If you or a loved when have been victim of an unlawful arrest, an unlawful search and seizure, police brutality, killed or maimed by law enforcement or any other form of police misconduct you may have a claim in Federal Court for damages under 42 U.S.C. § 1983. Under most circumstances the officer being sued will be defended by the County or State he works for free of charge. Additionally, it is likely that if the Officer is found to have violated your rights, that same County or State will be paying for his wrong doing. Since the State is paying the bills, the State will more than likely rely on qualified immunity to avoid civil liability. Below is the standard a plaintiff most overcome to avoid having their lawsuit dismissed based on qualified immunity.
“The test of qualified immunity is whether the officer, in performing discretionary functions, has engaged in conduct that violates “clearly established constitutional rights of which a reasonable person would have known.” Harlow v. Fitzgerald, 457 U.S. 800, 818, 102 S. Ct. 2727, 73 L. Ed. 2d 396 (1982). The reasonableness of an officer's conduct is governed by an objective standard. Harlow, 457 U.S. at 818. Under the foregoing test, determining whether qualified immunity applies presents a two-pronged inquiry: “whether the facts…make out a violation of a constitutional right” and “whether the right at issue was ‘clearly established' at the time of defendant's alleged misconduct.” Safar, 859 F.3d at 245 (quoting Pearson v. Callahan, 555 U.S. 233, 231, 129 S. Ct. 808, 172 L. Ed. 2d 565.
At Kurtz, Peters and Associates we know how to defeat qualified immunity claims, so if you think your rights have been violated by the police, call us today.