Trial Magazine

Although the right to be free from wrongful arrest or the use of excessive force is enshrined in the Fourth Amendment, the Framers did not include a right to bring a cause of action against law enforcement officers who commit such wrongful acts. Not until Congress passed the “Ku Klux Klan Act” in 1871—now codified as 42 U.S.C. §1983—could government employees “acting under color of state law” be held personally liable for damages. For more than a century, this law provided victims of police misconduct with a remedy and deterred officers from taking unreasonable actions against suspects.

Unfortunately, recent U.S. Supreme Court precedents—as well as conflicting interpretations of those decisions by the circuit courts—have imposed additional, significant substantive and procedural hurdles for plaintiffs seeking recovery under §1983. Most prominently, in its 1982 Harlow v. Fitzgerald decision, the Supreme Court established the modern common law affirmative defense of “qualified immunity”¹— despite the fact that no such defense appears in the statute and nothing in its legislative history suggests Congress intended it to exist. In fact, earlier this year, Justice Clarence Thomas penned a lone dissent to the Court’s denial of certiorari in Baxter v. Bracey in which he noted that “in several different respects, it appears that ‘our analysis is no longer grounded in the common-law backdrop against which Congress enacted the 1871 Act.’”²

Even though qualified immunity is technically an affirmative defense, the plaintiff bears the burden of rebutting it. After Harlow, plaintiffs must prove that their injuries were caused by a defendant officer’s violation of the Constitution and that the violation was so objectively unreasonable that no reasonable officer would have believed it to be acceptable.³

In addition, plaintiffs have to prove that the defendant violated “clearly established statutory or constitutional rights of which a reasonable person would have known.”⁴ But recent decisions from several circuits have questioned whether this “clearly established law” requirement is consistent with the plain language of the statute.⁵

The “objectively reasonable” determination is made by trial judges as a matter of law, subject to de novo review on appeal.⁶ The Supreme Court in Harlow stated that the purpose of this element was “to avoid excessive disruption of government and permit the resolution of many insubstantial claims on summary judgment.”⁷ The unintended consequence of this requirement, however, is that the Court shifted the power to determine what is “reasonable” police conduct from the people the defendant officers were supposed to be serving to the sole discretion of the individual jurist presiding over the case.

Given the obvious differences of opinion as to what may be “objectively reasonable,” it’s unsurprising that evaluating what law is “clearly established” poses an even greater challenge. Since Harlow was decided, the Supreme Court has issued dozens of substantive qualified immunity decisions that attempt to hammer out a workable understanding of what constitutes “clearly established law”—but with little practical success.⁸

On one hand, the Court repeatedly has instructed lower courts not to define clearly established law “at a high level of generality” and has stated that “clearly established law must be ‘particularized’ to the facts of the case.”⁹ But on the other hand, the Court also has said that “general statements of the law are not inherently incapable of giving fair and clear warning.”¹⁰ How then should lower courts navigate between these abstract instructions?¹¹

The current Court’s attempts at specific guidance have been no more concrete. It has, for example, stated that “the dispositive question is ‘whether the violative nature of particular conduct is clearly established.’”¹² But this instruction is circular reasoning because how to identify clearly established law depends on whether the illegality of the conduct was clearly established.¹³

As a dissent to a 2019 Fifth Circuit decision stated, the current standard for determining “clearly established law” effectively transforms the concept of qualified immunity into “unqualified impunity” because it lets “public officials duck consequences for bad behavior—no matter how palpably unreasonable—as long as they were the first to behave badly.”¹⁴

Plaintiff attorneys must continue to pursue justice for victims of police misconduct. But given the current draconian standards, you should do extensive research on the procedural and substantive requirements courts have imposed in your jurisdiction before taking on these cases. Here are 10 points plaintiff attorneys must be aware of to properly represent clients in these difficult—but very important—cases.

1. Statute of Limitations

The statute of limitations in a §1983 case is based on the statute of limitations for personal injury tort claims in the state in which you are filing.¹⁵ In Board of Regents of University of State of New York v. Tomanio, the Supreme Court held that in §1983 actions, a state statute of limitations and the “coordinate tolling rules” are “binding rules of law.”¹⁶ For obvious reasons, knowing this information is essential to ensuring your client’s case is timely filed.

2. Federal Pleading Standard

You can file a §1983 claim in state court, but the case almost certainly will be removed. If you are not familiar with federal court practice, find cocounsel who is.

A federal court complaint requires factual allegations that are “plausible” and “non-conclusory.”¹⁷ Simply arguing that law enforcement officers violated your client’s constitutional rights under the Fourth Amendment is not enough, but this task is not insurmountable. Under the Seventh Circuit’s interpretation of Ashcroft v. Iqbal, for example, “the plaintiff must give enough details about the subject-matter of the case to present a story that holds together. In other words, the court will ask itself could these things have happened, not did they happen.”¹⁸

Allege facts showing genuine factual disputes as to what happened during the incident.¹⁹ For example in Darden v. City of Fort Worth, Texas, the plaintiff alleged that officers tased a suspect to death, even when he—and the present witnesses—were telling the officers that the suspect had asthma, was obese, and could not breathe.²⁰ Although the district court granted summary judgment, the Fifth Circuit reversed, holding that “there are genuine disputes of material fact as to whether Darden was actively resisting arrest and whether the force [the officers] used [was] clearly excessive and clearly unreasonable. Thus, we hold that [the officers were] not entitled to qualified immunity.”²¹

To allege such facts, you likely will need to obtain copies of the police reports before filing suit—and to find witnesses who can contradict the statements made in them. Of course, this must be done without the benefit of formal discovery, so you may not have all the facts to support your claim.

In many jurisdictions, expect in every case that defendants will file a motion to dismiss for failing to state a claim on which relief can be granted.²² And if the district court denies that motion, the defendant has a right to an interlocutory appeal.²³ However, if a trial court finds there is a genuine issue of material fact as to whether the defendant’s conduct was objectively unreasonable, the appellate court does not have interlocutory jurisdiction to review that determination.²⁴ Accordingly, alleging plausible factual disputes in your original pleading is essential to surviving a motion to dismiss—and hopefully avoiding an interlocutory appeal.

3. Allegations to Rebut Qualified Immunity

In addition to pleading plausible and nonconclusory allegations about why the law enforcement officers used excessive force, you need to plead how your client can overcome the qualified immunity defense. As noted above, even though qualified immunity is technically an affirmative defense, the plaintiff has the burden to rebut it in the complaint.

As a result, you must make plausible and nonconclusory factual assertions that, taken as true, could establish why the officer’s actions were so objectively unreasonable that no reasonable officer would have engaged in them. If you do not, your case may be dismissed at the outset, or the court may order you to file a reply under Federal Rule of Civil Procedure 7(a), a rarely used procedure that requires plaintiffs to reply to affirmative defenses raised in an answer before discovery takes place.²⁵ A single round of federal court motion practice often takes months to resolve, so plead the most robust set of facts in your original filing.

4. ‘Clearly Established Law’

The “clearly established law” prong of the qualified immunity doctrine is the more controversial. Multiple certiorari petitions  seeking to overturn or modify this element of Harlow have been filed in the Supreme Court, which denied most of them.²⁶ (For more, see p. 34.)

Under the current standard, the defense will argue that the law is not clearly established unless you have a case from your circuit with facts essentially identical to those in the case that you are bringing. Although normally it is not necessary to cite case law in pleadings, you can be certain that the defendant officers will move to dismiss if you cannot explain why their conduct violated “clearly established law.” Researching as many cases in your circuit as possible to find ones with facts similar to yours is essential to surviving a Rule 12(b)(6) motion and the summary judgment motion that inevitably will follow.

5. Preserve for Appeal

Should the defendant move to dismiss your case under either or both elements of qualified immunity, in your response, include (perhaps in a footnote) that although Harlow is currently the law of the land, nothing in the plain text of §1983 establishes a qualified immunity defense, much less an obligation for plaintiffs to rebut it.²⁷ This will preserve error on this issue should the Supreme Court punt on accepting the remaining pending cases. Your case may be the one that a future Court will use to finally resolve this issue.

6. Municipal ‘Custom or Policy’

In addition to claims against law enforcement officers, you also can assert claims against the municipality that employed them. Such claims were read into §1983 by the Supreme Court in Monell v. Department of Social Services of the City of New York.²⁸

To prevail, you must show the municipality had a “custom or policy” that tolerated or allowed law enforcement officers to engage in unconstitutional conduct. Unfortunately, to defeat a Rule 12(b)(6) motion, you have to show evidence of that custom without the benefit of discovery. To do so, research previous incidents of excessive force in local newspapers, online sites, broadcast news, and similar sources so you can make plausible and nonconclusory allegations that the municipality tolerated such conduct.²⁹

7. Single Incident of Misconduct

In the context of Monell claims, the hardest argument for plaintiffs to win is that a single incident of officer misconduct reflects a municipality’s custom of “failure to properly train.”³⁰ The Fifth Circuit, for example, has affirmed only one case in the past 20 years in which a single instance of unconstitutional conduct gave rise to a Monell claim. The egregious facts in that case involved a county sheriff who deputized several people but provided them no training whatsoever—ultimately leading to the county’s liability when one of those officers used excessive force during an arrest.³¹

Virtually all law enforcement officers are required to go through some state-mandated training program to become licensed, so courts generally have affirmed Monell claims based on single incidents only when the final policymaker commits the constitutional violation.³² This can be particularly frustrating when the defendant claims that a legislative body is the final policymaker. Although the sheriff or a municipality’s chief of police is often undoubtedly the final authority on the customs and policies within the department, municipal defendants may argue that the legislative body is the final policymaker.

However, it is exceptionally rare that a city council is aware of the minutia that occurs in a police department. But even if it is aware, municipal attorneys will argue that legislative bodies can speak only in the form of enacted legislation and that any deliberations that are not acted on are subject to legislative immunity—and are therefore not discoverable.³³

8. Indemnification

Many states and municipalities prohibit the indemnification of law enforcement officers who engage in unconstitutional conduct,³⁴ so despite the difficulty of pleading and proving these claims, recovery against the municipality is often the most likely way to obtain monetary relief for your client.

Although many police unions have insurance policies that will defend (and possibly indemnify) officers in an excessive force suit, many do not. Finding out this information early is essential so you don’t wind up with an uncollectable judgment against an officer.

9. Discovery Limitations

Under City of Los Angeles v. Heller, you have no Monell claim if you cannot prove an officer committed a constitutional violation.³⁵ (In other words, if the officer did nothing wrong, whether the municipality has an unconstitutional custom or policy is irrelevant.) Accordingly, courts often stay discovery for Monell claims until you defeat the officers’ qualified immunity summary judgment motion and will limit discovery to issues solely relating to the officers’ conduct on the day of the incident.

Under Supreme Court precedent, officers can pursue interlocutory appeals if their Rule 12(b)(6) or summary judgment motions are denied³⁶—and they almost certainly will do this in every circumstance. As a result, it may take years before you can pursue discovery about the municipalities’ policies, history of incidents, or testimony from other officers about the municipality’s customs.

10. Trial Presentation

Even when you get to trial, these cases are difficult to win. In federal court, a unanimous verdict is required, and excessive force and false arrest cases can produce jury pools that are very polarized. Your trial presentation must demonstrate a respect for the challenges that law enforcement officers face each day but also recognize the threat that officers present when they violate constitutional rights.

Because §1983 cases are the only effective way to hold officers accountable for their misconduct, the difficulty of winning these cases should not—and cannot—discourage plaintiff lawyers from bringing them. If you navigate through the challenges listed above, you can give your clients the justice they deserve. And as opposition to the current qualified immunity doctrine continues to grow, including among academics³⁷ and members of the Court itself,³⁸ cases you file today will hopefully be subject to very different standards in the near future.

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Matthew J. Kita is a sole appellate practitioner with his home office in Dallas and can be reached at matt@mattkita.com.

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Notes

1. Harlow v. Fitzgerald, 457 U.S. 800, 818 (1982).
2. 140 S. Ct. 1862, 1864 (2020) (denying petition for writ of certiorari) (Thomas, J., dissenting) (quoting Ziglar v. Abbasi, 137 S. Ct. 1843, 1871 (2017) (Thomas, J., concurring in part and concurring in the judgment)).
3. See Priester v. City of Riviera Beach, Fla., 208 F.3d 919, 927–28 (11th Cir. 2000).
4. Harlow, 457 U.S. at 818.
5. See Newman v. Guedry, 703 F.3d 757, 763 (5th Cir. 2012) (stating that law enforcement officers cannot use deadly force on suspects whose “behavior did not rise to the level of ‘active resistance.’”); Baynes v. Cleland, 799 F.3d 600, 615 (6th Cir. 2015) (overruling the grant of qualified immunity to an officer who handcuffed a suspect too tightly because a right to be free from excessively forceful or unduly tight handcuffing was clearly established law when the incident occurred); Deorle v. Rutherford, 272 F.3d 1272, 1275 (9th Cir. 2001) (“It does not matter that no case of this court directly addresses the use of [a particular weapon]; we have held that ‘[a]n officer is not entitled to qualified immunity on the grounds that the law is not clearly established every time a novel method is used to inflict injury.’” (quoting Mendoza v. Block, 27 F.3d 1357, 1362 (9th Cir. 1994))); Casey v. City of Federal Heights, 509 F.3d 1278, 1285 (10th Cir. 2007) (“[W]e need not have decided a case involving similar facts to say that no reasonable officer could believe that he was entitled to behave as Officer Sweet allegedly did” when he tackled and used a taser on a “nonviolent misdemeanant.”).
6. See, e.g., Holt v. Alexander, 493 F. App’x 608, 610 (5th Cir. 2012). 
7. Harlow, 457 U.S. at 818.
8. See Amicus Brief of Cross-Ideological Groups Dedicated to Ensuring Official Accountability, Restoring the Public’s Trust in Law Enforcement, and Promoting the Rule of Law as Amici Curiae in Support of Petitioner, Baxter v. Bracey, No. 18-1287, 2019 WL 2370285 (U.S. filed May 31, 2019) [hereinafter Baxter Amicus Brief]. (AAJ joined this amicus brief. Find it at www.justice.org/amicusbriefs.) The Supreme Court denied the petition for a writ of certiorari on June 15, 2020, with Justice Clarence Thomas dissenting. One case on qualified immunity was still pending before the Court at the time of publication, Hamner v. Burls, 937 F.3d 1171 (8th Cir. 2019) (petition for cert. filed, No. 19-1291 (U.S. May 14, 2020)).
9. White v. Pauly, 137 S. Ct. 548, 552 (2017) (quoting, respectively, Ashcroft v. al-Kidd, 563 U.S. 731, 742 (2011), and Anderson v. Creighton, 483 U.S. 635, 640 (1987)); see  Baxter Amicus Brief, supra note 8.
10. White, 137 S. Ct. at 552 (quoting U.S. v. Lanier, 520 U.S. 259 (1997)); see Baxter Amicus Brief, supra note 8.
11. See  Baxter Amicus Brief, supra note 8. 
12. Mullenix v. Luna, 136 S. Ct. 305, 308 (2015) (quoting al-Kidd, 563 U.S. at 742); see Baxter Amicus Brief, supra note 8. 
13. See Baxter Amicus Brief, supra note 8.
14. Cole v. Carson, 935 F.3d 444, 471 (5th Cir. 2019) (Willett, J., dissenting) (quoting Zadeh v. Robinson, 928 F.3d 457, 479 (2019)).
15. See, e.g., Wallace v. Kato, 549 U.S. 384, 387 (2007).
16. 46 U.S. 478, 479 (1980).
17. Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009).
18. Swanson v. Citibank, N.A., 614 F.3d 400, 404 (7th Cir. 2010).
19. See, e.g., Est. of Lopez v. Gelhaus, 871 F.3d 998, 1021 (9th Cir. 2017); Curley v. Klem, 499 F.3d 199, 208 (3d Cir. 2007); Arrington v. United States, 473 F.3d 329, 334 (D.C. Cir. 2006); Olsen v. Layton Hills Mall, 312 F.3d 1304, 1312 (10th Cir. 2002); Mitchell v. Randolph, 215 F.3d 753, 756 (7th Cir. 2000); Vathekan v. Prince George’s Cty., 154 F.3d 173, 179 (4th Cir. 1998); Thomas v. Roach, 165 F.3d 137, 143 (2d Cir. 1999); Crumpton v. Morris, 112 F.3d 513 (8th Cir. 1997); Mangieri v. Clifton, 29 F.3d 1012, 1016 & n.6 (5th Cir. 1994); McKinney v. DeKalb Cty., Ga., 997 F.2d 1440, 1443 (11th Cir. 1993); Apostol v. Landau, 957 F.2d 339, 342 (7th Cir. 1992); Prokey v. Watkins, 942 F.2d 67, 73 (1st Cir. 1991); Jackson v. Hoylman, 933 F.2d 401, 403 (6th Cir. 1991). 
20. Darden v. City of Fort Worth, Tex., 880 F.3d 722, 726 (2018).
21. Darden, 880 F.3d  at 732 (5th Cir. 2018), cert. denied sub nom. City of Fort Worth, Tex. v. Darden, 139 S. Ct. 69, 202 L. Ed. 2d 23 (2018).
22. Fed. R. Civ. P. §12(b)(6).
23. See Ashcroft v. Iqbal, 556 U.S. 662, 666 (2009).
24. See, e.g., Holt v. Alexander, 493 F. App’x 608, 610 (5th Cir. 2012). 
25. See, e.g., Schultea v. Wood, 47 F.3d 1427, 1430 (5th Cir. 1995).
26. Kelsay v. Ernst, No. 19-682, 2020 WL 2515455 (cert. denied May 18, 2020); Winzer v. Kaufman Cty., Tex., No. 19-1042, 2020 WL 3038295 (cert. denied June 8, 2020); West v. Winfield, No. 19-899, 2020 WL 3146698 (cert. denied June 15, 2020); Hunter v. Cole, No. 19-753, 2020 WL 3146695 (cert. denied June 15, 2020); Corbitt v. Vickers, No. 19-679, 2020 WL 3146693 (cert. denied June 15, 2020); Zadeh v. Robinson, No. 19-676, 2020 WL 3146691 (cert. denied June 15, 2020); Baxter v. Bracey, 140 S. Ct. 1862 (cert. denied June 15, 2020); Brennan v. Dawson, No. 18-913, 2020 WL 3146681 (cert. denied June 15, 2020); Taylor v. Riojas, No. 19-1261 (U.S. cert. petition filed Apr. 24, 2020). 
27. For an example of this language and supporting cites, see Complaint, Burrows v. Midland Cty., Tex., No. 7:20CV00062 at 96 n.2 (W.D. Tex. Mar. 11, 2020). 
28. 436 U.S. 658 (1978). See also Antonio M. Romanucci et al., Defeating Immunity Defenses, Trial 20 (Dec. 2014). 
29. See Groden v. City of Dallas, Tex., 826 F.3d 280, 286 (5th Cir. 2016). Most municipalities have removed blatantly discriminatory language from their policy manuals. See Miller-El v. Cockrell, 537 U.S. 322, 335 (2003).
30. See, e.g., Valle v. City of Houston, 613 F.3d 536, 542 (5th Cir. 2010).
31. Brown v. Bryan Cty., Okla., 219 F.3d 450 (5th Cir. 2000). 
32. See Valle, 613 F.3d 536.
33. See Defendant City of Dallas’s First Amended Trial Brief on the Identity of the City’s Final Policymaker, Flanagan v. City of Dallas, Tex., No. 3:13-cv-04231-M, Docket No. 172, 2017 WL 5675548 (N.D. Tex. Oct. 19, 2017).
34. See Joanna C. Schwartz, Police Indemnification, 89 N.Y.U. L. Rev. 885, 901 (2014).
35. 475 U.S. 796 (1986).
36. See Ashcroft v. Iqbal, 556 U.S. 662, 666 (2009).
37. See Joanna C. Schwartz, The Case Against Qualified Immunity, 93 Notre Dame L. Rev. 1797 (2018); William Baude, Is Qualified Immunity Unlawful? 106 Cal. L. Rev. 45, 82 (2018); see also Complaint, supra note 27.
38. Justice Clarence Thomas, Justice Stephen Breyer, and Justice Sonia Sotomayor have criticized the qualified immunity doctrine. See Schwartz, supra note 37; see also Complaint, supra note 27.