AAC
ment officers, are entitled to a defense of “qualified immu- nity.” Qualified immunity for county public officers and law enforcement is found in Ark. Code Ann. §21-9-301. Te cur- rent state of qualified immunity for law enforcement officers was clearly stated in May 2020 by Judge Rita Gruber for the Arkansas Court of Appeals, in Elliott v. Morgan, successfully argued by AAC Attorney Colin Jorgensen. Qualified immunity in Arkansas makes public officials “im- mune from liability and from suit for damages except to the extent that they may be covered by liability insurance.” Tis prevents a person from being able to sue a public officer in their personal capacity when they are carrying out the neces- sary duties of their office. Qualified immunity is particularly under the microscope right now nationally as it applies to law enforcement officers, especially the widely publicized bad ac- tors wearing a badge. As the Court pointed out in Elliott, the purpose of qualified immunity is “to allow public officers to carry out their duties as they think right, rather than acting out of fear for their own personal fortunes.” Law enforcement officers are entitled to the defense of qualified immunity in a lawsuit against them in their individual capacity, unless they “violate a clearly established right of which a reasonable person would know.” In order to overcome this defense, a plaintiff must prove
three things: the officer committed a constitutional violation, the constitutional right that was violated was clearly estab- lished, and there was a genuine issue of fact as to whether the officer knew they were violating a clearly-established constitu- tional right. If an officer’s actions are objectively reasonable, or if officers of reasonable competence could disagree on whether the action was appropriate, then the courts will rule in favor of qualified immunity for the officer. Tis test is often applied to determine if an officer reasonably had probable cause to make an arrest or to respond with deadly or non-lethal force. In Arkansas, pursuant to Ark. Code Ann. §5-2-610, a law
enforcement officer is justified in the use of non-deadly force or the threat of deadly force if: 1) they reasonably believe the use of force is necessary to either make an arrest or prevent the escape of a lawfully arrested person, or 2) to protect himself or a third person from the use of force or perceived imminent use of force while making an arrest or preventing an escape of an arrestee. Under the same law, a law enforcement officer is justified in the use of deadly force if the officer reasonably be- lieves the use of deadly force is necessary to: 1) make an arrest
LEGAL CORNER
or prevent an escape of an arrestee that the officer believes has committed or attempted to commit a felony and is armed and dangerous; or 2) defend himself or a third person from what the officer reasonably believes is the use or imminent use of deadly force. Like the qualified immunity standard, the stan- dard for the justified use of deadly or non-lethal force largely hinges on the circumstances as reasonably perceived by the law enforcement officer. Amid recent headlines featuring claims of police brutality, sometimes ending in death, some lawmakers locally and na- tionwide have criticized qualified immunity for law enforce- ment officers, saying it shields bad actors from lawsuits and prevents victims from seeking justice. Tey claim the standards adopted by the courts in reviewing qualified immunity cases have essentially broadened the protection to total immunity from lawsuits against law enforcement officers. While some would seek to abolish qualified immunity altogether, others would be satisfied with a compromise, narrowing the scope of what qualified immunity protects. However, law enforcement officers claim eroding the quali- fied immunity doctrine would be detrimental to the profes- sion. Underpaid, underappreciated, and often under attack by the media, law enforcement officers are already hard to recruit, and even more difficult to retain. Removing qualified immu- nity and subjecting these officers to potential lawsuits against them for making difficult, on-the-spot decisions they must navigate on a daily basis would be a deterrent to entering the profession and would invite frivolous lawsuits most jurisdic- tions would not have the resources to constantly defend. Law enforcement agencies across the state will have to convince Arkansas lawmakers that policy reforms, greater transparency through dashboard and body cameras, and improving rela- tionships with their communities are better ways to prevent controversial altercations between the police and the public than to abolish qualified immunity. In conclusion, these topics are sure to make headlines in the upcoming legislative session and evoke passionate debates from both sides. Republicans currently hold a super-majority in both chambers and tend to favor policies that protect both law en- forcement officers and gunowners’ rights. On the other hand, pre-filed hate crimes legislation has seen bipartisan support. Ultimately, these three issues, along with other hot topics and the usual difficulties in budgeting for state needs with limited revenues, will be up to the General Assembly to decide.
www.arcounties.org COUNTY LINES, FALL 2020 21
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