10th Circuit Reverses Lower Court’s Removal of Police Officer’s Qualified Immunity

Judges say that without clear definition of legal expectation, qualified immunity applies

The 10th U.S. Circuit Court of Appeals recently weighed in on one of many cases coming out involving qualified immunity, a hot-button topic in a year marked by protests to police violence. 


The federal appellate court reinstated a Denver Police Department officer’s qualified immunity on grounds that no prior cases with similar facts provided clearly defined expectations for officers. The court also declined the plaintiffs’ requests to change the doctrine of qualified immunity, citing U.S. Supreme Court precedents.

Qualified immunity is a doctrine that shields government officials, including law enforcement officers, in lawsuits that allege violation of constitutional rights. Groups including the American Civil Liberties Union have frequently challenged the contours of qualified immunity, both in lower courts and in the U.S. Supreme Court. The ACLU website notes that qualified immunity has become a focal point of police accountability activism.

In the case before the 10th Circuit, Harris v. Mahr, DPD Sergeant Glenn Mahr was accused of failing to intervene in an unlawful search of a suspect’s apartment. During surveillance of the apartment, another DPD sergeant told Mahr a warrant was being prepared. They arrested the suspect, but Mahr then told Aurora Police Department officers, who were assisting in the surveillance, not to enter the apartment until they obtained the warrant. 

Aurora police reported being confused about whether they had orders to enter the apartment, and some officers debated whether to enter the home. Five armed APD officers entered with guns drawn, cleared the apartment and “closely examined the home,” according to the court’s opinion. One Aurora officer picked up the suspect’s son and took him outside.

Mahr and other officers from both police departments were on the scene and knew they hadn’t obtained a warrant  but “failed to clarify” and “failed to otherwise intervene to prevent the APD officers” from  searching Harris’s home. Mahr was sued, along with other officers of both Denver and Aurora police departments, the City and County of Denver and City of Aurora. For Mahr specifically, the plaintiffs alleged he violated their rights by “failing to intervene in the unlawful search of their apartment,” according to the opinion.

Mahr filed a motion to dismiss, asserting a defense of qualified immunity. The federal district court judge rejected Mahr’s motion, finding the basis for the claim of failing to intervene was clearly established. 

Mahr appealed, arguing the plaintiffs didn’t allege sufficient facts to establish a failure to intervene and his subsequent duty to do so. 

The 10th Circuit found that in order for the plaintiffs to survive Mahr’s motion, they were required to show that his actions violated a constitutional or statutory right and that the right was “clearly established at the time of the conduct at issue.”

The order notes that in order for qualified immunity to be dismissed, an action must be clearly against established case law or constitutional right. For a right to be clearly established, it must be obvious enough that a reasonable official would understand what’s taking place violates the right. 

“Even assuming without deciding that Plaintiffs had a plausible claim for violation of a constitutional right based on a failure to intervene, the constitutional right was not clearly established,” the order states. As a result, the denial of qualified immunity was an “error.”

To show that Mahr had a clearly established duty to intervene in the unlawful entry and search of the apartment, the plaintiffs relied on Vondrak v. City of Las Cruces, an excessive force case holding that all law enforcement officials have “an affirmative duty to intervene” to protect constitutional rights of citizens from infringement by other law officers present. 

While Vondrak demands that police have a broad duty to intervene where constitutional rights are being violated, the ruling is not specific, according to the 10th Circuit opinion. In that case, the duty to intervene was found to apply to “excessive force and unlawful arrests” and any constitutional violation committed by law enforcement. However, the Vondrak opinion did not discuss unlawful entries or searches, “thus making it a highly generalized statement.”

The opinion noted the plaintiffs also relied on two unpublished decisions that apply to duty to intervene in unlawful entry cases. 

The court found both failed to show the law as clearly established at the time of the incident.

The plaintiffs also contended that Mahr’s conduct at the time was “obviously” unconstitutional and, therefore, they didn’t need to identify an on-point case. The plaintiffs pointed to the court’s “sliding scale” approach, under which more obviously egregious conduct in violation of  constitutional principles demands less specificity in precedent.

The 10th Circuit rejected this argument, too. “Not only are the ‘constitutional principles’ surrounding a failure to intervene in an unlawful search unclear, but Plaintiffs acknowledge that Sergeant Mahr initially told APD officers not to enter the apartment without a warrant,” the opinion states. “His failure to take additional steps is not the type of ‘egregious’ conduct that warrants foregoing our traditional requirement of an on-point case.”

At the time of the appeal, the plaintiffs argued the court “should reject the doctrine of qualified immunity altogether,” according to the order. The appeals court did not accept the invitation.

“[D]espite any difficulties the framework presents, we remain obligated to follow qualified-immunity precedents of the Supreme Court and Tenth Circuit,” the opinion said.

— Avery Martinez

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