FEATURED IN TRAINING
In doing research regarding the use of deadly force, I read no less than three court opinions that were each decided in November 2009 involving shootings of children between the ages of 12 and 16. I was struck by the ages of these youths, who were confronted by police officers in a variety of situations while armed variously with guns, knives and toy guns. Each of these court decisions was the subject of motion for summary judgment by the shooting officers. That is, the officers who shot the individuals asked their respective court to enter judgment on their behalf as a matter of law. They relied on the same theory: They were each entitled to qualified immunity.
In general, qualified immunity is a legal concept used by police officers as a defense in federal litigation. Qualified immunity shields police officers from liability for civil damages (i.e., having to pay money if found liable in a civil lawsuit) if their actions didn t violate clearly established statutory or constitutional rights of which a reasonable person would have known.
The U.S. Supreme Court has held that qualified immunity is not only an immunity from liability, but also an immunity from suit. According to the Supreme Court, immunity should be decided by the court long before trial. Indeed, [u]nless the plaintiff's allegations state a claim of violation of clearly established law, a defendant pleading qualified immunity is entitled to dismissal before the commencement of discovery.  Unfortunately, it s very rare that the issue of qualified immunity gets resolved before extensive discovery occurs.
The qualified immunity analysis is distinct from the merits of a plaintiff s underlying claim. It's a legal question that must be decided by the judge (as opposed to a jury) early in the proceedings.
When a police officer asserts the qualified immunity defense on a motion for summary judgment, the burden shifts to the plaintiff (the person suing the police officer) to demonstrate both prongs of qualified immunity that: 1) the officer violated a constitutional right, and 2) the constitutional right was clearly established. It s important for officers to understand that the judge must construe the facts in the light most favorable to the plaintiff on a motion for summary judgment. In other words, the judge will generally accept the facts as the plaintiff alleges them if those facts are supported by the evidence produced in discovery. If the judge finds that either the officer didn t violate a constitutional right or the constitutional right wasn't clearly established, the defendant police officer is entitled to qualified immunity.
Why should officers understand this abstract concept? Isn't this the kind of stuff that the officers lawyers should know? The answer is yes, but occasions exist when even lawyers have difficulty understanding the complexity of qualified immunity, particularly in the context of deadly force.
The use of force (deadly or non-deadly) is governed by the objective reasonableness test set forth inGraham v. Connor. This test analyzes the officers actions in light of the facts and circumstances confronting them. Further, the reasonableness of the officers use of force is evaluated by looking at the totality of the circumstances.
Britton v. Thompson
Some plaintiffs argue, and some courts consider, the officers actions leading up to the shooting when determining whether an officer s use of deadly force was reasonable under the totality of the circumstances. Indeed, that is what the plaintiff argued inBritton v. Thompson.
InThompson,16-year-old Jesse Britton was suspected of committing several burglaries, one of which involved a stolen firearm. During their investigation, police officers learned that Britton was hiding in a vacant building in downtown Crawford, Neb. One of the officers had learned that Britton had threatened to shoot him.
An officer contacted the realtor for the building and obtained permission to enter. Two officers entered the building using the realtor's keys. While searching the first floor, the officers heard footsteps above them. The officers proceeded to the second floor, where they found Britton crouched behind some furniture. The officers shouted at him to show his hands. Instead, he sprang up and pointed a gun at the officers. The officers shouted at him to drop the weapon, but he refused. Believing that they were going to be shot, the officers fired their weapons at Britton, who died as a result.
Britton's mother filed a civil rights lawsuit against the officers. However, she did not claim that the officers lacked probable cause to arrest Jesse or even that their use of deadly force was unreasonable when they confronted him at the moment they shot him. Instead, she argued that the officers violated Britton s rights under the Fourth Amendment when they creat[ed] a foreseeably dangerous situation in which they arrested [Britton].  Indeed, many relatives of loved ones shot and killed by police officers make the same argument as a result of asking such questions as: Why did the officers have to go in the building to get him out? Why didn t the officers come up with a better plan? Why didn t the officers execute the raid better?
In Thompson, the plaintiff relied on statements of other law enforcement officers, who claimed they would not have entered the building under the circumstances the defendant officers were presented with. Upon learning of these statements, the plaintiff argued that the officers entry was a reckless provocation of violence that rendered the officers use of deadly force unreasonable. 
Fortunately for the plaintiff, some federal circuit courts agree with her. Example: The Third and 10th Circuit Courts of Appeals take into consideration an officer s pre-seizure conduct in evaluating whether the officer s use of deadly force was reasonable. Unfortunately for the plaintiff, the incident happened in the Eighth Circuit, which holds that the reasonableness inquiry only addresses the facts known to the officer at the precise moment of the seizure, not the officers actions leading to the confrontation.  Therefore, theThompsoncourt didn t even consider the plaintiff s argument that the officers entry into the building created the circumstance under which they were required to use deadly force.
It s mindboggling that there s a disagreement among the circuit courts regarding what facts and circumstances should be considered under the reasonableness analysis set forth in Graham v. Connor 20 years after the court rendered its decision.
And here s my point: In determining whether officers are entitled to qualified immunity in the use of deadly force, the plaintiff has the burden of demonstrating that the law was clearly established at the time of the incident, as opposed to the time of the lawsuit. And when a plaintiff makes the argument that the officers created the need to use deadly force, and, therefore, the use of force was unreasonable, the officers response should be that they are entitled to qualified immunity because the law was not clearly established. Surely, as the district court in Thompson asserts: Where the federal circuits disagree about a point of law, the law cannot be considered clearly established.  As such, officers should always argue that they are entitled to qualified immunity under these circumstances until the Supreme Court rectifies the split in the circuit courts regarding officers pre-seizure conduct.
1. Chappell v. City of Cleveland, 585 F.3d 901 (6th Cir. 2009); Britton v. Thompson, Case No. 7:08CV5008 2009 WL 4114609 (D. Neb. Nov. 20, 2009); Nance v. Sammis, No. 09-1353 2009 WL 3735814 (8th Cir. Nov. 10, 2009).
2. Some states have qualified immunity for various state torts as well but, for the most part, in police shooting cases the concept of qualified immunity is a federal issue.
3. Pearson v. Callahan, ___ U.S. ___, 129 S.Ct. 808, 815 (2009).
4. Hunter v. Bryant, 502 U.S. 224, 227 (1991) (citing Mitchell v. Forsyth, 472 U.S. 511, 526 ).
6. Mitchell, 472 at 526 (citing Harlow v. Fitzgerald, 457 U.S. 800, 818 ).
7. Saucier v. Katz, 533 U.S. 194, 200 (2001).
8. Pearson, 129 S.Ct. at 815-16.
9. Scott v. Harris, 550 U.S. 372, 378 (2007).
10. 490 U.S. 386, 388 (1989).
12. Thompson, 2009 WL 4114609 *4.
14. See, Abraham v. Rasso, 183 F.3d 279 (3rd Cir. 1999); Allen v. Muskogee, 119 F.3d 837 (10th Cir. 1997).
15. The 1st, 2nd, 4th, 7th and 11th Circuits agree with the 8th Circuit.
16. Schulz v. Long, 44 F.3d 643, 649 (8th Cir. 1995).
17. Thompson, at *5.
Do not construe this column as legal advice. Each police officer should consult with an attorney in their jurisdiction for legal advice on any specific issue.