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Hemingway v. Russo

United States District Court, D. Utah

December 7, 2018

TRUDY HEMINGWAY, et al., Plaintiffs,
v.
E. ROBERT RUSSO, et al., Defendants.

          MEMORANDUM DECISION AND ORDER RE: JURY INSTRUCTIONS

          Jill N. Parrish United States District Court Judge.

         This matter comes before the court on the parties' proposed jury instructions. (ECF No. 99). The court has carefully considered both parties' instructions, their objections thereto, (ECF Nos. 112 and 114), and their briefs in support of their preferred instructions, (ECF Nos. 118 and 120). The instructions formulated by the court are attached hereto, [1] but the court issues this order to more fully explain its decision to omit certain instructions proposed by the parties.

         I. QUALIFIED IMMUNITY

         Defendants have proposed multiple final substantive jury instructions-and questions on the special verdict form-that would effectively submit the entire issue of qualified immunity to the jury. For the reasons below, these instructions will be omitted.

         “The doctrine of qualified immunity protects 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.'” Pearson v. Callahan, 555 U.S. 223, 231 (2009) (quoting Harlow v. Fitzgerald, 457 U.S. 800, 818 (1982)). “A clearly established right is one that is ‘sufficiently clear that every reasonable official would have understood' the contours of the right.” Brown v. City of Colo. Springs, 709 Fed.Appx. 906, 913 (10th Cir. 2017) (quoting Mullenix v. Luna, 136 S.Ct. 305, 308 (2015)). When a court determines that “the law was clearly established, the immunity defense ordinarily should fail, since a reasonably competent public official should know the law governing his conduct.” Harlow, 457 U.S. at 818-19.

         “Nevertheless, if the official pleading the defense claims extraordinary circumstances and can prove that he neither knew nor should have known of the relevant legal standard, the defense should be sustained.” Id. “The circumstances must be such that the defendant was so ‘prevented' from knowing that his actions were unconstitutional that he should not be imputed with knowledge of a clearly established right.” Roska ex rel. Roska v. Peterson, 328 F.3d 1230, 1251 (10th Cir. 2003) (quoting Cannon v. City & Cty. Of Denver, 998 F.2d 867, 874 (10th Cir. 1993)).

         Thus, in extraordinary circumstances, a defendant may be entitled to qualified immunity notwithstanding that he violated a constitutional right of which a reasonable person would have been aware. This carve-out contemplates cases in which certain facts would render a defendant's conduct objectively reasonable even though it violated a clearly established constitutional right. For example, in V-1 Oil Co. v. State of Wyoming Department of Environmental Quality, the Tenth Circuit concluded that the right at issue was clearly established. 902 F.2d 1482, 1488 (10th Cir. 1990). Nevertheless, it held that

[A] reasonable officer in [defendant's] position-that is, an officer who conducts a warrantless search on the same day he was advised by fully informed, high-ranking government attorneys that a particular statute, which had not yet been tested in any court, lawfully authorized that particular search-should not be expected to have known that the search was unconstitutional. . . . Because [defendant] was prevented by extraordinary circumstances from knowing the relevant legal standard, he is qualifiedly immune.

Id[2]

         This court's summary judgment order analyzed defendants' qualified immunity defense, and concluded that the rights at issue here were clearly established at the time of this search.[3] As explained above, “[a] clearly established right is one that is ‘sufficiently clear that every reasonable official would have understood' the contours of the right.” Brown v. City of Colo. Springs, 709 Fed.Appx. 906, 913 (10th Cir. 2017) (quoting Mullenix v. Luna, 136 S.Ct. 305, 308 (2015)). When a court determines that “the law was clearly established, the immunity defense ordinarily should fail, since a reasonably competent public official should know the law governing his conduct.” Harlow, 457 U.S. at 818-19. Thus, this facet of qualified immunity has already been decided. The only remaining issue for the jury is whether the plaintiffs have proven by a preponderance of the evidence that their constitutional rights were, in fact, violated. If the jury answers in the negative, defendants are not liable. But if they answer in the affirmative, the court has already concluded that those “right[s are ones] that [are] ‘sufficiently clear that every reasonable official would have understood' the contours of [those rights].” Brown, 709 Fed.Appx. at 913.

         “[W]here the right is clearly established, a defendant should only ‘rarely' be able to succeed with a qualified immunity defense.” Roska, 328 F.3d at 1251. That is, in extraordinary circumstances, defendants may still be entitled to qualified immunity if they can establish facts that would render their violation of clearly established law objectively reasonable. But the defendants have not adduced, and the court cannot discern, any extraordinary circumstances in this case that would render the defendants' alleged violation of clearly established law objectively reasonable.[4]

         II. FAILURE TO INTERCEDE TO PREVENT A CONSTITUTIONAL VIOLATION

         The parties' proposed instructions include two claims for relief with no basis in law. Specifically, the second and fifth claims describe conduct that does not amount to a constitutional violation. Those claims allege that Messrs. McHugh and Bartlett each “failed to intervene when [they] had the knowledge, ability and realistic opportunity to prevent other police officers from relying on the unconstitutional warrant to force entry into Plaintiffs' home, search their home, and detain them.”

         As the court's memorandum decision and order on the parties' motions for summary judgment explained, ...


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