Dan Dailey Kingdom Litigations, Inc.
After the American Civil War, the government created a truce with its citizens through the Ku Klux Klan Act and later the Civil Rights Act. In the truce, citizens agreed to bring complaints to the federal civil courts without protests or war.¹ Over the past thirty years, however, legal barriers created by judges breached that agreement.
In recent years, citizens have taken to protesting in the streets because the judicial branch prevented jury trials for government officials. Using procedural hurdles such as a motion to dismiss or the infamous doctrine of qualified immunity, courts shielded government officials from community accountability or in other words, a jury trial.
This article focuses on the infamous doctrine of qualified immunity and provides one strategy to overcoming this doctrine.
What is Qualified Immunity? Qualified immunity is a judge-created, judge-interpreted, and judge-decided legal concept. Think of qualified immunity as limited protection from a trial. In the courts, qualified immunity is a written rule which states a government official is not personally responsible for your injuries if the official’s conduct was objectively reasonable or did not violate clearly established law.²
The word or is italicized because, in practice, qualified immunity means that although the judge may agree a police officer’s conduct was unreasonable, the judge will not hold the police officer responsible unless the officer should have known his conduct would violate the Constitution.³
For example, in 2018, the U.S. Supreme Court held that an officer who went under a fence to fatally shoot a non-threatening woman was entitled to qualified immunity because his specific actions were not a previously established constitutional violation.⁴ Therefore, the officer did not have fair notice his conduct violated the Fourth Amendment.⁵
Fierce critics contend that qualified immunity is total protection from government abuse.6 While there is much literature on the injustice of qualified immunity, very few strategies are written for overcoming the doctrine. If you cannot find an experienced civil rights attorney, then you must file your own complaint in the federal district court where the incident occurred. This is called pro se.
This article provides one clear strategy—think bigger. Whether you are pro se, or a novice civil rights attorney, think bigger before you file your complaint against the government.⁶
Go Big or Go Home—You Must think Bigger! “Think bigger” means to find one hundred police misconduct stories that are similar to your story before you file the federal complaint. Adding a hundred stories of civil rights violations similar to your own (regardless of injury type) will assist you throughout all stages of the litigation. These stages are the beginning (where the defendant asks the court to dismiss your lawsuit); the middle (where the defendant ask the court to dismiss your lawsuit again); and the end (where the defendant asks a jury to dismiss your lawsuit).
Qualified immunity defense appears in the middle stage. Remember, here is when the defendant asks the court to dismiss your case because the police officer is immune from your lawsuit.⁷ To grant this immunity, first the court must determine whether the police officer knew or should have known his conduct violated the Constitution. So, the court must find a previous case like your case.
Then, the court determines whether the police officer’s conduct was objectively reasonable. Here, the court determines what was objectively reasonable by viewing your case as a similarly situated officer on the scene. This is where thinking bigger is most beneficial.
“Force the court to widen its objectivity” You must show the court that numerous officers from the same department regularly violate civil rights. Do not just focus on the officer who wronged you. This will shift the judge’s focus to the government’s policy or practice causing the harm. Force the court to widen its objectivity.
Ordinarily, the court will compare a single officer’s conduct to another officer’s conduct and determine reasonableness. However, by thinking bigger, you force the court to compare a group of officers’ actions to another group. Thereby, increasing the intricate factual disputes and moving closer to a trial.
By alleging hundreds of civil rights violations in one specific jurisdiction, you have effectively forced the court into a police department versus police department comparison. The practical issue is that the defense must establish that hundreds of their officers acted as similarly situated reasonable officers of another jurisdiction. So, by alleging hundreds of civil rights violations, even as a pro se litigant, you will change the litigation by filing your complaint.
Critics may contend that a “determined” judge may still substitute his or her judgment for a reasonable officer and conclude that all the officers’ actions were objectively reasonable; so, they are all entitled to qualified immunity. This is wonderful for a plaintiff’s case for one main reason: You have now narrowed a group of specific actions to a policy or practice. Therefore, if any similar actions by one officer (even in the future) are held unreasonable, all similar actions will be unreasonable. In other words, if the court takes the position that all officers’ conduct was reasonable, you need only prove one of the officer’s conduct was unreasonable to invalidate that ruling. At this point, you have numerous legal options, and it is time to bring your case to an experienced class action or civil rights litigator.
Assuming the court finds that the actions of the police officer were arguably unreasonable, the judge may grant qualified immunity if the violation was not clearly established at the time of the incident. To overcome this hurdle, just must ask yourself before you ever file a document:
Is the constitutional violation I allege Googleable? Again, do not wait until the end of your case to describe the pattern as an established constitutional violation. Instead, describe the policy or practice as a well-known constitutional violation from the very start.⁸ How do you do this? Google.
While using Google may seem unscholarly, the logic behind the “fair notice” requirement to the police officer is that the unlawfulness of his or her conduct must be sufficiently clear through a body of past case law.⁹ A simple search for excessive force or police misconduct lawsuits satisfies the logic behind the court’s “fair notice” requirement.¹⁰ Google provides the top cases and stories that are commonly searched, reported, and trending. Resist the urge to use legal search engines and find similar instances where the U.S. Supreme Court decided a constitutional violation that is reported and found with a Google search.
The other benefit of using a Google search is that it will show stories that were never filed as lawsuits but were discussed in the media. As you search for a hundred stories to allege against a police department, please remember that Google completed the work for you through its settings. Google will often link together files, statements, and names by common words or phrases.
After you have found several Supreme Court cases on Google, return to 100 stories and describe the unconstitutional practice with the “buzz” words in common. “Buzz” words are simply words that the court continually uses in written opinions that have legal effect. The pattern you describe should not be more than one sentence. For example, “you run, you pay” describes a pattern of police officers who use excessive force on anyone who resists arrests. The constitutional violation is embedded in the practice “you run, you pay” from the fleeing felon rule, which prevents using deadly force against individuals who run.¹¹ If you embed “buzz” words from the U.S. Supreme Court inside your alleged practice, then when you get to qualified immunity at summary judgment, the second prong is easily defeated.
If you do not contemplate qualified immunity before you file your civil rights case, then it will have serious consequences. Thinking bigger will naturally address many of the pro se filer’s legal barriers throughout all stages of the litigation. Thinking bigger has remarkable benefits for the trial.
Qualified Immunity Affects Everyone! Qualified immunity prevents good cops from clearing their names. Not every police shooting is wrong. Yet, police officers are vilified in public protests without receiving vindication or validation that their actions were justified by a jury. Police express their feelings of injustice in the manner of policing. This only deepens the community divide.
Yet, the most unintended consequence of qualified immunity is the effect on the community who should hear complaints against the government and decide the facts for themselves.
This is called a citizen-jury pool. Citizen-jury pools are deprived of their opportunity to hear a matter, determine its veracity, and remedy the societal ills with a verdict. As a result, the citizen-jury pool joins the chorus of protestors rendering their decision based on media reports but never analyzing the officer’s account.
Based on a broader perspective, qualified immunity has deprived abused citizens, government officials, and the citizen-jury pools of a trial, verdict, and remedy. So now citizens are holding the trial in the streets, and there is no civilized process or system to temper passions. Until Congress overturns the judge-made doctrine of qualified immunity, pro se litigants and attorneys must think bigger to overcome qualified immunity.
Sources ¹ 42 USCA Section 1983 et seq. ² The doctrine of qualified immunity shields officials from civil liability so long as their conduct “‘does not violate clearly established statutory or constitutional rights of which a reasonable person would have known.’” Mullenix v. Luna, 577 U.S. 7, 11, 136 S. Ct. 305, 308, 193 L. Ed. 2d 255 (2015). ³ In other words, existing law must have placed the constitutionality of the officer's conduct “beyond debate.” D.C. v. Wesby, 138 S. Ct. 577, 589, 199 L. Ed. 2d 453 (2018). ⁴ Kisela v. Hughes, 138 S. Ct. 1148, 1152, 200 L. Ed. 2d 449 (2018). ⁵ Id. at 1154-155. ⁶ Kisela, 138 S. Ct. at 1162 (stating “Such a one-sided approach to qualified immunity transforms the doctrine into an absolute shield for law enforcement officers, gutting the deterrent effect of the Fourth Amendment.”). ⁷ Fed. R. Civ. P. 56. ⁸ “[I]dentify a case where an officer acting under similar circumstances ... was held to have violated the Fourth Amendment.” White v. Pauly, 580 U.S. ––––, ––––, 137 S.Ct. 548, 552, 196 L.Ed.2d 463 (2017) (per curiam); e.g., Plumhoff, supra, at 2023. While there does not have to be “a case directly on point,” existing precedent must place the lawfulness of the particular arrest “beyond debate.” Al–Kidd, supra, at 741; Wesby, 138 S. Ct. at 590. ⁹ Id. at 590 ¹⁰ Brosseau v. Haugen, 543 U.S. 194, 198, 125 S. Ct. 596, 599, 160 L. Ed. 2d 583 (2004) (stating “…the focus is on whether the officer had fair notice that her conduct was unlawful.”). ¹¹ Tennessee v. Garner, 471 U.S. 1, 105 S. Ct. 1694, 85 L. Ed. 2d 1 (1985).