On January 27, 2023, the District of Columbia Circuit Court of Appeals decided Kelly v. Gaton[i], in which the court examined whether an officer was entitled to qualified immunity from suit, when he tackled a woman, without warning, whom he had just witnessed hit another woman in the face.  The relevant facts of Kelly are as follows:

On June 28, 2018, Officer Gaton was en route to respond to an unrelated domestic disturbance call when he observed Latarsha Kelly and her neighbor, Kiana Sims, arguing outside of their apartment building. As Officer Gaton walked toward the women, he saw Kelly hit Sims in the face with her hand. Officer Gaton immediately sprinted toward Kelly and tackled her, using his 265 pounds of body weight to force Kelly to the ground, fracturing her pelvis in the process. Officer Gaton did not give any verbal warning before he tackled Kelly, and Kelly was not aware that law enforcement was present at the scene.[ii]

Kelly filed suit against Officer Gaton for violating her rights under the Fourth Amendment by using excessive force when he tackled her without warning, breaking her pelvis.[iii]  Officer Gaton filed a motion for qualified immunity.  The district court granted the officer’s motion for summary judgment and qualified immunity and held (1) that Officer Gaton did not violate the Fourth Amendment by tackling Kelly without warning as she had just struck another woman in the face, and (2) that the law was not clearly established based on the fact there was not a similar case that prohibited an unwarned tackle in such circumstances.  Kelly appealed the dismissal of her suit to the District of Columbia Circuit Court of Appeals.

The issue on appeal was whether Officer Gaton was entitled to qualified immunity when he tackled Kelly, without warning, after he witnessed her strike another woman in the face.

The court of appeals first discussed qualified immunity and what the plaintiff must show to defeat the officer’s qualified immunity.  In order to defeat an officer’s motion for qualified immunity in this case, the plaintiff must show that the officer (1) violated the plaintiff’s Fourth Amendment right to be free from an unreasonable seizure (excessive force) and (2) the law was clearly established such that every reasonable officer would know that he was violating the Fourth Amendment.  The court can skip the first element (whether the officer violated the Fourth Amendment) and answer the second element since that will decide the result of the case, even if the officer did violate the Fourth Amendment.

In this case, the court of appeals skipped the first element and examined whether the law was clearly established such that every reasonable officer in this situation would have known he was violating the Fourth Amendment by conducting the unwarned tackle.  The court of appeals stated

Qualified immunity is “a defense that shields officials from suit if their conduct did not violate clearly established statutory or constitutional rights of which a reasonable person would have known.” Ortiz v. Jordan, 562 U.S. 180, 183, 131 S. Ct. 884, 178 L. Ed. 2d 703 (2011) (internal quotation marks and citations omitted). In the Fourth Amendment context, the Supreme Court has repeatedly emphasized that qualified immunity in excessive force cases must be analyzed with a high degree of particularity, reversing lower court decisions that rely on factually distinguishable circuit precedents. See, e.g., Rivas-Villegas v. Cortesluna, 142 S. Ct. 4, 7, 211 L. Ed. 2d 164 (2021); City of Tahlequah, Okla. v. Bond, 142 S. Ct. 9, 12, 211 L. Ed. 2d 170 (2021); Kisela v. Hughes, 138 S. Ct. 1148, 1153, 200 L. Ed. 2d 449 (2018)[iv]

In other words, in excessive force cases, for the law to be clearly established, there must be factually similar court precedent that would put reasonable officers on notice that their conduct was illegal.

Since there was no similar case in the D.C. Circuit, the court examined court precedent decided by other federal circuits that Kelly provided in support of her contention that the law was clearly established. The court of appeals noted that all of the cases Kelly cited were distinguishable from her case.  The court discussed the precedent as follows:

The court observed that the cases above stand for the proposition that officers commit excessive force if they tackle nonviolent suspects of minor crimes who do not resist arrest or flee.  However, no case addressed tackling a violent suspect whom the officer had just witnessed strike another person in the face.  The court of appeals stated

While those cases command that officers may not tackle nonviolent suspects of minor crimes who do not resist arrest or flee, given Kelly’s physical assault on Sims, they do not place the alleged unlawfulness of Officer Gaton’s conduct “beyond debate.” Ashcroft v. al-Kidd, 563 U.S. 731, 741, 131 S. Ct. 2074, 179 L. Ed. 2d 1149 (2011). In short, we are not aware of any decisions issued by the Supreme Court, this Court, or any other circuit court addressing a Fourth Amendment violation in similar circumstances.  “It is not enough that the rule is suggested by then-existing precedent. The precedent must be clear enough that every reasonable official would interpret it to establish the particular rule the plaintiff seeks to apply.” District of Columbia v. Wesby, 138 S. Ct. 577, 590, 199 L. Ed. 2d 453 (2018); see also White v. Pauly, 580 U.S. 73, 137 S. Ct. 548, 552, 196 L. Ed. 2d 463 (2017)[vi]

Therefore, the court of appeals held that the law was not clearly established so Officer Gaton was entitled to qualified immunity.

Note:  Court holdings can vary significantly between jurisdictions.  As such, it is advisable to seek the advice of a local prosecutor or legal adviser regarding questions on specific cases.  This article is not intended to constitute legal advice on a specific case.

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Citations

[i] No. 21-7138 (D.C. Cir. Decided January 27, 2023 Unpublished)

[ii] Id. at 1-3

[iii] Kelly also filed a claim for battery in the local court that was dismissed that will not be discussed in this article.

[iv] Id. at 3-4 (emphasis added)

[v] Id. at 4-5

[vi] Id. at 5 (emphasis added)

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