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Last week I was in Santa Rosa teaching a seminar about “qualified immunity” to a roomful of lawyers and law enforcement officers. I like doing these seminars, because it gives me the chance to talk to police officers and lawyers who defend them in a friendly, educational setting.

Qualified immunity is a defense that police officers and other public officials can assert when they are sued by federal claims for money damages. Qualified immunity protects a law enforcement officer from suit – even if he violated someone’s rights – where a reasonable officer would not have known that his conduct violated a constitutional right that was clearly established at the time of the incident.

This special defense is only available to public officials. Private people cannot claim qualified immunity if they hurt someone. And you will not find “qualified immunity” anywhere in the Constitution. This special defense that police officers enjoy was created wholly by courts to protect police from civil responsibility when they violate someone’s rights in all but clear cases. Thus, qualified immunity is the result of judicial activism meant to shield certain public officials from accountability when they violate the Constitution.

But as I explained to that roomful of officers and lawyers, police should not expect to receive qualified immunity in most civil rights cases brought in federal courts in California and the Ninth Circuit. The reason is that the Supreme Court and the Ninth Circuit Court of Appeals have explained that when excessive force or false arrest are alleged, qualified immunity generally will apply only in “borderline” cases. When an officer has “fair warning” under existing case law that his conduct violates rights, he will not be protected by qualified immunity.

By now, there is ample authority that when an officer uses force that is objectively unreasonable under the circumstances, that excessive force is unlawful under the Fourth Amendment to the United States Constitution. The Ninth Circuit and lower district courts have applied this standard rendering the law “clearly established” in case after case, regardless of the type of force used by an officer – control holds, handcuffing, takedowns, baton strikes, pepper spray, Tasers, gunshots, and even gunpoints.

The same is true in most cases involving false arrest, since courts have held that the requirement of “probable cause” for any arrest “is a bedrock Fourth Amendment precept.” Reasonable law enforcement officers are so trained, and are expected to know this.  In fact, evidence that an officer violated his own training, his department’s policies, or statewide standards, is often enough to defeat qualified immunity.

Consequently, many courts have held that where excessive force or false arrest are claimed, such cases generally must go to a jury to decide whether the officer violated the Constitution. Only in novel or borderline cases will qualified immunity protect an officer from having to stand trial.

Also, qualified immunity does not apply at all to state law claims, or claims against a government, such as a city or county. When possible, my firm, Haddad & Sherwin, brings both federal and state law claims for our clients, and we name the government as a co-defendant when appropriate. We study the latest developments in the law so our clients have their best chance to defeat an officer’s claim of qualified immunity, and obtain justice when their rights have been violated.


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