On April 2, 2018, the Supreme Court, decided a qualified immunity case, Kisela v. Hughes, wherein the Court reversed a Ninth Circuit decision which denied summary judgment to a police officer based on qualified immunity.¹ In finding that the officer was entitled to qualified immunity the Supreme Court noted that “(t]his Court has repeatedly told courts-and the Ninth Circuit in particular-not to define clearly established law at a high level of generality.”² The Court then noted several prior Supreme Court cases wherein the Supreme Court made similar admonishments.³ As the Supreme Court specifically stated in Kisela, “immunity protects all but the plainly incompetent or those who knowingly violate the law.”⁴ Thus, “general statements of the law are not inherently incapable of giving fair and clear warning to officers.”⁵ In other words, for the law to be “clearly established” for the purposes of the qualified immunity analysis, the case law must be “sufficiently definite that any reasonable official in the defendant’s shoes would have understood that he was violating it.”⁶ Indeed, the Supreme Court has been urging lower courts not to define “clearly established” law too broadly for the purposes of qualified immunity analysis for at least the better part of three decades.⁷

Lower courts should undertake the proper qualified immunity analysis. When appropriate, this should include highlighting the Kisela decision and case law which is particularized to the specific circumstances of the case. Lower courts which gravitate to a more generalized notion of clearly established law may appear to be non-compliant with Supreme Court precedent.

Jeff Sarvas

¹ Kisela v. Hughes, 584 U.S. __ (2018).

² Kisela, supra (slip op., at 4).

³ See, City and County of San Francisco v. Sheehan, 575 U.S._,_ (2015) (slip op., at 13);

Ashcroft v. al-Kidd, 563 U.S. 731, 742 (2011); Brosseau v. Haugen, 543 U.S. 194, 198 (2004).

⁴ Kisela, supra (slip op., at 4).

⁵ Kisela, supra (slip op., at 5).

⁶ Kisela, supra (slip op., at 5), citing. Plumhoff v. Rickard, 572 U.S._,_ (2014) (slip op., at 12).

⁷ Anderson v. Creighton, 483 U.S. 635, 640, 107 S. Ct. 3034, 3039 (1987) (“our cases establish that the right the official is alleged to have violated must have been ‘clearly established’ in a more particularized, and hence more relevant, sense: The contours of the right must be sufficiently clear that a reasonable official would understand that what he is doing violates that right”).