Whether a police officer, jailer or public official can be held legally liable for his actions often comes down to whether they should have known better.
And they get more leeway than regular people on the "should have" part because their jobs are often dangerous, said Tom Kieklak, an attorney who represents several smaller cities in Northwest Arkansas.
The concept of qualified immunity is most often associated with police actions, but it applies to any public official or employee.
Public officials and employees have claimed it locally in lawsuits filed by the Duggar children over the release of a police report into Josh Duggar molesting his sisters and another girl; a Springdale officer who detained two teens; a lawsuit against a judge over whether lawyers should be appointed to represent defendants at first appearance and bond hearings in Benton County; the use of ivermectin to treat detainees with covid at the Washington County jail; and the case of two Washington County justices of the peace sued by an activist who claims he was kicked out of meetings.
Immunity protected officials in the the Duggar lawsuit and the case involving the Springdale officer.
Motions to dismiss based on various theories of immunity have been filed in the ivermectin lawsuit, the Benton County lawsuit over appointing lawyers and the case of the Washington County justices of the peace. Rulings are pending.
Kieklak said the general idea has been that police or officials, while doing their jobs, should not have to stop to determine which of the latest court rulings apply to a situation they face.
"That concept is based on the notion that not every state employee or officer knows all the constitutional cases that are being decided," he said.
And sometimes, different courts reach different conclusions for their jurisdictions.
"With police, it's often said, 'how can you do that when there's a split-second decision'?" Kieklak said.
The way the law evolved is that it must be clear enough that a reasonable officer would know, for example, he needs to get a warrant before entering and searching a house, Kieklak said. That is clearly established law, so an officer would not be entitled to qualified immunity for a violation.
"If there are cases in the 8th Circuit that say you need to knock before you do this, then that's been established in the area," he said. "You're put on notice of it."
Arkansas is in the jurisdiction of the 8th U.S. Circuit Court of Appeals.
A REASONABLE MISTAKE
A Springdale police officer, Lamont Marzolf, was accused in a civil lawsuit of wrongly holding two teenagers at gunpoint as they walked home from their grandparents' house on a rainy night in 2018 and then threatening their mother when she tried to intervene.
Marzolf was helping other officers search for four suspects who had fled from police on foot after crashing their car. They were possibly armed. Marzolf had set up a perimeter in a residential neighborhood on Lynn Street when two teens, ages 12 and 14, approached him on foot.
Marzolf stopped the teens and told them to lie face down on the ground at gunpoint. They were handcuffed and searched, according to the lawsuit. The boys' mother, Casondra Pollreis, sued on behalf of her children and herself claiming Marzolf and another officer, Josh Kirmer, violated their civil rights.
The officers asked U.S. District Judge Timothy Brooks to dismiss the case, claiming immunity. Brooks released Kirmer and partially released Marzolf from the lawsuit, but stopped short of dismissing the whole case. Brooks found Marzolf's initial stop of the teens was reasonable, but questioned their continued detention.
Brooks found facts that came to light after the initial stop didn't support a reasonable suspicion by Marzolf the teens were the fleeing suspects. Brooks said police video didn't show suspicious behavior by the teens, they weren't out of breath and were entirely compliant with Marzolf's commands.
Also, the boys' mother was on scene almost immediately and identified herself and the boys. Instead of questioning her further, Marzolf directed her to return home, according to the judge's opinion and ruling. The boys' stepfather then approached Marzolf and told him the boys had just been at their grandparents' home, but Marzolf continued to point his gun at the boys while they were face down on the ground, according to Brooks.
Once he knew the boys' names, Marzolf knew they weren't the suspects being sought, Brooks said.
The 8th U.S. Circuit Court of Appeals disagreed and dismissed the case.
"The issue is whether Officer Marzolf violated the boys' clearly established constitutional rights. Under the governing precedent, we conclude he did not. And so, we reverse," the judges wrote.
The appeals court held Marzolf was justified in taking the amount of time needed to identify the boys and to determine if they were, in fact, two people fleeing from the crash.
The court said there was no de facto arrest because the entire encounter lasted seven minutes, while the boys were handcuffed at most for two minutes. In addition to the short time frame, video showed that immediately before Marzolf handcuffed and frisked one of the boys, he had moved his left hand behind his back and touched his waist.
"Considering that hand motion together with what Officer Marzolf heard before the encounter about one of the male suspects being pursued usually carrying a gun, he reasonably used handcuffs briefly to control the scene and protect officer safety," the court said.
The judges concluded Marzolf was justified in frisking one of the boys because he had a reasonable suspicion the people he was trying to catch were armed and dangerous. The appeals court said Marzolf didn't use unreasonable force when he pointed his gun at the boys while he waited for backup and before the situation was under control.
HIGHER INTERVENTION
Anya Bidwell, an attorney with the Institute for Justice in Arlington, Va., who represented the boys and their mother, believes the appeals court was wrong.
"Qualified immunity shielded him from accountability when he seized the boys and again it protected him from accountability when he threatened the mother. This kind of behavior is obviously unconstitutional," Bidwell said. "He should not be shielded by qualified immunity."
Bidwell tried to get the U.S. Supreme Court to hear the case. It was one of more than half a dozen cases involving immunity, which the high court created more than 50 years ago, that the court declined to hear this year.
John Wilkerson, general counsel for the Arkansas Municipal League, said immunity is especially valuable in the context of police officers.
"A lot of what police officers do exists in these very challenging, very difficult situations where there are not always rules that apply. There are broad ideas of rules," Wilkerson said. "Sometimes, if an officer basically does what he or she thinks is right and doesn't know what they are doing violates the law, then it helps protect that officer from being held liable for something they didn't know they were doing wrong."
Courts often use those cases where it's not clearly established an action was wrong to put that officer and others on notice from that point forward, Wilkerson said.
"Sometimes the court will say this is wrong, we didn't tell you it was wrong before, but it is wrong," Wilkerson said. "So qualified immunity allows that officer to basically not be held liable for doing something they thought was right."
Bidwell said lower courts are inconsistent when it comes to ruling on qualified immunity, with some even expanding it beyond what the Supreme Court has permitted.
"I absolutely think that the Supreme Court needs to revisit its jurisprudence and provide much clearer guidance," she said. "It's kind of all over the place, and, at the very least, it needs to be clarified. But also, it needs to be much less protective of the government officials than it is now."
SECOND OPINIONS
The lawsuit filed by the sisters of Josh Duggar claiming they were harmed by the release of police records was dismissed in February after Brooks ruled the defendants were entitled to immunity from being sued because their acts were not intentional.
The women's case came down to whether a constitutional right to information privacy even existed and, if so, whether it was the first case of its kind, Kieklak said. The first public official to make a particular mistake is immune, he said.
The sisters sued Springdale and Washington County officials in 2017, claiming they improperly released redacted police investigation documents to In Touch. The magazine published the information, which allowed the women to be publicly identified, the suit said.
The 8th U.S. Circuit Court of Appeals in June 2020 ruled Maj. Rick Hoyt of the Washington County Sheriff's Office; Ernest Cate, Springdale city attorney; and former Police Chief Kathy O'Kelley were entitled to immunity.
A panel of judges had earlier denied Hoyt, Cate and O'Kelley immunity but, after rehearing the issue, the court concluded there's no legal precedent clearly establishing the guarantee of a constitutional right to informational privacy, which the Duggar women claimed.
Some prior rulings assumed the right existed, but it has never been recognized by the U.S. Supreme Court, which has declined to provide a "definitive answer" on the privacy question, appeals court justices said.
Brooks, in his order of dismissal, had a stinging critique of the officials who released the documents, saying they should have known better.
"The individual defendants were seasoned government officials tasked with the responsibility of deciding which governmental records should be publicly released and which should not," Brooks wrote. "Yet all individual defendants were seemingly ignorant of the privacy rights Arkansas affords to sexual assault victims and to families that are identified as 'in need of services.'"
But, his order said a viable case has to prove more than ignorance of the law.
"There must be evidence that one or more defendants had some awareness -- whether a mere belief or a substantial certainty -- that they lacked the legal authority to disclose these records," he wrote. "Plaintiffs failed to meet their burden. Because there is no evidence on which a jury could rely to show that defendants believed that disclosing the reports would be illegal."