The Lawletter Vol 39 No 1
Steve Friedman, Senior Attorney, National Legal Research Group
The doctrine of qualified immunity shields governmental officials "from liability for civil damages insofar as their conduct does not violate clearly established statutory or constitutional rights." Harlow v. Fitzgerald, 457 U.S. 800, 818 (1982). For qualified immunity purposes, "clearly established" means that "[t]he contours of the right must be sufficiently clear that a reasonable official would understand that what he is doing violates that right." Anderson v. Creighton, 483 U.S. 635, 640 (1987).
As recently summarized by the U.S. Court of Appeals for the Eleventh Circuit, there are several ways a plaintiff can prove that a right was clearly established for qualified immunity purposes.
He can, for instance, produce a materially similar case decided by the Supreme Court, this Court, or the highest court of the relevant state. Hoyt [v. Cooks, 672 F.3d 972, 977 (11th Cir. 2012)]. A right can be clearly established, however, even in the absence of precedent. A plaintiff can point to a "broader, clearly established principle [that] should control the novel facts in [his] situation." Mercado v. City of Orlando, 407 F.3d 1152, 1159 (11th Cir. 2005). Finally, a plaintiff may show that an "official's conduct 'was so far beyond the hazy border between excessive and acceptable force that [the official] had to know he was violating the Constitution even without caselaw on point.'" Priester v. City of Riviera Beach, 208 F.3d 919, 926 (11th Cir. 2000) (alteration in original) (quoting Smith v. Mattox, 127 F.3d 1416, 1419 (11th Cir. 1997) (per curiam)).
Morton v. Kirkwood, 707 F.3d 1276, 1282 (11th Cir. 2013).
Most frequently, however, the parties will attempt to prove whether or not the relevant law was clearly established by citing to factually analogous case law. Typically, this is done by citing to case law that predates the defendant's allegedly unlawful conduct. But can an analogous case that is decided after the events at issue ever be relevant to the clearly established analysis? That question was recently answered in the affirmative as a matter of first impression in the U.S. Court of Appeals for the Sixth Circuit.
In T.S. ex rel. J.S. v. Doe, No. 12-5724, 2014 WL 443376 (6th Cir. Feb. 5, 2014), the parents of two minor children who had been detained for underage drinking brought a 42 U.S.C. § 1983 suit against the juvenile detention facility and several individuals at the facility, alleging that the suspicionless strip search performed as part of the facility's routine intake process had violated the children's Fourth Amendment rights. On cross-motions for summary judgment, the individual defendants asserted qualified immunity. In support of their motion, the plaintiffs relied on Masters v. Crouch, 872 F.2d 1248 (6th Cir. 1989), which had "held that the suspicionless strip search of pretrial detainees held on minor, nonviolent offenses violated the Fourth Amendment." T.S., 2014 WL 443376, at *2 (citing Masters, 872 F.2d at 1250).
Significantly, however, before the trial court ruled on the parties' cross-motions for summary judgment, the U.S. Supreme Court rendered its decision in Florence v. Board of Chosen Freeholders, 132 S. Ct. 1510 (2012), in which a narrow majority "held that officials may conduct suspicionless strip searches of pretrial detainees regardless of the severity of the offense on which they are held, during their initial entry into the general population of a prison facility." T.S., 2014 WL 443376, at *2 (citing Florence, 132 S. Ct. at 1523). Yet the trial court ruled that Florence was irrelevant to the case at hand and, thus, that Masters remained the controlling law. The court granted partial summary judgment in favor of the plaintiffs and denied the defendants' claim of qualified immunity. The defendants filed a timely interlocutory appeal.
Without even reaching the question of the constitutionality of the subject strip searches, the Sixth Circuit reversed. First, the court held that Florence abrogated Masters. "The reasoning of [the] holding in Masters contemplates that prison officials must do exactly what the Supreme Court [in Florence] held they need not—screen out detainees from a blanket strip-search policy based upon the seriousness of their offense. It is simply not possible to square [the] decision in Masters with that in Florence." Id. at *4. Second, the court rejected the plaintiffs' contention that the court "put on judicial blinders and ignore Florence because it was rendered nearly three years after the conduct at issue and, thus, cannot displace the prevailing law of June 2009." Id. The court rejected that argument as being too simplistic. "Florence . . . did not involve an issue of first impression in the federal courts. Rather, the Court granted a writ of certiorari in the case to resolve a circuit split that first emerged in 2008." Id.
Citation to Florence is, in large respect, a shorthand for the fundamental shift in the law that has taken place over the past three decades and that so weakened the foundation of Masters as to bring about its final collapse in Florence. By June 2009, a reasonable official could have consulted the numerous Supreme Court opinions . . . or the more recent opinions of our sister circuits, and, in objective good faith, concluded that Masters was no longer good law. Florence did nothing more than articulate this fact.
Id. at *7. Therefore, the Sixth Circuit held that the relevant law was not clearly established as of June 2009 and, thus, that the defendants were entitled to qualified immunity on the Fourth Amendment claims.
