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Qualified Immunity in Use of Force CasesUnited States Supreme Court

Jack Ryan

An individual officer’s greatest shield in a lawsuit that alleges a violation of civil rights is qualified immunity. A decision by the United States Supreme Court in December, further clarified the strength of this immunity.

In Brosseau v.Haugen, 543 U.S.___; 2004 U.S. LEXIS 8275 (2004), the United States Supreme Court examined a case involving the use of deadly force by Officer Brosseau of the Puyallup, Washington Police Department who shot Kenneth Haugen in the back as he fled in his vehicle from the police.

The concept of qualified immunity involves shielding a police officer from a lawsuit where the officer’s actions do not violate clearly established federal rights. In other words, where the law is unclear on a particular course of conduct an officer does not have notice that the conduct is wrong and is immune from suit.

In analyzing whether an officer is entitled to qualified immunity, a court undertakes a two-step process. The first step asks the question: Did the officer’s conduct violate the constitution? If the answer to this question is no, then the officer is not liable and the case is over. During this analysis the court looks at all the facts in the light most favorable to the person suing the police officer. If the answer to this first question is yes, the officer’s conduct did violate some right then the court proceeds to a second question. The second question is: Was the right so clearly established that a reasonable police officer would know that his or her conduct violated the right? If the answer to this question is “no” the officer again escapes liability because he or she did not know that the conduct in question was bad. Only if the answer is that a reasonable police officer was on notice that the conduct was bad, could the lawsuit proceed. [This two-step process was outlined by the United States Supreme Court in Saucier v. Katz, 533 U.S. 194 (2001).]

In Brosseau v. Haugen, the United States Court of Appeal for the 9th Circuit had ruled that Officer Brosseau was not entitled to qualified immunity in her use of deadly force against Kenneth Haugen.

Officer Brosseau began investigating Haugen as the result of a complaint filed by Glen Tamburello, a former crime partner of Haugen, who reported that Haugen had stolen tools from him. During her investigation, Officer Brosseau learned that Haugen had felony warrants for his arrest.

The following day, Tamburello confronted Haugen in Haugen’s driveway. The confrontation escalated to a full-blown disturbance which prompted the response of the police, including Officer Brosseau. When Officer Brosseau arrived, Haugen fled on foot. While officers searched for Haugen they “instructed Tamburello and Atwood to remain in Tamburello’s pickup. They instructed Deanna Nocera, Haugen’s girlfriend who was also present with her 3-year-old daughter, to remain in her small car with her daughter. Tamburello’s pickup was parked in the street in front of the driveway; Nocera’s small car was parked in the driveway in front of and facing the Jeep [Haugen’s Jeep]; and the Jeep was in the driveway facing Nocera’s car and angled somewhat to the left. The Jeep was parked 4 feet away from Nocera’s car and 20 to 30 feet away from Tamburello’s pickup.”[The detailed analysis of the vehicles positions is important to the Court’s decision as to potential threat to Nocera and her child as well as Tamburello and Atwood when Haugen attempted to flee in the Jeep]

At some point Haugen was spotted and Officer Brosseau pursued him on foot to his Jeep. Brosseau believed that Haugen was running to the Jeep to retrieve a weapon. Haugen entered the Jeep and locked the door. He then began rummaging for his keys. Officer Brosseau used her handgun to smash the driver’s window and attempted to reach in and stop Haugen striking Haugen with her gun in the process. Haugen was able to start the car. “As the Jeep started or shortly after it began to move, Brosseau jumped back and to the left. She fired one shot through the rear driver’s side window at a forward angle, hitting Haugen in the back. She later explained that she shot Haugen because she was ‘fearful for the other officers on foot who she believed were in the immediate area and for the occupied vehicles [Nocera and her child as well as Tamburello and Atwood] in Haugen’s path and for any other citizens who might be in the area.’” Haugen continued to flee but stopped after realizing he had been shot. Haugen pled to a felony eluding charge which included the element of “a wanton or willful disregard for the lives…of others.” Haugen filed a lawsuit based upon the shooting.

In analyzing Brosseau’s qualified immunity claim, the United States Court of Appeal for the 9th Circuit concluded on the first question of qualified immunity [Did the officers conduct violate a federally protected right?] that Officer Brosseau’s use of deadly force violated a federally protected right. In its review, the United States Supreme Court asserted “We express no view as to the correctness of the Court of Appeal’s decision on the constitutional question itself. We believe that, however that question is decided, the Court of Appeals was wrong on the issue of qualified immunity.” [The second question of the analysis-Was the right so clearly established that a reasonable officer know that the conduct violated a federally protected right.”

The Supreme Court stated: “Qualified immunity shields an officer from suit when she makes a decision that, even if constitutionally deficient, reasonably misapprehends the law governing the circumstances she confronted.” In the use of force context, “qualified immunity operates to protect officers from the sometimes hazy border between excessive and acceptable force.” The Court noted that “the parties point us to only a handful of cases [note: cases/court decisions put law enforcement on notice of clearly established law] relevant to the situation Brosseau confronted: whether to shoot a disturbed felon, set on avoiding capture through vehicular flight, when persons in the immediate area are at risk from that flight.”

The Court in reviewing lower court cases pointed out that some cases had found no violation of the 4th Amendment where fleeing motorists who posed a threat had been shot as well as cases where summary judgment and qualified immunity had been denied where officers shot the fleeing motorists. The Court concluded that these cases demonstrate that the use of deadly force against a fleeing motorist requires a fact-driven analysis and that the law in this area was not clearly established thus Officer Brosseau should have been granted qualified immunity.

From the perspective of a police officer it should be noted that decisions regarding any use of force involves three important aspects. First, how serious was the offense suspected? Here, Officer Brosseau was aware of active felony warrants including one which was non-bailable. Second, did the suspect pose a threat to an officer of some third party who was present at the scene? Here, Officer Brosseau’s articulated fear for other officers as well as Nocera, Nocera’s daughter, Tamburello and Atwood was noted by the Court. Haugen also pled to a charge which acknowledged his danger to others. Finally, was Haugen actively resisting or attempting to evade arrest by flight? Clearly the answer is yes.

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