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Jul 21, 2017

Federal Ninth Circuit Court of Appeals Split on Applying Qualified Immunity Defense to Excessive Police Force Actions

By: Morey Davidovitz

U.S. Supreme Court precedent has established that police officers have a qualified immunity from suit claiming excessive police force in violation of constitutional civil rights. The U.S. Supreme Court has also reversed the Ninth Circuit’s denying the application of the immunity by defining the legal standard for the immunity at “too high a level of generality”, as recently as June, 2017 [See, Peterson v. Lewis County, 663 F.App’x 531 (9th Cir. 2016) cert. granted and judgment vacated sub nom. McKnight v. Peterson, No. 16-1003 (U.S. June 12, 2017].

Recently the Ninth Circuit has revealed details of the split among its justices in how to apply the Supreme Court precedent to context-specific conduct. Hughes v. Kisela (9th Cir. June 28, 2017). That split involves differences in analytic approach,  however in general comes down to  whether, in the absence of precedent placing beyond debate that the use of force in the particular circumstances violated constitutional rights, the reasonableness of the officer’s beliefs and actions are deemed sufficiently in dispute so as to go to a jury for determination or instead whether the court applies the immunity as a matter of law where no earlier case precedent held that conduct closely analogous to the specific conduct at issue violated a constitutional right.  As such, the defense of municipalities against excessive police force cases in California and other venues within the Ninth Circuit’s jurisdiction will continue to be challenging in presenting the immunity defense to the trial court, particularly on motion for summary judgment.