Developments In Public Entity Liability

This article originally appeared in the fall 2000 edition of the Pennsylvania Chiefs of Police Association Bulletin.

On June 18, 2001, the United States Supreme Court issued a long-awaited opinion addressing the qualified immunity defense in Saucier v. Katz, et al. 121 S. Ct. 2151. Saucier was an excessive force case in which the plaintiff, Eliot Katz, an animal rights protestor, was arrested by defendant, military police officer Donald Saucier ("MP Saucier"), while Katz was protesting during a speech given by (then) Vice-President Al Gore. Katz claimed that MP Saucier subjected Katz to excessive force, namely, Saucier shoved Katz into a van, and drove him to a military base where Katz was later released. Katz claimed Saucier’s actions and the force used to push Katz into the van was excessive and unnecessary although Katz did not suffer any injuries.

The trial court denied MP Saucier’s summary judgment motion which was premised on the qualified immunity defense. Thereafter, the Ninth Circuit Court of Appeals reviewed MP Saucier’s appeal and likewise denied his summary judgment defense. Notably, the Ninth Circuit held (as had several other Circuit Courts of Appeal) that there was no appreciable difference between (1) the threshold issue in an excessive force case - - whether the force used was excessive and (2) if it was, whether the officer nevertheless was excused from liability under the qualified immunity defense. Thus, the two layers of defense melded into one issue and the qualified immunity defense was, for all intents and purposes, worthless.

The Supreme Court reversed and remanded the matter holding that (1) the merits of the excessive force claim (i.e. whether the force used was "objectively reasonable") was a separate and distinct issue from the qualified immunity defense (i.e. whether an officer reasonably, but mistakenly, used excessive force).

It has been my experience that most trial courts in the Eastern District and Middle District of Pennsylvania have followed the same approach as the trial court and Ninth Circuit in Saucier and treated the two issues as being one and the same. In truth, and regardless of the separate analysis approach in Saucier, most excessive force claims probably don’t realistically have the qualified immunity defense available for one of two reasons.

First, typically, the force plaintiff alleges was used (i.e. severe "beating") is in direct conflict with the force the officer contends was used (i.e. reasonable and necessary force). In these scenarios, the ‘disputed issue of fact’ must be determined by the jury and precludes the application of qualified immunity. That is to say that if the jury believes that the officer beat plaintiff without justification then the plaintiff wins. Note that in Saucier, there were no disputed issues of material fact - something very unusual in excessive force cases.

Second, if the jury believes that the officer beat plaintiff without justification, it is hard to imagine that the qualified immunity defense could apply. Put another way, defense counsel would be hard pressed to argue that an officer reasonably, but mistakenly, thought it was o.k. to use excessive force without justification.

While I am not convinced that Saucier will have a dramatic effect and application to many typical excessive force claims, I do think that it will have some value for three reasons.

First, we have had some success in obtaining summary judgment under the qualified immunity defense although these have been limited to pursuit, false arrest and search and seizure cases. We have had lesser success in obtaining summary judgment in excessive force cases as the court typically finds "factual disputes" even in cases in which there are no material facts in dispute. Given the Saucier decision and the strong language used by the Supreme Court that (1) the defense is to be applied more then it has been by the Federal District Courts, (2) it is to be applied as early as possible to weed out questionable claims and (3) it is an immunity to avoid trial, we are hopeful that trial courts will be more likely to apply the defense and dismiss more claims.

Second the Supreme Court used some strong language which makes clear that under existing law, Courts are to give greater deference to the judgments of police officers at the scene and the force they determine is necessary. While this standard of not applying 20/20 hindsight is well-established, we have found some trial courts hesitant to follow the law and dismiss claims pre-trial rather then let a jury decide the appropriateness of the force at trial. As with my comment above, hopefully, Saucier will encourage or empower Federal District Courts to more readily dismiss questionable claims.

Third, there are some excessive force cases, including some we are currently defending in which qualified immunity should be, and is more likely to be applied under Saucier. For example, we are defending several cases in which the facts are largely undisputed and plaintiff’s theory, in essence, is that the officer(s) used poor judgment and used inappropriate force. Given Saucier, I believe our chances of obtaining summary judgment should be much greater.