[0:00] Welcome to Conversations with Joseph Peter Drennan.
[0:04] Hello everyone and welcome to Conversations with Joseph Peter Drennan.
[0:12] Joseph is a trial and appellate lawyer with more than 45 years of experience practicing
[0:17] before state and federal courts.
[0:20] Over the course of his career he has litigated civil rights cases, federal criminal matters,
[0:25] immigration disputes, and complex actions involving government accountability.
[0:31] And today we're examining qualified immunity where it came from how it operates in
[0:36] federal court and under what circumstances a federal officer may be held
[0:40] was personally liable for violating constitutional rights.
[0:44] It's a lot.
[0:45] We don't have a lot of time Joseph, but I am happy to see you.
[0:49] And likewise, it's great to be here Sean.
[0:52] Thank you for having me.
[0:53] You're bad.
[0:55] I mean, you know, the bottom line here is, you know, can officers be sued?
[1:00] Right?
[1:01] But can you explain what what qualified immunity is?
[1:04] And, you know, and even clarify how it differs from, you know, absolute immunity.
[1:09] You know, that's often replicated.
[1:10] Sure.
[1:11] Sure.
[1:12] Perhaps the best way to do that would be to, I don't want to give a long discourse on the common law,
[1:21] but we're a common law country basically.
[1:24] At common law, the king could do no wrong.
[1:27] So the sovereign cannot be sued unless the sovereign consents to be sued.
[1:34] And that applies to foreign governments as well.
[1:39] Foreign governments couldn't be sued in federal courts either because of sovereign immunity.
[1:48] There have been changes along the way there.
[1:52] But we're going to focus on sovereign immunity in the context of the police.
[1:59] In the aftermath of the recent shootings and Minneapolis, we had at least two government officials come out and say that the officers involved were entitled to absolute immunity.
[2:16] There is no legal support for that proposition.
[2:22] Rather, in the United States, because of long standing Supreme Court precedent, law enforcement officers, both at the state and federal level are entitled to qualified good faith immunity.
[2:38] And what does that mean?
[2:40] It basically means and it's come to mean in the context of case law that under that the officer acted reasonably as a prudent as a prudent police officer would act.
[2:58] But the officer has more protection than that.
[3:01] That's a defense that he acted reasonably under the circumstances.
[3:07] Qualified immunity basically gives him a shield.
[3:12] They wear shields.
[3:15] Unless they're ice officers.
[3:17] That's another part of the deal conversation.
[3:21] Different conversation.
[3:23] But it gives them a shield to from suit.
[3:28] He has immunity from suit, unless the plaintiff who's bringing the action can establish that the officer violated or a right that was clearly established at the time.
[3:45] And the problem with that is that courts traditionally have read that clearly established proviso very narrowly.
[3:59] For instance, can a police officer be sued for causing harm to a suspect and violating the suspect's constitutional rights by holding him in a chokehold.
[4:12] Well, it all depends.
[4:13] Has that been established in that jurisdiction that choke, chokeholds are actionable.
[4:21] There's a very, very high burden to overcome the qualified immunity of the officer.
[4:32] One of the reasons that qualified immunity presents such a high hurdle is that a plaintiff who makes the allegations is going to invariably encounter a motion to dismiss based on qualified immunity.
[4:49] And that even if the plaintiff prevails in that motion before the judge, that's immediately appealable.
[4:56] So the qualified immunity protects the officer from suit, unless the trial court and with the impromotor of an appellate court rules that the case can go forward.
[5:14] Well, this notion of qualified immunity, I know is not in the text of the Constitution.
[5:21] So I'm curious, how did the doctrine emerge?
[5:25] What was the judicial reasoning that led the Supreme Court to shape it in its current form?
[5:31] In a simple sense, the doctrine emerged to protect officers from an avalanche of litigation officers have interactions with the public, they arrest people, their actions are often brought into question.
[5:51] There has to be a balancing between the government's interest in hiring qualified police officers in the first place.
[5:57] Why would a police officer want to pursue law enforcement as a career if he runs the specter of a financial ruination from litigation?
[6:11] So it's a doctrine that's been in place for decades.
[6:18] The Supreme Court has modified it over time, but that modification has not been under the fundamental premise of questioning the premise of qualified immunity.
[6:30] It's been on construing the circumstances that could give rise to qualified immunity.
[6:38] I know that that's not a helpful answer to some, but yes, but and this is why this is a topic that could go on for hours discussing all of the new lines of it, but it basically is an extremely difficult proposition to sue a police officer.
[7:05] And by design, in many ways, and by design, I've done it, and I've been successful at it.
[7:14] But in fact, my very first civil trial was a lawsuit involving police misconduct with that survived a 12 B6 motion, a motion to dismiss in federal court, and we went on to prevail a trial, we won, we won damages, and we prevailed on appeal too.
[7:33] I mean, that's a good lead in do you know, okay, so from a practical, you know, practical example, so to speak, you know, when a federal officer invokes qualified immunity in a civil rights action, courts often apply a two part inquiry, you know, whether, whether constitutional violation occurred and whether the right issue was clearly established at the time, and you mentioned earlier the chokehold as kind of a Jason reference to that kind of a thing.
[8:00] How to courts navigate that framework, the two part framework in practice?
[8:05] Well, these cases are very fact intensive, and there's a lot of litigation about it, and there are often circumstances that lead to what many would consider to be unjust results, where the officer was was conferred qualified immunity.
[8:29] The law litigation was dismissed, and the plaintiff was was left with no remedy against the officer.
[8:37] There are alternative avenues that can be pursued too, such as suing the city or the government that employed the officer, and why would that be important?
[8:50] Well, the city, if it's a police officer, does not have any entitlement to qualified immunity, but you have to prove that there was a policy or practice in place that prohibited the action caused the constitutional violation.
[9:10] You know, I've heard this term, I've heard you use the term, you know, in this litigation that phrase clearly established law, right?
[9:19] So in practical terms, how specifically must prior precedent align with the facts before a court will, you know, conclude that a right was clearly established?
[9:29] There are a number of ways to answer that. I think probably the most succinct way is for me to answer it by explaining how I prevailed in my first action involving a 1983 action against the police officer.
[9:47] A police officer arrested my client on the Washington Metro system on a misdemeanor charge based on an accusation from a station manager from an incident that took place the day before police officers in the district of Columbia are entitled to arrest without warrant for misdemeanors committed in their presence.
[10:14] There was, there was no misdemeanor or no even allegation by the government that my client committed any offense in the presence of the police officer because the police officer was not there.
[10:28] And the station manager who related the allegations was not entitled to qualified immunity in any event because he wasn't a police officer.
[10:39] So that was clearly established law right there in the code.
[10:43] You know, based on our earlier conversation, it's my guess is that the courts, they're going to, like you said, it's a tough part of tough hurdle sometimes, you know, so like they're really, they want it to be they want facts.
[10:58] Like you said, they want, you know, a clear precedent, they're not going to do it on a whim.
[11:02] That's right. And because this bar is so high, this is the reason that there's been so much political discussion in the states about abolishing qualified immunity.
[11:19] Both, both at the, at the state level, states like Illinois, for instance, have moved in that direction.
[11:29] And the US Congress has considered the George Floyd act, which which is not been enacted.
[11:38] But can the Congress abrogate a qualified immunity? I believe that it can. And that it would not necessarily open the floodgate to suits against the officers because the court still
[11:59] evaluate the officers conduct, given the totality of the circumstances. And that, and that often will, will, will save the officer from liability.
[12:09] Not over so.
[12:11] I get it. I got it. Yeah, police reform is, yeah, that'll be, that's an ongoing, that's an ongoing conversation for sure. Maybe because of the complexity, you know, courts sometimes resolve qualified immunity at an early stage at the case.
[12:27] You know, from a procedural standpoint, how does the doctrine influence whether a matter proceeds to discovery or is dismissed before the actual, I mean, for the, you know, the factual record is fully developed.
[12:39] Well, that's a, that's a very good question because plaintiffs have long complained that, that the courts do not allow discovery in many instances.
[12:54] You ask the question, well, how, how is the plaintiff going to be able to develop this case unless he has a discovery? So it's a threshold problem and it's a challenge to a plaintiff's attorney to try and exercise due diligence to assemble as much information as can be had without garnering discovery from the government.
[13:21] And putting those allegations in paragraph form in the complaint and challenging the government to deny that and it makes it, at least plausible that given the right set of circumstances that that the court may allow some limited discovery to resolve the question of, of qualified ability.
[13:45] You mentioned Joseph, you mentioned George Floyd earlier. I'm curious. In cases involving use of force or, you know, rapidly on, rapidly unfolding encounters, how to courts evaluate whether an officer's use of force or rather an officer's conduct was, you know, objectively reasonable on the circumstances.
[14:10] With regard to use of force, there's actually been a clarification supplied by the Supreme Court recently, what about recently within the last few years on this.
[14:25] And in the, I believe it was the fifth circuit, the fifth circuit had a rule that dealt with that established what was called the moment of threat. And the moment of threat could be a matter of seconds when it comes to a decision whether or not to discharge a firearm.
[14:46] And other other jurisdictions, other circuits had had established the principle that the totality of the circumstances needed, needed to extend to all of the background that gave rise to the encounter that resulted in the use of force.
[15:07] And the case that actually was taken by the Supreme Court to resolve this issue, what had to do with the traffic stop in which a police officer need to go into all the details of it.
[15:25] The police officer opened the door and put his foot on the, the sill of the door and the suspect who was ordered to exit the vehicle turned on the car and he said he was looking for something and the officer could not see in the car because it was a little Toyota Corolla.
[15:46] And the officer just unholstered his gun and fired a couple of shots claiming that he was, he was at imminent risk of being dragged along the vehicle.
[15:58] And under the imminent threat rule that was being followed in that circuit, the fifth circuit, that mere minute or less than a minute was the only frame of reference and nothing else mattered.
[16:19] And the court said, no, no, the totality of the circumstances need to be employed, what, what caused the officer to initiate the stop in the first place, how did the officer proceed to approach the vehicle, those sorts of considerations, did the officer act as a reasonably prudent police officer under each stage of that encounter with with the suspect who wound up being shot and killed by the way.
[16:48] And, and the court reversed a conservative Supreme Court reversed on that interesting. Yeah, that totality of circumstance and, you know, we just a couple of minutes left, Joe, so maybe you could reflect on, you know, sort of stepping back from the doctrine itself, you know, how does qualified immunity reflect the judiciary's ongoing effort to reconcile and reconcile these two really competing principles, right, the protection of individual constitutional rights.
[17:17] And the need to permit public officials to perform their duties without undue personal exposure from my own personal perspective, I mean there and you're going to have a range of different views on this from, from practitioners.
[17:32] But I think that the court over the decades has has provided too much protection to the police to qualify the immunity is such a high bar that there need not be the fear about plethora of litigation, because the defense that the officer acted reasonably under the totality of the circumstances is still a viable defense.
[17:57] And police officers typically are defended by the departments that employ them, the federal government with regard to federal agents and state and local governments with regard to individual police forces.
[18:14] That's a lot, a lot to unpack, but I know we'll talk more in the future. Joseph, good to see you. Thanks for being here. Well, thank you very much. That's it for today's episode of conversations with Joseph Peter Drennan. If you'd like to learn more about Joseph Peter Drennan and his law practice, visit the website, JosephPeterDrennan.com.
[18:36] As always, thanks for listening and please leave a review, subscribe to the show so you don't miss an episode or maybe share a link with someone who you think might be interested in it.
[18:46] I'm Sean O'Connor, have a great day.
[0:04] Hello everyone and welcome to Conversations with Joseph Peter Drennan.
[0:12] Joseph is a trial and appellate lawyer with more than 45 years of experience practicing
[0:17] before state and federal courts.
[0:20] Over the course of his career he has litigated civil rights cases, federal criminal matters,
[0:25] immigration disputes, and complex actions involving government accountability.
[0:31] And today we're examining qualified immunity where it came from how it operates in
[0:36] federal court and under what circumstances a federal officer may be held
[0:40] was personally liable for violating constitutional rights.
[0:44] It's a lot.
[0:45] We don't have a lot of time Joseph, but I am happy to see you.
[0:49] And likewise, it's great to be here Sean.
[0:52] Thank you for having me.
[0:53] You're bad.
[0:55] I mean, you know, the bottom line here is, you know, can officers be sued?
[1:00] Right?
[1:01] But can you explain what what qualified immunity is?
[1:04] And, you know, and even clarify how it differs from, you know, absolute immunity.
[1:09] You know, that's often replicated.
[1:10] Sure.
[1:11] Sure.
[1:12] Perhaps the best way to do that would be to, I don't want to give a long discourse on the common law,
[1:21] but we're a common law country basically.
[1:24] At common law, the king could do no wrong.
[1:27] So the sovereign cannot be sued unless the sovereign consents to be sued.
[1:34] And that applies to foreign governments as well.
[1:39] Foreign governments couldn't be sued in federal courts either because of sovereign immunity.
[1:48] There have been changes along the way there.
[1:52] But we're going to focus on sovereign immunity in the context of the police.
[1:59] In the aftermath of the recent shootings and Minneapolis, we had at least two government officials come out and say that the officers involved were entitled to absolute immunity.
[2:16] There is no legal support for that proposition.
[2:22] Rather, in the United States, because of long standing Supreme Court precedent, law enforcement officers, both at the state and federal level are entitled to qualified good faith immunity.
[2:38] And what does that mean?
[2:40] It basically means and it's come to mean in the context of case law that under that the officer acted reasonably as a prudent as a prudent police officer would act.
[2:58] But the officer has more protection than that.
[3:01] That's a defense that he acted reasonably under the circumstances.
[3:07] Qualified immunity basically gives him a shield.
[3:12] They wear shields.
[3:15] Unless they're ice officers.
[3:17] That's another part of the deal conversation.
[3:21] Different conversation.
[3:23] But it gives them a shield to from suit.
[3:28] He has immunity from suit, unless the plaintiff who's bringing the action can establish that the officer violated or a right that was clearly established at the time.
[3:45] And the problem with that is that courts traditionally have read that clearly established proviso very narrowly.
[3:59] For instance, can a police officer be sued for causing harm to a suspect and violating the suspect's constitutional rights by holding him in a chokehold.
[4:12] Well, it all depends.
[4:13] Has that been established in that jurisdiction that choke, chokeholds are actionable.
[4:21] There's a very, very high burden to overcome the qualified immunity of the officer.
[4:32] One of the reasons that qualified immunity presents such a high hurdle is that a plaintiff who makes the allegations is going to invariably encounter a motion to dismiss based on qualified immunity.
[4:49] And that even if the plaintiff prevails in that motion before the judge, that's immediately appealable.
[4:56] So the qualified immunity protects the officer from suit, unless the trial court and with the impromotor of an appellate court rules that the case can go forward.
[5:14] Well, this notion of qualified immunity, I know is not in the text of the Constitution.
[5:21] So I'm curious, how did the doctrine emerge?
[5:25] What was the judicial reasoning that led the Supreme Court to shape it in its current form?
[5:31] In a simple sense, the doctrine emerged to protect officers from an avalanche of litigation officers have interactions with the public, they arrest people, their actions are often brought into question.
[5:51] There has to be a balancing between the government's interest in hiring qualified police officers in the first place.
[5:57] Why would a police officer want to pursue law enforcement as a career if he runs the specter of a financial ruination from litigation?
[6:11] So it's a doctrine that's been in place for decades.
[6:18] The Supreme Court has modified it over time, but that modification has not been under the fundamental premise of questioning the premise of qualified immunity.
[6:30] It's been on construing the circumstances that could give rise to qualified immunity.
[6:38] I know that that's not a helpful answer to some, but yes, but and this is why this is a topic that could go on for hours discussing all of the new lines of it, but it basically is an extremely difficult proposition to sue a police officer.
[7:05] And by design, in many ways, and by design, I've done it, and I've been successful at it.
[7:14] But in fact, my very first civil trial was a lawsuit involving police misconduct with that survived a 12 B6 motion, a motion to dismiss in federal court, and we went on to prevail a trial, we won, we won damages, and we prevailed on appeal too.
[7:33] I mean, that's a good lead in do you know, okay, so from a practical, you know, practical example, so to speak, you know, when a federal officer invokes qualified immunity in a civil rights action, courts often apply a two part inquiry, you know, whether, whether constitutional violation occurred and whether the right issue was clearly established at the time, and you mentioned earlier the chokehold as kind of a Jason reference to that kind of a thing.
[8:00] How to courts navigate that framework, the two part framework in practice?
[8:05] Well, these cases are very fact intensive, and there's a lot of litigation about it, and there are often circumstances that lead to what many would consider to be unjust results, where the officer was was conferred qualified immunity.
[8:29] The law litigation was dismissed, and the plaintiff was was left with no remedy against the officer.
[8:37] There are alternative avenues that can be pursued too, such as suing the city or the government that employed the officer, and why would that be important?
[8:50] Well, the city, if it's a police officer, does not have any entitlement to qualified immunity, but you have to prove that there was a policy or practice in place that prohibited the action caused the constitutional violation.
[9:10] You know, I've heard this term, I've heard you use the term, you know, in this litigation that phrase clearly established law, right?
[9:19] So in practical terms, how specifically must prior precedent align with the facts before a court will, you know, conclude that a right was clearly established?
[9:29] There are a number of ways to answer that. I think probably the most succinct way is for me to answer it by explaining how I prevailed in my first action involving a 1983 action against the police officer.
[9:47] A police officer arrested my client on the Washington Metro system on a misdemeanor charge based on an accusation from a station manager from an incident that took place the day before police officers in the district of Columbia are entitled to arrest without warrant for misdemeanors committed in their presence.
[10:14] There was, there was no misdemeanor or no even allegation by the government that my client committed any offense in the presence of the police officer because the police officer was not there.
[10:28] And the station manager who related the allegations was not entitled to qualified immunity in any event because he wasn't a police officer.
[10:39] So that was clearly established law right there in the code.
[10:43] You know, based on our earlier conversation, it's my guess is that the courts, they're going to, like you said, it's a tough part of tough hurdle sometimes, you know, so like they're really, they want it to be they want facts.
[10:58] Like you said, they want, you know, a clear precedent, they're not going to do it on a whim.
[11:02] That's right. And because this bar is so high, this is the reason that there's been so much political discussion in the states about abolishing qualified immunity.
[11:19] Both, both at the, at the state level, states like Illinois, for instance, have moved in that direction.
[11:29] And the US Congress has considered the George Floyd act, which which is not been enacted.
[11:38] But can the Congress abrogate a qualified immunity? I believe that it can. And that it would not necessarily open the floodgate to suits against the officers because the court still
[11:59] evaluate the officers conduct, given the totality of the circumstances. And that, and that often will, will, will save the officer from liability.
[12:09] Not over so.
[12:11] I get it. I got it. Yeah, police reform is, yeah, that'll be, that's an ongoing, that's an ongoing conversation for sure. Maybe because of the complexity, you know, courts sometimes resolve qualified immunity at an early stage at the case.
[12:27] You know, from a procedural standpoint, how does the doctrine influence whether a matter proceeds to discovery or is dismissed before the actual, I mean, for the, you know, the factual record is fully developed.
[12:39] Well, that's a, that's a very good question because plaintiffs have long complained that, that the courts do not allow discovery in many instances.
[12:54] You ask the question, well, how, how is the plaintiff going to be able to develop this case unless he has a discovery? So it's a threshold problem and it's a challenge to a plaintiff's attorney to try and exercise due diligence to assemble as much information as can be had without garnering discovery from the government.
[13:21] And putting those allegations in paragraph form in the complaint and challenging the government to deny that and it makes it, at least plausible that given the right set of circumstances that that the court may allow some limited discovery to resolve the question of, of qualified ability.
[13:45] You mentioned Joseph, you mentioned George Floyd earlier. I'm curious. In cases involving use of force or, you know, rapidly on, rapidly unfolding encounters, how to courts evaluate whether an officer's use of force or rather an officer's conduct was, you know, objectively reasonable on the circumstances.
[14:10] With regard to use of force, there's actually been a clarification supplied by the Supreme Court recently, what about recently within the last few years on this.
[14:25] And in the, I believe it was the fifth circuit, the fifth circuit had a rule that dealt with that established what was called the moment of threat. And the moment of threat could be a matter of seconds when it comes to a decision whether or not to discharge a firearm.
[14:46] And other other jurisdictions, other circuits had had established the principle that the totality of the circumstances needed, needed to extend to all of the background that gave rise to the encounter that resulted in the use of force.
[15:07] And the case that actually was taken by the Supreme Court to resolve this issue, what had to do with the traffic stop in which a police officer need to go into all the details of it.
[15:25] The police officer opened the door and put his foot on the, the sill of the door and the suspect who was ordered to exit the vehicle turned on the car and he said he was looking for something and the officer could not see in the car because it was a little Toyota Corolla.
[15:46] And the officer just unholstered his gun and fired a couple of shots claiming that he was, he was at imminent risk of being dragged along the vehicle.
[15:58] And under the imminent threat rule that was being followed in that circuit, the fifth circuit, that mere minute or less than a minute was the only frame of reference and nothing else mattered.
[16:19] And the court said, no, no, the totality of the circumstances need to be employed, what, what caused the officer to initiate the stop in the first place, how did the officer proceed to approach the vehicle, those sorts of considerations, did the officer act as a reasonably prudent police officer under each stage of that encounter with with the suspect who wound up being shot and killed by the way.
[16:48] And, and the court reversed a conservative Supreme Court reversed on that interesting. Yeah, that totality of circumstance and, you know, we just a couple of minutes left, Joe, so maybe you could reflect on, you know, sort of stepping back from the doctrine itself, you know, how does qualified immunity reflect the judiciary's ongoing effort to reconcile and reconcile these two really competing principles, right, the protection of individual constitutional rights.
[17:17] And the need to permit public officials to perform their duties without undue personal exposure from my own personal perspective, I mean there and you're going to have a range of different views on this from, from practitioners.
[17:32] But I think that the court over the decades has has provided too much protection to the police to qualify the immunity is such a high bar that there need not be the fear about plethora of litigation, because the defense that the officer acted reasonably under the totality of the circumstances is still a viable defense.
[17:57] And police officers typically are defended by the departments that employ them, the federal government with regard to federal agents and state and local governments with regard to individual police forces.
[18:14] That's a lot, a lot to unpack, but I know we'll talk more in the future. Joseph, good to see you. Thanks for being here. Well, thank you very much. That's it for today's episode of conversations with Joseph Peter Drennan. If you'd like to learn more about Joseph Peter Drennan and his law practice, visit the website, JosephPeterDrennan.com.
[18:36] As always, thanks for listening and please leave a review, subscribe to the show so you don't miss an episode or maybe share a link with someone who you think might be interested in it.
[18:46] I'm Sean O'Connor, have a great day.
