By Lisa Soronen

While a recent Washington Post article notes that the Supreme Court isn’t hearing as many cases as usual this winter, the court has not been shy about taking qualified immunity cases. In November the court decided to hear two such cases and issued an opinion in a third case without oral argument. The State and Local Legal Center will file an amicus brief in both of the newly granted cases.  

Supreme Court blogState and local government officials can be sued for money damages in their individual capacity if they violate a person’s constitutional or federal statutory rights. Qualified immunity protects government officials from such lawsuits where the law they violated isn’t “clearly established.” In short, qualified immunity is intended to protect “all but the plainly incompetent or those who knowingly violate the law.”

In Wood v. Moss pro- and anti-President Bush demonstrators had equal access to the president as his motorcade arrived in Jacksonville, Ore. But when the president made an unexpected stop for dinner, Secret Service agents moved the anti-Bush protesters, who were closer to the restaurant than the pro-Bush demonstrators, about one block further from the president than the pro-Bush demonstrators.

The anti-Bush protesters sued two Secret Service agents claiming they violated their First Amendment rights by discriminating against them because of their viewpoint. The 9th U.S. Circuit Court of Appeals denied the agents qualified immunity. The Supreme Court will decide whether the lower court evaluated the qualified immunity question in this case too generally. The 9th Circuit focused on its conclusion that the agents engaged in viewpoint discrimination instead of whether it was clearly established that the anti-Bush protesters could not be moved further away from the president than the pro-Bush demonstrators. The court will also decide whether the anti-Bush protesters have adequately claimed viewpoint discrimination when there was an obvious security-based rationale for moving them: they were closer to the president.

Police officers shot and killed Donald Rickard and his passenger after Rickard led police on a high-speed chase. Their families sought money damages, claiming the officers violated the Fourth Amendment by using excessive force. The officers argued they should be granted qualified immunity because their use of force wasn’t prohibited by clearly established law.

In Plumhoff v. Rickard, the court will decide whether the lower court properly denied qualified immunity by distinguishing this case, which arose in 2004, with a later Supreme Court decision from 2007. The court also will decide whether qualified immunity should be denied based on the facts of this case. Rickard wove through traffic on an interstate connecting two states, collided with police vehicles twice, and used his vehicle to escape after being surrounded by police officers, nearly hitting at least one officer.

In Stanton v. Sims, the Supreme Court reversed the Ninth Circuit’s refusal to grant qualified immunity to a police officer who kicked open a gate hitting the homeowner while in “hot pursuit” of someone the officer thought committed a misdemeanor.  The Ninth Circuit concluded that it was clearly established that a police officer may not enter someone’s property without a warrant while in “hot pursuit” of someone suspected only of a misdemeanor.

The Supreme Court disagreed, describing the state of the law as follows: “[t]o summarize the law at the time [the officer] made his split-second decision to enter [the homeowner’s] yard: Two opinions of this Court were equivocal on the lawfulness of his entry; two opinions of the State Court of Appeal affirmatively authorized that entry; the most relevant opinion of the Ninth Circuit was readily distinguishable; two Federal District Courts in the Ninth Circuit had granted qualified immunity in the wake of that opinion; and the federal and state courts of last resort around the nation were sharply divided.”

Lisa Soronen is the executive director of the State and Local Legal Center in Washington, D.C.

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This blog offers updates on the National Conference of State Legislatures' research and training, the latest on federalism and the state legislative institution, and posts about state legislators and legislative staff. The blog is edited by NCSL staff and written primarily by NCSL's experts on public policy and the state legislative institution.


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