Qualified Immunity in Police Use of Force Claims
| Publication year | 1993 |
| Pages | 983 |
1993, May, Pg. 983. Qualified Immunity in Police Use of Force Claims
The law concerning excessive use of force and the doctrine of qualified immunity has seen considerable development in recent years. The courts have focused on two competing interests when determining whether the use of force by a police officer is excessive and whether government employees should be afforded qualified immunity while performing discretionary acts. The first is the individual's right to be free from unnecessary physical force and other intrusions. The second is the public's need to allow a police officer to execute his or her duties effectively without the hampering effect of civil lawsuits.
Described in this article are the standards involved in excessive use of force claims, the standards regarding qualified immunity and a review of the parameters which the federal circuit court decisions have applied to these claims. Specifically, this article emphasizes current developments in the Tenth Circuit Court of Appeals.
Police officers are exposed to civil liability for use of excessive force under both the federal Civil Rights Act at 42 U.S.C. § 1983 and traditional state tort laws.(fn1) For a plaintiff to state a claim under § 1983, the plaintiff must allege that the defendant acted under color of state law and that the defendant's actions deprived the plaintiff of a right secured by the federal constitution or federal laws.(fn2)
It should be noted that § 1983 does not create an independent substantive right, but is only a procedural statute which provides a remedy for deprivation of an existing right.(fn3) Therefore, it is necessary to identify the constitutional or statutory right independent of the Civil Rights Act.
The process of evaluating a claim for excessive use of force under § 1983 begins by identifying the specific constitutional right infringed by the application of force. Prior to 1989, it was uncertain whether a claim of excessive use of force, in the context of an arrest or investigatory stop, was a Fourth Amendment seizure violation or a Fifth Amendment substantive due process violation. The U.S. Supreme Court, in Graham v. Connor, clarified the law and established that the excessive use of force in the course of an arrest, investigatory stop or other "seizure" of a person is properly analyzed under the Fourth Amendment's "objective reasonableness" standard.(fn4) The Tenth Circuit recently held that claims of post-arrest excessive force, of an individual detained without a warrant, also are governed by the Fourth Amendment.(fn5) Litigants should note that many early opinions were based on the substantive due process analysis, rather than the Fourth Amendment, and are no longer applicable.(fn6)
The Graham court noted that Fourth Amendment jurisprudence has long recognized that the right to make an arrest or investigatory stop necessarily carries with it the right to use some degree of force. The "reasonableness" test of the Fourth Amendment, the Graham court stated, "requires a careful balancing of the nature and quality of the intrusion on the individual's Fourth Amendment interests against a countervailing government interest at stake."(fn7) The court found that the proper application of the reasonableness test requires
[c]areful attention to the facts and circumstances of each particular case, including the severity of the crime at issue, whether the suspect poses an immediate threat to the safety of the officer or others, and whether he is actively resisting arrest or attempting to evade arrest by flight.(fn8)
The test of reasonableness must be evaluated in light of the totality of the circumstances. Furthermore, the reasonableness inquiry must be made objectively and "judged from the perspective of a reasonable officer on the scene, rather than with the 20/20 vision of hindsight."(fn9) The Supreme Court also noted that
the calculus of reasonableness must embody an 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.(fn10)
Removed is any subjective factor concerning the good faith or malice of the police officer. The determination of reasonableness is to be made objectively. Evil intentions will not make reasonable use of force a Fourth Amendment violation and, similarly, good intentions will not cure an unreasonable use of force.(fn11)
In Harlow v. Fitzgerald, the U.S. Supreme Court established qualified immunity as an affirmative defense available to government officials.(fn12) When governmental officials are sued in their...
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