Arriving at Clearly Established: the Taser Problem and Reforming Qualified Immunity Analysis in the Ninth Circuit

• Publication year: 2021

ARRIVING AT CLEARLY ESTABLISHED: THE TASER PROBLEM AND REFORMING QUALIFIED IMMUNITY ANALYSIS IN THE NINTH CIRCUIT

Kate Seabright

Abstract: Federal law allows private citizens to bring civil suits against government officials who violate their constitutional rights while acting under the color of state law. The doctrine of qualified immunity shields officials from liability when their conduct does not violate clearly established constitutional rights. When determining whether a right was clearly established at the time of a particular injury, the Ninth Circuit purportedly looks to whatever decisional law is available to inform its analysis. This Comment examines recent Taser-related cases to show that, in practice, courts in the Ninth Circuit actually take two divergent approaches. Some look only to binding, factually similar precedent, while others are willing to look outside of a case's factual context and rely on both published and unpublished cases from across the country. This inconsistency creates three major problems: inconsistent outcomes for litigants, confusion for district courts and government officials, and a propensity for defining clearly established law at an impermissibly high level of generality. This Comment argues that adopting the three-part framework articulated by the Eleventh Circuit would mitigate each of these issues and bring much needed clarity to the law of qualified immunity in the Ninth Circuit.

INTRODUCTION

In 2006, Jayzel Mattos was tased by a Maui police officer who was responding to a domestic violence call at the Mattos home.(fn1) Ms. Mattos happened to be standing between her husband and the officer when the officer announced that her husband was under arrest.(fn2) She did not immediately move out of the way, and as the officer moved toward her, she held out her arm to prevent his body from pressing against her chest.(fn3) Ms. Mattos was attempting to defuse the situation by asking everyone to calm down and go outside so that her sleeping children would not be disturbed when, without warning, the officer shot his Taser at her.(fn4)

Two years later, a Snohomish County police officer tased Donald Gravelet-Blondin outside of his home.(fn5) The officer was responding to a 911 call placed by the family of Mr. Blondin's neighbor, who was attempting to commit suicide.(fn6) As officers wrestled with the suicidal man, Mr. Blondin emerged from his house to ask them what they were doing to his neighbor.(fn7) The officers ordered him to stop and move back, and when Mr. Blondin did not immediately comply, one of the officers tased him.(fn8)

Both Ms. Mattos and Mr. Blondin sued the officers who tased them for using excessive force.(fn9) However, only Mr. Blondin was allowed to proceed with his case: the Ninth Circuit granted qualified immunity to the officer in Mattos v. Agarano(fn10) but denied immunity to the officer in Gravelet-Blondin v. Shelton.(fn11) Qualified immunity protects government agents from liability for civil damages when their conduct does not violate clearly established constitutional rights.(fn12) Whether a right was clearly established at the time of a particular injury depends on the precedent available at the time of the injury: the Supreme Court has held that existing precedent "must have placed the . . . constitutional question beyond debate."(fn13)

Problematically, the Supreme Court has declined to provide lower courts with guidance as to which sources of law may inform a court's clearly established analysis.(fn14) The Mattos court relied only on binding, Taser-related precedent to inform its analysis.(fn15) Finding no pre-2006 Supreme Court or Ninth Circuit case addressing the use of a Taser in a factually similar situation, the court concluded that Ms. Mattos' rights were not clearly established at the time of her injury and that the officer was therefore entitled to qualified immunity from Ms. Mattos' suit.(fn16) In contrast, the Gravelet-Blondin court found that Mr. Blondin's right to be free from excessive force under the Fourth Amendment was clearly established as of 2008, even though no Supreme Court or Ninth Circuit case dealing with Tasers and excessive force had been decided between Ms. Mattos' injury in 2006 and Mr. Blondin's injury two years later.(fn17)

If no additional precedent were available by the time of Mr. Blondin's injury, what explains the difference in outcomes in these two cases? This Comment suggests that the divergent approaches to the clearly established analysis taken by different Ninth Circuit courts are to blame. When deciding whether to grant immunity to the officer in Mattos, the Ninth Circuit panel looked only to binding, Taser-related precedent.(fn18) When faced with the same inquiry, the Gravelet-Blondin panel looked to non-Taser cases, cases from other circuits, and unpublished district court orders.(fn19) By looking to a larger body of case law, the Gravelet-Blondin court was able to find the precedent it needed to hold that Mr. Blondin's right was clearly established at the time of the injury. Crucially, the Mattos court could have come to the same conclusion had it also looked to the broader scope used by the Gravelet-Blondin court.(fn20) This example illustrates the need to harmonize the Ninth Circuit's standard regarding what constitutes clearly established law in the qualified immunity context.

This Comment uses the Taser cases discussed above to illuminate the inconsistency in what constitutes clearly established law in the Ninth Circuit. Part I explores the purpose of the qualified immunity doctrine and lays out the test for determining when the doctrine protects officials accused of constitutional violations. Part II summarizes Ninth Circuit precedent to date on qualified immunity in the Taser context and uses these cases to note an inconsistency in how Ninth Circuit panels have approached the issue of clearly established rights. Part III explains the three main problems this variance causes: inconsistent outcomes for litigants, confusion for district courts and law enforcement, and a tendency to define clearly established law at an impermissibly high level of generality. Finally, Part IV argues that the Ninth Circuit should adopt the three-part framework created by the Eleventh Circuit for the clearly established analysis. It again looks to the Taser cases to show how the Eleventh Circuit's approach differs from those applied by the Ninth Circuit, and argues that the Eleventh Circuit's approach would help address the issues identified in Part III. Lastly, this Comment recommends that the Ninth Circuit take an appropriate case en banc to change its clearly established standard.

I. QUALIFIED IMMUNITY PROTECTS GOVERNMENT OFFICIALS FROM CIVIL LIABILITY FOR CONDUCT THAT DOES NOT VIOLATE CLEARLY ESTABLISHED CONSTITUTIONAL RIGHTS

A. Qualified Immunity Aims to Balance Citizens' Rights with Officers' Need to Perform Their Duties Reasonably

Federal law gives citizens the right to bring a private cause of action against public officials who violate constitutional rights while acting under the color of state law.(fn21) When faced with these suits officials often claim the protection of qualified immunity,(fn22) which protects government agents from civil liability when their conduct does not violate clearly established constitutional rights.(fn23) Federal courts have embraced qualified immunity in recognition that a government actor should not be held liable if he or she acted in good faith.(fn24) The doctrine is considered necessary to permit government actors to "exercise their discretion boldly":(fn25) if government officials were liable every time their actions violated the law, they would hesitate to take action that might be "close to the line" of legality.(fn26) Critically, the doctrine shields government officials even if they acted based on a mistaken understanding of law or fact.(fn27) Consequently, an official can use the doctrine to avoid liability even if his or her conduct violated the claimant's constitutional rights.(fn28) In sum, courts are charged with balancing the competing interests of holding public officials accountable when they exercise their power irresponsibly and shielding officials from "harassment, distraction, and liability when they perform their duties reasonably."(fn29)

The Supreme Court first articulated the underpinnings of the modern doctrine in Harlow v. Fitzgerald:(fn30) "[G]overnment officials performing discretionary functions, generally are shielded from liability for civil damages insofar as their conduct does not violate clearly established statutory or constitutional rights of which a reasonable person would have known."(fn31) Since Harlow, the Court has refined this pronouncement into a two-step test.(fn32) First, taking the facts in the light most favorable to the allegedly injured party, courts must determine whether the officer's conduct violated a constitutional right.(fn33) Second, if a violation occurred, courts ask whether the right was clearly established.(fn34) Harlow and the ensuing two-step test raise two questions. First, how clear must the contours of a right be before it can be considered clearly established?(fn35) And second, to which sources of law should a court look when conducting the clearly established analysis?(fn36)

The Court has addressed the first question-the meaning of "clearly established"-in several cases since Harlow, but a...