Chemerinsky: When can government officers be held liable?

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U.S. Supreme Court


Erwin Chemerinsky

Erwin Chemerinsky.

In the last few years, police killings of unarmed African-American men—Michael Brown, Eric Garner, Walter Scott, Laquan McDonald, Freddie Gray and others—have received great publicity. There is an urgent question of how to hold the police accountable to prevent and remedy constitutional violations.

This term, the Supreme Court has several cases addressing when law enforcement officers can be sued for money damages.

In each of the cases, the court has to consider whether the police violated the Fourth Amendment and if so, whether the officers can be held liable or whether they are protected by “qualified immunity.” All government officials when sued for money damages can raise immunity as a defense. For some tasks, there is “absolute immunity,” which means that the officer cannot be held liable no matter how egregious the constitutional violation. For example, absolute immunity exists for prosecutors for their prosecutorial tasks, legislators for their legislative tasks, judges for their judicial tasks and law enforcement officers for their testimony in court.

If there is not absolute immunity, a government official can assert “qualified immunity.” The Supreme Court has said that this means that the officer can be held liable only if he or she violates clearly established law that every reasonable officer should know; it must be a right that is established “beyond dispute.” In many recent cases, the Court has found that police sued for excessive force are protected by qualified immunity. For example, on January 9, in White v. Pauley, the Supreme Court, in a per curium opinion, reversed the Denver-based 10th U.S. Circuit Court of Appeals and held that officers were protected by qualified immunity for a shooting that killed a man in his home.

There are several pending cases that will cause the court to examine when law enforcement officers can be held liable.

Ziglar v. Abbasi, Ashcroft v. Abbasi, Hasty v. Abbasi

These three cases, which were consolidated for oral arguments, involve Muslim men who were apprehended and detained after the terrorist attacks on September 11, 2001. They were then held for months in solitary confinement in a super-maximum security wing of a federal prison. They claim that they were subjected to harassment and abuse. They maintain that this was not because of any evidence that they were dangerous, but solely because of their race and ethnicity.

The Manhattan-based 2nd U.S. Circuit Court of Appeals ruled that the plaintiffs’ claims survived a motion to dismiss. The Supreme Court granted review and there are several issues before the court. Do the plaintiffs have a claim under Bivens v. Six Unknown Named Agents of the Federal Bureau of Narcotics (1971), which held that federal officers can be sued for money damages for violating the Constitution? Unlike 42 U.S.C. §1983, which allows state and local officers to be sued for violating the Constitution and federal laws, there is no similar statute authorizing suits against federal officials. Bivens held that a cause of action for money damages can be derived from the Constitution, in that case from the Fourth Amendment. But the court repeatedly has narrowed Bivens and there is the question of whether plaintiffs have a claim for money damages in this situation.

Also, there is the question of qualified immunity. Even if there is a cause of action, did the defendants violate clearly established law that every reasonable officer should know? Finally, there is the question of whether the plaintiffs’ complaint was sufficient to withstand a motion to dismiss in light of Ashcroft v. Iqbal, a case with similar facts. The plaintiffs in these cases amended their complaint after Ashcroft v. Iqbal and maintain that the additional, detailed facts are sufficient to withstand a motion to dismiss.

The cases were argued on Jan. 18 of this year. Only six justices are participating. Justice Sonia Sotomayor is recused, likely because the cases were before the 2nd Circuit when she was a judge there, and Justice Elena Kagan, is recused, likely because she the Solicitor General of the United States when the cases were considered there.

Hernandez v. Mesa

In 2010, a 15-year-old boy, Sergio Hernandez, was playing with three friends in the concrete culvert separating El Paso, Texas, and Juarez, Mexico. They were playing a game where they would run up the culvert’s northern incline, touch the U.S. fence, and then scamper back down to the bottom. They were unarmed. A border agent, Jesus Mesa, fired his gun at Hernandez, who was about 60 feet away. Hernandez was struck by the bullet and killed. Mesa was in the United States; Hernandez was in Mexico. Whether the boys were throwing rocks at Mesa, and whether there was “alien smuggling” occurring, is very much in dispute between the parties.

The federal district court dismissed all claims and the New Orleans-based 5th U.S. Circuit Court of Appeals affirmed. There are a number of issues before the Supreme Court. Does the Fourth Amendment, which prohibits excessive force by law enforcement officials, apply? In United States v. Verdugo-Urquidez (1990), the court held that the Fourth Amendment does not apply to law enforcement officials acting outside of the United States. Does that apply here when Mesa was in the United States when he fired his gun, but the victim was on the other side of the border? Also, like in the Abassi cases, there are questions of whether there is a cause of action under Bivens and, if so, whether the defendants are protected by qualified immunity.

The plaintiff presents this to the court as applying settled law: the Fourth Amendment prohibits excessive force by a law enforcement officer in the United States and Mesa was in the United States when he fired his gun. The defendant argues that this is a case about extraterritoriality and the Fourth Amendment doesn’t apply, or at the very least a novel situation where there should not be a Bivens suit available and qualified immunity should be a defense. Hernandez v. Mesa will be argued on Tuesday, February 21.

District of Columbia v. Wesby

On Jan. 19, the Supreme Court granted review in yet another Fourth Amendment case with a qualified immunity issue: District of Columbia v. Wesby.

Police officers found late-night partiers inside a vacant home. Some of the partiers told the officers that they had been invited to the house by a woman whom they believed to be its lawful occupant. That woman confirmed to the officers by telephone that she had invited them. The officers, however, subsequently learned that she was not in fact a lawful resident of the house. The officers arrested the partiers for trespassing.

Ultimately, all of the charges were dismissed and 16 individuals filed a civil suit against the officers under §1983 for violating the Fourth Amendment. The federal district court and the United States Court of Appeals for the District of Columbia Circuit ruled in favor of the plaintiffs, holding that there was not probable cause for their arrest because the partiers reasonably believed that they had the right to present in the house and also concluding that the officers were not protected by qualified immunity.

The Supreme Court granted review on two questions: whether the officers had probable cause to arrest under these circumstances and whether even if there was no probable cause to arrest the apparent trespassers, the officers were entitled to qualified immunity. No oral argument date has been scheduled.

All of these cases come to the court in the context of great national attention to police misconduct and the demands for action by Black Lives Matter and others. Together these cases will be important in defining the ability to use civil suits to hold the police accountable.


Erwin Chemerinsky is Dean and Distinguished Professor of Law, and Raymond Pryke Professor of First Amendment Law at the University of California, Irvine School of Law. He is an expert in constitutional law, federal practice, civil rights and civil liberties, and appellate litigation. He’s the author of seven books, including The Case Against the Supreme Court (Viking, 2014).

Updated at 9:13 a.m. to correct the spelling of Freddie Gray’s name.




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