12 Nov LAW ENFORCEMENT CHARGED WITH UP-TO-THE-MINUTE NOTICE OF DEVELOPMENTS IN CASELAW? ELEVENTH CIRCUIT QUALIFIED IMMUNITY RULING MAY SUGGEST EXACTLY THAT
Law enforcement officers and other governmental employees enjoy qualified immunity for discretionary acts in 42 U.S.C. § 1983 matters where the law is not “clearly established” that the action in question violated a Constitutional right. In a recent ruling reversing a grant of summary judgment for law enforcement on qualified immunity grounds, O’Kelley v. Craig, ___ Fed. Appx. ___, 2019 WL 3202928 (11th Cir. July 16, 2019) the Eleventh Circuit suggests that law enforcement can be charged with notice of “clearly established” law for case dispositions coming as little as nine (9) days before an event for which an officer seeks to benefit from the immunity—and therefore the officer would not be entitled to qualified immunity from suit.
Nighttime Coon Hunt Ends In Shootout
Around 8:30 PM in October 2015, Sheriff’s deputies responded to a 9-1-1 call in the North Georgia mountains. The caller reported that he was raccoon hunting when a man on a neighboring property accused him of trespassing and threatened to shoot if he did not leave. Officers spoke to the caller and then proceeded to the property, where they found a house and a cabin enclosed by a fence.
The resident of the house told the officers that his stepson, Harley Turner, was the subject of the call and that Turner was armed. Turner appeared outside the cabin, shirtless and armed with a pistol in a chest holster, and approached the gate toward the officers, shining a flashlight at them and yelling about trespassers. The officers identified themselves as law enforcement, drew their weapons, and ordered Turner to disarm. Turner did not comply, and a tense verbal back-and forth proceeded for nearly thirty minutes. Meanwhile, additional law enforcement arrived, armed with a shotgun with beanbag rounds.
Eventually, Turner announced to the now-combined law enforcement compliment of Sheriff’s deputies and State Troopers that he wanted a drink of water and went into his cabin. While he was away, an officer with the beanbag rounds went to the other side of the property in order to get into position to use less than lethal force and end the encounter when Turner reemerged.
A deputy asked Turner to come to the fence to talk, and again asked him to disarm. Turner replied that he already did; but the gun remained visible in its chest holster. Harley then approached the fence; the concealed officer deployed three beanbag rounds; Turner drew his pistol and fired on the officers; the officers returned fire; and Turner was killed in the ensuing exchange.
The Eleventh Circuit’s Ruling—Nine (9) Days’ Notice “Clearly Establishes” Law At Motion To Dismiss Stage
In the ensuing lawsuit filed by Turner’s mother (O’Kelley) bringing Fourth Amendment unlawful seizure claims against the deputies, the deputies prevailed on motion to dismiss. A three-judge panel of the Eleventh Circuit then reversed and remanded, holding in relevant part that the law was clearly established that the deputies’ conduct violated Turner’s rights on the basis of another Eleventh Circuit decision, Moore v. Pederson, 806 F.3d 1036, 1045 (11th Cir. 2015), decided a mere nine (9) days prior to the shootout at issue.
In Moore, a deputy responded to a domestic disturbance call at an apartment complex. The deputy met the caller, who told him that a man and two women were arguing in the parking lot, and that these disputes occurred daily; the caller then directed the deputy to an apartment where two of the disputants retreated. At the door, the deputy heard an argument inside and knocked; the plaintiff Moore, a male, opened the door. Inside were two women, one clothed and one naked. The deputy, suspecting domestic violence, questioned Moore at the door; Moore refused to answer or to provide any identification. With Moore in the doorway inside the apartment, the deputy instructed Moore to turn around and place his hands behind his back, which Moore did. The deputy then reached into the apartment, handcuffed Moore, and took him into custody. Moore brought a Fourth Amendment claim for unlawful arrest pursuant to 42 U.S.C. § 1983. The deputy prevailed on summary judgment on qualified immunity grounds, and the Eleventh Circuit reversed, holding that an earlier case, McClish v. Nugent, 483 F.3d 1231 (11th Cir. 2007), was sufficiently factually similar so as to place a reasonable officer on notice that his actions violated the Fourth Amendment, and therefore he was not entitled to qualified immunity.
The Eleventh Circuit in O’Kelley held that Moore was binding precedent that clearly established the principle that “a seizure or entry within the home without a warrant or exigent circumstances violates the Fourth Amendment’s prohibition on unreasonable searches and seizures”—and therefore, the deputies were “on notice” that they could not conduct a Terry-like stop in the home without exigent circumstances, consent, or a warrant. What is puzzling is that this general principal is, of course, well-established in Fourth Amendment law, and was so established long before the Moore opinion issued. The Court offered no discussion on whether the sheer recentness of Moore cut against its weight as law that was “clearly established” for immunity purposes.
The deputies petitioned for rehearing en banc to address this issue, which was denied in late October 2019. Whether a petition for certiorari to the United States Supreme Court will follow remains to be seen.
Qualified Immunity Gutted By Short Notice Requirements?
Should the Eleventh Circuit’s decision in O’Kelley stand, then law enforcement will not benefit from qualified immunity—at least at the motion to dismiss stage—if there is factually instructive binding precedent decided even just over a week prior to their courses of action. It may be too early to ring the alarm bells for the death throes of qualified immunity at the “clearly established law” prong of the analysis, but unless and until the decision in O’Kelley receives further clarification or reversal, law enforcement agencies nationwide should have a care to stay informed of even the most recent legal decisions involving 42 U.S.C. § 1983 claims and interactions with citizens. To do otherwise opens up the possibility that qualified immunity may not be available, unbeknownst to an individual officer, with possible far-reaching implications hampering law enforcement’s ability to make defensible decisions quickly and in high-risk situations.