Trial Magazine

Qualified immunity has become an increasingly visible topic for the public, but it has long been a crucial and challenging issue for those who handle police misconduct cases. Because qualified immunity is intended to protect officers who unintentionally violate people’s constitutional rights, they regularly raise this defense claiming that the violation occurred under extraordinary pressure requiring a split-second decision or when the constitutional offense was not “clearly established” at the time of the violation.¹

Facts giving rise to these defenses are varied. A common theme occurs when law enforcement responds to a mental health crisis, such as a man holding a knife and threatening self-harm. Should qualified immunity be a defense when the person whom law enforcement comes to help is shot and killed? Or when a routine traffic stop turns into a person being shot in the back while running away from police? Should the nuances of such an encounter insulate the officer from suit?²

In practice, facts matter, and officers are often in control of the narrative. And because courts routinely stay discovery if a Federal Rule of Civil Procedure 12(b)(6) motion raises the issue of qualified immunity,³ video evidence sometimes can be the difference in cases that are allowed to proceed. However, references to video that is not helpful can result in prompt dismissal of an otherwise meritorious case. In this context, when developing allegations in police misconduct cases, you must evaluate how body-worn camera footage, dash camera footage, and available training materials should—or should not—be used.

The qualified immunity analysis follows a two-prong test: whether the officer’s actions violated the plaintiff’s constitutional rights and whether the rights violated were clearly established at the time of the deprivation.⁴ In other words, the first step when framing allegations in a police misconduct case is to show that the police officers’ behavior violated the plaintiff’s constitutional rights. Then, you must demonstrate adequate facts to combat the argument that these rights were not clearly established.

While the clearly established element is conceptually the second part of the analysis, courts often start here (or conflate the two prongs into a single analysis), and the concept of what is clearly established frequently is the most difficult issue when litigating qualified immunity.⁵ Video footage—which has become much more common—is most relevant to the first part of this pleading process, while police training materials can be used to diminish the strength of a motion to dismiss on the “clearly established” prong.

Law Enforcement Videos

As a general rule, only reference or incorporate law enforcement video footage if it clearly demonstrates unconstitutional actions. In pleadings, exercise caution when incorporating images or references to camera footage because “generally, a court considers only the contents of the complaint when ruling on a Rule 12(b)(6) motion.”⁶ Thus, defendants may not rely on the contents of law enforcement videos to support Rule 12(b)(6) motions when the footage is not “incorporated by reference in the complaint or [] referred to in and central to the complaint.”⁷

For example, in Turner v. Garcia-Serna, a federal district court denied the defendants’ Rule 12(b)(6) motion, holding that the plaintiff sufficiently pleaded a Fourth Amendment violation for excessive force and failure to intervene.⁸ The defendants argued that the complaint should be dismissed because body-worn camera footage from the incident allegedly contradicted the claims in the complaint.⁹ But the court held that consideration of the footage was inappropriate at the 12(b)(6) stage because the plaintiff had not incorporated the footage by reference and it was not central to the complaint, which did not refer to or rely on specific video content.¹⁰

By contrast, in Harris v. Romero, an excessive force claim was dismissed because the same district court found that the complaint incorporated screen captures from body-worn camera footage of the incident and that this footage failed to support the plaintiff’s allegations of unconstitutional actions.¹¹

The court held that the footage was incorporated by reference and that it was appropriate to consider the footage in its entirety, not just the selected screen captures.¹² The complaint alleged the plaintiff was “choked while being removed from his car, beaten with fists, and violently lifted with his arms and hands in an awkward reverse position,” but the court found that the footage “blatantly contradicted” these allegations.¹³ The court granted the defendants’ Rule 12(b)(6) motion to dismiss with respect to this claim.¹⁴

However, the Harris court denied the defendants’ motion with regard to the claim that the plaintiff’s head was rammed into the pavement, because the footage did not blatantly contradict those allegations.¹⁵ The court held that because the video did not show “one way or another” whether the plaintiff’s head was slammed into the pavement, it could not be used to defeat the presumption given to the plaintiff at the dismissal stage.¹⁶

Police training policies alone are not sufficient to show whether a right was clearly established.

The Turner and Harris decisions support the use of caution when considering whether to incorporate video footage into a complaint. These recent cases follow the standard the late U.S. Supreme Court Justice Antonin Scalia articulated in Scott v. Harris.¹⁷ There, in the context of analyzing video of a police car ramming a suspect in a high-speed chase, the Court established that when a litigant’s version of events is “blatantly contradicted” by video evidence, a court may reject the unsupported version in ruling on a summary judgment motion.¹⁸

Consequently, incorporating references to footage can lead a court to consider the entire video when deciding a Rule 12(b)(6) motion. So video should be used to support factual allegations only when it clearly supports allegations of extreme and unconstitutional police misconduct. If the footage shows defendants engaged in conduct that is not clearly established as unlawful, the court likely will find that the defendants are entitled to qualified immunity at the Rule 12(b)(6) stage.

Only reference video footage in pleadings when it shows defendants engaged in egregious conduct that is clearly unconstitutional or, at the very least, when the footage does not blatantly contradict allegations of such conduct. More simply, if the video shows a clear and unreasonable application of force, then it should be used. If the video is not clear, unavailable, or incomplete, it is typically better practice to rely on factual allegations without incorporating video references.

Law Enforcement Training Materials

For purposes of the qualified immunity analysis, police training policies alone are not sufficient to show whether a right was clearly established—but these materials can be an effective way to allege that law enforcement officers knew certain conduct was clearly unconstitutional. The Supreme Court has stated that law enforcement officers who knowingly violate the law are not entitled to qualified immunity.¹⁹ The Court wrote in a 2002 decision: 

That is not to say, of course, that conduct can be “clearly established” as unlawful only if a court has already passed on the legality of that behavior under materially similar circumstances. Certain actions so obviously run afoul of the law that an assertion of qualified immunity may be overcome even though court decisions have yet to address “materially similar” conduct.²⁰

Circuits vary on how they consider training materials in the qualified immunity analysis.²¹ For instance, at least one circuit has held that judicial decisions are the only authority that may be relied on during the clearly established law inquiry and that the defendant’s training is irrelevant to this context.²² Consequently, evidence of training materials should be used to strengthen allegations that officers knew their behavior was unconstitutional. Link these items to specific case law establishing that similar conduct is clearly established as unconstitutional.

The Tenth Circuit’s decision in Weigel v. Broad—which reversed the district court and held that the defendant police officers were not entitled to qualified immunity—illustrates this concept.²³ In Weigel, the plaintiffs alleged that the defendants’ use of excessive force caused their brother’s death from restraint asphyxia.²⁴ Their claims stemmed from an altercation between the decedent and the defendants, during which one of the defendants applied “pressure to [the decedent’s] upper body . . . by using either one or both knees and his hands” after the decedent had already been restrained.²⁵

Comparing the facts of Weigel to Cruz v. City of Laramie, which involved a decedent who asphyxiated to death after being “hog-tied” by police, the district court held that although the defendants violated the decedent’s Fourth Amendment rights, they were entitled to qualified immunity. It found the circumstances were not similar enough to those in Cruz—meaning that the unlawfulness of their conduct was not clearly established at the time of the incident.²⁶

On appeal, however, the Tenth Circuit held that analyzing “the constitutionality of the restraint of [the decedent] does not require us to compare the facts of Cruz to the allegations here” because the issue was based on “more general principles” establishing that “it is unreasonable to use deadly force when the force is totally unnecessary to restrain a suspect.”²⁷ The court held the unlawfulness of the defendants’ conduct was clearly established and the officers’ training made them aware that their conduct created an unnecessary and substantial risk of death to the decedent.²⁸ As a result, the court found that the defendants were not entitled to qualified immunity and reversed the district court’s grant of summary judgment.²⁹

Weigel supports the concept that a police officer’s training materials may be strong evidence to help overcome a qualified immunity defense when prior case law has not definitively established that the specific conduct at issue was unlawful at the time of the incident.³⁰ That said, because no court has ruled that training materials alone are sufficient to establish what conduct is unconstitutional, evidence of training materials should be used to enhance the application of case law to the specific facts of the misconduct at issue in your case.

For example, an internal use-of-force policy that establishes that an officer was trained to deploy certain chemical agents only if there was a threat of serious bodily injury could be used in conjunction with case law on the use of chemical agents in correctional facilities against non-threatening inmates to show that an objectively reasonable officer could not constitutionally deploy tear gas against an inmate who was merely refusing to obey a verbal command.³¹

Use of both video and policy can be useful to strengthen allegations and legal positions. However, because video can be used defensively and because policies alone do not establish objectively reasonable standards of police conduct, these resources should be used strategically and avoided when it will do more harm than good.

Seth R. Carroll is a founding partner at the Commonwealth Law Group in Richmond, Va., and can be reached at scarroll@hurtinva.com. Shlok Grover, a former associate with the firm, contributed significantly to this article.

Notes

1. For more on qualified immunity, see Antonio Romanucci, Bhavani Raveendran, & Christopher Burton, Confronting Qualified Immunity and the “Reasonable” Officer Standard, Trial, Sept. 2020, at 24; Matthew J. Kita, 10 Things to Know Before Taking §1983 Excessive Force Cases, Trial, Sept. 2020, at 19.
2. Importantly, the courts construe qualified immunity as immunity from suit not mere immunity from liability. For more on recent qualified immunity case law, see p. 18.
3. Siegert v. Gilley, 500 U.S. 226, 232 (1991).
4. Saucier v. Katz, 533 U.S. 194, 201 (2001) (the issue of whether a constitutional violation occurred was a “threshold question” that “must be the initial inquiry”).
5. Id.
6. Turner v. Garcia-Serna, 2021 WL 1186670, at *4 (D. Colo. Mar. 30, 2021).
7. Id. at *13.
8. Id. at *21.
9. Id. at *11–12.
10. Id. at *13–14.
11. 2021 WL 1169985, at *8–9 (D. Colo. Mar. 29, 2021).
12. Id. at *8.
13. Id. at *10.
14. Id.
15. Id.
16. Id.
17. 550 U.S. 372 (2007).
18. Id. at 380.
19. See Malley v. Briggs, 475 U.S. 335, 341 (1986). 
20. Hope v. Pelzer, 536 U.S. 730, 753–54 (2002) (Thomas, J., dissenting) (internal citations omitted).
21. Compare Roell v. Hamilton Cty., 870 F.3d 471, 486–87 (6th Cir. 2017) (training materials do not change the qualified immunity analysis) with Drummond v. City of Anaheim, 343 F.3d 1052, 1062 (9th Cir. 2003) (training materials may provide officers with notice of when force is objectively unreasonable).
22. See, e.g., Frasier v. Evans, 992 F.3d 1003, 1015 (10th Cir. 2021) (“Judicial decisions are the only valid interpretive source of the content of clearly established law; whatever training the officers received . . . was irrelevant.”).
23. 544 F.3d 1143, 1155 (10th Cir. 2008).
24. Id. at 1146–47, 1149.
25. Id. at 1148–49.
26. Id. at 1154 (citing Cruz v. City of Laramie, 239 F.3d 1183 (10th Cir. 2001)).
27. Id.
28. Id. at 1155.
29. Id.
30. Drummond, 343 F.3d at 1059 (“Although such training materials are not dispositive, we may certainly consider a police department’s own guidelines when evaluating whether a particular use of force is constitutionally unreasonable.”); Gutierrez v. City of San Antonio, 139 F.3d 441, 449 (5th Cir. 1998) (“[I]t may be difficult to conclude that the officers acted reasonably if they performed an action that had been banned by their department or of whose dangers in these circumstances they had been warned.”).
31. See, e.g., Landman v. Royster, 333 F. Supp. 621, 649 (E.D. Va. 1971).