Civil Tort Liability

Before the exclusionary rule, the primary method of holding officers accountable for illegal searches were civil tort lawsuits. These focused primarily on false imprisonment or trespass; but also includes civil rights cause of actions for state or federal (under 42 U.S. § 1983) violations. The challenges presented in these lawsuits, however, are that police departments have sovereign immunity and officers have qualified immunity (if they acted in good faith).

Consider Bivens v. Six Unkown Federal Narcotics Agents, U.S. 1971. Petitioners are entitled to recover monetary damages for violations of the Fourth Amendment.

Harlow v. Fitzgerald

457 U.S. 800 (1982).

[Q]ualified immunity would be defeated if an official “knew or reasonably should have known that the action he took within his sphere of official responsibility would violate the constitutional rights of the [plaintiff], or if he took the action with the malicious intention to cause a deprivation of constitutional rights or other injury….”

However, this rule is adjusted where the subjective malicious intention does not apply if the officer is performing discretionary functions.

So, the new test is:

Officials performing discretionary functions generally are shielded from liability for civil damages insofar as their conduct does not violate clearly established statutory or constitutional rights of which a reasonable person would have known.

Thus, at summary judgment the judge is to examine whether the law was clearly established. For such times when the law is clearly established, there is no immunity, because the officer is expected to know the law. Therefore, the question must be answered before discovery begins.


Fitzgerald had given testimony before a congressional subcommittee. After Nixon took office, Fitzgerald and others were removed from there positions during reorganization. Fitzgerald believed that Nixon, Harlow, and another individual conspired together to have Fitzgerald removed as retribution for the testimony he provided.


There are several reasons for the protections given to public officials. Most notably is the need to limit judicial crowding with insubstantial complaints. However, the rule that articulated both the objective and subjective standard for discretionary officer tasks resulted in extensive court and litigation costs. This is because it is expensive to obtain testimony regarding the subjective thoughts of the officials involved.

To protect the balance between the rights of individuals and the need to protect officers (including the desire to ensure officer participation in the work), subjective analysis is not conducted for discretionary tasks. The Court emphasizes that the objective analysis is still sufficient to protect the rights of individuals.

Additional Notes

To summarize, the purposes of qualified immunity include: (1) Ensure officials are not harassed by endless lawsuits, and (2) there is no need to defend against improper lawsuits, and (3) encourage only the valid claims to proceed past summary judgment. To meet the needs, the court will determine whether officers conducting discretionary functions.

For certain officials, there is absolute immunity.

These include judges, legislators, prosecutors, and the President of the United States.

Anderson v. Creighton

483 U.S. 635 (1987).


The contours of the [clearly established] right must be sufficiently clear that a reasonable official would understand that what he is doing violates that right. This is not to say that an official action is protected by qualified immunity unless the very action in question has previously been held unlawful, but it is to say that in the light of pre-existing law the unlawfulness must be apparent.

In other words, the objective analysis must be done on a case by case basis. For instance, the court must ask “would a reasonable officer have believed there was probable cause and an exigent circumstance to enter the house without a warrant?”


The court of appeals was incorrect to not examine the facts of the case to grant summary judgement based on the qualified immunity standard.


According to the complaint, Anderson was an FBI agent who was looking for a fugitive. Believing the Creighton’s to be harboring the fugitive, the officer’s approached and entered the home without a warrant. The officer’s were very rough with the occupants of the home during their search for the fugitive. Despite the intensive search, the fugitive was not discovered there.

The holding of the court of appeals is that there was no probable cause or exigent circumstances, and thus the search of the home was unlawful.


Understanding the need to encourage continued officer participation without the fear of the law, a reading of the law in broad terms is not the way to do things. If that was the case, any pleading that argued a violation of the law would satisfy the showing that the objective standard had been violated. Instead, the court needs to look into the reasonable belief of the officers based with the information they had at the time of their actions. This is not a “reasonable unreasonable” standard because the court is considering two different things (and have applied the standard in the past).

However, the dissent argues that this is a double standard; applying the “reasonable unreasonable” standard gives the officer two opportunities at qualified immunity. Thus, the officer’s interest is protected once while the subject’s interest is measured only once. The standard of the probable-cause requirement is well settled and clearly established. Thus, any violation of that standard may overcome the qualified immunity.

Hope v. Pelzer

536 U.S. 720 (2002).

In 1995, Alabama was the only state that still utilized chaining prisoners together in work gangs. As the prisoners were on the bus to go to work, Hope took a nap and was very slow to respond when told to get off the bus to get to work. Words were exchanged, a wrestle ensued, and Hope was subdued and taken back to the prison where he was chained to a pole all day and prohibited water and bathroom breaks. In 1974, this practice was prohibited as a violation of the Eighth Amendment. In 1987, prohibiting water to subdue prisons was allowed.

According to the court of appeals, a reasonable officer would have seen this as clearly unlawful due to the 1974 case. However, this case seems to be the exception, where most cases with intense officer actions result in qualified immunity.

Criminal Liability

State v. Chauvin

Beyond a Reasonable Doubt

Barry Brodd: Expert for the defendant. Mr. Brodd stated a three prong analysis for the use of force: (1) whether there was a justification for the detention, (2) the level of resistance utilized by the subject, and (3) whether the officer’s reaction proportional to the resistance exhibited by the subject. Applying this analysis to the detention of George Floyd, Mr. Brodd determined the use of force was justified which resulted in an accidental death.

Seth Stoughton: Expert for the prosecution. Mr. Stoughton also addressed the proportionality analysis. The level of force must be proportional to the level of resistance made by the subject. Applying this analysis to the detention of George Floyd, Mr. Stoughton stated that no reasonable officer would have used that force. Additionally, Mr. Stoughton stated the failure to provide medical aid when it became apparent that it was needed was unreasonable.

Jody Stiger: Expert for the prosecution. Mr. Stiger was familiar with the proportionality analysis and stated that no force should have been used once the subject had been restrained.

Minneapolis Police Chief Medaria Arradondo testified that Chauvin had violated the department’s policy regarding the level of force used to detain Floyd.


The point of illustrating this case and the testimony here is that the beyond a reasonable doubt standard is difficult to overcome. Once you have the defendant testimony saying that the officer’s actions were reasonable, the prosecution has a ton of work ahead of them to counter that testimony by (1) outside experts, (2) inside experts, and (3) other officers (including the chief) denouncing the violating officer.


The content contained in this article may contain inaccuracies and is not intended to reflect the opinions, views, beliefs, or practices of any academic professor or publication. Instead, this content is a reflection on the author’s understanding of the law and legal practices.

Will Laursen

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