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General Right to “Be Free From Excessive Force” Not Specific Enough to Defeat Qualified Immunity

   Published on:  16 Jan, 2019

The United States Supreme Court issued a per curiam opinion on January 7, 2019, in City of Escondido v. Emmons, reiterating that denial of qualified immunity to a police officer in an excessive force case must be based on violation of a clearly established right that is defined with specificity. It is well-established that qualified immunity “attaches when an official’s conduct does not violate clearly established statutory or constitutional rights of which a reasonable person would have known.” White v. Pauly, 580 U.S. ____, 137 S.Ct. 548, 551 (2017) (per curiam). Following on its 2018 decision in Kisela v. Hughes, 584 U.S. ___, 138 S.Ct. 1148 (2018), in Escondido v. Emmons, the Supreme Court emphasized, in reversing the Ninth Circuit, that it meant what it said in instructing that a court must not define the “clearly established right” that is violated “at a high level of generality.” In doing so, the Court characterized as “quite puzzling” the Ninth Circuit’s one-line analysis denying qualified immunity.

The facts of the case go a long way towards explaining why the Supreme Court was puzzled by the Ninth Circuit’s decision. The events described were recorded on police body camera video, and were in the record.

The Escondido police responded to a 911 domestic violence call by Ms. Emmons, who lived with her husband, her children and a roommate, Ms. Douglas. The officers arrested Mr. Emmons in connection with the incident. A few weeks later, the police received another call for a possible “domestic disturbance,” this time from Ms. Douglas’ mother, who was on the phone with her daughter when Ms. Douglas screamed for help. When the police arrived and knocked, no one answered, but they communicated with Ms. Emmons through a window and asked her to open the door for a welfare check. An unidentified man in the apartment told Ms. Emmons to back away from the window, and the officers were not allowed in. A few minutes later, a man opened the apartment door and came outside. It turns out that this man was Ms. Emmons’ father, though this appears to have been unknown to the officers at the time.

Officer Craig told the man not to close the door, but he disobeyed and closed the door, trying to move past the officer. Officer Craig “stopped the man, took him quickly to the ground, and handcuffed him.” Officer Craig did not hit the man or take out his weapon, and the video does not offer any audible or visual indication that the man was in any pain. The officers helped the man up and arrested him for misdemeanor resisting and delaying a police officer. The man sued Officer Craig and Sgt. Toth, one of the officers who arrived as back-up, alleging excessive force.

The District Court held that the officers had probable cause for the arrest and rejected the excessive force claim, finding based on the video that the “officers acted professionally and respectfully in their encounter.” The District Court granted summary judgment to Sgt. Toth because he had used no force whatsoever. The District Court also granted summary judgment to Officer Craig, holding that the law did not clearly establish that the officer could not use a take-down to detain Mr. Emmons under the circumstances presented – where the officers were responding to a domestic dispute, the officers were not permitted to perform a welfare check, and the officers did not know when Mr. Emmons left the apartment (and was non-compliant) whether he was armed and/or had hurt anyone inside.

The Ninth Circuit reversed and remanded on the excessive force claims against both Officer Craig and Sgt. Toth. On the qualified immunity question, the “Ninth Circuit’s entire relevant analysis of the …. question consisted of the following: ‘The right to be free of excessive force was clearly established at the time of the events in question.'” The Supreme Court reversed as to Sgt. Toth, who had used no force at all against Mr. Emmons, criticizing the Ninth Circuit’s failure to offer any explanation for its decision in light of the District Court’s factual findings. As to Officer Craig, the Supreme Court vacated the Ninth Circuit ruling and remanded for further analysis consistent with “repeated” Supreme Court guidance on qualified immunity that specificity of the clearly established law is required. In doing so, the Court quoted from its recent Kisela opinion: “Use of excessive force is an area of the law in which the result depends very much on the facts of each case, and thus police officers are entitled to qualified immunity unless existing precedent squarely governs the specific facts at issue …. An officer cannot be said to have violated a clearly established right unless the right’s contours were sufficiently definite that any reasonable official in the defendant’s shoes would have understood that he was violating it.”

On remand of the claim against Officer Craig, the Ninth Circuit was instructed to engage in the factual analysis it neglected earlier. If the Ninth Circuit is to deny qualified immunity, it must do so based on “identify[ing] a case where an officer acting under similar circumstances was held to have violated the Fourth Amendment,” citing District of Columbia v. Wesby, 583 U.S. ___ (2018). And in the absence of a directly comparable case, “… existing precedent must place the lawfulness of the particular [action] beyond debate.” Although Officer Craig is not yet out of the woods, under the Supreme Court’s strict instructions, it is highly unlikely the case against him can continue.

If you have any questions about this alert, please contact Wendi Berkowitz.