In Hot Pursuit of Qualified Immunity

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Lisa Soronen is the Executive Director of the State and Local Legal Center and a regular contributor to CitiesSpeak.

While a recent Washington Post article notes that the Supreme Court isn’t hearing as many cases as usual this winter, the Court has not been shy about taking qualified immunity cases.  Recently, the Court decided to hear two such cases and issued an opinion in a third case without oral argument.  The State and Local Legal Center will file an amicus brief in both of the newly granted cases.

Qualified immunity is important to local government officials because it serves to balance the need to hold public officials accountable when they exercise power irresponsibly with the need to shield officials from harassment, distraction, and liability.

Government employees can be sued for money damages in their individual capacity if they violate a person’s constitutional or federal statutory rights. Qualified immunity protects government officials from such lawsuits where the law they violated isn’t “clearly established.”  In short, qualified immunity is intended to protect “all but the plainly incompetent or those who knowingly violate the law.”

In Wood v. Moss pro- and anti-President Bush demonstrators had equal access to the President as his motorcade arrived in Jacksonville, Oregon.  But when the President made an unexpected stop for dinner, Secret Service agents moved the anti-Bush protesters, who were closer to the restaurant than the pro-Bush demonstrators, about one block further from the President than the pro-Bush demonstrators.   The anti-Bush protesters sued two Secret Service agents, claiming they violated their First Amendment rights by discriminating against them because of their viewpoint.

The Ninth Circuit denied the agents qualified immunity; they concluded that the agents engaged in viewpoint discrimination but did not focus on whether it was “clearly established” that the anti-Bush protesters could not be moved further away from the President than the pro-Bush demonstrators.   The Supreme Court will decide whether the lower court evaluated the qualified immunity question in this case too generally.  The Court will also decide whether the anti-Bush protesters have adequately claimed viewpoint discrimination when there was an obvious security-based rationale for moving them:  they were closer to the President.

In Plumhoff v. Rickard, police officers shot and killed Donald Rickard and his passenger after Rickard led police on a high-speed chase. Their families sought money damages, claiming the officers violated the Fourth Amendment by using excessive force. The officers argued they should be granted qualified immunity because their use of force wasn’t prohibited by clearly established law. In this case the Court will decide whether the lower court properly denied qualified immunity by distinguishing this case, which arose in 2004, with a later Supreme Court decision from 2007. The Court also will decide whether qualified immunity should be denied based on the facts of this case. Rickard wove through traffic on an interstate connecting two states, collided with police vehicles twice, and used his vehicle to escape after being surrounded by police officers, nearly hitting at least one officer.

In Stanton v. Sims the Supreme Court reversed the Ninth Circuit’s refusal to grant qualified immunity to a police officer who kicked open a private gate, which hit the homeowner, while in “hot pursuit” of someone the officer thought committed a misdemeanor.  The Ninth Circuit concluded that it was clearly established that a police officer may not enter someone’s property without a warrant while in “hot pursuit” of someone suspected only of a misdemeanor and deemed the police officer “plainly incompetent” in his actions  The Supreme Court disagreed and reversed the judgment of the Ninth Circuit.