Where there’s no consequence, there is no change: Qualified Immunity and Respondeat Superior in Police excessive force cases
By Joseph Schreiber:
After the murder of George Floyd at the hands of a Minneapolis officer who had at least seventeen complaints filed against him,1 and the killing of Breonna Taylor in a botched no-knock warrant entry,2 there has been long overdue attention paid to the doctrine of qualified immunity, which is a bar to holding police officers liable in excessive force cases. The doctrine of qualified immunity is not new, and by itself would not create an insurmountable barrier to lawsuits. However, courts and particularly the U.S. Supreme Court have tightened the vice on bringing lawsuits against rogue police officers to the point where there is little redress absent mass demonstrations. Courts have prevented liability against the cities that employ the rogue officers, rejecting respondeat superior – the legal doctrine that makes employers liable for their employees’ actions in the course and scope of employment. Such overbroad immunity removes the largest incentive for cities to clamp down on rogue officers.
We argue that Congress should reform civil rights law to clarify and ease the legal standard for qualified immunity, and allow lawsuits against employers of police: municipalities under the doctrine of respondeat superior, where employers are liable for the actions of their employees taken in the course and scope of employment, as a practical deterrent to excessive force by making the consequences not only flow to the individual officer, but to any department that would hire them. This would very likely curtail rogue officers who have serious misconduct from being rehired, something that is a real problem now.
At the outset of this discussion, we think it is important to state that neither the author, his law partner, or our law firm are anti-police. Prior to being a lawyer, I worked as a teacher and juvenile jail guard. We have represented jail guards, frequently rely on police testimony in personal injury and malicious prosecution cases, and both of us have family members who are police and law enforcement officers. We are not anti-police. What we are against is overbroad immunity doctrines that prevent injured people from being made whole through the legal system. We bring cases on behalf of those who are injured through the fault of others and fight injustice. We believe a properly functioning civil society needs a properly functioning police system along with a fair and impartial court system which offers redress to those who have been injured and provides incentives to change behavior of people and institutions who have or would cause harm. Qualified immunity, in its current form, and the prohibition against respondeat superior impair access to justice and leave mass protests as the only viable outlet to bring change.
Qualified Immunity and how it works
“Qualified immunity” is a legal doctrine that both changes the burden of proof for civil rights claims against police and puts up severe barriers to the claim. The doctrine is summarized:
Qualified immunity protects government officials from civil liability in their individual capacity to the extent that their conduct does not violate clearly established statutory or constitutional rights. “A good-faith assertion of qualified immunity alters the usual summary judgment burden of proof,” shifting it to the plaintiff to show that the defense is not available. A plaintiff seeking to overcome qualified immunity must show: “(1) that the official violated a statutory or constitutional right, and (2) that the right was ‘clearly established’ at the time of the challenged conduct.” Courts of appeal are free to decide which of the two prongs of the qualified immunity analysis to address first. The second prong is satisfied only if “the state of the law at the time of the incident provided fair warning to the defendants that their alleged [conduct] was unconstitutional.” 3
Qualified immunity is a defense that protects government officials, only, from civil liability – meaning it protects police from lawsuits seeking money damages. Complete immunity, like the doctrine of sovereign immunity, means that an injured person cannot file a lawsuit at all. Qualified immunity is only a small step below that. Once an officer is sued, the officer merely has to file a document with the court that invokes qualified immunity, and then instead of the officer having to prove that his actions fit within the qualified immunity, the injured person has to prove that they do not. This is not a semantic difference. It changes the burden of proof. Normally when a defendant pleads a defense to liability, it is up to the defendant to prove. Here, the plaintiff has to overcome the officer’s defense and if the plaintiff/injured person cannot come up with that proof to the court’s satisfaction, the case will be dismissed.
The first element of the test is to establish that the officer violated a statutory or constitutional right. Civil rights cases are brought under 42 U.S.C. § 1983 and are referred to as 1983 cases. However, § 1983 “is not itself a source of substantive rights,” but merely provides “a method for vindicating federal rights elsewhere conferred.”4
In cases of police excessive force, the US Supreme Court in 1989 held that the claim must fall under the Fourth Amendment’s prohibition of unreasonable search and seizure. Prior to 1989, most excessive force cases were brought under the 14th Amendment’s prohibition against police actions which took away the plaintiff’s rights without due process of the law. The change in 1989, in the case of Graham v. Connor,5 had real-world effects. The Supreme Court held in Graham that under the Fourth Amendment:
The “reasonableness” of a particular use of force must be judged from the perspective of a reasonable officer on the scene, rather than with the 20/20 vision of hindsight. The Fourth Amendment is not violated by an arrest based on probable cause, even though the wrong person is arrested, nor by the mistaken execution of a valid search warrant on the wrong premises. With respect to a claim of excessive force, the same standard of reasonableness at the moment applies: “Not every push or shove, even if it may later seem unnecessary in the peace of a judge's chambers,” violates the Fourth Amendment. The calculus of reasonableness must embody allowance for the fact that police officers are often forced to make split-second judgments -- in circumstances that are tense, uncertain, and rapidly evolving -- about the amount of force that is necessary in a particular situation.
As in other Fourth Amendment contexts, however, the “reasonableness” inquiry in an excessive force case is an objective one: the question is whether the officers’ actions are “objectively reasonable” in light of the facts and circumstances confronting them, without regard to their underlying intent or motivation. An officer’s evil intentions will not make a Fourth Amendment violation out of an objectively reasonable use of force; nor will an officer's good intentions make an objectively unreasonable use of force constitutional.6
The Supreme Court standard asks the District Court to determine what amount of force was necessary at the time, based on what the officer saw at the time, not what turned out to be correct later. In that way, if the officer claims that he saw what he took to be a gun in the hand of a supposed criminal, even if the officer is wrong, if the belief was reasonable at the time, the officer will have no liability. However, if what the officer did was unreasonable, based on what he knew at the time, there could be liability.
It theoretically doesn’t matter what was going on in the officer’s head, whether he was malicious or had good intentions. If what he did was reasonable at the time, based on what he saw then, the court will not impose liability. On the one hand, this makes the job of the plaintiff somewhat easier because the plaintiff does not have to show that the officer had a personal dislike of the Plaintiff or someone with his characteristics (race, ethnicity, sex, age). But on the other hand, by pulling the officer’s motivation out of the equation, it removes testimony about why the officer did what he did, which is usually the basis for liability. An officer who has racial animosity toward a person who he injures can get away with that animosity if the officer can convince the court that what he saw was objectifiable reasonable.
In the days before everyone had video cameras in their phones and officers did not wear body cameras, it was very easy for an officer to come up with a justification for his actions. This is particularly true if the suspect ended up dead and thus was unable to testify. With the advent of body cameras, phone cameras, doorbell cameras, and dashboard cameras, the reasonableness of police actions is much easier to actually determine objectively. Video evidence assists both victimized citizens and good police officers, and video has saved numerous people falsely accused of crimes.
b. The “controlling authority” catch-22
There is an old legal adage that bad facts make bad law. In cases where there is a legal right but the court determines it would come to an unjust or unwise result, instead of just saying that, courts sometimes do legal yoga to try to come to the result they want, while writing opinions that have dire effects on future cases. Ashcroft v. al-Kidd 7 was just such a case. al-Kidd was an American citizen who was believed to have information (and connections) to Al Qaeda in the aftermath of the September 11, 2001 terror attacks. Federal authorities arrested him when he was waiting for an airplane to Saudi Arabia. The stated basis was that he was a “material witness” who was likely to flee the jurisdiction. There was no evidence or even credible allegation that al-Kidd had himself done anything wrong, or he would have been arrested for a crime. He was held in jail, and later his movements were severely restricted because the government thought he might be a witness against someone else. al-Kidd was never called as a witness in anyone’s trial. He later sued, claiming that his civil rights were violated, which they were.
However, there was no way politically that the Supreme Court was going to allow someone with suspected ties to Al Qaeda to successfully sue the United Stated government for civil damages. The Supreme Court focused on the second prong of the qualified immunity test: “that the right was ‘clearly established’ at the time of the challenged conduct.” The Court ruled that a plaintiff stating that he was unreasonably seized was not enough and that the plaintiff could not “define clearly established law at a high level of generality: ‘The general proposition, for example, that an unreasonable search or seizure violates the Fourth Amendment is of little help in determining whether the violative nature of particular conduct is clearly established.’”8 Instead, the Court claimed that the plaintiff had to define the right very specifically – like the misuse of a material witness warrant – and then show that such a violation of law was subject to a “robust consensus of cases of persuasive authority.”
In this way, the Supreme Court created a Catch-22 for new litigation. The very specific thing that was done to the plaintiff must have been done before, and at least one court – and probably more than a few –must have ruled that it was both illegal and would support a civil rights suit. The problem with this logic is that if you are the first person to bring a claim, even if the police conduct was obviously illegal, no court would have ruled in your favor and you cannot support a lawsuit. If you are the second person, you still cannot win because the first person’s case was thrown out. If you are the tenth person, then nine people before you lost, and your case has no hope. The court, ruling in al-Kidd, basically stopped unreasonable force or unreasonable seizure lawsuits, unless the exact type of lawsuit had already succeeded before 2011.
The al-Kidd case was cited by the Fifth Circuit (covering Texas, Louisiana and Mississippi) in Cass v. City of Abeline. There, the owner of a gold exchange store was targeted by local police for opposing a local ordinance that would require gold buyers to hold onto purchases for two weeks to make sure they were not stolen. Cass argued against the ordinance at a city council meeting. The police responded by securing a no-knock warrant to search and seize records of the business.9 This is an extremely dangerous type of warrant because the police are basically storming a home or business and look like violent criminals. If the homeowner or business owner has a gun then they may try to defend themselves against attackers – in this case the police. That is what happened in Cass. Making things worse, one of the officers was not wearing a shirt or jacket that identified him as police. That officer had his badge clipped to the outside of his belt. Cass was in the back of the store and heard a commotion, then saw someone come at him with a gun who was not wearing anything identifying himself as police that could be seen. He raised his own gun and was shot by the officer.
The Fifth Circuit found that the police were not justified in securing or using a no-knock warrant on a business that was not suspected of any criminal activity more serious than book-keeping violations, had never threatened the police, and had a history of cooperating with the police who had come to the business many times before without incident. Despite this, the Court determined that the police were shielded from liability because (1) the plaintiff could not utilize the fact that the police created the dangerous situation against them – the only thing that counted for reasonableness of force was what the officer experienced at the moment he fired his gun – not the fact that he had an unreasonable warrant, didn’t identify himself, and didn’t wear any identifying clothing when raiding a gold exchange; and (2) the plaintiff could not point to a “clearly established right” that was violated. It was not enough to show that the search was unreasonable. Cass was apparently supposed to show another time where a plaintiff had succeeded in suing a police force that had used a no-knock warrant for a book-keeping violation. This had not happened before, perhaps because it was so unreasonable. Since no one had done it before, Cass couldn’t sue. Since Cass couldn’t sue, the next time that a police force does the same thing, there won’t be a case.
In 2019, the Fifth Circuit again denied a civil rights case for excessive force when it found that the plaintiff did not identify established case law – preferably a number of cases – where the exact situation occurred and the plaintiff was successful, because: “Such specificity is especially important in the Fourth Amendment context, where the Court has recognized that it is sometimes difficult for an officer to determine how the relevant legal doctrine, here excessive force, will apply to the factual situation the officer confronts.” “If the right was not clearly established, the officer is entitled to qualified immunity even if his conduct violated the plaintiff’s constitutional rights. To be clearly established, “existing precedent” must “‘squarely govern’ the specific facts at issue.”10
The courts are very clearly giving police a pass on the unconstitutional use of excessive force. They are not doing it because of any language in the Fourth Amendment to the Constitution or §1983. This is judge-created law that allows unconstitutional excessive force unless the exact situation had been ruled on – and allowed to proceed – multiple times prior to 2011 when for all practical effects, development of the law stopped in its tracks.
Complicating things, the same court has at times held that a plaintiff does not need to show a case with the exact same facts that was successful. In Flores v. City of Palacios, the same Fifth Circuit held that “The central concept [of the test] is that of fair warning: The law can be clearly established despite notable factual distinctions between the precedents relied on and the cases then before the Court, so long as the prior decisions gave reasonable warning that the conduct then at issue violated constitutional rights.”11
The Flores case involved truly egregious facts, where the officer was clearly in the wrong and there was no way for a court to defend what it did, nor was there a political reason (like in al-Kidd) to deny the plaintiff’s case. In Flores, on the evening of July 16, 2002, Kalina sought to detain Erika Flores because she was parked on the wrong side of the road and because, when he shined a spotlight on her car, several people fled from the vicinity. Flores did not respond to Kalina’s repeated commands that she stop and instead drove away. Kalina shot her car to prevent her escape. When Flores stopped, Kalina arrested her for evading detention. Flores, who was sixteen years old at the time, violated an 11:00 p.m. weeknight curfew for minors. Later investigation revealed alcohol in the area surrounding where she had parked her car, though there is no evidence to suggest that she had been drinking. Kalina charged Flores with evading detention in a motor vehicle, but the charge was later dismissed.12
Firing a gun into the car of a minor whose only possible crime was driving away from a police car after being out past curfew is so obviously over the top and so obviously dangerous that the court did not give the officer a pass. The sheer level of outrageousness of the officer’s actions meant that there would be no corollary case with the exact facts. Similarly, in Flores v. Rivas, two El Paso police officers pulled a gun on a group of children ranging in age between 8 and 16 years old, who were celebrating a birthday in a park, then pulled the same gun on their mom who tried to intervene, then violently arrested a 13 year-old, throwing him on the ground after slamming him against a post, kicking him, and shoving the officer’s knee in the child’s face.13
There is no substantive legal difference between the two Flores cases and Cass, though the Courts applied different standards under the same law. The cases were factually distinct, in that in Cass, the business owner had a gun and pointed it at the man he did not know was an officer, while in each Flores case, the plaintiffs were innocent minors. However, the Fifth Circuit used a different legal standard for the same type of civil rights-excessive force cases (in one group of cases requiring a direct corollary of legal precedent on the same factual basis, but not in the others), this does not do anything to clarify the standards to which police are held. At best, parties and courts could distinguish the facts of the cases, though in each case the police conduct was an obvious constitutional violation. This divergence in the law does nothing to discourage the use of excessive force by police.
On one hand, the standard for Qualified Immunity is far too high. Police officers do need to be able to do their jobs. They are sometimes faced with split-second life and death decisions. Other times, like in Cass v. City of Abeline, they negligently create those same situations and then are allowed to dodge all legal responsibility.
Perhaps most problematic is the Supreme Court legal doctrine that excuses from all liability police officers who negligently execute warrants on the wrong house.14 The Supreme Court has held that police officers are allowed to be wrong and cannot be sued for being wrong. This makes no sense legally or factually. Police who enter the wrong home with guns drawn, particularly on no-knock warrants, are effectively armed home invaders. When they execute the warrant in the middle of the night, without announcing themselves, they are creating an extremely dangerous situation. There is no logical justification for allowing officers who are taking an action so dangerous to the homeowner and to themselves to have no consequence from being wrong. That kind of increased risk should bring increased responsibility.
The Breonna Taylor case involves a young African American woman who was shot and killed by police using a no-knock warrant for drug dealers they believed dealt drugs at another home across town, but the police believed that the drug dealers occasionally received packages at her home. Nothing would have indicated that a no-knock warrant was at all justified. In such a case, it remains to be seen how a court would rule on the merits of the case where the police had a search warrant signed by a judge and were faced by gunfire upon invading Taylor’s home with guns drawn.
Respondeat Superior, Municipal liability and the problem of who’s going to pay
There is no question, watching the video, that Derick Chauvin murdered George Floyd. There is no question that he used excessive force in violation of Mr. Floyd’s constitutional right to be free from unreasonable search and seizure (Fourth Amendment) and against excessive punishment (Eighth Amendment). There should be no question that Chauvin does not have qualified immunity. Mr. Floyd’s right to not be chocked to death under Chauvin’s knee when he was not resisting arrest should be “clearly established” at the time of the challenged conduct.
Similarly, in the Laquan McDonald case in Chicago, when Mr. McDonald was murdered by Sergeant Jason Van Dyke, shooting him without provocation or reason, there was no reasonable challenge under qualified immunity. The problem in both cases is who would pay for the violation of civil rights, and would a verdict change the behavior of the police forces involved.
Courts will not hold municipalities liable for the civil rights violations of police officers on their forces under the legal doctrine of respondeat superior. Under respondeat superior, which applies to all private employers, the employer is responsible for the negligent and even intentional torts of its managers and employees acting in the scope of their duties. If as bouncer uses excessive force on a club patron, the club is liable because part of the bouncer’s job is to use physical force. The same applies for armed security guards at private businesses. In a case that this law firm handled, a store manager was liable for an assault on an elderly customer because it was part of that manager’s job to interact with customers and decide who could stay in the store and who could leave and when to call the police. In Texas, armed security guard companies are required to carry million‑dollar insurance policies for their armed guards.
Without any good reason, the Courts have determined that cities are not similarly responsible for the conduct of their armed agents – police officers – for actions within the course and scope of their jobs.
The Supreme Court has long held that municipal liability cannot be sustained under a theory of respondeat superior.15 The Supreme Court found that the civil rights statute could not be “easily read to impose liability” on cities for the conduct of its employees, even in the course and scope of their employment, and claimed that Congress doubted its ability to hold cities liable for their employees actions.16 No such prohibition actually exists in 42 U.S.C. §1983, yet in the decades since this legal precedent was established, Congress has not gone back and made it explicit that cities should be held liable for the actions of their employees, acting in the course and scope of their jobs.
Instead, the Supreme Court left a very, very narrow path to hold cities liable. A plaintiff must:
identify a municipal “policy” or “custom” that caused the plaintiff’s injury. Locating a “policy” ensures that a municipality is held liable only for those deprivations resulting from the decisions of its duly constituted legislative body or of those officials whose acts may fairly be said to be those of the municipality. Similarly, an act performed pursuant to a “custom” that has not been formally approved by an appropriate decisionmaker may fairly subject a municipality to liability on the theory that the relevant practice is so widespread as to have the force of law.17
This is a very, very difficult standard to meet in excessive force cases, particularly if the trial judge chooses to side with the police and city. There is room to hold a city liable if an officer uses a choke hold that is either expressly allowed or trained to perform. Cities sending officers to “warrior training” courses and accepting military hardware from the federal government may become flashpoints in litigation.
This shouldn’t be necessary, though. Cities, like all other employers, should be responsible for the actions of their employees taken in the course and scope of employment. This is because it is well known that until very recently, like the last couple of weeks, prosecutors were very reluctant to bring criminal charges against police officers because police would then not testify for prosecutors in criminal cases. Other officers were reluctant to intercede against bad officers for fear of being denied backup in dangerous situations or having problems in the department. Simply put, it is hard for any individual to oppose a unified police force with immunity from its actions.
Civil tort liability can be a way to force change. Tort liability has been used to change corporate behavior in many different areas, from stopping discrimination to forcing safety.
When it is the individual officer, only, who may face financial liability, there is little incentive for the municipality that hires officers to change their ways. The public outcry after George Floyd’s death have proven that fear of riots can bring political pressure. For example, Chicago settled with the family of LaQuan McDonald for his murder by Sergeant Jason Van Dyke, largely to try to avoid potential riots from public exposure of the crime committed by Sergeant Van Dyke. The mass demonstrations eventually came years later when the settlement was leaked. However, fear of riots is not the proper motivator for changed behavior. The legal system can and should handle issues of justice.
Companies change their behavior in response to potential tort liability, particularly punitive damages. When making a settlement in an assault case, our firm’s demand was based not only on the damage suffered by the plaintiff, but also in negotiating for a number that was going to stop the defendant in the future. It had to be an amount that would force the company to change its ways, to train its employees to act properly, and to stop hiring people who were likely to commit assaults. If paid by an insurance company, it had to be enough that the insurance company forced the company to change and do the training or lose coverage.
When the City of San Francisco announces that it may stop hiring police officers who have records of misconduct, there is a very large problem with incentives.18 There is no reason that an office who has a record of misconduct should be shuttled to another city like pedophile priests. As the comedian Chris Rock said, there are some jobs that cannot tolerate bad apples; airline pilots is one of them, and so is being surgeon, or a police officer. If a hospital hires a surgeon who has a history of misconduct, it opens the hospital up to punitive damages, which are meant to change the conduct of the employer. In this way, the city should be incentivized to stop hiring officers guilty of misconduct, and officers who commit misconduct cannot get hired by other departments.
This happens far more than it should. Our firm handled a case where an assistant police chief of Oak Ridge, Texas, Matthew Antkowiak,19 was hired by the government as an expert witness. He was later withdrawn, but not before we disclosed on an exhibit list that Antkowiak resigned from the Dallas police after a million dollar settlement was paid20 on allegations with supporting video that Antkowiak beat an elderly black man, and then planted evidence on him, causing the black man to be jailed for 15 months. The story made the news and was easy to find. The fact that Antkowiak was hired by another town and made assistant police chief is ridiculous. That kind of behavior should be disqualifying for any law enforcement job. The only way it will be is if there is a financial consequence for any town that hires him.
If there is financial consequence for the city that hires a rogue police officer, and a greater consequence if a city hires a rogue officer after he has already committed misconduct elsewhere, that will change the behavior of the city faster and in a more civil manner than mass protests. In a court of law, the officer charged with misconduct can defend his actions, using the rules of evidence, as can the city that hired him. Rather than bankrupting the family of the officer only, with no consequence to the city and likely no recovery for the victim, the penalty ought to be shared by the employer, like it is in every other employment situation.
Qualified immunity for officers needs to be reformed. Police face life and death decisions, as do members of other professions, like trauma surgeons. The solution is not to give them immunity. The solution is to hold them to a standard of reasonableness like other professionals face. Officers can be judged on what was known or foreseeable to them at the time they took their actions. There could be a requirement that an expert in the field provide an expert report showing how the officer breached the standard of care, as a gateway to the claim. Regardless, courts should follow the law as it is written, not create additional hurdles for citizen suits.
To find an effective solution, Congress should make clear that municipalities will be responsible for officers’ conduct in the course and scope of employment under the doctrine of respondeat superior, like all other employers.
Giving rogue officers and the cities that hire them immunity for violations of citizens’ constitutional rights reduces the Constitution to an aspirational document, rather than the founding document in a free society where citizens’ rights are paramount and where the government exists to serve the people.
- Cass v. City of Abilene, 814 F.3d 721, 728 (5th Cir. 2016) (internal citations omitted).
- Graham v. Connor, 490 U.S. 386, 393-94, 109 S. Ct. 1865, 1870 (1989)
- Graham v. Connor, 490 U.S. 386, 109 S.Ct 1865 (1989)
- Graham v. Connor, 490 U.S. 386, 396-97, 109 S. Ct. 1865, 1872 (1989) (internal citations omitted).
- Ashcroft v. al-Kidd, 563 U.S. 731, 741, 131 S. Ct. 2074, 2083 (2011).
- Ashcroft v. al-Kidd, 563 U.S. 731, 742, 131 S. Ct. 2074, 2084 (2011).
- Cass v. City of Abeline, 814 F.3d 721 (5th Cir. 2016).
- McDonald v. McClelland, 779 F. App'x 222, 225-26 (5th Cir. 2019)
- Flores v. City of Palacios, 381 F.3d 391, 400 (5th Cir. 2004)
- Flores v. City of Palacios, 381 F.3d 391, 393 (5th Cir. 2004)
- Flores v. Rivas, No. EP-18-CV-297-KC, 2020 U.S. Dist. LEXIS 22047, at *9 (W.D. Tex. 2020)
- Graham v. Connor, 490 U.S.386, 389 (1989).
- Of Comm'rs of Bryan County v. Brown, 520 U.S. 397, 403 (1997).
- Of Comm'rs of Bryan County v. Brown, 520 U.S. 397, 403 (1997).
- Of Comm'rs of Bryan County v. Brown, 520 U.S. 397, 403-404 (1997) (internal citations omitted).