Important Update on Qualified Immunity

The doctrine of qualified immunity, when properly applied, shields law enforcement from burdensome litigation and armchair quarterbacking in federal court. In its first decision of 2017, White v. Pauly, 580 U.S. __ (2017), a unanimous United States Supreme Court granted qualified immunity to a back-up officer, arriving later on scene, who fired his weapon in response to shots fired.

In White, two officers responded to a 911 report of a “‘drunk driver'” who was “‘swerving all crazy.” Directed to a residence based on the license plate, the officers decided to simply ask some follow up questions. However, when voices from inside the residence asked “Who is it?,” the officers laughed and said “We got you surrounded. Come out or we’re coming in.” The residents grabbed weapons and yelled, “We have guns.” The officers claimed to identify themselves, but the occupants denied hearing it.

Just at that moment, Officer Ray White arrived, heard the “We have guns” statement and took cover kneeling behind a wall. One occupant fired a shotgun and another pointed a pistol out a window at White. In returning fire, Officer White shot and killed the occupant at the window. In the subsequent excessive force suit, Officer White argued that he was entitled to qualified immunity. The trial court and a panel of the U.S. Court of Appeals for the 10th Circuit disagreed, finding that a reasonable officer in White’s position would believe that a warning is required before shooting a suspect even if the officer is in danger of harm.

The Supreme Court quickly reversed, granting White qualified immunity. Again cautioning lowers courts against defining ‘clearly established law’ ‘at a high level of generality,’ the Court noted no prior case indicates that an officer was required to determine what steps might have been taken by officers who were already on the scene, such as whether the other officers had properly identified themselves or otherwise given a warning.  The Court expressed no opinion as to the other officers.

In short, the message of the Supreme Court is clear: federal courts are required to consider the “unique” facts of each case and are not in the business of second-guessing the reasonable, split-second decisions of law enforcement. We hope courts within the Ninth Circuit will finally take note.