The Importance of Officer Conduct in Qualified Immunity Cases

In cases of qualified immunity, the facts matter. In a civil rights lawsuit filed under 42 U.S.C. Section 1983 , an officer’s conduct in the course deploying force will be scrutinized from every potential angle. But the facts of the arrest itself are only half of the equation. The other half comes from case law, which over time has established fact patterns that define the contours of the qualified immunity defense.

Hernandez v. Town of Gilbert, 2021 U.S. App. LEXIS 6305 (9th Cir. Mar. 4, 2021), is just the latest example of qualified immunity at work. You can read our comprehensive Client Alert Memorandum on the case by clicking here.

How does qualified immunity work in Section 1983 cases?

The defense of qualified immunity originated with the civil rights era case of Pierson v. Ray, 386 U.S. 547 (1967). The Supreme Court established the current standard for the defense in the 1982 case of Harlow v. Fitzgerald, 457 U.S. 800. At the time the Harlow case garnered attention because the defendants included former President Richard Nixon, among other officials. But its rule regarding qualified immunity has been the case’s most important legacy.

In Harlow the Supreme Court established the rule that “government officials performing discretionary functions generally are shielded from liability for civil damages insofar as their conduct does not violate ‘clearly established’ statutory or constitutional rights of which a reasonable person would have known.” 457 U.S. at 815-819. 

The Court’s rationale in crafting this rule was in part to provide an “objective” standard for determining whether an official’s conduct had fallen outside of the qualified immunity umbrella, replacing the prior “good faith” standard which had, in the Court’s view, led to a high volume of spurious lawsuits filed by plaintiffs who hoped to find evidence of malice through the discovery process.

Qualified immunity cases since the Harlow decision provide the parameters of what is “clearly established” unlawful conduct by government officials. The challenge for law enforcement officers and their agencies is to stay on top of the evolving case law in this area. 

Measuring officer conduct in light of “clearly established” rights

In a nutshell, the civil rights caselaw that has followed the Harlow rule can be thought of as a series of signposts. Section 1983 cases brought against law enforcement officers typically center on a detailed examination of the facts surrounding the officer’s actions in the time immediately before, during, and after an arrest. Beginning with the steps taken by the officers during the encounter with a suspect, the cases layer in inferences regarding officer intent, such as the reasonableness of an officer’s concerns about his or her personal safety.

The recent Hernandez case offers law enforcement agencies a fresh fact pattern for examining the way their officers conduct themselves during arrests of uncooperative suspects. A detailed review of the facts of the case can be found in our Client Alert Memorandum, linked above. These are some of the salient features of the arrest at issue in Hernandez, many of which were captured on the officers’ body cameras:

  • Vehicular pursuit with escalating use of emergency signals. An officer of the Town of Gilbert Police Department pursued Mr. Hernandez in his vehicle after observing his car swerving. After Mr. Hernandez failed to stop in response to the police vehicle’s lights, the officer turned on the vehicle’s siren. 
  • Unknown risk. Throughout the encounter the officers involved did not know if Mr. Hernandez was armed. 
  • Numerous verbal signals. The officer gave thirteen or more verbal orders for Mr. Hernandez to step out of his vehicle and warned that Mr. Hernandez would be arrested if he did not comply.  Mr. Hernandez refused.
  • Escalation of methods. To force Mr. Hernandez out of his car, the officers first attempted control holds, then deployed pepper spray. During these steps the officers warned Mr. Hernandez eight times that he would be arrested if he did not comply, and also warned him five times that a police service dog, under the control of Officer Steve Gilbert, would be used to bite him if he did not get out of the vehicle. Mr. Hernandez repeatedly refused. Officer Gilbert then ordered the police service dog to bite Mr. Hernandez.

During the arrest, the officers had observed that Mr. Hernandez’s eyes were bloodshot, they smelled alcohol on his breath, and they noticed that his speech was slurred. After Mr. Hernandez had been taken to a hospital his blood was tested under authority of a search warrant. His BAC at the time was 0.146.

Mr. Hernandez sued the Town of Gilbert and the arresting officers in the case, making various claims including an excessive force claim against Officer Gilbert under Section 1983.

The key factor in the Ninth Circuit’s decision to uphold the trial court’s grant of qualified immunity to Officer Gilbert was the Court’s examination of whether the law at the time of the arrest incident gave a reasonable officer “fair warning” that using a police service dog on a non-compliant suspect, who had resisted lesser methods of force, was unconstitutional.

In the case, Mr. Hernandez sought to rely on an earlier case involving a police service dog, Mendoza v. Black, 27 F.3d 1357 (9th Cir. 1994). Although Mendoza found that the officers in that case were entitled to qualified immunity, it also had held that the use of a police service dog was subject to an excessive force analysis. The Court noted some important differences between the cases: in Mendoza the officers were pursuing a bank robber who was known to be armed and dangerous. 

The Court distinguished the facts of Mr. Hernandez’s case from those in Mendoza by focusing on the gradual escalation of the use of force. In a context where the officers did not know the level of threat Mr. Hernandez posed, repeated verbal commands and warnings, followed by repeated noncompliance by the suspect, created a circumstance in which deploying the police service dog to bite Mr. Hernandez was not contrary to established constitutional law.

It is worth noting that the Hernandez case also offers an example of officer body camera footage providing important evidence of the appropriateness of the officers’ actions during the arrest sequence.

Jones & Mayer is here to answer your agency’s questions

We recommend agencies give due consideration to the gradual escalation of the use of force in the Hernandez case. Whenever time and safety permit, de-escalation strategies can lead to less use of force overall, fewer injuries, and, one hopes, less litigation.

The attorneys at Jones & Mayer are happy to answer your agency’s questions about the Hernandez case or qualified immunity in general. Contact Jones & Mayer partner James Touchstone at (714) 446-1400 or by emailing