With 2 Rulings, SCOTUS Rebukes Lower Courts and Doubles Down on Qualified Immunity Guidance

City of Tahlequah v. Bond (No. 20-1668 2021 WL 4822664 (October 18, 2021))
Rivas-Villegas v. Cortesluna (No. 20-1539, 2021 WL 4822662 (October 18, 2021))

Editor’s Note: Read earlier analysis of this case and view the full video recording, graciously provided by attorney Scott Wood.

Joy Rollice called police and reported her ex-husband, Dominic Rollice, was at her house in the garage and would not leave. She said he was drunk and that “it was going to get ugly real quick.” Joy confirmed Dominic did not live there and had not been staying there. Officers Girdner, Reed and Vick responded to the radio call.

Officers Girdner and Reed arrived at about the same time and spoke to Joy in the front yard. She showed the officers where the side entrance to the garage was located. They walked to the side door of the garage when Officer Vick arrived.

Officer Girdner began conversing with Dominic at the garage side door, noting Dominic was very “fidgety” in his stance and moving his arms. Officer Girdner asked Dominic if he could pat him down for weapons. Dominic responded by backing away, then turning and walking toward the back of the garage. All three officers followed. Officer Girdner ordered Dominic to stop, but he ignored the command.

Dominic walked to a work bench at the end of the garage and grabbed a claw hammer hanging on the wall over the work bench. As he reached for the hammer, Dominic said, “One of us is going to die tonight.” He then turned around and faced the officers. Dominic grasped the handle of the hammer like a baseball bat, pulling it up to shoulder level on his right side. Looking at the hammer, Dominic turned the claws toward the officers.

The officers commanded Dominic to “drop it,” but he did not comply. Dominic moved to his right until there was a clear path from where he was to where Officer Girdner stood 8 to 10 feet away. The officers continued to give Dominic orders to drop the hammer for the next 20 seconds. Officer Girdner told Dominic several times they just wanted to talk to him. Dominic stated, “I have done nothing wrong here, man. I’m in my house. I’m doing nothing wrong.” Officer Reed called out that he was going “to less lethal,” holstered his gun and drew a TASER device.

If there is any clearly established Supreme Court precedent, it is that the Court believes lower courts continue to misconstrue Supreme Court direction on qualified immunity.

Dominic cocked the hammer higher while holding it in his right hand and took a stance that looked like he was going to charge at the officers or throw the hammer at them. Officers Girdner and Vick then fired their guns at Dominic, who went down into a squatting position but still did not drop the hammer. Dominic yelled out, raising the hammer once more, and Officer Girdner fired his gun again. Dominic dropped the hammer and fell backward onto the floor of the garage.

The administrator of Dominic’s estate sued, alleging the officers used excessive force against Dominic. The trial court granted summary judgment to the officers on the basis of qualified immunity. The estate appealed and the 10th Circuit Court of Appeals reversed the judgment. With today’s decision, the Supreme Court has reversed the circuit court, ruling the officers “were entitled to qualified immunity.”

After reciting the facts, the Supreme Court order notes that the 10th Circuit “began by explaining that Tenth Circuit precedent allows an officer to be held liable for a shooting that is itself objectively reasonable if the officer’s reckless or deliberate conduct created a situation requiring deadly force.” Reading that line gave me hope the Court would address the 10th Circuit precedent that allows looking backward to an officer’s actions and tactics preceding the use of force. Many refer to this practice as looking at “officer-precipitated force” or “officer-created jeopardy.”

Unfortunately, the Supreme Court did not engage the issue of officer-created jeopardy. The Court stated, “We need not, and do not, decide whether the officers violated the Fourth Amendment in the first place, or whether recklessly creating a situation that requires deadly force can itself violate the Fourth Amendment” (emphasis added).

Instead, the Court made a simple, straightforward statement reinforcing—once again—the Court’s clear direction that courts should not hold officers to a standard of “clearly established law at too high a level of generality.” In reversing the 10th Circuit, the Supreme Court bluntly stated that the lower court “contravened those settled principles here. Not one of the decisions relied upon by the Court of Appeals comes close to establishing that the officers’ conduct was unlawful.” The Supreme Court harshly observed the lower court had not “identified a single precedent” supporting the 10th Circuit’s ruling.

Perhaps the Court’s silence on the concept of officer-created jeopardy is its way of signaling that its prior opinions should be taken seriously. Perhaps most famously, the Court has proscribed looking back with “20/20 vision of hindsight” in Graham v. Connor (490 U.S. 386 (1989)). Six years ago, in City and County of San Francisco v. Sheehan (575 U.S. 600 (2015)), the Court held Gail Sheehan could not “establish a Fourth Amendment violation based merely on bad tactics that result in a deadly confrontation that could have been avoided.”

The Supreme Court harshly observed the lower court had not “identified a single precedent” supporting the 10th Circuit’s ruling.

Finally, two years ago, in Los Angeles County v. Mendez (139 S.Ct. 1292 (2019)), the Court soundly rejected the 9th Circuit’s so-called “provocation rule.” The 9th Circuit rule directed judges to “look back in time to see if there was a different Fourth Amendment violation that is somehow tied to the eventual use of force.” In rejecting this approach, the Supreme Court referred to the 9th Circuit rule as “a novel and unsupported path to liability in cases in which the use of force was reasonable.” Moreover, the Court noted a judge could not apply the provocation rule without delving into the particular officer’s subjective intent in tactics—which would be an absolute contradiction of the objective reasonableness standard of Graham v. Connor.

Also this morning, the Court issued a second per curiam decision in Rivas-Villegas v. Cortesluna (No. 20-1539, 2021 WL 4822662). Ramon Cortesluna, who was armed with a knife, was shot with two beanbags when he lowered his hands closer to the knife. Cortesluna alleged an officer used excessive force when the officer held Cortesluna down with his foot and then briefly knelt on his back as another officer removed the knife from Cortesluna’s pocket and handcuffed him.

The trial court granted summary judgment on the basis of qualified immunity and the 9th Circuit reversed. Once again, the Supreme Court was very direct in reversing the lower appellate court: “Neither Cortesluna nor the Court of Appeals identified any Supreme Court case that addresses facts like the ones at issue here.” The Court was more detailed in its citation of its own decisions discussing the standard of clearly established law than it was in the Bond decision.

If there is any clearly established Supreme Court precedent, it is that the Court believes lower courts continue to misconstrue Supreme Court direction on granting qualified immunity in cases where it is uncertain that “every reasonable official would have understood that what he is doing violates that right” (Mullenix v. Luna, 577 U.S. 7 (2015)). In City of Tahlequah v. Bond, the Supreme Court reminds us that qualified immunity protects “all but the plainly incompetent or those who knowingly violate the law.”

This blog was featured in our Xiphos newsletter, a monthly legal-focused law enforcement newsletter authored by Ken Wallentine. Subscriptions are free for public safety officers, educators and public attorneys.

Ken Wallentine

KEN WALLENTINE is the Chief of the West Jordan (Utah) Police Department and former Chief of Law Enforcement for the Utah Attorney General. He has served over four decades in public safety, is a legal expert and editor of Xiphos, a monthly national criminal procedure newsletter. He is a member of the Board of Directors of the Institute for the Prevention of In-Custody Death and serves as a use of force consultant in state and federal criminal and civil litigation across the nation.

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