Contributed by Alicia M. Canfield.

We’ve all heard of it, “qualified immunity,” but what is it? We are most familiar with this term when addressing police officers who use excessive force to violate someone’s constitutional rights. An officer’s excessive force violation of constitutional rights, such as the Fourth Amendment protection from illegal seizure, could create grounds for a civil rights lawsuit. But first, you have to overcome the barrier of qualified immunity.

Qualified immunity is a defense created by the courts that protects officers and government officials from personal liability when they are sued for money damages as a result of violating the Constitution or federal laws under color of law. Generally, an action is considered to be under color of law when the officer or government official is pretending to act under their official authority.

To overcome the defense of qualified immunity, there are a few hurdles you have to jump through. First, you must be able to “clearly establish” that the conduct which led to the violation of your rights was illegal. But how do you do that? The Supreme Court has consistently held that you must be able to point to a case similar to yours, with almost identical facts as yours, that shows the officer or government official was “on notice” that the conduct was unlawful in the situation.

Once you clear this hurdle, you must then provide the Court with evidence that the misconduct would have been obvious to a “reasonable officer.” A reasonable officer is generally defined as an officer with same or similar training and experience facing a similar circumstance. For example, the 8th Circuit recently ruled that an officer was not entitled to qualified immunity when he jumped a fence and shot two dogs because an objective or reasonable officer would not have viewed the dogs as an imminent threat when the dogs were wagging their tails in a friendly manner. (Lemay v. Mays, No. 20-2632, 2021 U.S. App. LEXIS 33758 (8th Cir. Nov. 15, 2021)).

The right to certain constitutional protections exists under both the U.S. Constitution and the Arkansas Constitution. Qualified immunity remains an obstacle at both the federal level and the state level. During the latest legislative session, Arkansas declined to eliminate qualified immunity from the Arkansas Civil Rights Act. Additionally, the Supreme Court’s most recent decisions in two different cases (Rivas-Villegas v. Cortesluna and City of Tahlequah v. Bond) reversed both lower-courts’ opinions that had denied qualified immunity to police officers.

In tracking these recent decisions, the Court and Legislature has made one thing clear – qualified immunity does not seem to be going anywhere any time soon. These decisions continue to make it more difficult, but not impossible, to overcome qualified immunity. With that being

said, you still have a right to seek damages if your constitutional rights are violated by a police officer or other government official. Your constitutional rights follow you no matter where you go. It just might be a steeper climb to the top.

The Supreme Court created qualified immunity and could just as easily overrule it, but until then Miller | Butler has a team of attorneys ready to help you with your civil rights claim.