Article Contemporary Trends in Qualified Immunity Jurisprudence: Are Circuit Courts Misapplying Graham v. Connor?

• Publication year: 2015
• Pages: 26

Article Contemporary Trends in Qualified Immunity Jurisprudence: Are Circuit Courts Misapplying Graham v Connor? Vol. 28 No. 3 Pg. 26 Utah Bar Journal June, 2015

May, 2015

Jay Gold, J.

Recently, headlines involving the use officers by police officers have flooded the news and sparked strong reactions. Despite these headlines' prevalence, there are likely many people, lawyers included, who do not fully understand the legal standards that govern whether officers are subject to civil damages liability for the force they apply. It will thus be useful to step back and look at these standards and the principles underlying them.

Qualified immunity shields officers exercising discretionary functions from liability for civil damages unless they "violate clearly established statutory or constitutional rights of which a reasonable person would have known." Harlow v. Fitzgerald, 457 U.S. 800,818 (1982). Thus, to overcome qualified immunity, a plaintiff must show (1) the violation of a constitutional right and (2) that this right "was clearly established." Pearson v. Callahan, 555 U.S. 223, 232 (2009) (citation and internal quotation marks omitted). This article will focus on the first prong, which, in the excessive force context, requires a plaintiff to show that the officer violated the prohibition against "unreasonable searches and seizures." U.S. Const, amend. IV.

The force used to effectuate "an arrest, investigatory stop, or other 'seizure' of a free citizen" must be "objectively reasonable." Graham v. Connor, 490 U.S. 386, 395-97 (1989) (citation and internal quotation marks omitted). In assessing whether force is reasonable, courts must balance "the nature and quality of the intrusion on the individual's Fourth Amendment interests against" the importance of the governmental interests alleged to justify the intrusion. Id. at 396 (citation and internal quotation marks omitted). The ultimate question is whether the "totality of the circumstances" justifies the force applied. Id. (citation and internal quotation marks omitted).

However, rather than grappling with the totality of the circumstances, circuit courts have analyzed reasonableness under rigid, factor-based tests. Conversely, the United States Supreme Court has reaffirmed that Graham v. Connor demands a malleable, case-specific inquiry. This article will provide further background on the required inquiry before contrasting circuit courts' approach to reasonableness with the Supreme Court's.

Graham's Insistence on a Malleable, Case-Specific Inquiry

In Graham, the Court did not prescribe a one-size-fits-all-cases test for reasonableness." [T]he right to make an arrest or investigatory stop," the Court explained, "necessarily carries with it the right to use some degree of physical coercion or threat thereof to effect it."...