The Journal of the Virginia Trial Lawyers Association, Volume 28 Number 2, 2020

13. Pearson v. Callahan, 555 U.S. 223, 242 (2009). 14. Id. 15. Saucier v. Katz, 533 U.S. 194, 201 (2001) (noting that the issue of whether a constitutional violation occurred was a “threshold question” that “must be the initial inquiry”). 16. Pearson v. Callahan, 555 U.S. 223, 225 (2009). 17. https://www.reuters.com/investigates/special-report/ usa-police-immunity-scotus/ 18. Siegert v. Gilley, 500 U.S. 226, 232 (1991). 19. Henry v. Purnell, 501 F.3d 374, 377 n.2 (4th Cir. 2007). 20. Richardson v. McKnight, 521 U.S. 399, 404 (1997). 21. Jones v. Martinsburg, et al., No. 18-2142, slip. op. at 17 n.5, (4th Cir. June 9, 2020) (citing Browder v. City of Albuquerque, 787 F.3d 1076, 1082–83 (10th Cir. 2015)). 22. Browder, 787 F.3d at 1082–83 (holding that “some things are so obviously unlawful that they don’t require detailed explanation,” and explaining that “it would be remarkable if the most obviously unconstitutional conduct should be the most immune from liability only Isaac McBeth is a because it is so flagrantly unlawful that few dare its civil rights attorney attempt”). who practices with the 23. Davidson v. Allam, 143 Va. 367, 373, 130 S.E. 245, Halperin Law Center. 246 (1925); see also Palmer v. Commonwealth, 143 He routinely litigates Va. 592, 602-03, 130 S.E. 398, 401 (1925) (“[W]hen claims involving the use an officer attempts to arrest a person charged with a of excessive force by felony and uses more force than is reasonably neces- law enforcement officers sary to make the arrest, the officer himself becomes a in connection with his wrongdoer . . . .”). practice. 24. While “[a]n officer’s liability for the use of excessive force under § 1983 is not completely ‘co-extensive with the common law tort liability for battery,’” Clem www.halperinlegal.com v. Corbeau, 98 F. App’x. 197, 204 (4th Cir. Apr. 29, 2004) (citations omitted), “unreasonable or unneces- sary force [is] the touchstone of both causes of action.” Carter v. Rogers, 805 F.2d 1153, 1158 (4th Cir. 1986). 25. Simpson, 2016 U.S. Dist. LEXIS 95579, at *28.