search warrant


In my police brutality case, my lawyer tells me I might have a tough case because of qualified immunity. What is qualified immunity and how does it effect my civil rights case?

The police came to my house in the very early morning with a warrant for my brother. My brother has never lived at my house so I have no idea why they had a warrant for my house. In any event, they broke down the front door of my house. They searched everywhere for him. They destroyed a bunch of my property, probably over $10,000 in damage. While they were in my house I asked one of the offers why they were in my house when my brother doesn’t live there and he threw me down a flight of steps and I broke my elbow. I was not arrested. How can I possibly have a tough case? What is qualified immunity?

If you want to sue the officers for coming into your house based on a theory of illegal search and seizure, you have to sue in federal court under 42 USC 1983. When you file the lawsuit, one of the defenses available to police is something called qualified immunity. Qualified immunity is a term created by the Supreme Court of the United States, as outlined in Harlow v. Fitzgerald, 457 U.S. 800 (1982), that basically tells us that if the conduct of the officer does not violate a clearly established constitutional right that a reasonable person would have known about, you can’t sue them. In english, it means that if the police officer was “just doing their job” you can’t sue them.

In your example, you would be suing for a violation of your fourth amendment rights to be free from illegal search and seizure, so you have sued based on a clearly established constitutional right. However, your case is tough because you will have a problem showing that the officer violated that clearly established right. If the affidavit of probable cause for the warrant that was executed was based on a truthful investigation and the judge who signed it actually read it and actually signed it, then the officer was just doing their job when they executed the valid warrant. They probably have qualified immunity for entering your house and destroying the door.

You will most likely be able to recover for the property damage to the house, but $10,000 is probably not what you had in mind when you hired your lawyer.

On another note, when the officer threw you down the steps and you broke a bone in your arm, that act is straight up excessive force and not covered by qualified immunity. Therefore, as to your elbow, you can still have a case.

Note that if you file your case in state court, the defendants can not argue qualified immunity, however, there is no state court cause of action for illegally entering your home with a warrant. You might be able to file a trespass action, but I don’t think it is worth any money. Accordingly, your case in state court would be a common law assault and battery case only.

If the facts of your case really are as you stated above, the best thing to do, is to look at the potential juries and pick based on a trial strategy on the elbow alone because most likely you aren’t going to make a good recovery from the warrant portion of your case.

Brian J. Zeiger, Esquire, is an experienced and successful criminal defense and civil rights attorney. He is a seasoned trial lawyer with significant experience before juries and judges. Brian understands civil rights cases, including Taser, Wrongful Death, Excessive Force, Police Brutality, Police Misconduct, Malicious Prosecution, Monell Claims, Sexual Assault, Prisoner’s Rights, Time Credit, Medical Malpractice, and Medical Indifference.