Tag: Steering Law

Torrance Police Cars

Can the Police Use Force Just Because You Didn’t Obey Fast Enough?

Posted by Jerry L. Steering, Esq. on

Not lawfully. Under Ninth Circuit case law, hesitating, asking a question, or being slow to understand an order is passive resistance, and officers may only use force that is objectively reasonable under Graham v. Connor. Active resistance physically fighting, struggling, or using force against officers allows more force than passive resistance, which is the mere absence of immediate compliance. Courts have found that going limp, refusing to present arms for handcuffing, or standing still after being told to kneel are all forms of passive resistance, not active resistance, and force disproportionate to that passive conduct can be a Fourth Amendment violation and the basis of a civil rights lawsuit.

 Keypoints 

  • Hesitation, confusion, or a question is not resistance; officers may only use objectively reasonable force under Graham v. Connor.
  • Passive resistance is the absence of compliance (going limp, standing still); active resistance is physically fighting or struggling against officers.
  • Courts weigh the severity of the crime, whether the person posed an immediate threat, and whether they were actively resisting or fleeing.
  • Verbally objecting to an officer, or “talking back,” is protected speech and is not, by itself, a crime or resistance.
  • Penal Code § 148(a)(1) requires the officer’s duty to have been lawful; if the underlying order was unlawful, the charge has no foundation.
  • Officers confronting someone in a mental health crisis must consider that the person may be neither dangerous nor urgent before escalating to extreme force.
  • Never plead guilty to a resisting charge before talking to a civil rights attorney; a conviction can be used to defeat your civil claim.

Here is the scene I have watched play out for forty years. An officer barks an order. The person hesitates, or asks a question, or is simply slow to understand what is happening, and the next thing anyone sees is a takedown, a Taser, or a knee on a back. Afterward, the report says the person was “resisting.” They call it a Resistance Offense, and they use it as a hammer, both to justify the force and to bar the civil suit that should follow. The law draws a hard line between not fighting back and fighting back, and that line is where these cases are won.

Can the police use force just because you did not obey fast enough?

Not lawfully. Under Ninth Circuit law, failing to immediately comply with an officer’s command, without more, is passive resistance that does not justify significant force. Officers may use only force that is objectively reasonable, and hesitation alone is near the bottom of that scale.

The Fourth Amendment does not require instant, robotic obedience on pain of a beating. As a police excessive force attorney, this is the single most common misunderstanding I see people bring into my office. Police force is measured by the objective-reasonableness standard the Supreme Court set in Graham v. Connor, which asks courts to weigh factors like the severity of the crime, whether the person posed an immediate threat, and whether the person was actively resisting or trying to flee. Slowness, confusion, or a question is not a threat, and it is not active resistance. When officers escalate to serious force over mere non-instant compliance, they have crossed the line the Constitution draws. 

What is the difference between active and passive resistance?

Active resistance involves physically fighting, struggling, or using force against officers. Passive resistance is the absence of that: going limp, not immediately complying, verbal objection, or failing to present your arms for cuffing. The Ninth Circuit treats passive resistance as justifying far less force than active resistance.

This distinction is not academic. It decides cases. In Rice v. Morehouse, the Ninth Circuit held that failing to immediately comply with commands, absent other concerning conduct, was passive resistance. In Smith v. Hemet, refusing to reenter a home and to remove hands from pockets was treated as passive resistance. Courts have found that standing for a moment after being told to kneel, refusing to reenter a car, and failing to present one’s arms for cuffing are all forms of passive resistance.

The reason officers work so hard to recharacterize passive resistance as active is that the label controls how much force they are allowed to use, and whether they keep their qualified immunity. If they can convince a court you were fighting, the force looks reasonable. If the truth is that you were slow, scared, or simply standing there, the force does not.

I want to be precise about what the courts have actually said, because the defense will try to blur it. The Ninth Circuit has recognized that even where some resistance exists, the level of force still has to match the level of the threat. A person who pulls an arm away, or who does not offer his wrists the instant he is told to, has not declared war on the officer. The proper response to low-level, passive non-compliance is more talk, more time, and a measured hands-on approach, not a strike, a Taser, or a dog. When officers skip the ladder and jump straight to serious force, the gap between what they did and what the situation called for is the constitutional violation, and it is what a jury needs to see.

Here is how the two categories generally break down, based on how California’s federal courts have described them:

Passive Resistance (less force allowed)Active Resistance (more force may be allowed)
Not immediately complying with a commandPhysically struggling against officers
Going limp or refusing to moveStriking, kicking, or grabbing an officer
Verbal objection or arguingAttempting to disarm an officer
Failing to present arms for handcuffingFleeing in a way that endangers others
Keeping hands in pockets after an orderUsing a weapon or threatening violence

Is arguing with a police officer a crime in California?

No. Verbally objecting to or questioning an officer is protected and is not, by itself, a crime or active resistance. This is what I call the “Contempt of Cop” problem: officers punish attitude, not law-breaking, and then charge Penal Code § 148(a)(1) to paper it over.

You do not lose your rights because you failed the attitude test. Talking back, asking why you are being detained, or recording an encounter is not resistance, and it is not a Resistance Offense. Yet I see people charged under Penal Code § 148(a)(1), which criminalizes willfully resisting, delaying, or obstructing an officer in the lawful performance of duty, for nothing more than a bruised ego on the other side of the badge. The words “lawful performance of duty” matter: if the officer’s own conduct was unlawful, the charge fails at its foundation, because there was no lawful duty to obstruct.

What about force against someone in a mental health crisis?

California’s federal courts hold that officers may not use extreme force against an emotionally disturbed person in circumstances that are neither dangerous nor urgent, without first attempting less intrusive measures. A person in crisis is not, for that reason alone, a dangerous person the police may simply overpower.

Some of the worst cases I see involve people who were not committing any crime at all, but were having a psychiatric emergency. These are exactly the cases where a civil rights attorney police misconduct claim and a mental-health-crisis defense have to be built together, because the police report seldom frames it that way on its own. The Ninth Circuit has been clear that mental illness does not turn a person into a threat, and that officers confronting a disturbed individual in a situation that is neither dangerous nor urgent must consider that fact and cannot lead with extreme force. When departments send armed officers to what is really a medical call and someone gets hurt or killed, that failure to de-escalate is part of the constitutional picture, not an excuse for it. 

The same principle protects people who are deaf, intoxicated, elderly, or simply do not speak English well. An order that is not understood is not an order that was defied. I have handled cases where the entire justification for a violent takedown was that a frightened, confused person did not drop to the ground fast enough on a command he never processed. Courts allow juries to consider whether the person could even comprehend what was being demanded, and whether the officers gave any warning before escalating. Those are the human facts the police report tends to leave out, and they are exactly the facts that win these cases.

What should you do if you were hurt during an arrest for “resisting”?

Get medical care and photograph every injury. Write down what was said and done, in order. Preserve any video and get witness names. Do not plead to the resisting charge before talking to a civil rights attorney, because a conviction can be used to defeat your civil claim.

The resisting charge is not just a criminal problem; it is a trap set for the civil case. If you plead guilty to resisting, the defense will wave that plea in front of the civil jury and argue you admitted the officer acted lawfully. That is exactly why the criminal defense and the civil rights claim have to be handled together, by someone who sees the whole board. I have spent my career defending these “Resistance Offense” charges precisely so they cannot be used to bar the civil suit that the force deserves.

If this happened to you anywhere in Southern California, from Irvine to Newport Beach and across the region, do not assume the police report is the last word. You can learn more on my resisting arrest and Penal Code § 148 defense page and my Irvine police misconduct page. The difference between passive and active resistance is not a technicality. It is often the whole case.

 Can you sue the police for excessive force after a resisting arrest charge?

Yes, and this is one of the most misunderstood parts of these cases. People assume that being charged with resisting arrest,  even if the charge is later dropped or reduced, automatically defeats a civil claim for excessive force. It does not. What matters is whether the force used was proportionate to what you actually did, not to what the report claims you did. According to research summarized by the National Institute of Justice, the overwhelming majority of police-citizen encounters never involve any resistance at all, and even among those that do, most resistance is passive rather than active,  which is exactly why courts scrutinize these cases so closely rather than accepting an officer’s characterization at face value. If your resisting charge was based on hesitation, confusion, or a mental health crisis rather than genuine physical struggle, that charge is often the weakest part of the government’s case, not the strongest.

Conclusion

The gap between hesitating and fighting is where most of these cases actually live, and it is a gap police reports are written to erase. At Steering Law, unpacking that gap,  matching the report against body-camera footage, witness accounts, and the actual sequence of events is the work I have built my practice around for forty years. If you were met with force after a moment of confusion, a question, or simply not moving fast enough, Steering Law can tell you honestly whether that force crossed the constitutional line and what pursuing it would look like. 

Sources

FAQs

 No. Officers may only use force that is objectively reasonable under Graham v. Connor. Hesitation, confusion, or slowness to comply is not, by itself, active resistance and does not justify escalated force.

Passive resistance is the absence of compliance, going limp, standing still, refusing to present hands for cuffing. Active resistance involves physically fighting, struggling, or using force against officers. Courts allow more force in response to active resistance than passive resistance.

No. Verbally objecting, asking why you’re being detained, or questioning an officer is protected and is not, by itself, a violation of Penal Code § 148(a)(1).


Not without talking to a civil rights attorney first. A guilty plea can be used against you in a later civil lawsuit to argue the officer’s force was lawful, even if it wasn’t.

Generally, not extreme force, if the person is neither dangerous nor an immediate threat. Courts require officers to consider less intrusive measures before escalating against someone in psychiatric distress.

Yes. A resisting arrest charge does not automatically defeat an excessive force claim; what matters is whether the force used matched what you actually did, not what the report claims.

 Get medical care and photograph every injury, write down what was said and done in order, preserve any video, and do not plead to the resisting charge before speaking with a civil rights attorney.






Disclaimer: This article is for general informational purposes only and does not constitute legal advice. Reading this post or contacting Steering Law through this website does not create an attorney-client relationship. Every case is different; if you are facing a legal issue, you should consult a qualified California attorney about your specific situation. Past results do not guarantee similar outcomes.

Thomas Perez, Jr. ripping shirt from psychological torture

What Is Qualified Immunity, and Can California’s SB 2 Get Around It?

Posted by Jerry L. Steering, Esq. on

Qualified immunity is a legal defense that shields a qualified immunity police officer from federal civil rights lawsuits under 42 U.S.C. § 1983 unless the officer violated a “clearly established” constitutional right. It is a judge-made doctrine, not part of the Constitution or the civil rights statute itself. Qualified immunity in California does not apply to claims brought under the state’s Bane Act (Civil Code § 52.1). California’s Senate Bill 2, signed in 2021, amended the Bane Act to remove state immunity provisions, Government Code §§ 821.6, 844.6, and 845.6, that previously shielded officers from malicious prosecution and in-custody claims. SB 2 did not abolish federal qualified immunity, but it opened a state-law path around it for certain claims. 

 Keypoints

  • Qualified immunity is a judge-made federal defense, not something written into the Constitution or the civil rights statute.
  • An officer is protected under qualified immunity unless a prior case with nearly identical facts already found similar conduct unconstitutional.
  • Qualified immunity does not apply to civil rights claims brought under California’s Bane Act.
  • California’s Senate Bill 2 removed three specific state immunity provisions that had shielded officers from malicious prosecution and in-custody claims.
  • SB 2 did not end federal qualified immunity; it opened a separate state-law path for certain misconduct claims.
  • Pleading both a federal § 1983 claim and a state Bane Act claim gives a victim two independent routes to a verdict.
  • Federal and state civil rights claims both carry strict deadlines, so acting quickly after a rights violation matters.

For forty years I have watched qualified immunity swallow good cases whole. A person’s constitutional rights get trampled, the facts are ugly, and then a federal judge dismisses the whole thing before a jury ever hears a word, because some prior court had not spelled out that this exact kind of abuse was illegal. It is one of the most frustrating doctrines in American law. The good news is that California has quietly handed victims a second door, and I walk through it in almost every case I file. 

What is qualified immunity in a police misconduct case?

Qualified immunity is a judge-made defense that shields police officers from federal civil rights damages under 42 U.S.C. § 1983 unless the victim shows the officer violated a “clearly established” constitutional right. In practice, it lets officers escape liability even when their conduct was plainly wrong.

Qualified immunity does not appear anywhere in the Constitution or in the text of the civil rights statute. The United States Supreme Court invented it, and then expanded it, so that an officer is protected unless a prior case with nearly identical facts already told him his conduct was unconstitutional. That is the trick. The defense bar loves to argue that because no earlier court dealt with the precise combination of facts in your case, your rights were not “clearly established,” so the officer walks. It is a heads-they-win, tails-you-lose game, and it is why so many meritorious § 1983 claims never reach a jury.

How does qualified immunity actually play out in the Ninth Circuit?

In the Ninth Circuit, which governs California, whether a right is “clearly established” is decided by Supreme Court and Ninth Circuit case law. Courts view the facts in the light most favorable to the victim, but officers still win immunity whenever the misconduct is not squarely covered by earlier precedent.

Here in California, the courts that decide what is “clearly established” are the United States Supreme Court and the Ninth Circuit Court of Appeals. When there is no decision directly on point, judges look to other circuits. What this means for a real person is simple and maddening: the more creative the abuse, the more likely the officer is to be immune, because no earlier court happened to describe that specific outrage. I have seen officers argue with a straight face that because the last case involved a fist and theirs involved a boot, the law was not clearly established.

The Ninth Circuit is not hopeless on this front, and recent decisions show the doctrine has limits. When officers deliberately fabricate evidence, for example, courts have had no trouble finding the law clearly established, because everyone has long known you cannot frame an innocent person. But you cannot count on the exception. You build the case assuming the officer will raise immunity, and you give the court the precedent it needs to reject it.

Does California have qualified immunity for police officers?

No. Qualified immunity is a federal doctrine. It does not apply to civil rights claims brought under California’s Tom Bane Civil Rights Act (Civil Code § 52.1). That is the single most important reason I plead a Bane Act claim alongside every federal § 1983 claim I file.

This is the part that surprises people, and it is the heart of my strategy. Qualified immunity is a creature of federal law. California’s own civil rights statute, the Bane Act, has never been subject to it. California courts recognized this long ago in Venegas v. County of Los Angeles. So when a federal judge grants an officer qualified immunity on the § 1983 claim, the state-law Bane Act claim can still go to the jury. On more than one occasion, the Bane Act has saved a case that federal immunity would otherwise have killed. This is exactly the kind of overlapping civil rights attorney work worth reading more about; it’s rarely just one claim or the other. 

What did California Senate Bill 2 change about police immunity?

Senate Bill 2, signed in 2021, amended the Bane Act to strip away three specific California immunity provisions, Government Code §§ 821.6, 844.6, and 845.6, that had shielded officers. It did not abolish federal qualified immunity, but it removed state immunities that once blocked malicious prosecution and in-custody claims.

There is a lot of loose talk that SB 2 “ended qualified immunity” in California. That is not quite right, and getting it right matters. SB 2, the Kenneth Ross Jr. Police Decertification Act, did two big things. It created a statewide process to decertify officers who commit serious misconduct, and it amended Civil Code § 52.1 to remove three state immunity provisions for peace officers and the public entities that employ them.

Those three provisions did real damage before SB 2. Government Code § 821.6 had been read to bar state-law malicious prosecution claims against police entirely; §§ 844.6 and 845.6 limited claims for injuries to people in custody. By making those immunities inapplicable to Bane Act claims, the Legislature opened the courthouse door to cases California had kept shut for decades. For the first time, a person maliciously prosecuted by officers who lied or planted evidence has a clear state-law path to hold them accountable. 

Why do I plead both a federal and a state civil rights claim?

I plead both because they have different rules, different immunities, and different remedies. The federal § 1983 claim reaches constitutional violations nationwide; the state Bane Act claim avoids qualified immunity, allows fee multipliers, and requires only general intent. Together they give a victim two independent routes to a verdict.

Think of it as belt and suspenders. The federal claim under § 1983 is powerful and well developed, but it carries the qualified immunity risk. The Bane Act claim is not subject to that defense, it can be brought against the public entity as well as the officer, and prevailing plaintiffs can recover attorney’s fees, sometimes with a multiplier that California law encourages but federal law does not. The Bane Act also requires only general intent, not the near-impossible showing that an officer specifically set out to violate your rights. When one claim stumbles, the other can carry the case.

 If you were beaten, falsely arrested, or maliciously prosecuted by police anywhere in Southern California, from Newport Beach to the far corners of the Inland Empire, the immunity maze is exactly where these cases live or die. Knowing which door to walk through is most of the battle, and it is what I have spent my career learning. You can read more about my approach to these defenses on my curse of qualified immunity page, and about how these cases get built on my Newport Beach police misconduct page.

What should you do if an officer violated your rights in California?

Preserve everything: photos of injuries, names and badge numbers, witness contacts, and any video. Do not talk to internal affairs or investigators without counsel. Then contact an experienced California civil rights attorney quickly, because both the federal and state claims carry strict deadlines that can bar your case if missed.

The clock is never your friend in these cases. Federal and state civil rights claims carry short deadlines, and a state-law claim against a public entity generally requires a government tort claim filed within six months of the incident. Miss it, and the strongest case in the world can be gone before it starts. If you believe your rights were violated, write down what happened while it is fresh, gather your evidence, and call a police misconduct lawyer who does this work. The immunities are steep, but they are not the end of the road, and in California they are no longer the last word. 

Can you sue for police misconduct even if the officer has qualified immunity?

Yes, and this is the question that brings most people to my office confused and discouraged, because they’ve been told by someone (often the officer’s own department) that qualified immunity ends the conversation. It doesn’t.  Independent research from the Institute for Justice’s qualified immunity project has tracked how often qualified immunity dismisses meritorious federal claims before a jury ever hears them, which is precisely why California built the Bane Act workaround in the first place. If your federal § 1983 claim is at risk of qualified immunity, a properly pleaded civil rights attorney police misconduct claim under the Bane Act may still reach a jury even when the federal claim doesn’t.

What are the benefits of qualified immunity for law enforcement?

I represent victims, not officers, so I want to be straight about this rather than pretend the other side has no argument at all, because it does, and understanding it actually makes you a better plaintiff’s advocate. Supporters of qualified immunity argue it protects a qualified immunity police officer from personal financial ruin over split-second judgment calls made in dangerous, fast-moving situations, and that without it, officers might hesitate at the exact moment hesitation gets someone killed. It’s also argued to reduce frivolous lawsuits and preserve recruitment and retention in a profession that’s already short-staffed in much of California.

Here’s where that argument runs into a wall in practice, though: qualified immunity doesn’t just protect split-second judgment calls; it also protects officers who deliberately lied, fabricated evidence, or used force far beyond what any reasonable person would call a judgment call, simply because no earlier case described that exact misconduct. That’s the gap SB 2 was built to close, not by ending qualified immunity, but by giving California a second door, the Bane Act, for exactly the cases where the “clearly established” test fails a person who was genuinely wronged. When people ask me directly about the benefits of qualified immunity for law enforcement, I tell them the honest version: it protects good-faith mistakes, but it was never supposed to protect deliberate misconduct, and that’s the distinction California is still fighting to enforce.

Conclusion

Qualified immunity was built by courts, not by the Constitution, and for decades it let officers walk away from conduct everyone in the courtroom knew was wrong. California’s SB 2 didn’t erase that doctrine, but it built a second door around it, and knowing when to use that door is most of what wins these cases. At Steering Law, pleading both the federal § 1983 claim and the state Bane Act claim together, every time, is exactly how I’ve kept immunity from becoming the final word for forty years. If an officer violated your rights anywhere in Southern California, Steering Law can walk you through which claims apply and which door gives your case the best chance of reaching a jury.

Sources

Disclaimer: This article is for general informational purposes only and does not constitute legal advice. Reading this post or contacting Steering Law through this website does not create an attorney-client relationship. Every case is different; if you are facing a legal issue, you should consult a qualified California attorney about your specific situation. Past results do not guarantee similar outcomes.

FAQs

 Qualified immunity is a judge-made federal defense that shields officers from civil rights lawsuits unless they violated a “clearly established” constitutional right. It comes from Supreme Court case law, not the Constitution itself. Courts apply it under 42 U.S.C. § 1983.


Qualified immunity applies to federal § 1983 claims in California just as it does nationwide. It does not, however, apply to state-law claims brought under California’s Bane Act, which gives victims a separate path around it.


No. A qualified immunity police officer is only protected from claims where no prior case clearly established the conduct was unconstitutional. Deliberate misconduct, like fabricating evidence, is usually not covered.

 No. SB 2 did not abolish federal qualified immunity. It removed three state immunity provisions that had shielded officers from malicious prosecution and in-custody claims under the Bane Act.

Each carries different immunities, remedies, and intent requirements. If qualified immunity defeats the federal claim, a properly pleaded Bane Act claim can still reach a jury.

Federal and state civil rights claims carry strict, short deadlines. A claim against a public entity generally requires a government tort claim filed within six months of the incident.

 Supporters argue it protects good-faith, split-second decisions from personal liability. In practice, it also shields deliberate misconduct, which is why California built the Bane Act as a second path to accountability.