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"All But the Plainly Incompetent": Recent Qualified Immunity Cases

Thursday, Sep 29, 2011, 10:49AM

An Update on Recent Qualified Immunity Cases

Qualified immunity is a judicially-created doctrine that provides a safe harbor for public officials acting under the color of state law who would otherwise be liable under 42 U.S.C. § 1983 for infringing the constitutional rights of private parties. Whitfield v. Melendez-Rivera, 431 F.3d 1, 6 (1st Cir.2005). “As the qualified immunity defense has evolved, it provides ample protection to all but the plainly incompetent or those who knowingly violate the law.” Malley v. Briggs, 475 U.S. 335, 341 (1986). More specifically, the doctrine offers protection if the individual’s constitutional right was not “clearly established” at the time it was violated.

As one can imagine, this doctrine is often litigated in cases where law enforcement officers are accused of violating a citizen’s constitutional rights during arrest, detention or investigation. Within the last few weeks, the First Circuit Court of Appeals decided three qualified immunity cases worthy of discussion. These cases may assist law enforcement officials to more clearly understand what constitutional rights are “clearly established”. Understanding these issues now can help law enforcement avoid litigation in the future. If you are sued, understanding these cases will help realistically assess your exposure. With those goals in mind, I will discuss each case briefly.

1. In Coscia v. Town of Pembroke (decided September 14, 2011), the Court addressed the issue of whether law enforcement officers are required to intervene with medical attention before an inmate’s release if he exhibits suicidal behavior while in custody. According to the First Circuit, they are not required to do so by the Fourteenth Amendment.

In this case, the estate of Coscia sued the town under 42 USC §1983 because Coscia committed suicide after being released from custody. Coscia was arrested at 11:00 a.m. after a one-car traffic accident. On the way to the police station, and again at the station, Coscia threatened to commit suicide and also exhibited suicidal behavior. As a result, the police did not place him in a cell, but restrained him and continued to monitor him. Coscia was not seen by medical personnel while in custody. Coscia was released at 6:00 p.m. that evening. The following morning, he committed suicide.

The estate alleged that the officers’ failure to arrange for medical intervention amounted to deliberate indifference to Coscia’s serious medical needs. The district court agreed, and refused to dismiss the individual defendants on the basis of qualified immunity. The First Circuit reversed the district court and analyzed the case under the Fourteenth Amendment’s due process clause because Coscia was not in custody at the time of his suicide. It held that “[i]n the absence of a risk of harm created or intensified by state action there is no due process liability for harm suffered by a prior detainee after release from custody in circumstances that do not effectively extend any state impediment to exercising self-help or to receiving whatever aid by others may not normally be available.” Slip Op. at 3.

Take away: This case is helpful because it narrows the scope of individual liability for non-custodial deaths. It is important to note, however, that no state law tort claims were alleged in this suit. The only issue pleaded was a constitutional claim. If a claim on these facts were raised based on state law negligence principles, qualified immunity would not be a defense. Therefore, if officers behave as these officers did, they may be liable for state law claims. Since respondeat superior applies to negligence claims, the municipality would also be liable.

2. The defendant police officers in Gilk v. Cunniffe (decided August 26, 2011) were not so lucky because they were not entitled to qualified immunity. In 2007, Gilk used his cell phone to film the arrest of a man on Boston Common after he began to suspect the police were using excessive force. The police arrested Gilk for illegal wiretapping, and the charges were later dismissed as “baseless”. Gilk sued claiming that his arrest violated his First and Fourteenth Amendment Rights. The officers moved for dismissal on the basis of qualified immunity arguing that it was not “clearly established” that Gilk had the right to record the officers. The district court denied this motion to dismiss, and the officers appealed.

The First Circuit, applying the two-part test for qualified immunity, held that (1) Gilk had done more than enough to allege a violation of his First Amendment rights because “[g]athering information about government officials in a form that can readily be disseminated to others serves a cardinal First Amendment interest in promoting the free discussion of governmental affairs.” Slip. Op. at 4.; and (2) these rights were “clearly established” at the time of the incident. With respect to the Fourth Amendment claim for unlawful arrest, the Court held that there were no facts alleged that demonstrated that the officers had probable cause to arrest Gilk for violation of the wiretapping statute because there was nothing secret about the filming. In fact, the court held that “[t]he presence of probable cause was not even arguable here.” Slip Op. at 6.

Take away: This case is important because of the prevalence of smartphones with video and audio recording devises that are capable of disseminating information in seconds to social media outlets such as Facebook, Twitter, and LinkedIn. The officers in this case compounded their problems by trying to “cover up” their alleged use of excessive force by arresting Gilk. Instead of one lawsuit for use of excessive force, these officers faced two. Law enforcement officials would be well-advised to proceed as though they could be recorded at any time while in public. This reminder may help lessen the chances of excessive force cases because people who are aware they are being filmed typically behave more appropriately. Attempts to confiscate recordings made by members of the public will only result in bad publicity and further litigation.

3. Finally, in Haley v. City of Boston (decided September 19, 2011), the Court clarified that even when individuals are entitled to qualified immunity on certain counts, the municipal entity may still be liable for its own constitutional violations.

In 1972, Haley was convicted of first-degree murder. After 34 years in prison, he discovered through a freedom of information request that the police withheld exculpatory evidence and may have deliberately framed him. After winning a new trial and, ultimately, his freedom, Haley sued the City of Boston and the two detectives who investigated his case.

The Court held that the officers were entitled to qualified immunity because at the time of Haley’s trial, the right to have police turn over exculpatory evidence was not clearly established. The right to have prosecutors do so was clearly established, but police officers were not required to until 1983. The officers were not entitled to qualified immunity on Haley’s claims that they deliberately framed him because the right to not be framed by the police was clearly established at the time.

The Court’s analysis of the City of Boston’s liability is much more interesting. Haley alleged several customs or policies that, if true, would give rise to the City’s own liability under §1983. Unlike qualified immunity, “claims of this nature are measured under current law, without regard to whether the municipality’s legal obligations were clearly established at the time the malfeasance occurred.” Slip Op. at 8. The City tried to argue that the claims against it should fail because one claim against the officers failed. The First Circuit rejected this argument because the “framing” claim survived, but more importantly because the obligation of police officers to turn over exculpatory evidence is clearly established now.

Take away: Even though this case involves unusual facts, it is interesting to remember that Monell-type claims are governed by current law whereas claims against the officers are governed by the law at the time the injury occurred. With DNA testing and emerging technologies, these types of situations may occur more frequently. One issue that needs to be addressed is whether separate counsel always needs to be assigned in these circumstances because of the different defenses available.

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