United States Supreme Court Reaffirms the Defense of Qualified Immunity as Applied in Constitutional Excessive Force Cases

The United States Supreme Court has taken two opportunities to reaffirm the use of the defense of qualified immunity as applied to police officers who have been sued for civil rights violations pursuant to 42 U.S.C. § 1983. On October 18, 2021, the Court rendered decisions in City of Tahlequah v. Bond, 2021 U.S. LEXIS 5310 (U.S. Oct. 18, 2021) and Rivas-Villegas v. Cortesluna, 2021 U.S. LEXIS 5311 (U.S. Oct. 18, 2021) in which both claimants alleged that responding officers violated their respective constitutional rights by using excessive force. The issue in both cases was whether the rights that the claimants alleged to have been violated by the officers were “clearly established” such that the officers were given fair notice that their conduct was in violation of 42 U.S.C. § 1983.

The Supreme Court’s analysis in these recent decisions centered on the doctrine of qualified immunity and the doctrine’s protection of officers from civil liability so long as the officers’ conduct “does not violate clearly established statutory or constitutional rights of which a reasonable person would have known.” The Court explained that the doctrine of qualified immunity will be applicable to “all but the plainly incompetent or those who knowingly violate the law.” The Court also reiterated that lower courts must not “define clearly established law at too high a level of generality.” A general rule or a rule of law suggested by then-existing precedent will not be sufficiently “clearly established.” Rather, the Supreme Court reasoned that “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.’” While a jurisdiction’s precedent need not be directly on point with the facts of a given situation, the statutory or constitutional question must be beyond debate. As the Court noted, these principals are particularly critical in Fourth Amendment excessive force situations and the Court will decline to follow a jurisdiction’s precedent that does not meet this “clearly established” criteria.

In Tahlequah v. Bond, 2021 U.S. LEXIS 5310 (U.S. Oct. 18, 2021), Officers Josh Girdner, Chase Reed and Brandon Vick responded to a call from a woman claiming that her ex-husband, Dominic Rollice, entered her home’s garage and would not leave. The officers met Rollice at the side door of the garage and spoke to him from a distance. Rollice appeared nervous and when Officer Girdner took a step toward Rollice, Rollice turned and walked toward the back of the garage where his tools had been stored. Officers followed from six feet away, ordering Rollice to stop as he proceeded to pick up a hammer. Rollice held the hammer as if he were going to swing it and the officers drew their guns ordering Rollice to drop the hammer. When Rollice raised the hammer over his head and took a stance as if he were about to throw the hammer or charge the officers, Officer Girdner and Officer Vick fired their weapons and killed Rollice. The incident was captured on body camera footage.

Officers Girdner and Vick, among others, were sued by Rollice’s estate pursuant to 42 U.S.C. § 1983 for an alleged violation of Rollice’s Fourth Amendment rights. The officers filed a motion for summary judgment on the merits of the case, arguing the defense of qualified immunity, which motion the District Court granted by finding that the use of force was reasonable and even if it was not, qualified immunity was applicable.

The Court of Appeals for the Tenth Circuit reversed the District Court’s decision. The Tenth Circuit reasoned that its precedent allows an officer to be held liable for a shooting that is objectively reasonable if the officer’s reckless or deliberate conduct created a situation requiring the deadly force. With this situation, the Appeals Court believed that the officers stepping toward Rollice and essentially cornering him in the garage recklessly necessitated the use of deadly force. Further, the Tenth Circuit, relying on Allen v. Muskogee, 119 F. 3d 837 (10th Cir. 1997), found that the officers’ conduct in this case was clearly established as unlawful. In Allen, officers responded to a potential suicide call by rushing toward a parked car, screaming at the suspect and attempting to physically wrestle a gun from his hands.

Upon appeal, the United States Supreme Court reversed the Tenth Circuit’s decision. The Court did not believe it needed to decide whether the Fourth Amendment was violated or whether the officers recklessly created a situation requiring deadly force. Instead, the Court held that the officers did not violate any clearly established law in the jurisdiction which would put them on notice that their conduct was unlawful. The Court distinguished this case from the facts in Allen in that the officers here engaged in a conversation with Rollice, stayed six feet away from him the entire time and did not yell at him until he picked up the hammer. Based upon these facts, the Court reasoned that Allen did not “clearly establish” the officers’ conduct as reckless or excessive. After dismissing the remainder of the cases relied on by the Tenth Circuit, the Supreme Court held that a reasonable officer could miss the connection between the Allen case and the present case, which led it to reverse the Tenth Circuit. The Supreme Court stressed the importance of jurisdictions defining clearly established law with specificity so that an officer applying the legal doctrine to a factual situation will have sufficient guidance.

Similarly, in Rivas-Villegas v. Cortesluna, 2021 U.S. LEXIS 5311 (U.S. Oct. 18, 2021, Officer Daniel Rivas-Villegas, among other officers, was called to the scene of an incident where a woman and her children were barricaded in a room in fear of claimant, Ramon Cortesluna. The police dispatcher informed Officer Rivas-Villegas that Cortesluna was believed to be using a chainsaw. Officers knocked on the door, announced their presence and demanded Cortesluna to come to the door. Officers demanded that Cortesluna drop his weapon, and he complied by dropping the weapon and following commands to raise his hands and walk toward the officers. One of the officers identified a knife protruding from Cortesluna’s front left pocket, and the officers again demanded that Cortesluna keep his hands raised. When Cortesluna dropped his hands, he was shot twice with a beanbag shotgun and complied with an order to get on the ground. Officer Daniel Rivas-Villegas then straddled Cortesluna, placing his right foot next to Cortesluna’s right side and placing his left knee on Cortesluna’s back for “no more than eight seconds.”

Cortesluna later filed suit against Officer Rivas-Villegas pursuant to 42 U.S.C. § 1983, claiming Officer Rivas-Villegas’ actions constituted excessive force in violation of the Fourth Amendment. The District Court granted Officer Rivas-Villegas’ motion for summary judgment, based on the doctrine of qualified immunity, but the Court of Appeals for the Ninth Circuit reversed. The Ninth Circuit held that Officer Rivas-Villegas was not entitled to qualified immunity because Ninth Circuit precedent “put him on notice that his conduct constituted excessive force.” This holding was only supported by LaLonde v. County of Riverside, 204 F. 3d 947 (9th Cir. 2020) in which police pushed their way into a man’s home following a noise complaint, wrestled him to the ground, pepper sprayed him and dug a knee into his back causing permanent damage. The Ninth Circuit panel reasoned that since both respondent in LaLonde and Cortesluna were lying face down on the ground and not attempting to resist arrest, the officer’s knee in the backs of both men constituted excessive force.

This decision was appealed to the United States Supreme Court, which reversed the Ninth Circuit decision. The Court ruled that even if Ninth Circuit precedent clearly established law concerning excessive force in violation 42 U.S.C. § 1983, the LaLonde decision did not give Officer Rivas-Villegas reasonable notice that his conduct constituted excessive force, making qualified immunity for Officer Rivas-Villegas proper. The Court explained that “qualified immunity attaches when an official’s conduct does not violate clearly established statutory or constitutional rights of which a reasonable official would have understood that what he is doing violates that right.” A right is “clearly established” where it is sufficiently clear that every reasonable official would have understood that what he is doing violates that right.

The Court reasoned that a jurisdiction need not have a case directly on point with the facts of any given situation for a right to be “clearly established,” but the statutory or constitutional question must be beyond debate. Specifically, in cases of alleged Fourth Amendment violations, excessive force will be evaluated by considering the facts and circumstances of the case, the severity of the crime at issue, whether the suspect poses an immediate threat to the safety of officers and others and whether the suspect is actively resisting arrest or attempting to flee.

Against this background, the Supreme Court reasoned that Cortesluna was required to, and ultimately did not, point to a controlling case in the jurisdiction which would put Officer Rivas-Villegas on notice that his conduct constituted excessive force. The Court stated that the facts of LaLonde were materially distinguishable from the present case in that the LaLonde decision was based on a noise complaint where the suspect was unarmed and generally not considered dangerous or resisting at the time of his apprehension. A knee was deliberately dug into his back despite a lack of resistance and the absence of a weapon. Cortesluna, on the other hand, was a suspect in a potential domestic violence incident in which he was reported to be using a chainsaw and was found armed with a knife. Officer Rivas-Villegas placed his knee on Cortesluna’s back for no more than eight seconds. Thus, in the absence of any similar case that would put Officer Rivas-Villegas on notice that his conduct constituted excessive force, qualified immunity was proper.


Patrick J. Graham, Esq. focuses his practice in litigation through the federal and state courts of New Jersey, with a concentration on creditor’s rights, business collection, tort defense, premises liability and products liability defense, Tort Claims Act defense, construction, estates, employment and professional malpractice. Prior to joining Capehart, Patrick was a Judicial Law Clerk to the Honorable Jean S. Chetney, J.S.C., New Jersey Superior Court, Law Division-Civil Part, Salem. He also served as a Judicial Extern for the Honorable Michael J. Haas, J.A.D., New Jersey Superior Court, Appellate Division, Westmont.


Borough Found Not Liable For Slip And Fall Injury Due To Alleged Depression In Grassy Area Of Municipal Park

Plaintiff Suzanne Pagonis tripped and fell while walking across a grassy field at the Crestwood Lake Club, which was a recreational lake swimming complex owned by defendant Borough of Allendale and encompassed a municipal park, Crestwood Park.  Her daughter had participated earlier in the day in a softball tournament at the Club’s facilities.  Plaintiff fell while crossing a grassy field on the way back to her car to retrieve lunch for her children.  The issue in Pagonis v. Borough of Allendale, 2021 N.J. Super. Unpub. LEXIS 462 (App. Div. March 22, 2021) was whether the Borough was immune from liability for such accident under Tort Claim Act defenses.

Plaintiff and the other tournament families were advised that they could not use the beach and facilities reserved for members that were closest to the main entrance parking lot.  Rather, they had to use only the “west beach,” which was roughly across the lake from the member’s beach and the Club’s concession stand and access that beach through another entrance.  Plaintiff arrived with her children and ultimately ended up parking in a grassy area near the north end of the lake where other cars were parked.  With her family, she walked across a grassy field to the west beach.  Sometime later, she arrived at the concession stand to purchase some food.   Because of the long line, she decided to return to her car, retrieve lunch for her children and go back to the west beach.  As she crossed the grassy field and was about three-quarters of the way to the west beach, she tripped and fell.

Plaintiff claims that her right foot dropped into a deep hole, causing her fall and resulting injuries.  She alleged that the deep hole was a dangerous condition on public property and that the Borough negligently failed to maintain, supervise, control, and repair the open fields around the lake.  She also alleged that Allendale was responsible for controlling the parking lots and directing pedestrian traffic at the Club.  She claimed that the Borough failed to exercise reasonable care because it directed her to an area without safe access to the west beach and failed to supervise access to the west beach.

Allendale filed a summary judgment motion based upon immunities under the Tort Claims Act and the Landowner’s Liability Act.  The motion judge granted summary judgment to Allendale finding that the motion record failed to demonstrate that the hole that allegedly caused plaintiff’s fall or their lack of a pathway to the beach was a dangerous condition on public property.  The judge also rejected plaintiff’s claim that Allendale’s employees were negligent in supervising access to the west beach.  Further, the judge found that the Borough also had immunity under the Landowner’s Liability Act.

This appeal ensued and plaintiff argued that the summary judgment order should be reversed as to the Borough.

The Appellate Division noted that, under the Tort Claims Act, a public entity is immune from tort liability unless there is a specific statutory provision that makes it answerable for a negligent act or omission.  For a public entity to be found liable for a condition of property, “a plaintiff must establish the existence of a dangerous condition, that the condition proximately caused the injury, that it created a reasonably foreseeable risk of the kind of injury which was incurred, that either the dangerous condition was caused by a negligent employee or the entity knew about the condition, and that the entity’s conduct was palpably unreasonable.”  (N.J.S.A. 59:4-2).

Here, the police officer who responded to the plaintiff’s fall looked around and did not see any hole that the plaintiff might have stepped in and fallen.  One of the responding police officers took photographs, which did not show anything other than the general area of plaintiff’s fall.  Allendale’s Director of Operations testified in a deposition that the grassy areas was mowed by DPW workers two times per week in the summer.  He walked the grassy area once per week but was unaware of any complaints or prior accidents in the area.  Further, although plaintiff’s answers to interrogatories claim she fell in a “deep hole,” her fiancé described it as one caused by a vehicle’s tire.

The Appellate Division noted that, even assuming arguendo, the tire impression, undescribed as to its depth could be considered a dangerous condition, plaintiff was nonetheless required to prove the condition was caused by a public employee’s negligence or that Allendale had actual or constructive notice of the condition.  Although plaintiff contended that the hole was caused by a depression made by DPW vehicles or other vehicles operated by Allendale, the only support for this proposition was a photograph of the scene on the day of plaintiff’s fall.  This photograph portrayed a field of grass but did not demonstrate deep depressions in the earth caused by vehicles’ tires.

Additionally, the Court noted that there was no evidence demonstrating that Allendale was on actual notice of a dangerous declivity through prior observations or complaints.  Finally, the Court found that the plaintiff did not demonstrate that Allendale should have been charged with constructive notice of a dangerous condition.

Plaintiff’s alternative argument that Allendale negligently permitted its employees to direct attendees to an area that required them to walk on the grassy field after parking their cars also failed.  The Court held that “if there was no liability for the condition of the field, directing attendees to that area could not be an independent negligent act by a public employee.”

Thus, the Appellate Division upheld the order granting summary judgment to the Borough of Allendale. The Court found that it did not need to consider whether the immunity provided under the Landowner’s Liability Act applied because it found that the motion judge properly granted Allendale’s summary judgment under the provisions of the Tort Claim Act’s requirements of proof under N.J.S.A. 59:4-2 (liability for dangerous condition on public property).


Betsy G. Ramos, Esq. is a member of the firm’s Executive Committee and Co-Chair of the Litigation Group. She is an experienced litigator with over 30 years’ experience handling diverse matters. Her practice areas include tort defense, insurance coverage, Tort Claims Act and civil rights defense, business litigation, employment litigation, construction litigation, estate litigation and general litigation.