It is, perhaps, a severe understatement to claim that qualified immunity—the legal doctrine shielding police officers and other government officials from liability for constitutional violations in all but the most egregious cases—is a doctrine in need of reform. A recent Eleventh Circuit ruling in Cantu v. Dothan, however, exemplified how deeply this need for reform runs. In Cantu, an officer shot and killed an unarmed, nonviolent individual during an arrest, doing so without forewarning to the individual and to surprise of the other officers involved. The court reversed a grant of summary judgment based on the defendant’s assertion of qualified immunity, finding the officer’s conduct “so obviously violate[d] the Constitution that no pre-existing case law is needed to show that it is clearly established law.” The court’s decision to rest its ruling on these grounds highlights deeper tensions within the qualified immunity doctrine and makes the case for legislative reform ever stronger.
On December 30, 2014, Robert Earl Lawrence, alongside his girlfriend and three children, happened upon a stray dog in a Walmart parking lot. Lawrence then set out with his family to place the dog at a shelter. The local shelter, however, demanded paperwork and identification from Lawrence before accepting the dog. Finding the shelter’s requirements unreasonable, Lawrence exited the shelter, remarking that he would just let the dog out of his car near the shelter.
Upon hearing Lawrence’s remarks, officer Adrianne Woodruff followed Lawrence out of the shelter and to his vehicle to write down his vehicle’s tag number. When asked by Woodruff to present his driver’s license, Lawrence refused. Woodruff then attempted to arrest Lawrence, refraining from indicating to him what crime he had been accused of committing. Lawrence resisted arrest. Two other officers came to Woodruff’s aid and, in the course of the encounter, repeatedly shot Lawrence with a taser. Then, without warning to Lawrence, to the surprise of the other officers present, and (as she later testified) in no fear that Lawrence may himself have firearm, Woodruff shot Lawrence while he was in the other officers’ restraint. Lawrence passed away at the hospital shortly thereafter.
Christopher Cantu, the executor of Lawrence’s estate, brought suit against the City of Dothan, Alabama, Dothan’s police chief, and two police officers, including Adrianne Woodruff, under 42 U.S.C. §1983, which provides individuals a private right of action for constitutional violations by government officials (save for those actions taken in an official capacity). For all defendants save for Officer Woodruff, the district court accepted the magistrate court’s recommendation and granted summary judgment in their favor. As for Officer Woodruff, however, the district court rejected the magistrate court’s recommendation and found both that she had not violated the Fourth Amendment’s prohibition against excessive force and, even in the face of a possible violation, she was entitled to the defense of qualified immunity.
An Eleventh Circuit panel reversed. The court found, first, that there was a genuine issue of material fact as to whether Officer Woodruff had violated the Fourth Amendment’s prohibition against the use of excessive force. The court determined that a reasonable jury could have found that at the time Woodruff shot Lawrence, he did not pose a concern for her safety of the safety of the other officers. The court also determined a reasonable officer would have “known to hold off [using deadly force] until she had given a warning.”
The court also reversed the district court’s grant of qualified immunity. To demonstrate a constitutional violation as “clearly established,” a plaintiff must “point[] to a case, in existence at the time, in which the Supreme Court or [the Eleventh Circuit] found a violation based on materially similar facts.” But the court acknowledged that in some cases, the conduct in question will be so extreme that a plaintiff can “defeat a qualified immunity defense by ‘showing that the official’s conduct lies so obviously at the very core of what the Fourth Amendment prohibits that the unlawfulness of the conduct was readily apparent to the official,’” avoiding what the Supreme Court has deemed a “rigid, overreliance on factual similarity.” Viewing the evidence in the light most favorable to the plaintiff, the court determined that “the use of lethal force was so obviously excessive that any reasonable officer would have known that it was unconstitutional, even without pre-existing precedent involving materially identical facts.” Because Lawrence was not committing a dangerous felony, was in the officers’ custody when he was shot, and was provided no warning of the use of deadly force, he was subject to conduct by Officer Woodruff that obviously violated the Fourth Amendment.
Though the Eleventh Circuit reached the correct result in Cantu, the “obvious clarity” of the officer’s Fourth Amendment violation is a precarious foundation upon which to rest for a court. The Eleventh Circuit’s decision concentrated primarily on the facts of Cantu, emphasizing the self-apparent nature of the constitutional violation in question. But, this method of argument brings to mind a deceptively subtle question sometimes also posed to the Declaration of Independence’s beginning paean to the natural equality of all men—if a proposition is self-evident or “so obvious[]” as to be indisputable, why bother stating, or explaining, it? Trying to meet this argumentative challenge, however, only raises further questions. How does one define “obvious”? What are the epistemic prerequisites to finding something “obvious”? Unfortunately, the Eleventh Circuit provided few answers here, rendering the outcome in Cantu of dubious precedential value.
For any speaker, an assertion of obviousness is a difficult line to walk. For courts seeking to apply such reasoning to cases concerning an official’s assertion of qualified immunity, that line unravels into contradiction. On the one hand, in order for the instant case to function effectively as a rule for future cases, a court relying upon the obviousness exception must offer some reason as to why the actions involved in case before the court qualify as “at the heart” of the relevant constitutional prohibition. On the other hand, however, it is the very fact that the action in question was so obviously verboten that it needed no prior judicial articulation for an official to recognize it as a constitutional violation that justifies the court’s decision on “obvious clarity” grounds in the first place.
The inherent difficulty of the “obvious clarity” ground has not prevented courts from relying upon it. However, even nearly two decades after the Supreme Court’s introduction of the “obvious clarity” idea into qualified immunity doctrine in Hope v. Pelzer, confusion surrounds the notion. Denial of the defense of qualified immunity on the grounds of “obvious clarity” by circuit courts has proven to be erratic and unpredictable, rendering the justification (and, by extension, cases decided on such grounds) of little dependable use for potential plaintiffs, litigators, or government officials.
In Cantu, the court would have been better off finding that circuit precedent had clearly established Lawrence’s right to freedom from excessive force on the facts presented. Doing so would have provided a clearer view of the contours of Fourth Amendment protections and have offered law enforcement officials greater notice of an instance of prohibited conduct. By contrast, a decision holding an action to be an “obvious” constitutional violation provides neither further clarity about constitutional protections nor offers meaningful guidance to law enforcement.
Ironically, the court had all the necessary materials for such a ruling in the opinion rendered. The court’s opinion cited several instances of prior circuit precedent in which the court had found a law enforcement official to have violated clearly established law in using deadly or permanently harmful force without warning against an individual nonviolently resisting arrest. Rather than using this case law as a means with which to reiterate an existing rule, the court instead opted to present them as components in an analogy between findings of “obviously” clear constitutional violations. It’s not clear of what aid such an analogy was meant to be —the definition of an “obvious” constitutional violation rests on the ability of the violation’s unlawfulness to speak for itself.
Cantu v. City of Dothan presents vividly the limited coherency of the “clearly established” prong of qualified immunity doctrine. Overwhelmingly, courts rely upon factual similarity between the instant case and existing precedent in determining if a right is “clearly established.” However, even when courts seek to avoid a “rigid, overreliance on factual similarity,” resort to the “obvious clarity” exception implicitly retrenches the paramountcy of factual similarity. Conceptually, it is not clear how to argue that a given constitutional violation is as obvious as another, except by resort to analogies between the facts in each. And, as discussed above, rhetorically, assertions of obviousness and self-evidence simply beg the question.
One can take the self-defeating nature of the “obvious clarity” exception within qualified immunity doctrine as yet another argument in favor of the doctrine’s reform. The Constitution, much like the Declaration of Independence that preceded it, is meant to function as an articulation of the joint terms of cooperation amongst citizens of a democracy. Even if its terms are vague, the use of such vagueness as an impermeable cloak of immunity for government officials undermines the very foundations of democratic equality. Even when courts reach the correct outcome, such as in Cantu, the doctrine’s application leaves much to be desired.