§31.13 Qualified Immunity

The Case: Cawood v. Booth, No. E2007-02537-COAR3-CV, 2008 WL 4998408 (Tenn. Ct. App. Nov. 25, 2008), perm. app. granted, (June 15, 2009).

The Basic Facts: At the direction of local sheriff's department and with the cooperation of a female client of Cawood, a lawyer, Cawood was unknowingly audiotaped and videotaped engaging in acts of masturbation in the presence of the female client. Representatives of the sheriff's department then permitted people other than those involved in the investigation, including non-employees of the sheriff's department, to view the videotapes. Cawood brought a civil suit alleging various causes of action, and the court of appeals recognized that a jury issue existed on the claim of intentional infliction of emotional distress (outrageous conduct). The employees of the Sheriff's Department asserted that the affirmative defense of qualified immunity barred any such claim.

The Bottom Line:

• "The final issue before us is the claim by the defendants that they are entitled to qualified immunity on the various causes of action asserted by the plaintiff. Since the only remaining claim is the outrageous conduct claim against Booth and Worley, we need only decide whether qualified immunity applies to this particular claim. In Rogers v. Gooding, No. 02-5891, 84 Fed. Appx. 473, 2003 WL 22905308 (6th Cir. Nov.24, 2003), the United States Court of Appeals for the Sixth Circuit discussed the doctrine of qualified immunity in the context of an alleged constitutional violation as well as how that doctrine has been applied by the appellate courts of this state to common law tort claims. According to Rogers:

  Qualified immunity is an affirmative defense that shields government officials '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.' Harlow v. Fitzgerald, 457 U.S. 800, 818, 102 S.Ct. 2727, 73 L.Ed.2d 396 (1982). A court in this circuit undertaking a qualified immunity analysis must first determine whether the plaintiff has alleged a violation of a constitutionally protected right; if so, the court must examine whether the right was clearly established at the time of the alleged violation. Wilson v. Layne, 526 U.S. 603, 609, 119 S.Ct. 1692, 143 L.Ed.2d 818 (1999)....
  
  The right allegedly violated cannot be asserted at a high level of generality, but, instead, '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.' Anderson v. Creighton, 483 U.S. 635, 639-40, 107 S.Ct. 3034, 97 L.Ed.2d 523 (1987). As the Supreme Court explained in Harlow, the 'reasonable person,' in this instance, is a 'reasonably competent public official [who] should know the law governing his conduct.' Harlow, 457 U.S. at 819, 102 S.Ct. 2727, 73 L.Ed.2d 396. The Supreme Court held in Malley v. Briggs, 475 U.S. 335, 106 S.Ct. 1092, 89 L.Ed.2d 271 (1986), that an officer, sued in a civil suit, will be entitled to immunity if reasonably competent officers could disagree as to the reasonableness of the defendant officer's response. Malley, 475 U.S. at 341, 106 S.Ct. 1092, 89 L.Ed.2d 271. If a reasonably competent officer would not agree that the behavior was reasonable, however, then the defendant officer is not entitled to qualified immunity. Id. The burden of proving that the rights allegedly violated were clearly established falls upon the plaintiff, not the defendant. Dominque v. Telb, 831 F.2d 673, 676 (6th Cir.1987).
  
  In response to the motion to clarify, the district court found that Rogers's assault and battery claim is a state law claim, which is precluded by qualified immunity and, therefore, is not actionable. Plaintiff argues that the granting of qualified immunity in an excessive force case does not preclude a state action for assault and battery. There is, however, Tennessee authority which applies qualified or good faith immunity to state law torts. In Youngblood v. Clepper, 856 S.W.2d 405 (Tenn. Ct. App.1993), a state trooper was sued for negligently directing traffic, causing the plaintiff to have a car accident and suffer injuries. The Tennessee Court of Appeals held that the state trooper was entitled to qualified immunity, akin to the common law immunity given to government employees performing discretionary functions. Youngblood, 856 S.W.2d at 406. In so holding, the court cited several United States Supreme Court decisions that discuss qualified immunity for government employees, such as police officers. Id. at 406-08. The court noted that the United States Supreme Court decisions involved civil rights actions under § 1983, but it was 'clear that the immunity recognized in those cases was not peculiar to § 1983 actions.' Id. at 407. The court then held that qualified immunity applied to the state law claims against the state officer. Id.
  
  Thus, the district court properly applied the qualified immunity defense to the assault and battery claim."

  2008 WL 4998408 at *11-12, citing Rogers, 2003 WL 22905308, at *3-5.
• "It is clear from the foregoing that a qualified immunity analysis is premised in large part on the reasonableness of the officer's actions. As set forth previously, liability for an outrageous conduct claim is found 'only where the conduct has been so outrageous, as to go beyond all possible bounds of decency, and to be regarded as atrocious, and utterly intolerable in a civilized community.' Alexander, 825 S.W.2d at 104-05. Given that we have found a fact issue as to the plaintiff's outrageous conduct claims against Booth and Worley, we likewise must conclude that there is a fact issue as to whether the conduct of these defendants was reasonable. If the plaintiff succeeds on his outrageous conduct claim against the remaining defendants, it necessarily follows that their conduct was not reasonable. Likewise, if a jury concludes that the subject actions were reasonable, the plaintiff cannot succeed on his outrageous conduct claim. In the context of the facts of this case, reasonable conduct and outrageous conduct are mutually exclusive concepts." Id. at *12.
• "In Weaver v. Shadoan, 340 F.3d 398 (6th Cir.2003), the United States Court of Appeals for the Sixth Circuit explained:

  Qualified immunity is 'an immunity from suit rather than a mere defense to liability; and like an absolute immunity, it is effectively lost if a case is erroneously permitted to go to trial.' Mitchell, 472 U.S. at 526, 105 S.Ct. 2806, 86 L.Ed.2d 411 (emphasis in original). The Supreme Court has emphasized that questions of qualified immunity should be resolved 'at the earliest possible stage in the litigation.' Saucier v. Katz, 533 U.S. 194, 201, 121 S.Ct. 2151, 150 L.Ed.2d 272 (2001) (quoting Hunter v. Bryant, 502 U.S. 224, 227, 112 S.Ct. 534, 116 L.Ed.2d 589 (1991)(per curiam))."

  Id. at *12-13Weaver, 340 F.3d at 406. Accord Boling v. Pigeon Forge, No. E2007-01652-COA-R10-CV, 2008 WL 4366119 (Tenn. Ct. App. E.S., filed September 22, 2008).
• "Because there is a genuine issue of material fact as to the outrageous conduct claims against Booth and Worley, we must conclude that these defendants are not entitled to summary judgment on the defense of qualified immunity. See Austin v. Sneed, No. M2006-00083-COA-R3-CV, 2007 WL 3375335, at * 10, (Tenn. Ct. App. M.S ., filed November 13, 2007) no appl. perm. appeal filed ( ['We conclude] that Mr. Sneed has failed to demonstrate that the individual police officers would have been entitled to a judgment as a matter of law on Mr. Austin's excessive force claim. The officers were not entitled to qualified immunity, and Mr. Austin presented evidence from which the trier-of-fact could conclude that they did not act reasonably....')." Id. at 13.

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