The Eleventh Circuit seems to have broadened the reach of qualified immunity for government officials. Dukes v. Nicholas, No. 15-14373, 2017 WL 370854 (11th Cir. Jan. 26, 2017). In Dukes, officers were serving a search warrant on an apartment. Id. at *1. The plan called for two of the officers to throw flashbang grenades to disorient the occupants. Id. All other officers also had the flashbang grenades and could use them as needed. Id. at *2. A third officer, with seemingly no purpose, threw a flashbang through a window of the apartment. Id. The flashbang landed near an occupant, causing severe burns. Id. The officer testified that he was trained to never throw a flashbang grenade without first looking at where he was throwing. Id. The court found that though the officer had violated the Fourth Amendment and used excessive force, the officer was still entitled to qualified immunity because the law was not clearly established. Id. at *4-*5. The court determined that the law was not clearly established at the time of the officer’s conduct. Id. at *5. To lose qualified immunity in such a case, the “official conduct must be so egregious that ‘every objectively reasonable government official facing the circumstances would know that the official’s conduct did violate federal law.’” Id. (quoting Coffin v. Brandau, 642 F.3d 999, 1015 (11th Cir. 2011)). “When this exception for obvious clarity is ‘properly applied, it protects all but the plainly incompetent or those who knowingly violate the law.’” Id. (quoting Ashcroft v. Al-Kidd, 563 U.S. 731, 743 (2011)). Furthermore, even though the officer had violated his training by throwing a flashbang grenade without first looking where he was throwing it, “a reasonable officer could have found it ‘difficult ... to determine how the relevant legal doctrine, here excessive force,’ would apply.” Id. (quoting Saucier v. Katz, 533 U.S. 194, 205 (2001)).
The plaintiff argued that the court should infer malice from the officer’s actions since he knowingly threw a flashbang grenade into an occupied building and violated his training to inspect an area, then the officer likely knew people were in the room. However, the court stated, “[a]lthough we must draw all inferences in favor of the non-movant at summary judgment, those inferences must be plausible.” Id. at *3. Further, even if true, the court recognized that these facts, at most, establish recklessness.” Id. at *6. “An officer is entitled to official immunity for discretionary acts performed in his official capacity unless he acted with actual malice or intent to injure. Actual malice means a deliberate intention to do wrong, and does not include implied malice, i.e., the reckless disregard for the rights or safety of others.” Id. (emphasis added) (cit. omitted).
This case demonstrates the broad discretion that officers have in performing their duties, even if their actions ultimately injure another party. However, where the officer violates the Constitution and the law is clearly established, such as by prior precedent, then the officer is not entitled to qualified immunity.