Thompson v. Clark, Kisela v. Hughes . White v. Pauly Mullenix v. Luna Brosseau v. Haugen Taylor v. Barkes Caroll v. Carman Stanton v. Sims Kisela v. Hughes Kisela v. Hughes Pearson v. Callahan Graham v. Connor Tennessee v. Garner Kisela Kisela Kisela Graham/Garner Kisela Kisela
  • The qualified immunity issue is whether the officer's conduct violated '“clearly established statutory or constitutional rights of which a reasonable person would have known.' 'Because the focus is on whether the officer had fair notice that her conduct was unlawful, reasonableness is judged against the backdrop of the law at the time of the conduct.”' Nothing extreme here. So far so good!
  • The court in Kisela reiterated language from several recent qualified immunity decisions that the pertinent issue is whether the contours of the right were sufficiently definite that “'any reasonable official'” in defendant's position would have known that he was violating it. Kisela, 138 S. Ct. at 1153. It is unclear whether there is a meaningful distinction, or for that matter any distinction, between a “reasonable official” and “any reasonable official.” What is clear is that this language shift by the court is meant to send a message to lower courts and litigators that qualified immunity is not easily overcome.
  • The court continued its familiar mantra that while law can be clearly established even without '“a case directly on point,”' to be clearly established, the existing precedent must have placed the constitutional question '“beyond debate.”' Quite a fine line between there being no requirement of precedent “on point,” and precedent placing the issue “beyond debate,” but it's a line the Supreme Court invariably administers in favor of finding the officer protected by qualified immunity. In fact, the court in Kisela reiterated language it has articulated over and over again that qualified '“immunity protects all but the plainly incompetent or those who knowingly violate the law.”'
  • Most importantly, especially for §1983 Fourth Amendment claims, the court in Kisela again stressed that in determining whether the defendant violated clearly established federal law, courts must evaluate the law at a very high level of specificity, although, if we take the court at its word, law can be clearly established even without precedent “on point.” Mere general statements of constitutional law, such as the Graham principle that “an officer may not use unreasonable force,” or the Garner principle that an officer may not employ deadly force unless “the suspect poses a threat of serious harm, either to the officer or others”, cannot clearly establish the law because they do not give “fair warning” to the officer as to which conduct in particular circumstances is constitutional and which is unconstitutional. The Supreme Court said that it has '“repeatedly told courts—and the Ninth Circuit in particular —not to define clearly established law at a high level of generality.”'
  • And that is not all! The court once again stressed that specificity in the clearly established law analysis is “especially important in the Fourth Amendment context” because law enforcement officers sometimes find it difficult to determine how the relevant Fourth Amendment principles apply in factual circumstances the officer confronts. The court said that in excessive force cases “police officers are entitled to qualified immunity unless existing precedent “squarely governs the specific facts at issue,” 138 S. Ct. at 1153, quoting Mullenix v. Luna, 136 S.Ct. at 308.
Gonzalez v. City of Schenectady Zalaski v. City of Hartford Kisela Kisela Kisela v. Hughes Martin A. Schwartz , Professor Emeritus of Law, is the author of a multi-volume treatise on Section 1983 litigation published by Wolters Kluwer Law and Business.