Qualified Immunity through the Lens of Spears v. Gautreaux

Ani Boudreaux

Introduction

On February 23, 2016, Baton Rouge police officers fired 21 times at Travis Stevenson while he was having a mental health crisis.[1] Travis did not survive this encounter with police, and his death has become one part of a larger story. The deaths of George Floyd, Breonna Taylor, and many others have revived a national debate about the need for reform of qualified immunity, which provides an affirmative defense for law enforcement officers in certain situations.[2] On June 17, 2020, the Middle District of Louisiana granted summary judgment in favor of the police officers involved in Stevenson’s killing, holding that they were protected from liability under qualified immunity.[3] There is not a single overwhelming theory of change that would solve all problems with the doctrine in one fell swoop. This post aims to present both federal and state proposals, thus allowing the reader to better understand the history of qualified immunity and the types of issues facing the 5th Circuit on appeal in the case Stevenson’s successors filed, Spears v. Gautreaux.[4]

I. A Brief History of Qualified Immunity

There are different ways that law enforcement agencies and officers can be held accountable for their unlawful actions. For instance, the Department of Justice (DOJ) can pursue criminal charges under 18 U.S.C. §§ 241 and 242.[5] The DOJ can also file a civil complaint against law enforcement agencies pursuant to 34 U.S.C. § 12601.[6] Private persons, on the other hand, may only seek civil redress for violations of their civil rights under 42 U.S.C. § 1983.[7] Under § 1983, persons who are deprived of “any rights, privileges, or immunities secured by the Constitution and laws” by a person acting under the law have a claim to sue those individuals who harmed them.[8] This statute allows plaintiffs to recover civil damages when their constitutional rights have been violated.[9] The individuals who might be found liable under § 1983, acting under “color of law,”[10] may defend themselves using a doctrine commonly known as qualified immunity.[11]

While § 1983 originally applied to state law actors, the Supreme Court expanded the statute’s reach in Bivens v. Six Unknown Federal Narcotics Agents to include federal government officials as well.[12] The Court further provided a “good faith defense” to government officers in    § 1983 cases in Pierson v. Ray.[13] The modern doctrine of qualified immunity was solidified in Harlow v. Fitzgerald, in which the Court stated that “government officials performing discretionary functions generally are shielded from liability.”[14] The Court reasoned that the policy behind the doctrine was to shield officials from the burdens of trial, as the litigation process can be disruptive of government operations.[15] The Court laid out a two-step analysis for this doctrine in Saucier v. Katz,[16] stating that the threshold question is, “[t]aken in the light most favorable to the party asserting the injury, do the facts alleged show the officer’s conduct violated a constitutional right?”[17] Second, the Court must consider whether that constitutional right was  “clearly established” in prior case law.[18] The Supreme Court further defined this doctrine in later cases, holding that judges had discretion in deciding which prong of the test to consider first, thus allowing the second question to become the entire analysis for the doctrine.[19] The Court has also asserted that the clearly established right needs to be particularized to the facts of the case, creating a very high bar of proof for plaintiffs to overcome a qualified immunity affirmative defense in § 1983 claims against law enforcement officials.[20]

II. The Case: Spears v. Gautreaux

 As the debate over the efficacy of the doctrine has continued for over 50 years, courts are applying the law as it stands now, whether they agree with the policy behind the doctrine or not. One such instance is Spears v. Gautreaux.[21] According to the Middle District of Louisiana’s opinion, the incident in this case occurred on February 23, 2016, when sheriff deputies were called out to an incident at an apartment at 8236 Innovation Park Drive in Baton Rouge.[22] The situation involved Travis Stevenson, who had allegedly assaulted his girlfriend and her daughter, taken his girlfriend’s wallet, and subsequently threatened to jump off the Mississippi River Bridge.[23] Stevenson left the apartment prior to officers arriving on the scene.[24] Lieutenant Michael Birdwell, a Baton Rouge sheriff’s deputy, located Stevenson near an apartment building about a mile from the bridge, sitting in his car.[25]

When Birdwell approached the vehicle and knocked on the window, Stevenson put the car in reverse, striking the Lieutenant’s car, and then accelerated forward.[26] Arriving on the scene, Sergeant Scott Henning Jr. fired his weapon at the car and broke a window, and he later stated that he believed that Stevenson was going to hit Birdwell.[27] Deputy Shannon Broussard also approached the scene and fired 2 to 3 rounds into the rear tire of Stevenson’s vehicle to stop him from continuing to reverse and pull forward.[28] Stevenson continued to pull forward and reverse, putting Birdwell again in danger of being hit by the vehicle.[29] Broussard discharged 6 or 7 rounds at Stevenson.[30] At the same time, Sergeant Charles Montgomery and Sergeant Verner Budd III, who were also at the incident, fired shots at Stevenson as well.[31] Stevenson was transferred to a local hospital where he later succumbed to his injuries.[32] The East Baton Rouge Sheriff’s Office and the Louisiana State Police Criminal Investigative Division completed a joint investigation of the officer-involved shooting and found that there was “no criminal misconduct on behalf of the deputies involved.”[33] The groups further stated that the actions of the deputies were “consistent with a person’s right to defend another person, who is in reasonably apparent danger of receiving death or great bodily harm.”[34] After reviewing these facts and the arguments from both sides in a civil action brought by Stevenson’s successors, the Middle District granted the defendants’ motion for summary judgement, asserting that qualified immunity shielded the law enforcement officers from liability.[35]

In November of 2020, the Plaintiff-Appellants filed a brief, with representation from the ACLU of Louisiana and UC Irvine’s Civil Rights Litigation Clinic, with the U.S. Fifth Circuit Court of Appeals asking the court to overturn the district court decision granting qualified immunity to the sheriff’s deputies in Spears.[36] Within this brief, Plaintiff-Appellants asserted that “there was no objectively reasonable basis for the deputies to believe that Mr. Stevenson posed any immediate threat of death or serious bodily injury to anyone on scene when they fired.”[37] They asserted generally that there are issues of material fact that need to come out at trial about whether the law enforcement officers’ conduct was unreasonable under clearly established law, thus arguing that a grant of summary judgment in this case was inappropriate.[38] The Fifth Circuit has not taken up this appeal as of the publication of this piece.

III. Proposals: Positives and Negatives

Qualified Immunity has been a hotly debated subject within the legal community and the public at large. The premise of the protection, that frequent litigation would undermine law enforcement work,[39] may still be good policy today, but the doctrine has seemingly failed in strengthening police protection, allowing misconduct to go unchecked in some instances. The qualified immunity doctrine was created to protect government officals or law enforcement officers from trial, but the way that the affirmative defense is applied in practice still forces officials to pay legal fees and appear in court to assert the defense, which still forces officials to take time off from their work to serve the public.[40] To remedy the issues with this doctrine, there needs to be a change of the evaluation that court use when assessing qualified immunity protection against injured civilians’ § 1983 claims. Congress may also be able to pass legislation to guide courts on narrowing the analysis of protection under qualified immunity by promulgating a more stringent threshold that must be satisfied to apply the defense. The main goal of any new solution should be to save lives and stop injuries, both for police and civilians.

A. Federal Proposals

In the 116th congressional session, there were proposals to reform qualified immunity.[41] Although Congress did not ultimately pass these bills, they provide interesting ideas about future actions and may be reintroduced in upcoming sessions.

In the summer of 2020, Representative Justin Amash introduced the Ending Qualified Immunity Act, or H.R. 7085.[42] This legislation would have done exactly what its name implies and ended the affirmative defense of qualified immunity for state and local government employee action that violates § 1983.[43] Ending the doctrine altogether may be a harsh reality for government entities that are defending and funding the defense of their individual employees.[44] This type of solution may go too far and too fast to be sustainable, although some critics of qualified immunity would argue that this is exactly the type of solution that is needed for this tremendous liability problem that America is facing.[45] Such drastic change would essentially force officials to change the way that policing is done.[46]

Senator Mike Braun introduced the Reforming Qualified Immunity Act, S. 4036, which is another interesting idea.[47] This legislation would not have allowed a defense of qualified immunity in its current form to any action under § 1983.[48] The Act would have changed the affirmative defense for defendants in two different ways.[49] If the defendant asserts that  either the defendant believed that the conduct in question was lawful, or that judicial decisions addressing the validity of a law assert that the law was constitutional,[50] the defendant would have to establish that, at the time the deprivation of rights occurred, the conduct was specifically authorized or required by a federal or state statute or regulation.[51] This change in the affirmative defense would seemingly shift the burden to a defendant to prove that their conduct was authorized or required, releasing plaintiffs of their high burden of proof the conduct was stated to be clearly unlawful under the current qualified immunity defense.[52] This middle-of-the-road approach may draw more approval from both sides of the qualified immunity argument, but critics may assert that a proposal of this type does not go far enough. While officers may still be able to escape liability on summary judgment, instead of letting a plaintiff have their day in court, this Act seemingly creates a more even playing field for both plaintiffs and defendants for proving their cases.[53]

In the interest of a broader reform approach, Congress also  considered the JUSTICE Act, S. 3985, and the Justice in Policing Act of 2020, H.R. 7120.[54] Both of these pieces of legislation focus on the entire picture of policing in America, not just the judicial analysis of qualified immunity.[55] A wide sweeping legal reform may be a better way to strengthen the American people’s confidence in the judicial system, law enforcement, and government in general. Politically, large, multi-part legislation may be easier to pass through the legislative process all at once, as there are more ways to compromise.[56] Also, it may be easier for agencies to follow one cohesive piece of legislation, rather than individual laws that must be patched together. Granted, with sweeping reforms, there may be a loss of jobs, greater financial stresses, and larger strain on government resources to enforce these new changes.[57]

B. State Proposals

States sometimes have great insights into issues that are plaguing the nation, and their solutions may be applied on a large scale. Recently, Colorado’s state legislature passed into law the Enhance Law Enforcement Integrity Act, which provides that, beginning in 2023, a person who has a constitutional right under the Bill of Rights of the Colorado Constitution that is infringed upon by an officer can bring a civil action for the violation.[58] Importantly, qualified immunity will not be a defense to these civil actions.[59] The Act requires a political subdivision of the state to indemnify its employees for such claims, except if the officer’s employer determines the officer did not act upon a good faith and reasonable belief that the action was lawful.[60] The public entity does not have to indemnify an officer if the officer was convicted of a criminal violation for the conduct from which the claim arises.[61] Colorado’s approach may be a good starting point for the nation, but it remains to be seen how this change will affect the state. In current cases, even if qualified immunity does not protect law enforcement from civil liability, it is likely that state governments satisfy the judgments against officers.[62] In essence, state governments are protected by qualified immunity in not having to indemnify law enforcement officers.[63] Colorado’s new statute would not only abolish the protections of qualified immunity ompletely, but it would subject the state entity to pay out judgments for its bad actors.[64]

In changing the defense, Connecticut has also enacted similar legislation, but it does not go as far as Colorado’s Enhance Law Enforcement Integrity Act.[65] The Connecticut law allows for a state private right of action against a law enforcement officer for actions of the officer that deprived the individual or a class of individuals of the equal protection or privileges and immunities of state law.[66] This legislation does not allow for any immunity in defense of these actions.[67] But instead of making state entites liable for their bad actors, the actors themselves would be the only ones held accountable.[68] These two approaches only differ slightly, but can result in completely different outcomes in a suit.

In the wake of the death of George Floyd and other incidents of police brutality that have been recorded and viewed across the nation, calls for disbanding the police have grown louder. Advocates of such change argue that policing needs to change, and that community policing and an emphasis on social services, along with less protection and funding for the police, are necessary to regain the confidence of the public and create a feeling of safety within minority neighborhoods again. Some cities within the United States have decided to disband their police department and start fresh. Camden, New Jersey made the decision to disband their police force in 2012 and after seven years of a new smaller law enforcement presence, the city cut their crime rate almost in half.[69] Now, Minneapolis, Minnesota seems as though it will follow suit in the near future.[70] The Minneapolis City Council declared its intention to dismantle the current law enforcement agency, shifting its funding “toward community-based strategies” that would take the place of a police department. [71] It will be interesting to see how these ideas progress in the future and if this idea will grow into a nation-wide plan of reform.

Conclusion

For injured plaintiffs like Travis Stevenson moving forward, the ending or changing of qualified immunity by Congress would allow representatives the ability to present their case in front of a jury, instead of stopping at summary judgment. A shift in the burden of proof could mean a meaningful change in the judicial analysis of such cases, so that the public’s needs are better served.[72] This first step to change qualified immunity is embodied in the proposed bill, the Reforming Qualified Immunity Act.[73] Shifting the burden of proof to the defendant to prove that the conduct in question was specifically authorized or required by a federal or state statute or regulation would better serve the public as victims are more likely to get their day in court and keep law enforcement accountable for their actions.[74] Although critics may not believe that this proposal would be bold enough, it is a first step to changing this dire situation in the United States. At the very least, the judicial system should allow the families of individuals killed in police incidents to have their day in court and this Act would seem to foster a more reasonable judicial system for both the plaintiff and defendant.[75]

Additionally, the modern qualified immunity doctrine does not seem to fulfill the policy reason behind it, to protect officers from suit so that they may better serve the public interest.[76] Officers still have to come into court to assert that they are entitled to immunity, rather than dispensing with the suit before hearings even take place. If this policy reason is not being met, why preserve the defense when it just serves to limit a plaintiffs’ ability to move past the summary judgment stage at trial? For now, the legal community will just have to wait and see if the Supreme Court changes its analysis for qualified immunity, or if Congress agrees on what must be done to help the people of this country feel safer and more secure in their individual rights.

All proposals for reshaping the way that the judicial system handles qualified immunity are a step in the right direction, as they increase awareness of the issues that affect the population. Continuing this conversation will help to ignite new ideas in bettering the nation. Focusing on changing the affirmative defense of qualified immunity may be a single positive step in the right direction for United States policing reform.

 

[1] See,generally, Spears v. Gautreaux, No. 17-105-JWD-EWD, 2020 WL 3271993, at *1 (M.D. La. June 17, 2020).

[2] Say Their Name, Gonzaga University (Sept. 5, 2020), https://www.gonzaga.edu/about/offices-services/diversity-inclusion-community-equity/say-their-name#inmemoriam [https://perma.cc/QXJ5-YKZC].

[3] See, generally, Spears, 2020 WL 3271993, at *1.

[4] ACLU of Louisiana Asks Fifth Circuit to Overturn Grant of Qualified Immunity to Officers Who Killed Unarmed Man in Baton Rouge, ACLU of Louisiana (Nov. 16, 2020), https://www.laaclu.org/en/press-releases/aclu-louisiana-asks-fifth-circuit-overturn-grant-qualified-immunity-officers-who [https://perma.cc/T6NZ-K6N4].

[5] Joanna R. Lampe, Cong. Rsch. Serv., LSB10486, Congress and Police Reform: Current Law and Recent Proposals 1 (2020).

[6] Id.

[7] Id.

[8] 42 U.S.C. § 1983.

[9] Whitney Novak, Cong. Rsch. Serv., LSB10492, Policing the Police: Qualified Immunity and Considerations for Congress 1 (2020).

[10] Monroe v. Pape, 365 U.S. 167, 184 (1961). The Supreme Court stated that the “[m]isuse of power, possessed by virtue of state law and made possible only because the wrongdoer is clothed with the authority of state law, is action taken ‘under color of’ state law.” Id.

[11] Id.

[12] 403 U.S. 388 (1971)

[13] 386 U.S. 547 (1967).

[14] 457 U.S. 800, 818 (1982).

[15] Id.

[16] 533 U.S. 194, 201 (2001).

[17] Id.; see also Siegert v. Gilley, 500 U. S. 226, 232 (1991).

[18] Saucier, 533 U.S. at 201.

[19] Pearson v. Callahan, 555 U.S. 223, 818 (2009).

[20] See generally Mullenix v. Luna, 577 U.S. 7 (2015).

[21] No. 17-105-JWD-EWD, 2020 WL 3271993, at *1 (M.D. La. June 17, 2020); see also Bryn Stole, Sheriff Releases Identities of Six Deputies Involved in Shooting Death Tuesday in Baton Rouge, Advocate (Sept. 22, 2016, 9:50 PM) https://www.theadvocate.com/baton_rouge/news/crime_police/article_88aad376-0fe1-56b3-b9fd-7f68928db7d9.html [https://perma.cc/K3YE-LFSS].

[22] Spears, 2020 WL 3271993, at *1.

[23] Id.

[24] Id.

[25] Id.

[26] Id. at *2.

[27] Id.

[28] Id.

[29] Id.

[30] Id. at *3.

[31] Id.

[32] Id.

[33] Id.

[34] Id.

[35] Id. at *17, *25.

[36] See supra note 2.

[37] Id.

[38] Id.

[39] See generally Harlow v. Fitzgerald, 457 U.S. 800, 818 (1982).

[40] See generally Saucier v. Katz, 533 U.S. 194, 201 (2001).

[41] Ending Qualified Immunity Act, H.R. 7085, 116th Cong. § 2 (2020); Reforming Qualified Immunity Act, S. 4036, 116th Cong. § 2 (2020).

[42] Ending Qualified Immunity Act, H.R. 7085, 116th Cong. § 2 (2020).

[43] Id.

[44] See generally Joanna C. Schwartz, Police Indemnification, 89 NYU L. Rev. 885, 892 (2014).

[45] See generally Hayden Carlos, Disqualifying Immunity: How Qualified Immunity Exacerbates Police Misconduct and Why Congress Must Destroy It, 46 S.U. L. Rev. 283 (2019).

[46] Id.

[47] Reforming Qualified Immunity Act, S. 4036, 116th Cong. § 2 (2020).

[48] Id.

[49] Id.

[50] Id.

[51] Id.

[52] The second inquiry for qualified immunity analysis, whether “a right [was] clearly established,” would force the plaintiff to prove that there is prior precedent that the officer’s conduct was a deprivation of rights. Saucier v. Katz, 533 U.S. 194, 201 (2001).

[53] See generally Harlow, 457 U.S. at 818.

[54] JUSTICE Act, S. 3985, 116th Cong. § 2 (2020); Justice in Policing Act of 2020, H.R. 7120, 116th Cong. § 2 (2020).

[55] See generally S. 3985. See also H.R. 7120.

[56] See generally Michael C. Gilbert, Single Subject Rules and the Legislative Process, 67 U. Pitt. L. Rev. 803 (2006); Jesse Rifkin, What if Each Bill Congress Debated Only Dealt with One Topic?, GovTrack.us (Aug. 31, 2016), https://govtrackinsider.com/what-if-each-bill-congress-debated-only-dealt-with-one-topic-83b59a60a534 [https://perma.cc/K3TM-ER9P].

[57] See generally Peter Nickeas, Why Sweeping Police Reform over the Last Year Has Largely Been Elusive, CNN (Mar. 7, 2021, 1:56 PM) https://www.cnn.com/2021/03/07/us/police-reform-george-floyd-breonna-taylor/index.html [https://perma.cc/J5KT-7XLW].

[58] Enhance Law Enforcement Integrity Act, S.B. 20-217 (2020).

[59] Id.

[60] Id. If the officer is found to have acted in bad faith, then the peace officer is personally liable for 5% of the judgment or $25,000, whichever is less. If the judgment is uncollectible from the officer, the officer’s employer will satisfy the whole judgment. Id.

[61] Id.

[62] See, e.g., Schwartz, supra note 44, at 892.

[63] Id.

[64] Enhance Law Enforcement Integrity Act, S.B. 20-217 (2020).

[65] H.B. 6004 (2020).

[66] Id.

[67] Id.

[68] Id.

[69] Scottie Andrew, This City Disbanded Its Police Department 7 Years Ago. Here’s What Happened Next, CNN (June 9, 2020, 11:23 AM), https://www.cnn.com/2020/06/09/us/disband-police-camden-new-jersey-trnd/index.html [https://perma.cc/J72V-76HC].

[70] Dakin Andone, Minneapolis City Council Members Intend to Defund and Dismantle the City’s Police Department, CNN (June 9, 2020, 5:46 AM), https://www.cnn.com/2020/06/07/us/george-floyd-protests-sunday/index.html [https://perma.cc/CE2J-DFR5].

[71] Id.

[72] Reforming Qualified Immunity Act, S. 4036, 116th Cong. § 2 (2020) (generally shifting the burden of proof onto defendants in qualified immunity’s second inquiry).

[73] Id.

[74] Id.; Saucier v. Katz, 533 U.S. 194, 201 (2001).

[75] See, e.g., Harlow v. Fitzgerald, 457 U.S. 800, 818 (1982).

[76] Id.

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