Shoot at Me Once: Shame on You! Shoot at Me Twice: Qualified Immunity. Qualified Immunity Applies Where Police Target Innocent Bystanders

JurisdictionUnited States,Federal
Publication year2020
CitationVol. 71 No. 4

Shoot at Me Once: Shame on You! Shoot at Me Twice: Qualified Immunity. Qualified Immunity Applies Where Police Target Innocent Bystanders

Jameson M. Fisher

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Shoot at Me Once: Shame on You! Shoot at Me Twice: Qualified Immunity. Qualified Immunity Applies Where Police Target Innocent Bystanders*

I. Introduction

Qualified immunity is a judicially created doctrine that has resulted in expansive protections for lower-level state officials for constitutional violations.1 Guidance from the Supreme Court of the United States regarding the interpretation of "clearly established rights" has been scarce and vague at best.2 As a result, district courts faced with

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qualified immunity assertions regarding a § 1983 claim take a restrictive approach to the doctrine's analysis often by relying on factually similar cases from binding authorities. Historically, innocent bystanders have had no clearly established right to be free from excessive force where force was applied to subdue the target of the arrest,3 but what if the force is intentionally applied to the innocent bystander?

In 2019, the United States Court of Appeals for the Eleventh Circuit determined in Corbitt v. Vickers4 that officers who target innocent bystanders are entitled to qualified immunity.5 Previously, courts evaluated the applicability of qualified immunity where officers exerted force on the subject of the arrest. The decision in Corbitt v. Vickers short-circuits legitimate claims against officers who use lethal force on innocent bystanders complying with police commands.6 The Eleventh Circuit determined an innocent bystander's right to be free from excessive force is not "clearly established."7 An officer can shoot a complying bystander and enjoy the government shield of immunity. In a country facing police shootings and brutality, such protections make room for much more dangerous waves of lethal force application. As a judicially created doctrine contradicting legislative intent, qualified immunity already has an unstable justification. The judicial power to fix all that is wrong with qualified immunity rests with the Supreme Court—thanks to stare decisis.8

II. Factual Background

Christopher Barnett was a criminal suspect wanted by the Coffee County Sheriff's Department and the Georgia Bureau of Investigation. On July 10, 2014, the agencies initiated an operation to capture the

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suspect. During the course of the operation, Barnett wandered into the area surrounding Plaintiff Amy Corbitt's yard, and the officers followed in pursuit. Corbitt had never encountered Barnett or known of him before this occurrence. One adult and six minors were in the yard, including multiple children under the age of three. Corbitt and two minors were inside the home. The officers ordered everyone in the yard to get down. Officers handcuffed and held the children and their supervising adult at gunpoint.9

The family dog, "Bruce," was present during the operation. At that point, Officer Vickers—deputy sheriff for Coffee County—discharged his firearm at Bruce, but the shot missed. It is undisputed that Bruce did not pose a threat and was not aggressive, and no other officers made an effort to subdue the dog. Bruce retreated under the house after the first shot. After Bruce came out from under the house, Vickers fired at the dog again. While the second shot missed Bruce, the bullet hit a ten-year-old child lying eighteen inches in front of Vickers, who was readily viewable by Vickers. The child, SDC, suffered medical and mental trauma and currently receives ongoing treatment for both. Corbitt, as SDC's parent and guardian, initiated a 42 U.S.C. § 198310 action against Vickers in his individual capacity, alleging violations of the Fourth11 and Fourteenth12 Amendments regarding freedom from excessive force. Vickers asserted qualified immunity as an affirmative defense and filed a 12(b)(6) motion to dismiss.13

The district court denied Vickers's motion.14 To assess SDC's claim, the court analyzed the two factors of an excessive force claim: "(1) that a seizure occurred and (2) that the force used to effect the seizure was unreasonable."15 Because Vickers intentionally stopped SDC's movement and restricted his freedom, SDC was seized.16 Drawing inferences most favorably to the Plaintiff, a jury could have decided that

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SDC's seizure was effectuated by Vickers's force against Bruce.17 Because the subjects of the force were not the intended targets, the district court considered and rejected Vickers' claim that force was per se necessary, holding that Vickers had presented no evidence to support his claim.18 Vickers appealed the denial of his motion to dismiss SDC's complaint. The Eleventh Circuit reversed the district court's decision and remanded the case.19


A. Constitutional Amendments Regarding Seizures

The Fourth Amendment provides, in pertinent part, that: "the right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated . . . ."20 The Fourth Amendment has a longstanding history of protecting against excessive force during seizures.21 The protections are compounded by the guarantees of the Fourteenth Amendment. The Fourteenth Amendment provides, in pertinent part, that:

No State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall any State deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws.22

The protections, together, target excessive force, invasion of personal privacy, and liberty.23 An individual may bring a civil action for

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deprivation of such rights under Section 1983. Section 1983 provides that persons who, under color of state authority, violate an individual's constitutional rights will be liable for the injuries caused therefrom.24

B. Historical Interpretation and Application of Immunity as an Affirmative Defense

1. The Progenitor: Absolute Immunity

Absolute immunity originated in English common law and was partially codified in the United States Constitution.25 The Constitution establishes absolute protection for legislators except in cases of treason, felony, and breach of peace.26 Courts in the United States adapted the doctrine to apply to elite government officials including legislators, judges, the president, prosecutors, and executive officers engaged in adjudicative functions.27 Essentially, the higher the official, the greater the protection needed.28 The impetus of such protection is that elite government officials' duties must not be materially impaired from apprehension of or harassment by the public, given the number and gravitas of decisions made by officials in their official capacity.29 Further, the doctrine has been considered necessary to prevent courts from becoming bogged down with artfully worded insubstantial or frivolous lawsuits.30

2. The Progeny: Qualified Immunity

The doctrine of absolute immunity eventually produced a narrower derivative in qualified immunity, the genesis of which traces back to Scheuer v. Rhodes,31 which created qualified immunity for lower offices of less prominent duties.32 There, three students of Kent State

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University died after a confrontation with the National Guard, who were immune from liability. The students' estates sought to hold the governor of Ohio and various Ohio National Guard officials accountable for the deaths.33 The Court recognized two codependent principles which necessitated a milder form of immunity for government officials:

(1) the injustice, particularly in the absence of bad faith, of subjecting to liability an officer who is required, by the legal obligations of his position, to exercise discretion; (2) the danger that the threat of such liability would deter his willingness to execute his office with the decisiveness and the judgment required by the public good.34

Without precisely defining qualified immunity, the Court determined that officials exercising good faith discretion deserve protection from litigation commensurate with the level of discretion afforded to their official capacities.35

This new doctrine was explored more thoroughly in Butz v. Economou.36 There, the Court reasoned that an extension of absolute immunity to all federal executive officials erodes basic constitutional protections.37 The Court was concerned that, should officials not be held liable for discretionary functions, the Constitution would provide no redress, and federal officials would not be deterred from committing constitutional wrongs.38 There are many checks on judges, jurors, and prosecutors which allow for constitutional safeguards whilst upholding absolute immunity, while lower officials may not be subjected to such checks.39 The Court determined that lower-level officials' discretion would not be hindered by an awareness of constitutional limits.40 Therefore, qualified immunity should be afforded to lower-level officials, however, the plaintiff's complaint must state a substantial claim for relief to survive a motion to dismiss.41

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In Harlow v. Fitzgerald,42 qualified immunity was solidified as an affirmative defense for state agents, effectively limiting absolute immunity.43 The Court reasoned that because damages may be the only realistic avenue for constitutional vindication,44 qualified immunity "must be pleaded by a defendant official" as an affirmative defense.45 Previously, an officer claiming qualified immunity (sometimes called the "good faith defense") had to meet both an objective test and a subjective test.46 The objective test "involves a presumptive knowledge of and respect for 'basic, unquestioned constitutional rights.'"47 The subjective test "refers to 'permissible intentions' [of the defendant official]."48 If either...

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