Qualified immunity has been a fixture of federal civil rights litigation, especially in the context of Section 1983 claims, since Pierson v. Ray was decided by the Supreme Court in 1967. The Court recognized the existence of “good faith and probable cause,” as an essential component of “the background of tort liability in the case of police officers making an arrest.” Pierson v. Ray, 386 U.S. 547, 556-57 (1967). The doctrine of qualified immunity gives “government officials breathing room to make reasonable but mistaken judgments about open legal questions,” under which “all but the plainly incompetent or those who knowingly violate the law,” will be protected against claims for civil damages arising under civil rights claims. Ashcroft v. al-Kidd, 563 U.S. 731, 743 (2011). “Where an official’s duties legitimately require action in which clearly established rights are not implicated, the public interest may be better served by action taken ‘with independence and without fear of consequences.’” Harlow v. Fitzgerald, 457 U.S. 800, 819 (1982) (quoting Pierson, 386 U.S. at 554)). This is also not a “mere defense to liability,”; as qualified immunity provides officers who qualify for its protection with “immunity from suit.” Mitchell v. Forsyth, 472 U.S. 511,

Under Section 1983, a defendant is entitled to qualified immunity from money damages for discretionary actions if his conduct does not violate any clearly established constitutional rights. Harlow, 457 U.S. at 815. If a defendant official raises qualified immunity in response to the civil suit, the court uses a two-step analytical process to determine whether the claim may proceed or if the official is entitled to immunity protection. First, a court must decide whether the facts that a plaintiff has shown make out a violation of a constitutional right. Pearson v. Callahan, 129 S. Ct. 808, 815-16 (2009) (citing Saucier v. Katz, 533 U.S. 194, 201 (2001)). Second, “if the plaintiff has satisfied this first step, the court must decide whether the right at issue was ‘clearly established’ at the time of defendant’s alleged misconduct.” Id. at 816. It is a plaintiff’s burden to establish the existence of a clearly established constitutional right. McGrath v. Gillis, 44 F.3d 567, 570 (7th Cir. 1995). The plaintiff must point out a closely analogous case that establishes his right to be free from the specific conduct alleged to violate the general constitutional right at issue. Rice v. Burks, 999 F.2d 1172, 1174 (7th Cir. 1993). Plaintiff must also establish that the alleged violated rights were so clear that a reasonable official would understand his actions at the time violated the right. McGrath, 44 F.3d at 570. “A constitutional right is “clearly established” for qualified immunity purposes where “[t]he contours of the right [are] sufficiently clear that a reasonable official would understand that what he is doing violates that right.” Abbott v. Sangamon County, III., 705 F.3d 706, 725 (7th Cir. 2013) (quoting Anderson v. Creighton, 483 U.S. 635, 640 (1987). “If either inquiry is answered in the negative, the defendant official is protected by qualified immunity.” Koh v. Ustich, 933 F.3d 836, 844 (7th Cir. 2019).

In the last decade, the Seventh Circuit applied and elaborated on the standard of qualified immunity in the context of the very common civil rights claims of excessive force and false arrest in the significant case of Abbott v. Sangamon County, III. The court held in that matter that false arrest claims provided a very viable basis for the issue to be raised, stating that the defendant could defeat the plaintiff’s false arrest claim based on probable cause, “but even if he did not, he would be cloaked with qualified immunity because at the very least he had arguable probable cause.” Abbott, 705 F.3d at 718. The court reaffirmed that “for the simple fact that reasonable minds could differ as to the meaning of the law leads to the conclusion that Sweeney is shielded by qualified immunity.” Id. at 723. “Qualified immunity, in effect, affords enhanced deference to officers’ on-scene judgments about the level of necessary force.” Id. at 725. The court further held that, in the context of officers attempting to subdue individuals who become violent in officer encounters or resisted arrest, such officers are entitled to qualified immunity in these instances because it is clearly established that officers may use force to control suspects actively resisting the officer. Id. at 728-29. Additionally, the past decade also saw the Supreme Court rule that an officer who fired fifteen shots into the vehicle of a suspect attempting to flee the scene and continue a high-speed chase with police was entitled to protection under qualified immunity. Plumhoff v. Rickard, 134 S.Ct. 2012 (2014). The Court held that there was no clearly established right under the Fourth Amendment prohibiting shooting at a fleeing driver. In sum, a defendant raising qualified immunity establishes a very difficult bar for the plaintiff to overcome, unless it is shown that there is “a robust consensus of cases of persuasive authority,” demonstrating that the given defendant officer’s conduct in the particular case violated an established and recognized constitutional right. Brosseau v. Haugen, 543 U.S. 164 (2004).

Qualified immunity is also “a question of law for the court, not a jury question.” Smith v. Finkley, 10 F.4th 725, 734 (7th Cir. 2021) (quoting Riccardo v. Rausch, 375 F.3d 521, 526 (7th Cir. 2004)). Orders denying summary judgment, though not typically appealable as final decisions, are immediately appealable when they are based on a denial of qualified immunity, since qualified immunity is immunity to suit rather than a defense to liability and thus within the collateral order doctrine. Plumhoff v. Rickard, 572 U.S. 765, 771 (2012).                                                                                                                                                   

In a recent appeal to the Seventh Circuit, Tousis v. Billiot, 2023 WL 6860926 (No. 22-2211, Oct. 18, 2023), the court held that the defendant was entitled to qualified immunity. The court reiterated that “[t]here are two inquiries in determining whether qualified immunity applies: whether the facts, taken in the light most favorable to the party asserting the injury show that the officer’s conduct violated a constitutional right; and whether the right at issue was “clearly established” at the time of the officer’s alleged misconduct.” Id. at *4. The court noted that it would assess the second prong first, in light of the facts of the case wherein the defendant had shot and killed the suspect following a high-speed chase where the suspect’s vehicle was eventually cornered but then attempted to drive away again, to determine whether clearly established law, i.e., that law which was sufficiently clear that reasonable officers would understand what actions in the context were lawful or unlawful, was violated in the matter. Id. at *4.

The Court noted that, pursuant to Supreme Court precedent, “‘[w]here the officer has probable cause to believe that the suspect poses a threat of serious physical harm, either to the officer or to others, it is not constitutionally unreasonable to prevent escape by using deadly force,’” with the fact-specific determination of whether the force was excessive depending on the totality of the circumstances. Id. at *4 (quoting Tennessee v. Garner, 471 U.S. 1, 11 (1985)). The court decided the question of qualified immunity in the officer’s favor by analogizing to the recent case of Tolliver v. City of Chicago, 820 F.3d 237 (7th Cir. 2016), stating that, as in that case, the suspect’s use of a vehicle and moving it in the direction of officers standing in front of it, constituted a threatening action with a deadly weapon. Id.; Tolliver, 820 F.3d at 245. The court concluded that, given that an automobile could be used as a deadly weapon, “‘[r]easonable officers in their circumstances would have perceived the car as a deadly weapon that created a threat of serious physical harm,” which justified deadly force to neutralize the risk. Id. at *4-5 (quoting Tolliver, 820 F.3d at 245-46). The court also stated that, even if it could be argued that the suspect was only trying to escape prior to being shot by the officers, the use of deadly force was still reasonable as a means to neutralize the risk that the suspect and the automobile posed to the public on the road. Id.; Plumhoff, 572 U.S. at 776-77.

The court concluded in Tousis that the officer had an objectively reasonable belief based on the circumstances that his own life and those of the public were at risk when he killed the suspect and that there was no directly applicable case law warning the officer that his actions under those circumstances amounted to excessive force in violation of the Fourth Amendment. Id. at *8. Accordingly, the court concluded that the officer was entitled to the protection of qualified immunity for the excessive force claim. Id.

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