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RISK MANAGEMENT SERVICES Exploring two types of immunity
mmunity is defined by Merriam-Webster as “a condition of being able to resist a particular disease especially through preventing development of a pathogenic microorganism or by counteracting the effects of its products.” Over the last 20 months, we have sought immunity at a level most of us have never experienced or imagined. Before March 2020, we casually approached issues surrounding common illnesses like the flu and a cold and may have even championed those people who came to work even though they weren’t feeling well. In stark contrast, at the beginning of the pandemic, we provided detailed recommendations for detention facilities to limit the spread of COVID-19 in Arkansas’ county jails. The response was robust and lasting. All the work put in on the front end — managing the risk — has proven worthwhile. While Arkansas prisons have experienced high rates of COVID-19 infection and death among inmates and staff, county jails have successfully navigated mass testing, mass quarantine and isolation, and even mass vaccination, without a single inmate death. Considering our average statewide county jail population of approximately 10,000 detainees, that is incredible. Although we are now seeing a decline in infection numbers in Arkansas, let me encourage you to stay the course. The pandemic has shown the limits of our physical structures and the heavy burdens carried by our public sector employees. What will you do to manage the risk of another contagious illness in your facility? Continuing COVID protocols such as use of hand-sanitizer and emphasis on cleaning and disinfecting common areas will help you combat other illnesses like influenza or the common cold. Continuing to use Justice Bridge for court appearances or telemedicine offer greater protection to detainees and persons at the courthouses or medical offices. We can use what was learned during the height of the pandemic to create a safer, more efficient system for the future. Immunity has another meaning just as important for government workers: “freedom from legal liability.” It could be judicial immunity, sovereign immunity, or the immunity that we deal with the most — qualified immunity. Qualified immunity is not “good faith immunity.” In fact, the intent or motivation of an officer does not matter in the analysis of a claim such as excessive force. Qualified immunity protects a state actor from liability when the right asserted was not clearly established, meaning the actor had no notice that their conduct would violate the Constitution. Anderson v. Creighton, 483 US 635 (1987). For example, in a case alleging police misconduct, unless a court has declared similar behavior in a previous case to be unconstitutional, the officer is entitled to qualified immunity. In two recent cases, the US. Supreme Court reversed decisions that had denied officers the protections of qualified immunity — signaling a stronger emphasis on whether the constitutional right at issue was clearly established. In City of 18
Tahlequah v. Bond, the Supreme Court reversed the decision of the 10th Circuit Court of Appeals, which had denied qualified immunity because it deemed the conduct (running into a garage towards a drunken subject who was wielding a hammer, firing their weapons, and killing the subject when he JANAN THOMAS Risk Management raised the hammer above his head Litigation Counsel and began to step towards them) of the officers in that case “reckless.” The Supreme Court held that the cases upon which the 10th Circuit relied for their decision were “dramatically different” and that “[i]t is not enough that a rule be suggested by then-existing precedent; the ‘rule’s contours must be so well defined that it is “clear to a reasonable officer that his conduct was unlawful in the situation he confronted.”’” On the same day, the U.S. Supreme Court also reversed in part a decision of the 9th Circuit Court of Appeals. In Rivas-Villegas v. Cortesluna, police were responding to an emergency call that a woman and her children were barricaded in a room for fear that the subject was going to hurt them. Police arrived and after the subject was ordered out of the house and onto the ground, the officer placed his knee on the subject’s back for approximately eight seconds while another officer removed a knife from the subject’s pocket and handcuffed him. The 9th Circuit denied qualified immunity finding that the officer violated a clearly established right. The Court relied on LaLonde v. County of Riverside, 204 F.3d 947 (9th Cir. 2000), and found that both cases “involve suspects who were lying face-down on the ground and were not resisting either physically or verbally, on whose back the defendant officer leaned with a knee, causing allegedly significant injury.” The Supreme Court disagreed and found that LaLonde and the facts in Rivas-Villegas were not similar (LaLonde involved a noise complaint where the subject was located holding a sandwich and refusing entry into his home when the officer knocked the sandwich from his hand, grabbed him by the ponytail, and knocked him backwards to the ground. While handcuffing LaLonde, an officer “deliberately dug his knee into LaLonde’s back with force that caused long-term if not permanent damage.”) The Court held that the decision in LaLonde would not have put the officer on notice that his specific conduct (placing his knee on subject’s back for eight seconds) was unlawful. The takeaway is that qualified immunity is still a valuable defense in claims alleging a violation of constitutional rights. County officials, particularly law enforcement officers, must modify their practice and policies as the law changes and certain conduct becomes a “clearly established violation of rights.” COUNTY LINES, FALL 2021
