Qualified Immunity: It’s not Automatically Granted


There is an age-old philosophical quandary that asks; “if a tree falls in the forest and no one is there to hear it, does it make a sound?” Of course, the answer is clear! If no one is there to hear it, it matters not. If this tree falls, will anyone hear it? Qualified immunity is one device that public officials, especially police, need to do their jobs. However, as the reader moves through this article it will become apparent that qualified immunity is not automatically given to police officers. In fact, judges and U.S. Supreme Court Justices ruminate over the facts, circumstances, and evidence before granting such protection to police officers.

Qualified Immunity: It’s not Automatically Granted

In this article, a selected Fifth Circuit Court of Appeals case will be examined as one example of how “qualified immunity” is not automatically granted.  In that case, qualified immunity was denied based upon the facts, and the defendants’ inability to prove they deserved qualified immunity.  The point is simply that qualified immunity is applied judiciously by those judges and justices who follow the U.S. Constitution and The Bill of Rights.

Qualified Immunity Not Automatic  

The safety net known as “qualified immunity” is the legal defense used by public officials (including police officer, corrections officers, etc.) to protect them from alleged wrongdoing and the potential liability that could ensue when a suit is filed alleging that a government official acted in a way that violated a constitutional right.  However, long after the decision in Pierson v. Ray, (1967), which established “qualified immunity,” the United States Supreme Court placed an additional burden on those who file suit against public officials.  In Harlow v. Fitzgerald, (1982), the U.S. Supreme Court further clarified by mandating that officials acting in good faith who did not have discretionary authority in sensitive areas (ex. national security and foreign policy) are only entitled to qualified immunity versus absolute immunity.  Furthermore, the Court opined government officials performing discretionary functions are generally protected from civil liability as long as their conduct does not violate clearly established statutory or constitutional rights of which a reasonable person would have known (Harlow v. Fitzgerald, 1982).

Bush v. Strain, 513 F.3d 492 (2008)

Holly Bush was arrested and charged with simple battery and resisting arrest in Mandeville, Louisiana while at a car wash.  Bush alleged a St. Tammany Parish Detective, Dale Galloway used excessive force and injured her when he forcefully pushed her head into a rear window of a vehicle.  Galloway did not deny that Ms. Bush was injured, but he states she was unintentionally hurt when she resisted arrest.  Bush was convicted of resisting arrest.  According to the record of the criminal trial Detective Galloway was interviewing a witness about a disturbance.  At that time Ms. Bush “walked up and greeted him” (Bush v. Strain, 2008).  While standing near the witness and Detective Galloway, Ms. Bush heard the witness make a derogatory statement about Ms. Bush’s sister at which time Ms. Bush became angry and threw a cup of ice water at the witness.  Based on the criminal trial, Detective “Galloway then attempted to arrest Bush for simple battery, and when Bush was partially handcuffed, she pulled her right arm away in an apparent attempt to hit or intimidate the witness” (Bush v. Strain, (2008).

At some point during the incident Det. Ronald Plaisance arrived on the scene and stated in his civil deposition both Bush and Detective Galloway fell into the rear window while Bush was resisting arrest.  Bush admitted in her deposition that she “pulled away from Galloway when he attempted to arrest her” (Bush v. Strain, 2008). Bush claims that she stopped resisting after Detective Galloway grabbed her right hand, “and that after she ceased her resistance and both hands were cuffed, Galloway placed his hand behind her neck and head and forced her face into the rear window of a nearby vehicle, injuring her jaw and breaking two of her teeth,” (Bush v. Strain, (2008).  Furthermore, Ms. Bush stated while Det. Plaisance did not assist Det. Galloway, he did support Det. Galloway’s fabricated story to cover up Det. Galloway’s excessive use of force.  To support her claims, Ms. Bush provided affidavits from Lindsay Burga and Amy Huber, two eyewitnesses to the incident.

Meeting the Two-Pronged Challenge

After her conviction in state district court on the criminal charge of resisting arrest, Ms. Bush filed suit under 42 U.S.C. § 1983 alleging excessive force, illegal arrest, and conspiracy.  The defendants, Det. Galloway, Det. Plaisance, and Sheriff Strain, filed a motion for summary judgment stating that because Bush was convicted in state district court on the criminal charge, they were protected by the decision in Heck v. Humphrey, (1994).

This is in accordance with the unanimous ruling in Heck v. Humphrey (1994) in which the Court decided to receive damages, the plaintiff must prove that the prior conviction had been overturned in some manner, )reversed, expunged, invalidated, etc.).  A United States District Court Magistrate agreed that under the provisions of Heck, the defendants were entitled to qualified immunity as a matter of law; Ms. Bush appealed to the United States Court of Appeals, Fifth Circuit.

Upon reflection with her attorney, Ms. Bush vacated her claim for illegal arrest due to her conviction but insisted that there were unresolved factual issues related to the Heck and qualified immunity issues.  The important issue moving forward for Ms. Bush was the decision of the judge in the criminal trial.  There the judge stated:

The Court at this time finds the defendant guilty of resisting arrest.   The Court believes the officer’s testimony regarding the fact that he advised the defendant that she was under arrest and that as he was attempting to cuff her, she struggled to get free from him to strike this other person.   And the witness who was called by the defense corroborates the officer’s [testimony].

So, I find the defendant guilty of res[isting]. I sentence her to pay a fine of $100.00 plus costs, default of which will be fifteen (15) days in the parish jail. (Bush v. Strain, 2008).

The criminal trial testimony is revealing and is what ultimately led to the denial of qualified immunity.  The Appellate Court stated:

To sustain the conviction, the judge determined only that Bush swung out toward the witness after Galloway told her that she was under arrest. The court made no findings regarding how long Bush’s resistance lasted or at what point Bush was injured. Furthermore, a review of the trial transcript reveals that the judge determined that the duration of resistance and the cause of Bush’s injuries was irrelevant to the determination of whether she had resisted arrest.   These are material, disputed facts pertinent to her excessive force claim that were not necessary to sustain Bush’s resisting arrest conviction.

The defendants also argue, albeit in-artfully, that Bush’s complaint does not allege that her claims of excessive force are separable from the events underlying her resisting arrest conviction. Specifically, the defendants point to the statement in Bush’s complaint that “[a]t no time did the plaintiff resist her arrest.” If we were to take this statement at face value, we might agree with the defendants. However, taking the statement in context, we conclude that Bush has adequately pleaded a claim for excessive force occurring after she was restrained.

We also disagree with the defendant’s contention, and the magistrate judge’s conclusion, that Bush has attempted to manufacture a fact issue through the use of an affidavit that contradicts prior sworn testimony. At Bush’s criminal trial, Lindsay Burga testified that Bush swung out as she was being handcuffed, but after she was handcuffed Galloway “pushed her head forcefully against [the] car.”   The state-court judge sustained a relevancy objection to the testimony concerning how Bush was injured, but otherwise determined that Burga’s testimony corroborated Galloway’s testimony that “as he was attempting to cuff [Bush] she struggled to get free from him to strike this other person.” In an affidavit submitted in response to the defendant’s summary judgment motion, Burga similarly testified that Bush was already handcuffed and no longer resisting arrest when Galloway “forcibly slammed her into the back of a car.”  “When an affidavit merely supplements rather than contradicts prior ․ testimony, the court may consider the affidavit when evaluating genuine issues in a motion for summary judgment.” Because Burga’s affidavit supplements, and is entirely consistent with, her trial testimony, the affidavit may be considered along with Bush’s other evidence supporting her excessive force claim.   We therefore do not reach the merits of Bush’s alternative argument that Burga’s affidavit should be considered because it was executed before her trial testimony, and thus, does not conflict with any prior testimony as a matter of law.

Because Bush has produced evidence that the alleged excessive force occurred after she stopped resisting arrest, and the fact findings essential to her criminal conviction are not inherently at odds with this claim, a favorable verdict on her excessive force claims will not undermine her criminal conviction. The magistrate judge’s contrary conclusion was erroneous (Bush v. Strain, (2008).

When the court assesses a qualified immunity claim, a two-step test is required.  First, the court must determine whether the plaintiff (Ms. Bush) has alleged the violation of a statutory or constitutional right.  According to the Appeals Court, Ms. Bush met that challenge.  Second, the court must determine if the defendant’s actions violated “clearly established statutory or constitutional rights of which a reasonable person would have known.”  The court stated that at the time of Bush’s arrest, the law was clearly established.  They stated further that Galloway should have known that “he could not forcefully slam Bush’s face into a vehicle while she was restrained and subdued” (Bush v. Strain, 513 F.3d 492 (2008).  The Judges of the United States Fifth Circuit Court of Appeals reversed the lower court’s grant of qualified immunity and remanded the case for trial on Ms. Bush’s 42 U.S.C. § 1983 excessive force claim.



Bush v. Strain, (2008).   Bush v. Strain, et al, No. 05-30837 (5th Cir. 2008) :: Justia

Heck v. Humphrey, (1994).

Heck v. Humphrey :: 512 U.S. 477 (1994) :: Justia US Supreme Court Center

Leonatti, A., Fawbush, J., Pantekoek, K., Rainey, J., Calvopina, J., Temme, L., Teka, M., Dahl, R., Sanchez,

E., Lindenberg, B., McCluskey, J., (2020, June 25).  Qualified Immunity: Both Sides of the Debate.  Pros vs Cons of Qualified Immunity: Both Sides of Debate (findlaw.com)

Dr. Charles T. Kelly, Jr. received his Ph.D. in the Administration of Justice from the University of Southern Mississippi, a regionally accredited (SACS) Institution of Higher Learning in 2003. Dr. Kelly received a master’s degree in National Security from American Military University, master’s degree in Cyber Security Policy from the University of Maryland, master’s degree in Criminal Justice from the University of Alabama, and a bachelor’s degree in Criminal Justice from Loyola University. He selected USM at Hattiesburg, MS. for his doctoral degree because of the university’s wide-ranging doctoral studies approach and comprehensive requirements for doctoral students to concentrate on multiple academic disciplines. While at the University of Southern Mississippi, Dr. Kelly successfully completed arduous studies and specializations in the areas of Blackstone’s Commentaries on the Laws of England, the Political Economy of Criminal Justice, Police Administration, Public Policy in Criminal Justice Agencies, Quantitative Analysis, Special Problems in Policing, and Grantsmanship. As a result of his multidisciplinary expertise, Dr. Kelly has been selected to teach classes in criminal law, research and statistics, police administration, police supervision and management, multi-cultural law enforcement, diversity in law enforcement, criminal investigations, interview and interrogation, corrections administration, corrections management and supervision, ethical leadership in criminal justice agencies, training and development in criminal justice agencies, and criminological theory. At present, Dr. Kelly serves as a member of the teaching faculty for Columbia Southern University and is the managing general partner for Security & Risk Assessment Consultants, LLC. (http://www.safeassessments.com/
Dr. Kelly began his teaching career in 1996 at Loyola University and has served on the teaching faculty of Tulane University, Southeastern Louisiana University, Southern University, Northwestern State University, and, Louisiana State University-Alexandria. LSU-A recruited Dr. Kelly to write their four-year criminal justice degree program and to prepare it for presentation to the Louisiana Board of Regents and the Southern Association of Colleges and Schools (SACS). Dr. Kelly was also the Department Chair of Criminal Justice for Virginia College where he oversaw both the undergraduate degree program, graduate program, was Chairman of the Graduate School Committee, and Editor of the Journal of Law and Justice. He is widely published in the academic discipline of criminal justice and has authored such works such as:

Doctoral Dissertation University of Southern Mississippi (2003): COMMERCIAL BAIL: THE INEQUITABLE TAXING OF THE POOR IN LOUISIANA
Master’s Thesis University of Maryland (2016): Protecting Information Systems: Law Enforcement Technology


Dr. Kelly has also written and published journal articles that address contemporary issues in the law and justice profession which include:
• A Cross-Cultural Comparison of Police Personality” International Journal of Comparative and Applied Criminal Justice,”
• “Katrina: An American Poseidon: Orleans Parish’s Disaster Response—Bifurcation and Chaos Theory, published in American Jail Magazine.

Dr. Kelly’s law and justice career is inclusive of a variety of senior management and command level positions. This demonstrative level of professional experience helps to provide him with unique insights into the requirements for professional education and the interrelation of academic curricula with professional training needs. Dr. Kelly rose to the rank of Major with the Orleans Parish Sheriff’s Office and was assigned to the Office of the Chief Deputy as Confidential Assistant to the Chief Deputy. During the 1970’s he served with the New Orleans Police Department in the Sixth District and Urban Squad. In 1983, he joined the Orleans Parish Criminal Sheriff’s Office as a full-time sworn deputy sheriff working in the Warrants Division. Since his affiliation with the Orleans Parish Sheriff’s Office he has held a variety of advisory, policy, and training positions and been responsible for leading efforts to modernize the department’s Policy and Procedure Manual; he also served in the POST Training Academy where he taught recruits, full-time deputies, and ranking officers in the areas of Ethics, Investigative Report Writing, Stress, and the legal issues associated with Use of Force.

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Categories: Criminal Justice