Section 1983 Litigation/Personal Liability: Qualified Immunity

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Section 1983 Litigation
Table of Contents
Introduction to § 1983 Litigation
The Statute
Historical Background
Nature of § 1983 Litigation
Discovery
Right to Trial by Jury
Jury Instructions
Constitutional Claims Against Federal Officials: The Bivens Doctrine
Section 1983 Does Not Encompass Claims Against Federal Officials
The Bivens Claim for Relief
Law Governing Bivens Claims
Elements of Claim, Functional Role, Pleading, and Jurisdiction
Elements of the § 1983 Claim
Functional Role of § 1983
Pleading § 1983 Claims
Federal Court Jurisdiction
State Court Jurisdiction
Section 1983 Plaintiffs
Persons Entitled to Bring Suit Under § 1983
Standing
Constitutional Rights Enforceable Under § 1983
Generally
Due Process Rights: In General
Procedural Due Process
Substantive Due Process Claims
Use of Force by Government Officials: Sources of Constitutional Protection
Arrests and Searches
Malicious Prosecution Claims Under Fourth Amendment
Conditions-of-Confinement Claims Under Eighth Amendment
First Amendment Claims
Equal Protection “Class-of-One” Claims
Enforcement of Federal Statutes Under § 1983
Enforcement of Federal “Rights”
Specific Comprehensive Scheme Demonstrating Congressional Intent to Foreclose § 1983 Remedy
Current Supreme Court Approach
Enforcement of Federal Regulations Under § 1983
Color of State Law and State Action
State and Local Officials
State Action Tests
Section 1983 Defendants
State Defendants
Interplay of “Person” and Eleventh Amendment Issues
Municipal Defendants
State Versus Municipal Policy Maker
Departments, Offices, and Commissions
Causation
Capacity of Claim: Individual Versus Official Capacity
Municipal Liability
Fundamental Principles of § 1983 Municipal Liability
Officially Promulgated Policy
Municipal Policy Makers
Custom or Practice
Inadequate Training
Inadequate Hiring
Pleading Municipal Liability Claims
Liability of Supervisors
Relationship Between Individual and Municipal Liability
Bifurcation
Los Angeles v. Heller
If Plaintiff Prevails on Personal-Capacity Claim
“Cost Allocation Scheme”
State Liability: The Eleventh Amendment
Relationship Between Suable § 1983 “Person” and Eleventh Amendment Immunity
Eleventh Amendment Protects State Even When Sued by Citizen of Defendant State
State Liability in § 1983 Actions
Personal-Capacity Claims
Municipal Liability; the Hybrid Entity Problem
Eleventh Amendment Waivers
Eleventh Amendment Appeals
Personal-Capacity Claims: Absolute Immunities
Absolute Versus Qualified Immunity: The Functional Approach
Judicial Immunity
Prosecutorial Immunity
Witness Immunity
Legislative Immunity
Personal Liability: Qualified Immunity
Generally
Who May Assert Qualified Immunity? Private Party State Actors
Clearly Established Federal Law
Procedural Aspects of Qualified Immunity
Appeals
Exhaustion of State Remedies
State Judicial Remedies: Parratt-Hudson Doctrine
Preiser, Heck, and Beyond
State Administrative Remedies; PLRA
Notice of Claim
Ripeness
Preclusion Defenses
State Court Judgments
Administrative Res Judicata
Arbitration Decisions
Statute of Limitations
Limitations Period
Relation Back
Accrual
Tolling
Survivorship and Wrongful Death
Survivorship
Wrongful Death
Abstention Doctrines
Pullman Abstention; State Certification Procedure
Younger Abstention
Colorado River Abstention
Burford Abstention
Domestic Relations Doctrine
Tax Injunction Act
Monetary Relief
Nominal and Compensatory Damages
Punitive Damages
Release-Dismissal Agreements
Indemnification
Prison Litigation Reform Act
Attorneys’ Fees
Section 1988 Fee Litigation
Prevailing Parties
Computation of Fee Award: Lodestar Adjustment Method
Other Fee Issues
Model Instructions
Model Instruction 1: Section 1983—Elements of Claim—Action Under Color of State Law
Model Instruction 2: Fourth Amendment Excessive Force Claim
Model Instruction 3: Eighth Amendment Prisoner Excessive Force Claim
Model Instruction 4: Fourth Amendment False Arrest Claim
Model Instruction 5: Municipal Liability—General Instruction
Model Instruction 6: Municipal Liability—Inadequate Training or Supervision
Model Instruction 7: Compensatory Damages
Model Instruction 8: Punitive Damages

Generally[edit | edit source]

Qualified immunity may well be the most important issue in § 1983 litigation. It is certainly the most important defense, and is frequently asserted as a defense to § 1983 personal-capacity claims for damages.[1] Furthermore, courts decide a high percentage of § 1983 personal-capacity claims for damages in favor of the defendant on the basis of qualified immunity. The Supreme Court holds that qualified immunity is not just immunity from liability, but also “immunity from suit,” that is, from the burdens of having to defend the litigation.[2]

Qualified immunity protects an executive official who violated the plaintiff’s federally protected right so long as the official did not violate clearly established federal law. Therefore, when qualified immunity is asserted as a defense, the critical issue is whether the defendant/official violated federal law that was clearly established at the time she acted.[3] When, as is often the case, the § 1983 plaintiff alleges multiple constitutional claims against multiple defendants who have asserted qualified immunity, the district court must analyze the immunity defense for each claim and each defendant, and not lump the various claims and defendants together.[4] That an official may have violated clearly established state law is generally irrelevant to the qualified immunity defense.[5]

“Qualified immunity balances two important interests—the need to hold public officials accountable when they exercise power irresponsibly and the need to shield officials from harassment, distraction, and liability when they perform their duties reasonably.”[6] It is designed to allow government officers to make reasonable though “mistaken judgments about open legal questions. [I]t protects ‘all but the plainly incompetent or those who knowingly violate the law.’”[7] Its “basic thrust” . . . is to free officials from the concerns of litigation, including ‘avoidance of disruptive discovery,’” because the demands of litigation can seriously divert officials from their official responsibilities.[8]

Qualified immunity protects officials who acted in an objectively reasonable manner. An official who violated clearly established federal law did not act in an objectively reasonable manner, while an official who violated federal law, but not clearly established federal law, did act in an objectively reasonable manner.[9] The official’s subjective motivation is irrelevant to the qualified immunity defense, but may be relevant to the constitutional claim asserted.[10] On the other hand, the information known to the officer when she reacted is often pertinent in determining whether she violated clearly established federal law.[11]

The Supreme Court has described the qualified immunity test as a “fair warning” standard—that is, if the federal law was clearly established, the official is on notice that violation of the federal law may lead to personal monetary liability.[12] Under qualified immunity, public officials “are not liable for bad guesses in gray areas; they are liable for transgressing bright lines.”[13]

Mistakes of Law and Fact[edit | edit source]

In Saucier v. Katz,[14] the Supreme Court emphasized that qualified immunity protects an officer’s reasonable mistakes about what the law requires. It explained that the purpose of qualified immunity is to protect officers who make reasonable mistakes of law, not mistakes of fact.

The concern of the immunity inquiry is to acknowledge that reasonable mistakes can be made as to legal constraints as to particular police conduct. It is sometimes difficult for an officer to determine how the relevant doctrine, here excessive force, would apply to factual situations the officer confronts. An officer might correctly perceive all of the relevant facts but have a mistaken understanding as to whether a particular amount of force is legal in the circumstances. If the officer’s mistake as to what the law requires is reasonable, however, the officer is entitled to the immunity defense.[15]

On the other hand, under the Fourth Amendment, officers who have a “reasonable but mistaken belief as to the facts” (e.g., facts relevant to the question of probable cause) will not be found to have violated the Constitution.[16] Similarly, “if an officer reasonably, but mistakenly believed that a suspect was likely to fight back, for instance, the officer would be justified [under the Fourth Amendment] from using more force than in fact was needed.”[17] In other words, reasonable mistakes of fact are relevant to the constitutional merits, while reasonable mistakes of law are relevant on qualified immunity.[18] Nevertheless, some justices have stated that “qualified immunity applies regardless of whether the government official’s error is ‘a mistake of law, a mistake of fact, or a mistake based on mixed questions of law and fact.’”[19]

Advice of Counsel; Supervisor’s Order; Action Pursuant to Statute or Ordinance[edit | edit source]

The courts of appeals agree that, although an officer’s acting on advice of counsel or pursuant to a supervisor’s orders or approval will not itself protect an official who violated clearly established federal law, these are pertinent considerations for determining whether the official acted in an objectively reasonable manner. The courts of appeals disagree, however, over how much weight to give these factors.[20]

In Messerschmidt v. Millender,[21] the Supreme Court, holding that police officers who sought and executed a search warrant of the home were protected by qualified immunity, took into account the facts that they sought and obtained approval from a supervisor and a deputy district attorney. The Court ruled that

the fact that the officers sought and obtained approval of the warrant application from a superior and a deputy district attorney before submitting it to the magistrate provides further support for the conclusion that an officer could reasonably have believed that the scope of the warrant was supported by probable cause.[22]

The Court spelled out that “[t]he fact that the officers secured these approvals is certainly pertinent in assessing whether they could have held a reasonable belief that the warrant was supported by probable cause.”[23] The Court did not spell out how much weight should be accorded to the securing of approvals from superiors in the qualified immunity analysis. As noted earlier, the courts of appeals have been in conflict on this issue.

The circuits also disagreed about the significance of a defendant/ officer having acted pursuant to a superior’s order.[24] In the author’s view, under Messerschmidt this would be pertinent, although how much weight it should be accorded is uncertain.

Who May Assert Qualified Immunity? Private Party State Actors[edit | edit source]

State and local officials who carry out executive and administrative functions may assert qualified immunity.[25] So far the Supreme Court has not allowed private party state actors to assert qualified immunity. In Richardson v. McKnight,[26] the Court held that private prison guards are not entitled to assert qualified immunity. In Wyatt v. Cole,[27] the Court held that a creditor who used a state replevin procedure could not assert qualified immunity. In both cases, however, the Court left open whether the defendants were entitled to assert a good-faith defense. Some lower courts have allowed a private party state actor defendant to assert a good-faith defense that implicates the defendant’s subjective intent.[28]

Richardson and Wyatt also left open whether private party state actors who carry out public functions, such as mental evaluations or civil commitments, may assert qualified immunity.[29] An important factor may be whether the defendant acted under government supervision. In Richardson, the Court regarded the limited direct government supervision of the private prison guards as an important factor justifying denial of the right to assert qualified immunity.[30]

In Filarsky v. Delia,[31] the Supreme Court held that a private attorney hired by the city of Rialto, California, was entitled to assert qualified immunity from § 1983.[32] Steve Filarsky had been hired to conduct an investigation concerning an employment dispute between the city and a city firefighter. In holding that Filarsky was entitled to assert qualified immunity, the Court relied, in part, upon the facts that in 1871 many governmental functions, including law enforcement functions, were carried out by a mixture of public employees and private individuals, and the common-law immunities did not distinguish between these governmental officials and private individuals.[33] In other words, the private individuals were accorded the same immunity as public officers.

As a policy matter, the Court in Filarsky found that whether a person carrying out a governmental function is a full- or part-time government employee, or a private party retained by the government for a particular purpose, affording the individual immunity furthers the government’s interests in attracting talented individuals, and in allowing them to carry out their official responsibilities without fear of liability and without distractions of ongoing lawsuits.[34]

The Court in Filarsky found its earlier decisions in Wyatt and Richardson distinguishable. Whereas attorney Filarsky was hired by the city to carry out a governmental investigation, the creditors in Wyatt who invoked the state replevin statute pursued merely private ends and carried out no governmental responsibilities. The Court in Filarsky found Richardson to be based on two notions: (1) that private market forces ensured that the prison guards would not perform their public duties with unwarranted timidity, and (2) that the guards functioned with only limited direct governmental supervision.[35] Post-Filarsky appellate decisions are cited in the endnote.[36]

Clearly Established Federal Law[edit | edit source]

Normally, a controlling precedent of the Supreme Court, the particular circuit, or the highest court in the state is necessary to clearly establish federal law.[37] The right must be clearly established in a fairly

particularized . . . sense: the contours of the right must be sufficiently clear that a reasonable official would understand that what he is doing violates that right. That is not to say that an official action is protected by qualified immunity unless the very action in question has previously been held unlawful, but it is to say that in light of pre-existing law the unlawfulness must be apparent.[38]

For federal law to be clearly established, there must be fairly close factual correspondence between the prior precedents and the case at hand.[39] Federal law is less likely to be clearly established when it depends on an ad hoc balancing of competing interests between the state and the individual.[40] Decisions from outside the controlling jurisdiction do not clearly establish federal law absent “a consensus of cases of persuasive authority such that a reasonable officer could not have believed that his actions were lawful.”[41] In some cases, the federal law might be clearly established even in the absence of controlling precedent. For example, the type of conduct engaged in by the defendant may be so obviously unconstitutional that there was no need to litigate the issue previously.[42] On the other hand, a conflict in the lower courts is a strong indicator that federal law was not clearly established.[43] “If judges thus disagree on a constitutional question, it is unfair to subject police to money damages for picking the losing side of the controversy.”[44]

Hope v. Pelzer[edit | edit source]

In Hope v. Pelzer,[45] the Court held that, under the particular circumstances, the defendants’ (state prison officials) act of cuffing an inmate to a hitching post for a lengthy period of time while shirtless in the hot Alabama sun violated clearly established Eighth Amendment standards. It found that the Eleventh Circuit had erred in applying a rigid rule that for the federal law to be clearly established the facts of the existing precedent must be “materially similar” to the facts of the instant case. “[O]fficials can still be on notice that their conduct violates established law even in novel factual circumstances.”[46] The Court found that the defendants in Hope had fair warning that their conduct was unconstitutional from Eleventh Circuit precedent (although not factually “on all fours”); a regulation of the state Department of Corrections relating to use of the hitching post (the regulation had been ignored by prison officials); and a Department of Justice (DOJ) transmittal to the state Department of Corrections advising it that its use of the hitching post was unconstitutional. The Supreme Court relied on this last factor, even though the record did not show that DOJ’s position had been communicated to the state prison officials.[47]

In Ashcroft v. al-Kidd,[48] the Supreme Court articulated several important principles for determining whether the federal law was clearly established when the defendant acted.

  1. Law can be clearly established even though there is no “case directly on point, but existing precedent must have placed the statutory or constitutional question beyond debate.”[49]
  2. Broad constitutional principles cannot clearly establish federal law. The Supreme Court has “repeatedly told courts . . . not to define clearly established law at a high level of generality. The general proposition, for example, that an unreasonable search or seizure violates the Fourth Amendment is of little help in determining whether the violative nature of particular conduct is clearly established.”[50]
  3. Dictum in a federal district court opinion did not clearly establish the federal law, even though the footnote referred specifically to the defendant, Ashcroft.[51] “Even a district judge’s ipse dixit of a holding is not ‘controlling authority’ in any jurisdiction, much less, in the entire United States; and his ipse dixit of a footnoted dictum falls far short of what is necessary absent controlling authority: a robust ‘consensus of cases of persuasive authority.’”[52]
  4. The fact that eight judges of the Ninth Circuit, who dissented from denial of en banc review, agreed with Ashcroft’s position further supported the conclusion that the pertinent federal law was not clearly established.[53]

In some cases, Supreme Court justices themselves have disagreed about whether the federal law was clearly established. In Safford Unified School District v. Redding,[54] eight justices concluded that the school officials’ (defendants’) strip search of a thirteen-year-old student for ibuprofen violated the Fourth Amendment. However, six justices (Justice Souter, joined by C.J. Roberts, Justices Scalia, Kennedy, Breyer, and Alito) held that the Fourth Amendment law was not clearly established at the time of the search. Two justices (Justices Stevens and Ginsburg) found that the Fourth Amendment law was clearly established, and one justice (Justice Thomas) found that there was no Fourth Amendment violation. Writing for the Court, Justice Souter stated that federal law can be clearly established even in the absence of controlling precedent because, as Judge Posner stated, the “‘easiest cases’” do not always arise.[55] “But even as to action less than an outrage, ‘officials can still be on notice that their conduct violates established [federal] law . . . in novel factual circumstances.’”[56] Here, however, differences of opinion among courts of appeals judges around the country, as well as differences between the circuit authority and the Supreme Court’s Fourth Amendment decision, were “substantial enough to require immunity for the school officials in this case. . . . [C]ases viewing school strip searches differently from the way we see them are numerous enough, with well-reasoned majority and dissenting opinions, to counsel doubt that we were sufficiently clear in the prior statement of law.”[57] The Court cautioned, however, that entitlement to qualified immunity is not always “the guaranteed product of disuniform views of the law in the other federal, or state, courts, and the fact that a single judge, or even a group of judges, disagrees about the contours of a right does not automatically render the law unclear.”[58]

In evaluating a qualified immunity defense, federal judges may well disagree over which body of law to take into account; which facts are pertinent; the necessary factual correspondence between the case at hand and the pertinent precedents; and whether the law defined and established the right at issue with sufficient clarity. For example, in alKidd, the Ninth Circuit held that former Attorney General Ashcroft’s material witness policy violated clearly established Fourth Amendment law, but the Supreme Court disagreed, and held Ashcroft protected by qualified immunity.

Application of Qualified Immunity to Fourth Amendment Claims[edit | edit source]

The qualified immunity “objective reasonableness” defense applies even to Fourth Amendment challenges to arrests, searches, and uses of force where the constitutional standard itself is objective reasonableness.[59]

In Malley v. Briggs,[60] the Court held that police officers who executed an invalid arrest warrant may nevertheless assert the defense of qualified immunity.[61] The Court recognized two standards of reasonableness—one under the Fourth Amendment and one under qualified immunity—and that conduct unreasonable under the Fourth Amendment could still be objectively reasonable for the purpose of qualified immunity.[62] It noted that it had similarly recognized two standards of reasonableness when creating the objective good-faith exception to the exclusionary rule.[63] Under that good-faith exception, even if officers obtained evidence by committing an unreasonable search or seizure in violation of the Fourth Amendment, the evidence could nevertheless be introduced in the prosecutor’s case-in-chief if the officers acted in “objective” good-faith reliance on a search warrant. The “objective goodfaith” standard asks whether a “reasonably well-trained officer” with a “reasonable knowledge of what the law prohibits” would have known that the challenged action violated the Fourth Amendment.[64]

The Court, in Messerschmidt v. Millender,[65] refined and applied Malley to police officers who applied for and executed an overbroad warrant to search a home for guns and gang-related material. It held that, assuming arguendo that the warrant should not have been issued, the officers were protected by qualified immunity because they acted in an objectively reasonable manner.

The fact that a neutral magistrate issued the warrant was “the clearest indication that the officers acted in an objectively reasonable manner. . . .”[66] This is not to say that a neutral magistrate’s issuance of a warrant is dispositive of qualified immunity. Police officers will not be protected by qualified immunity when “‘it is obvious that no reasonably competent officer would have concluded that a warrant should issue,’”[67] as, “for example, where the warrant was ‘based on an affidavit so lacking in indicia of probable cause as to render official belief in its existence entirely unreasonable.’”[68] But this was not the case in Messerschmidt because, although “[t]he officers’ judgment that the scope of the warrant was supported by probable cause may have been mistaken, . . . it was not ‘plainly incompetent.’”[69] Only in “rare” circumstances will it be found that “the magistrate so obviously erred that any reasonable officer would have recognized the error.”[70]

The Court also gave weight to the fact that the defendant–officers sought and obtained approval from a superior and a deputy district attorney. This was “certainly pertinent” and provided “further support” that the officers reasonably believed that the warrant was supported by probable cause.[71]

In Anderson v. Creighton,[72] the Supreme Court affirmed this dual standard of reasonableness in holding that police officers could assert qualified immunity for a warrantless search of the plaintiff’s home. The Court conceded that the general principles of the Fourth Amendment are clear: a warrantless search of an individual’s home, absent probable cause and exigent circumstances, is unreasonable.[73] It explained, however, that these general principles did not determine whether the officers were protected by qualified immunity. Whether the officers violated “clearly established” law requires consideration of whether the “contours of the right [were] sufficiently clear that a reasonable official would understand that what he [did] violate[d] that right.”[74]

Anderson established that a police officer may “reasonably, but mistakenly, conclude that probable cause is present.”[75] Similarly, a police officer may reasonably but mistakenly conclude that exigent circumstances exist.[76] If there is a “legitimate question” as to the unlawfulness of the conduct, qualified immunity protects the officer.[77] Furthermore, “the very action in question [need not have] been previously held unlawful,” but if “in the light of preexisting law the unlawfulness [was] apparent,” then qualified immunity does not apply.[78]

Similarly, in Saucier v. Katz,[79] the Supreme Court held that the qualified immunity “objective reasonableness” test applies to Fourth Amendment “excessive force” arrest claims that are governed by the Graham v. Connor[80] “objective reasonableness” standard.[81] It ruled that the pertinent qualified immunity inquiry is whether the officer reasonably, though mistakenly, believed that his use of force complied with the Fourth Amendment; i.e., whether he made a reasonable mistake about the state of the law.

Applying qualified immunity to Fourth Amendment constitutional claims governed by an objective reasonableness standard gives the official two layers of reasonableness protection: one under the Fourth Amendment itself, and another under qualified immunity. This can lead to the awkward conclusion that an official acted in a reasonable manner for immunity purposes though unreasonably for constitutional purposes.[82] Courts typically try to avoid this linguistic awkwardness of an official acting “reasonably unreasonably” in arrest and search cases by asking whether the official had arguable probable cause, or whether the officer reasonably believed there was probable cause, or whether a reasonable officer could have mistakenly concluded there was probable cause.[83] So, too, in Fourth Amendment excessive force cases, courts inquire whether the officer reasonably, though mistakenly, believed that his use of force was constitutional.[84]

Intent or Motive as Element of Constitutional Claims[edit | edit source]

There is potential tension between a constitutional claim that implicates the defendant’s subjective intent (such as a free speech retaliation claim) and qualified immunity, under which the defendant’s subjective intent is irrelevant. The Supreme Court, in Crawford-El v. Britton,[85] held that when the constitutional claim implicates the defendant/official’s subjective intent, the lower courts should follow the Federal Rules of Civil Procedure and not place special burdens on plaintiffs who are faced with summary judgment qualified immunity motions. The Court said that the federal courts should not rewrite the Federal Rules of Civil Procedure; that placing unduly harsh burdens on plaintiffs may rob meritorious claims of their fair day in court; and that existing pleading, motion, and discovery rules, and the Prison Litigation Reform Act, adequately protect defendants against insubstantial constitutional claims.[86]

Procedural Aspects of Qualified Immunity[edit | edit source]

Affirmative Defense; Waiver[edit | edit source]

Qualified immunity is an affirmative defense that the defendant has the burden of pleading.[87] Although failure to raise qualified immunity can operate to waive the defense, federal courts have generally been reluctant to find the defense waived.[88]

Complaint Pleading Standard[edit | edit source]

In Ashcroft v. Iqbal,[89] the Supreme Court held that all federal court civil complaints are governed by the “plausibility” standard previously articulated in Bell Atlantic Corp. v. Twombly.[90] The defendants in Iqbal had “moved to dismiss the complaint for failure to state sufficient allegations to show their own involvement in clearly established unconstitutional conduct.”[91] In determining that the defendants were entitled to dismissal of the complaint because it did not allege a plausible claim that the defendants before the Supreme Court violated clearly established federal law, the Court effectively resolved that the plausibility standard governs § 1983 and Bivens claims subject to qualified immunity.[92]

Prior to Iqbal, it was uncertain whether claims subject to qualified immunity are governed by a “heightened” pleading standard. The Court in Iqbal, however, did not even discuss the possibility that the plaintiff’s claims were subject to a “heightened” pleading standard. In fact, in Twombly the Court stated specifically that the plausibility standard is not a “heightened” pleading standard. Nevertheless, TwomblyIqbal requires that § 1983 complaints allege facts, not mere conclusions, and that these facts constitute a plausible, not merely possible or speculative, claim for relief. The Court in Iqbal stressed that “the tenet that a court must accept as true all of the allegations contained in a complaint is inapplicable to legal conclusions.”[93] When the motion to dismiss is based on qualified immunity, as it was in Iqbal, the district court must determine whether the complaint alleges sufficient facts constituting a plausible claim that the defendant violated clearly established federal law. Whether the complaint alleges a plausible claim is “a context-specific task that requires the reviewing court to draw on its judicial experience and common sense.”[94]

The Court in Iqbal reiterated a key point articulated in Twombly “that the question presented by a motion to dismiss a complaint for insufficient pleadings does not turn on the controls placed upon the discovery process.”[95] The Court said that “rejection of the careful-case-management approach is especially important in suits where Government-official defendants are entitled to assert the defense of qualified immunity,” because qualified immunity is designed to “free officials” from the demands of litigation, including “‘disruptive discovery,’” which substantially diverts officials from their official responsibilities.[96]

Burden of Persuasion[edit | edit source]

The courts of appeals differ on the burden of persuasion for qualified immunity. The prevailing view is that once the defendant properly raises the defense of qualified immunity, the plaintiff has the burden of overcoming the immunity by showing that the defendant violated the plaintiff’s clearly established federal right.[97] However, the Second Circuit places the burden of persuasion on the defendant.[98]

Motions to Dismiss, for Summary Judgment, and Judgment as Matter of Law[edit | edit source]

In General[edit | edit source]

Qualified immunity is normally raised on a motion for summary judgment, sometimes on a motion to dismiss, and sometimes on a Rule 50 motion for judgment as a matter of law.[99] In addition, courts may consider renewed motions for qualified immunity. These motions may occur after the plaintiff has presented her case, at the close of both sides, after the jury’s special verdict, or in a motion for a new trial.[100] Resolution of qualified immunity is possible during these trial stages if the defendant is entitled to judgment as a matter of law.

Motion to Dismiss[edit | edit source]

Qualified immunity may be raised on a motion to dismiss under Federal Rule of Civil Procedure 12(b)(6) for failure to state a claim on which relief may be granted.[101] On a Rule 12(b)(6) motion, the district court assumes the plaintiff’s factual allegations are true and determines whether the allegations state a plausible claim that the defendant violated clearly established federal law.[102] A Rule 12(b)(6) motion based on qualified immunity should be granted unless the complaint states facts showing a plausible claim that the defendant violated the plaintiff’s clearly established federal right.[103]

Summary Judgment Motions Before and After Discovery; Discovery on Disputed Factual Issues[edit | edit source]

The Supreme Court’s goal in defining qualified immunity in wholly objective terms is to enable the district courts to resolve qualified immunity, to the greatest extent possible, as a matter of law, pretrial and even pre-discovery.[104] In Hunter v. Bryant,[105] the Court held that qualified “[i]mmunity ordinarily should be decided by the court long before trial.”[106] The Court criticized the lower court for “routinely plac[ing] [qualified] immunity in the hands of the jury.”[107]

Officials sued under § 1983 may raise the qualified immunity defense on summary judgment motion under Federal Rule of Civil Procedure 56(c) both before[108] and after discovery.[109] Under Rule 56(c), summary judgment is permitted if there are no disputed material facts, and the defendant is entitled to judgment as a matter of law.[110]

Summary judgment qualified immunity motions before discovery may be appropriate in some circumstances because qualified immunity is not only a defense to liability but also an “immunity from suit.”[111] Under Harlow v. Fitzgerald,[112] discovery should not be allowed unless the plaintiff alleged a violation of clearly established federal law. If, however, the plaintiff has alleged a violation of clearly established federal law, and the defendant alleges actions that a reasonable officer could have thought were lawful, then courts must grant discovery tailored to the immunity question.[113]

When responding to a summary judgment motion based on qualified immunity, a plaintiff seeking discovery must file an affidavit with a Rule 56(f) motion demonstrating “how discovery will enable [him] to rebut a defendant’s showing of objective reasonableness or . . . demonstrate a connection between the information he would seek in discovery and the validity of the defendant’s qualified immunity assertion.”[114]

In Crawford-El v. Britton,[115] the Supreme Court described various options that the district court can invoke when facts concerning the defendant’s alleged retaliatory motive are in dispute:

  1. allow the plaintiff to take a “focused deposition” of the defendant on the issue of retaliatory motive;
  2. allow discovery only on “historical facts” before allowing discovery on the defendant’s motive; and
  3. order the plaintiff to file a reply, or grant the defendant’s motion for a more definite statement requiring specific factual allegations of the defendant’s conduct and motive before allowing any discovery.[116]

Under Federal Rule of Civil Procedure 26, district courts may limit the number of depositions and interrogatories, the length of depositions, the “time, place, and manner of discovery,” and the sequence of discovery.[117] District courts may also limit discovery to an issue that may resolve the lawsuit before allowing discovery as to an official’s intent. For example, an official “may move for partial summary judgment on objective issues that are potentially dispositive and are more amenable to summary disposition than disputes about the official’s intent, which frequently turn on credibility assessments.”[118] In contrast, Federal Rule of Civil Procedure 56(f) gives district courts discretion to postpone deciding an official’s motion for summary judgment if discovery is necessary to establish “facts essential to justify the [plaintiff’s] opposition.”[119]

In addition, district courts can safeguard officials’ right to be free from frivolous lawsuits by imposing sanctions under Federal Rule of Civil Procedure 11, or granting dismissal under § 1915(e)(2), which permits dismissal of “frivolous or malicious” in forma pauperis suits.[120] In short, district courts have “broad discretion in the management of the factfinding process.”[121]

Although material facts are disputed in many cases in which qualified immunity is asserted, summary judgment may be granted to the defendant official if, interpreting the facts in the light most favorable to the plaintiff, the district court determines that these facts do not state a violation of clearly established federal law.[122] In Tolan v. Cotton,[123] the Supreme Court stressed that, on a defendant official’s summary judgment qualified immunity motion, a federal court (1) may not resolve genuine issues of disputed fact in the favor of the defendant; and (2) must view the facts in the light most favorable to the non-moving party, that is, the plaintiff. The Court noted that these rules are not unique to qualified immunity, and reflect generally applicable summary judgment principles. As an exception to these principles, the Court, in Scott v. Harris,[124] held that when the defendant, on summary judgment, proffers a videotape of the incident which contradicts the plaintiff’s version of the incident, and there is no claim that the videotape has been doctored or fails to accurately depict the incident in question, the videotape will control over the plaintiff’s version.

If the district court grants summary judgment to the defendant on the basis of qualified immunity, the immunity defense relieves officials from the burdens of trial, protecting their “immunity from suit.”[125] If, however, the facts as interpreted in the light most favorable to the plaintiff indicate a violation of clearly established federal law, and the discovery indicates material facts are in dispute, then summary judgment is not possible. At this point, the “immunity from suit” is lost and the case must go to trial.

In Ortiz v. Jordan,[126] the Supreme Court held that when the defendant’s summary judgment qualified immunity motion is denied and the case proceeds to trial, and the defendant continues to assert qualified immunity, qualified immunity must be evaluated based upon the evidence submitted at trial, rather than on the summary judgment evidence. Therefore, on the defendant’s appeal from a judgment on a verdict for the plaintiff, the defendant may not argue that the district court erred in denying her summary judgment qualified immunity motion. Rather, in these circumstances, qualified immunity must be evaluated on the basis of the trial evidence. However, to preserve qualified immunity post-verdict, the defendant must move for judgment as a matter of law under Federal Rule of Civil Procedure 50(b). Because the defendants in Ortiz failed to make such a motion, they were not allowed to argue on appeal that they were entitled to qualified immunity based on the trial evidence. The Court did not decide whether the result would be different if the qualified immunity defense raised a pure question of law, namely, whether, based upon undisputed facts, the defendant/official violated clearly established federal law.

Role of Judge and Jury[edit | edit source]

Supreme Court decisions state that, whenever possible, the issue of qualified immunity should be decided pretrial and even prediscovery, normally on a motion for summary judgment.[127] When qualified immunity cannot be decided on a motion for summary judgment because facts relevant to qualified immunity are in dispute, the district court has two major options. It may be proper for the district court to submit the factual issues and the immunity defense to the jury under instructions that (1) tell the jury what the clearly established federal law is, and (2) describe the nature of qualified immunity; or, alternatively, submit the factual issues that are material to qualified immunity to the jury by special verdicts, while reserving for itself the power to determine the immunity defense in light of the jury’s responses to the special verdicts. Most courts have chosen the second option because it seems to best reflect the jury’s function as fact-finder and the court’s expertise in determining the law.[128] Under this approach, the defendant–official is “not entitled to a jury instruction regarding qualified immunity, since it is a legal question for the court to decide.”[129]

Court Has Discretion Whether to First Decide Constitutional Issue or Proceed Directly to Qualified Immunity[edit | edit source]

In Saucier v. Katz,[130] the Supreme Court held that when qualified immunity is asserted as a defense, the court must first determine if the complaint states a violation of a federally protected right, and only if it does, then proceed to determine whether that right was clearly established.[131] In Pearson v. Callahan,[132] however, the Supreme Court overturned Saucier’s “rigid ordering of issues.” It held that federal district courts have discretion to follow the two-step approach, and first decide whether the complaint states a violation of a federally protected right, or to proceed directly to the qualified immunity issue of whether the defendant violated clearly established federal law.[133] The Court acknowledged that adherence to the Saucier requirement (that courts first decide whether the complaint states a violation of a federal protected right) has advantages in some circumstances: among other things, its methodology promotes the development and clarification of federal constitutional standards. This is especially so for issues not likely to arise outside the context of § 1983 damages and qualified immunity, such as in injunction actions and criminal prosecutions.[134] In addition, there are cases in which it ‘”may be difficult to decide whether a right is clearly established without deciding precisely what the existing constitutional right happens to be.’”[135] Pearson acknowledged that Saucier’s methodology “is often beneficial,”[136] and that making the qualified immunity protocol discretionary rather than mandatory “does not prevent the lower courts from following the Saucier procedure; it simply recognizes that those courts should have the discretion to decide whether the procedure is worthwhile in particular cases.”[137]

However, adherence to the Saucier methodology does not always make sense. There are cases in which it is apparent that the pertinent federal law did not establish a violation of plaintiff’s clearly established federal rights. In these instances, absent some special consideration, a lower federal court should not have to struggle with the constitutional merits when it can easily conclude that, regardless of the constitutional merits, the defendant will be protected from liability by qualified immunity because the federal law was not clearly established.[138] In these circumstances resolution of the merits of the constitutional claim would have no effect on the ultimate outcome of the case because, in any event, defendant will be protected by qualified immunity.[139]

Pearson detailed several circumstances in which it may make sense for a federal court to bypass the “constitutional merits” step and proceed directly to the “clearly established” law issue:

  1. where “it is plain that a constitutional right is not clearly established but far from obvious whether in fact there is such a right”;[140]
  2. where “the constitutional question is so factbound that the decision provides little guidance for future cases”;[141]
  3. where it is likely that the constitutional question will soon be decided by a higher court or by an en banc court;[142]
  4. where the constitutional decision rests “on an uncertain interpretation of state law,” rendering the constitutional ruling “of doubtful precedential importance”;[143] and
  5. where “qualified immunity is asserted at the pleading stage, [and] the precise factual basis for the plaintiff’s claim . . . may be hard to identify.”[144]

Furthermore, as a general proposition, following the Saucier twostep procedure runs counter to the Ashwander v. TVA[145] principle of judicial self-restraint that federal courts decide federal constitutional issues only when necessary, that is, as a last resort rather than as a first resort.[146]

Appeals[edit | edit source]

When a district court denies qualified immunity on a summary judgment motion, the defendant may take an immediate appeal from the denial of qualified immunity to the court of appeals if the appeal can be decided as a matter of law.[147] However, it is not always clear whether a qualified immunity appeal presents an issue of law or fact. If the district court denies a defendant’s summary judgment qualified immunity motion because there are disputed issues of material fact, the defendant may not take an immediate appeal that contests the district court’s factual determinations;[148] however, under such circumstances, the defendant may take an immediate appeal if the appeal can be decided as a matter of law. Thus, an immediate qualified immunity appeal lies when the appellant:

  1. contests the materiality of a disputed issue of fact found by the district court, because this is a question of law; or
  2. claims entitlement to qualified immunity even on the basis of the facts alleged by the plaintiff, because the qualified immunity can be decided as a matter of law.

Furthermore, an immediate appeal may be taken from the denial of qualified immunity raised on a motion to dismiss, because in this circumstance the appeal presents an issue of law, namely whether, assuming the facts alleged by the plaintiff to be true, the defendant is entitled to qualified immunity.[149] The courts of appeals at times find that they have jurisdiction over parts of an immunity appeal raising questions of law, though not over other parts raising questions of fact.

A § 1983 defendant may be entitled to take multiple interlocutory qualified immunity appeals. In Behrens v. Pelletier,[150] the Supreme Court held that the defendant may take an immediate appeal from the denial of qualified immunity raised on a motion to dismiss and, if still unsuccessful, from a subsequent denial of qualified immunity raised on summary judgment, provided the summary judgment immunity appeal can be decided as a matter of law.[151]

Qualified immunity appeals are very costly to civil rights plaintiffs in terms of litigation resources and delay of litigation. Qualified immunity appeals normally stay proceedings on the § 1983 claim in the district court.[152] However, the plaintiff may ask the district court to certify that an interlocutory qualified immunity appeal is frivolous.[153] “This practice . . . enables the district court to retain jurisdiction pending summary disposition of the appeal and thereby minimizes disruption of the ongoing proceedings.”[154]

In Ortiz v. Jordan,[155] the Supreme Court held that, after trial, the defending officers may not appeal from the district court’s denial of the their summary judgment qualified immunity motion, because:

Once the case proceeds to trial, the full [trial] record developed in court supersedes the record existing at the time of the summary judgment motion. A qualified immunity defense . . . does not vanish when a district court [rejects the summary judgment motion. The immunity defense] remains available to the defending officials at trial; but at that stage, the defense must be evaluated in light of the character and quality of the evidence received in court.[156]

“After trial, if defendants continue to urge qualified immunity, the decisive question, ordinarily, is whether the evidence favoring the party seeking relief is legally sufficient to overcome the defense.”[157] To preserve for appeal the defendant’s right to qualified immunity on the basis of the trial record, the defendant must make a post-verdict motion for judgment as a matter of law under Federal Rule of Civil Procedure 50(b) on the ground that the evidence was not legally sufficient to sustain the verdict. The defendants in Ortiz failed to make such a motion.

The Court did not decide whether the result would be different if the qualified immunity defense presented a purely legal issue with respect to undisputed facts.

References[edit | edit source]

  1. ↑ Qualified immunity is not applicable to claims for injunctive relief. Behrens v. Pelletier, 516 U.S. 299, 312 (1996).
  2. ↑ See Mitchell v. Forsyth, 472 U.S. 511, 526 (1985). Accord Plumhoff v. Rickard, 134 S. Ct. 2012, 2019 (2014); Ortiz v. Jordan, 131 S. Ct. 884, 891 (2011); Saucier v. Katz, 533 U.S. 194, 200–01 (2001).
  3. ↑ Harlow v. Fitzgerald, 457 U.S. 800, 818 (1982). See also Tolan v. Cotton, 134 S. Ct. 1861, 1866 (2014) (per curiam); Wood v. Moss, 134 S. Ct. 2056, 2067 (2014); Stanton v. Sims, 134 S. Ct. 3, 4–7 (2013) (per curiam); Messerschmidt v. Millender, 132 S. Ct. 1235, 1244–45 (2012); Ashcroft v. al-Kidd, 131 S. Ct. 2074, 2080 (2011); Safford Unified Sch. Dist. v. Redding, 557 U.S. 364, 377 (2009); Pearson v. Callahan, 555 U.S. 223, 231 (2009); Brosseau v. Haugen, 543 U.S. 194, 198 (2004); Groh v. Ramirez, 540 U.S. 551, 563 (2004); Hope v. Pelzer, 536 U.S. 730, 739 (2002); Saucier, 533 U.S. at 201; Wilson v. Layne, 526 U.S. 603, 609 (1999); Hunter v. Bryant, 502 U.S. 224, 227 (1991); Anderson v. Creighton, 483 U.S. 635, 638–39 (1987); Malley v. Briggs, 475 U.S. 335, 344–45 (1986); Davis v. Scherer, 468 U.S. 183, 190–91 (1984). See also Gonzalez v. City of Schenectady, 728 F.3d 149, 161 (2d Cir. 2013) (police officers only expected “to be familiar with black-letter law applicable to commonly encountered situations . . . .”); Zalaski v. City of Hartford, 723 F.3d 382, 389 (2d Cir. 2013) (to determine whether defendant violated clearly established federal law, issue “is not how courts or lawyers might have understood the state of the law at the time of the challenged conduct,” but “whether it would be clear to a reasonable officer that his conduct was unlawful in the situation he confronted”) (quoting Saucier v. Katz, 553 U.S. 194, 202 (2001)). Several of the Supreme Court qualified immunity decisions are in Bivens actions. The same qualified immunity analysis applies in § 1983 suits and Bivens suits. Wilson, 526 U.S. at 609; Davis, 468 U.S. at 194.
  4. ↑ Handt v. Lynch, 681 F.3d 939, 945 (2012).
  5. ↑ Davis, 468 U.S. at 191.
  6. ↑ Pearson, 555 U.S. at 231. Accord Wood v. Moss, 134 S. Ct. 2056, 2065 (2014).
  7. ↑ al-Kidd, 131 S. Ct. at 2085 (quoting Malley v. Briggs, 475 U.S. 335, 341 (1986)). Accord Messerschmidt, 132 S. Ct. at 1244–45.
  8. ↑ Ashcroft v. Iqbal, 556 U.S. 662, 685 (2009) (quoting Siegert v. Gilley, 500 U.S. 226, 236 (1991) (Kennedy, J., concurring in judgment)).
  9. ↑ Although the courts have articulated a variety of two- and three-part qualified immunity tests, the author believes that the essential qualified immunity question is whether the officer violated clearly established federal law. 1A Schwartz, supra note 1183, § 9A.04. See, e.g., Walczyk v. Rio, 496 F.3d 139, 154 (2d Cir. 2007) (three-part test); Causey v. City of Bay City, 443 F.3d 524, 528 n.2 (6th Cir. 2006) (observing that Sixth Circuit employs both two- and three-part tests); Frederick v. Morse, 439 F.3d 1114, 1122–23 (9th Cir. 2006) (three-part test); Borges-Colon v. Roman Abreu, 438 F.3d 1, 18–19 (1st Cir. 2006) (threepart test); Wilson v. Flynn, 429 F.2d 465, 467 (4th Cir. 2005) (two-part approach); Tinker v. Beasley, 429 F.3d 1324, 1326 (11th Cir. 2005) (three-step approach). For a cogent criticism of multipart tests, see Walczyk, 496 F.3d at 165–71 (Sotomayor, J., concurring).
  10. ↑ Crawford-El v. Britton, 523 U.S. 574, 588 (1998).
  11. ↑ See, e.g., Amore v. Novarro, 624 F.3d 522, 535 (2d Cir. 2010) (on § 1983 warrantless arrest claim, court does not consider officer’s subjective intent, but does consider information known to officer at time of arrest).
  12. ↑ Hope v. Pelzer, 536 U.S. 730, 741 (2002); United States v. Lanier, 520 U.S. 259, 270 (1997). Accord Tolan v. Cotton, 134 S. Ct. 1861, 1866 (2014).
  13. ↑ Maciariello v. Sumner, 973 F.2d 295, 298 (4th Cir. 1992). Accord Abdouch v. Burger, 426 F.3d 982, 987 (8th Cir. 2005); Littrell v. Franklin, 388 F.3d 578, 582 (8th Cir. 2004).
  14. ↑ 533 U.S. 194 (2001), overruled in part, Pearson v. Callahan, 555 U.S. 223 (2009).
  15. ↑ Saucier, 533 U.S. at 205.
  16. ↑ Id. at 206.
  17. ↑ Id. at 205.
  18. ↑ Torres v. City of Madera, 648 F.3d 1119, 1127 (9th Cir. 2011) (constitutional issue concerns reasonableness of officer’s mistake of fact, while qualified immunity issue of “clearly established law” concerns reasonableness of officer’s mistake of law), cert. denied, 132 S. Ct. 1032 (2012). See supra p. 59.
  19. ↑ Pearson, 555 U.S. at 231 (Alito, J.) (dictum) (quoting Groh v. Ramirez, 540 U.S. 551, 567 (2004) (Kennedy, J., dissenting)).
  20. ↑ See, e.g., Stearns v. Clarkson, 615 F.3d 1278, 1284–85 (10th Cir. 2010) (“fact that an officer obtains a prosecutor’s determination of probable cause is only one factor that is relevant to the qualified immunity analysis”); Moss v. Martin, 614 F.3d 707, 712 (7th Cir. 2010) (weight court gives to officer’s reliance on advice of counsel “depends on such factors like how much information counsel had and how closely tailored the advice was to the [law] in question”); Kennedy v. City of Cincinnati, 595 F.3d 327, 337 (6th Cir. 2010) (“following orders” defense not respected in American jurisprudence); Ewing v. City of Stockton, 588 F.3d 1218, 1231 (9th Cir. 2009) (while officer’s consultation with counsel does not automatically insulate officer from liability, it goes far to establish qualified immunity); Lawrence v. Reed, 406 F.3d 1224, 1230–31 (10th Cir. 2005). However, in some circumstances, official conduct pursuant to advice of counsel may render the official’s conduct objectively reasonable and, therefore, protected by qualified immunity. See, e.g., Sueiro Vazquez v. Torregrosa de la Rosa, 494 F.3d 227, 236 (1st Cir. 2007) (while acknowledging that acting on advice of counsel alone will not provide protection under qualified immunity, court ruled that defendants were protected by qualified immunity because their reliance on advice of government counsel, which they were required to follow, was not unreasonable). See also Fleming v. Livingston Cnty., 674 F.3d 874, 881 (7th Cir. 2012) (police officer consulting state’s attorney “goes a long way toward solidifying his qualified immunity defense”); Kelly v. Borough of Carlisle, 622 F.3d 248, 255–56 (3d Cir. 2010) (police officer who in good faith relied on prosecutor’s legal opinion that arrest is lawful is presumptively entitled to qualified immunity on claim arrest not supported by probable cause; plaintiff may rebut presumption by showing reasonable officer would not have relied on prosecutor’s advice). Presumptively Valid Statute: An officer who acted pursuant to a presumptively constitutional state statute or ordinance subsequently found to be unconstitutional will likely be protected by qualified immunity. See, e.g., Acosta v. City of Costa Mesa, 718 F.3d 800, 823 (9th Cir. 2013); Connecticut v. Crotty, 346 F.3d 84, 104 (2d Cir. 2003); Grossman v. City of Portland, 33 F.3d 1200, 1209 (9th Cir. 1994).
  21. ↑ 132 S. Ct. 1235 (2012).
  22. ↑ Messerschmidt, 132 S. Ct. at 1249 (citing Malley v. Briggs, 475 U.S. 335, 341 (1986)). See also Armstrong v. Asselin, 734 F.3d 984, 991–94 (9th Cir. 2013). Cf. Snider v. City of Cape Girardeau, 752 F.3d 1149 (8th Cir. May 30, 2014) (arresting officer not protected by qualified immunity because state penal law was clearly unconstitutional).
  23. ↑ Messerschmidt, 132 S. Ct. at 1250. To hold that the defendants/officers were not entitled to qualified immunity would mean that not only were they “‘plainly incompetent,’ but that their supervisor, the deputy district attorney, and the magistrate [who issued the warrant] were as well.” Id. at 1249 (citation omitted).
  24. ↑ See decisions cited in 1A Schwartz, supra note 1183, § 9A.05[D].
  25. ↑ See, e.g., Messerschmidt, 132 S. Ct. 1235; Ashcroft v. al-Kidd, 131 S. Ct. 2074 (2011); Safford Unified Sch. Dist. v. Redding, 557 U.S. 364 (2009); Ashcroft v. Iqbal, 556 U.S. 662 (2009); Pearson v. Callahan, 555 U.S. 223 (2009); Brosseau v. Haugen, 543 U.S. 194 (2004); Groh v. Ramirez, 540 U.S. 551 (2004); Anderson v. Creighton, 483 U.S. 635 (1987); Malley v. Briggs, 475 U.S. 335 (1986).
  26. ↑ 521 U.S. 399 (1997).
  27. ↑ 504 U.S. 158 (1992).
  28. ↑ See Clement v. City of Glendale, 518 F.3d 1090 (9th Cir. 2008); Vector Research, Inc. v. Howard & Howard Attorneys P.C., 76 F.3d 692 (6th Cir. 1996); Jordan v. Fox, Rothschild, O’Brien & Frankel, 20 F.3d 1250 (3d Cir. 1994); Wyatt v. Cole, 994 F.2d 1113 (5th Cir.), cert. denied, 510 U.S. 977 (1993).
  29. ↑ For post-Richardson decisions, compare, e.g., Burke v. Town of Walpole, 405 F.3d 66, 88 (1st Cir. 2005) (forensic odontologist retained by district attorney’s office to evaluate bite-mark evidence as part of criminal investigation was engaged in state action and entitled to assert qualified immunity), and Camilo-Robles v. Hoyos, 151 F.3d 1, 10 (1st Cir. 1998) (psychiatrists under contract with state to assist police department in evaluating police officers entitled to assert qualified immunity because they performed necessary function within police department), cert. denied, 525 U.S. 1105 (1999), with Jensen v. Lane Cnty., 222 F.3d 570, 577 (9th Cir. 2000) (private physician who provided services to county relating to civil commitment not entitled to assert qualified immunity), and Halvorsen v. Baird, 146 F.3d 680, 685 (9th Cir. 1998) (private not-for-profit organization providing municipality with involuntary commitment services for inebriates not entitled to assert qualified immunity; fact that organization was not for profit not sufficient basis for distinguishing Richardson). For pre-Richardson decisions allowing the private party defendant to assert qualified immunity, see Young v. Murphy, 90 F.3d 1225, 1234 (7th Cir. 1996) (private doctor hired by county to evaluate individual’s mental competency); Sherman v. Four County Counseling Center, 987 F.2d 397, 403 (7th Cir. 1993) (private hospital that accepted and treated mental patients pursuant to court order). See also 1A Schwartz, supra note 1183, § 9.15.
  30. ↑ Richardson, 521 U.S. at 413.
  31. ↑ 132 S. Ct. 1657 (2012).
  32. ↑ The Court seemed to assume that the attorney was engaged in state action. “Anyone whose conduct is ‘fairly attributable to the state’ can be sued as a state actor under § 1983.” Filarsky, 132 S. Ct. at 1661 (citing Lugar v. Edmondson Oil Co., 457 U.S. 922, 937 (1982). Lack of immunity of part-time city workers may “deprive state actors of the ability to ‘reasonably anticipate when their conduct may give rise to liability for damages.’” Id. at 1666 (quoting Anderson v. Creighton, 483 U.S. 635, 646 (1987)).
  33. ↑ Filarsky, 132 S. Ct. at 1663–64.
  34. ↑ Id. at 1665–66. Granting qualified immunity to individuals hired by government to carry out investigatory functions also avoids “significant line-drawing problems. It is unclear, for example, how Filarsky would be categorized if he regularly spent half his time working for the City, or worked exclusively on one City project for an entire year. . . . An uncertain immunity is little better than no immunity at all.” Id. at 1666.
  35. ↑ Id. at 1667.
  36. ↑ Fourth Circuit: Gregg v. Ham, 678 F.3d 333, 339–41 (4th Cir. 2012) (bail bondsman not entitled to assert qualified immunity because he doesn’t carry out public function and historically not afforded immunity). Sixth Circuit: McCullum v. Tepe, 693 F.3d 696, 704 (6th Cir. 2012) (psychiatrist, employed by nonprofit organization but working part-time for county as prison psychiatrist, not entitled to assert qualified immunity; no common-law tradition of immunity for private doctor working for public institution, and same market forces at play in Richardson suggest inappropriateness of immunity in instant case).
  37. ↑ See Lane v. Franks, 189 L. Ed. 2d 312 (2014); Plumhoff v. Rickard, 134 S. Ct. 2012 (2014); Wilson v. Layne, 526 U.S. 603 (1999).
  38. ↑ Anderson v. Creighton, 483 U.S. 635, 640 (1987). See also Saucier v. Katz, 533 U.S. 194, 201 (2001) (qualified immunity analysis “must be undertaken in light of the specific context of the case, not as a broad general proposition”). Accord Plumhoff v. Rickard, 134 S. Ct. 2012, 2023 (2014); Reichle v. Howards, 132 S. Ct. 2088, 2094 (2012); Brosseau v. Haugen, 543 U.S. 194, 198 (2004).
  39. ↑ Anderson, 483 U.S. at 640. However, the facts of the existing precedent need not be “materially similar” to those of the instant case. Hope v. Pelzer, 536 U.S. 730, 739 (2002). The issue is necessarily a question of degree.
  40. ↑ See, e.g., Dorheim v. Sholes, 430 F.3d 919, 926 (8th Cir. 2005) (need to weigh competing interests makes it difficult for plaintiff “to overcome a qualified immunity defense in the context of a child abuse investigation”); Manzano v. S.D. Dep’t of Soc. Servs., 60 F.3d 505, 510 (8th Cir. 1995) (same).
  41. ↑ Wilson v. Layne, 526 U.S. 603, 617 (1999). See also Plumhoff v. Rickard, 134 S. Ct. 2012, 2023 (2014); Ashcroft v. al-Kidd, 131 S. Ct. 2074, 2084 (2011); Pearson v. Callahan, 555 U.S. 223, 244–45 (2009).
  42. ↑ See Wilson, 526 U.S. at 620–21 (Stevens, J., dissenting). See also Hope v. Pelzer, 536 U.S. 730, 741 (2002).
  43. ↑ See, e.g., Lane v. Franks, 189 L. Ed. 2d 312 (2014); Stanton v. Sims, 134 S. Ct. 3 (2013) (per curiam); Reichle, 132 S. Ct. at 2096–97; Safford Unified Sch. Dist. v. Redding, 557 U.S. 364, 378–79 (2009); Wilson, 526 U.S. at 617.
  44. ↑ Wilson, 526 U.S. at 618. Accord Reichle, 132 S. Ct. at 2096.
  45. ↑ 536 U.S. 730 (2002).
  46. ↑ Id. at 741.
  47. ↑ Id. at 745.
  48. ↑ 131 S. Ct. 2074 (2011) (Bivens action).
  49. ↑ Id. at 2083 (citing Anderson v. Creighton, 483 U.S. 635, 640 (1987); Malley v. Briggs, 475 U.S. 335 (1986)).
  50. ↑ al-Kidd, 131 S. Ct. at 2084. The Supreme Court thus found that the circuit court erred in relying on broad historical principles underlying the Fourth Amendment. Id. See also Plumhoff v. Rickard, 134 S. Ct. 2012, 2023 (2014); Reichle, 132 S. Ct. at 2093–94.
  51. ↑ al-Kidd, 131 S. Ct. at 2083–84.
  52. ↑ Id. at 2084 (quoting Wilson, 526 U.S. at 617).
  53. ↑ Id. at 2085.
  54. ↑ 557 U.S. 364 (2009).
  55. ↑ Id. at 377 (quoting K.H. v. Morgan, 914 F.3d 846, 851 (7th Cir. 1990)).
  56. ↑ Id. at 377–78 (quoting Hope v. Pelzer, 536 U.S. 730, 741 (2002)).
  57. ↑ Id. at 378–79. When the United States overturns its own precedent, officials who relied on the prior precedent are protected by qualified immunity. Arizona v. Gant, 556 U.S. 332, 350 n.11 (2009) (dictum).
  58. ↑ Redding, 557 U.S. at 378.
  59. ↑ Anderson v. Creighton, 483 U.S. 635, 643–45 (1987); Malley v. Briggs, 475 U.S. 335, 344–45 (1986). See also Stanton v. Sims, 134 S. Ct. 3 (2013) (per curiam); Ryburn v. Huff, 132 S. Ct. 987, 992 (2012) (per curiam) (“reasonable police officers in [the defendant-officers’] position could have come to the conclusion that the Fourth Amendment permitted them to enter the Huff residence if there was an objectively reasonable basis for fearing that violence was imminent”).
  60. ↑ 475 U.S. 335 (1986).
  61. ↑ Id. at 343–46.
  62. ↑ Id. at 344–45.
  63. ↑ Id. at 344 (citing United States v. Leon, 468 U.S. 897 (1984) (objective reasonableness is standard for search pursuant to invalid search warrant)).
  64. ↑ Leon, 468 U.S. 897.
  65. ↑ 132 S. Ct. 1235 (2012).
  66. ↑ Id. at 1245. “‘[T]he same standard of objective reasonableness that [the Court] applied in the context of a suppression hearing in Leon defines the qualified immunity accorded an officer’ who obtained or relied on an allegedly invalid warrant.” Messerschmidt, 132 S. Ct. at 1245 n.1 (citations omitted). See also Armstrong v. Asselin, 734 F.3d 984, 991– 94 (9th Cir. 2013)
  67. ↑ Messerschmidt, 132 S. Ct. at 1245 (quoting Malley v. Briggs, 475 U.S. 335, 341 (1986)).
  68. ↑ Id. at 1245 (quoting Leon, 468 U.S. at 923).
  69. ↑ Id. at 1249 (quoting Malley, 475 U.S. at 341).
  70. ↑ Id. at 1250. There was no claim that the affidavit in support of the application for the warrant was misleading because it omitted material facts. Id. at 1245 n.2. The Court in Messerschmidt distinguished Groh v. Ramirez, 540 U.S. 551 (2004), on the ground that in Groh the search warrant’s failure to include a description of the person or property to be seized was a “glaring deficiency” that rendered the warrant invalid on even a “‘cursory reading of the warrant.’” Id. at 1250 (quoting Groh, 540 U.S. at 554–55 n.2). Any defect in Messerschmidt “would not have been obvious from the face of the warrant.” Id.
  71. ↑ Messerschmidt, 132 S. Ct. at 1249–50. To hold that the defendant-officers were not protected by qualified immunity would mean that not only were they “‘plainly incompetent,’ but that their supervisor, the deputy district attorney, and the magistrate were as well.” Id. at 1249 (citation omitted).
  72. ↑ 483 U.S. 635 (1987).
  73. ↑ Id. at 640.
  74. ↑ Id. The Supreme Court adhered to this approach in its later per curiam decision, Hunter v. Bryant, 502 U.S. 224 (1991). The Court explained that the proper inquiry is whether the officials “acted reasonably under settled law in the circumstances, not whether another, or more reasonable interpretation of events can be constructed.” Id. at 228.
  75. ↑ Anderson, 483 U.S. at 641.
  76. ↑ See Ryburn v. Huff, 132 S. Ct. 987 (2012) (per curiam).
  77. ↑ Anderson, 483 U.S. at 641.
  78. ↑ Id. at 640.
  79. ↑ 533 U.S. 194 (2001), overruled in part, Pearson v. Callahan, 555 U.S. 223 (2009).
  80. ↑ 490 U.S. 386 (1989).
  81. ↑ Saucier, 533 U.S. at 201–02. See also Plumhoff v. Rickard, 134 S. Ct. 2012, 2020 (2014); Brosseau v. Haugen, 543 U.S. 194, 198–99 (2004).
  82. ↑ Saucier, 533 U.S. at 203; Anderson, 483 U.S. at 643.
  83. ↑ See, e.g., Hunter v. Bryant, 502 U.S. 224, 227 (1991). See Zellner v. Summerlin, 494 F.3d 344, 370 (2d Cir. 2007) (“arguable” probable cause does not mean “almost” probable cause; essential inquiry is whether it was objectively reasonable to conclude there was probable cause).
  84. ↑ Saucier, 533 U.S. at 205.
  85. ↑ 523 U.S. 574 (1998).
  86. ↑ Id. at 594–97.
  87. ↑ Gomez v. Toledo, 446 U.S. 635, 640 (1980). Accord Crawford-El, 523 U.S. at 586; Siegert v. Gilley, 500 U.S. 226, 231 (1991); Harlow v. Fitzgerald, 457 U.S. 800, 815 (1982); Thomas v. Independence Twp., 463 F.3d 285, 293 (3d Cir. 2006). See Fed. R. Civ. P. 8(C) (affirmative defense must be raised in answer). The plaintiff does not have the burden of pleading facts relevant to the qualified immunity defense. Thomas, 463 F.3d at 292–94.
  88. ↑ See, e.g., Pasco v. Knoblauch, 566 F.3d 572, 577–78 (5th Cir. 2009); Stephenson v. Doe, 332 F.3d 68, 75–76 (2d Cir. 2003). See also cases discussed in 1A Schwartz, supra note 1183, § 9.14[C][2][b].
  89. ↑ 556 U.S. 662 (2009) (Bivens action).
  90. ↑ 550 U.S. 544 (2007).
  91. ↑ Iqbal, 556 U.S. at 669.
  92. ↑ See Randall v. Scott, 610 F.3d 701, 708–10 (11th Cir. 2010) (§ 1983 claims subject to qualified immunity are governed by Iqbal plausibility pleading standard).
  93. ↑ Iqbal, 556 U.S. at 678.
  94. ↑ Id. at 679.
  95. ↑ Id. at 684–85.
  96. ↑ Id. at 685 (citation omitted). The Court also ruled that Fed. R. Civ. P. 9(b), which, inter alia, allows intent to be “alleged generally,” “merely excuses a party from pleading discriminatory intent under an elevated pleading standard,” and “does not give him license to evade the less rigid— though still operative—strictures of [Fed. R. Civ. P.] 8.” Id. at 686–87 (citations omitted).
  97. ↑ See, e.g., Andrews v. Hickman Cnty., 700 F.3d 845, 853 (6th Cir. 2012); Purvis v. Oest, 614 F.3d 713, 717 (7th Cir. 2010), cert. denied, 131 S. Ct. 2991 (2011); Roska v. Sneddon, 437 F.3d 964, 971 (10th Cir. 2006); Ciminillo v. Streicher, 434 F.3d 461, 466 (6th Cir. 2006); Vinyard v. Wilson, 311 F.3d 1340, 1346 (11th Cir. 2002); McClendon v. City of Columbia, 305 F.3d 314, 323 (5th Cir. 2002) (en banc); Hicks v. Feeney, 850 F.2d 152, 159 (2d Cir. 1988).
  98. ↑ Lee v. Sandberg, 136 F.3d 94, 101 (2d Cir. 1997); Varrone v. Bilotti, 123 F.3d 75, 78 (2d Cir. 1997); Conn. Crim. Def. Lawyers Ass’n v. Forst (In re State Police Litig.), 88 F.3d 111, 123 (2d Cir. 1996).
  99. ↑ See Behrens v. Pelletier, 516 U.S. 299, 308–09 (1996) (motion to dismiss); Ortiz v. Jordan, 131 S. Ct. 884, 889–90 (2011) (motion for summary judgment or for judgment as matter of law).
  100. ↑ See, e.g., Warlik v. Cross, 969 F.2d 303 (7th Cir. 1992). See generally Ortiz v. Jordan, 131 S. Ct. 884 (2011).
  101. ↑ See McKenna v. Wright, 386 F.3d 432, 436 (2d Cir. 2004); Williams v. Ala. State Univ., 102 F.3d 1179, 1182 (11th Cir. 1997).
  102. ↑ See Ashcroft v. Iqbal, 556 U.S. 662 (2009).
  103. ↑ Id.; Williams, 102 F.3d at 1182.
  104. ↑ See Hunter v. Bryant, 502 U.S. 224, 227–28 (1991). See also Anderson v. Creighton, 483 U.S. 635, 646 n.6 (1987). Qualified immunity seeks to free officials from “‘disruptive discovery.’” Ashcroft v. Iqbal, 556 U.S. 662, 685 (2009) (quoting Siegert v. Gilley, 500 U.S. 226, 236 (1991) (Kennedy, J., concurring in judgment)).
  105. ↑ 502 U.S. 224 (1991).
  106. ↑ Id. at 228. Accord Wood v. Moss, 134 S. Ct. 2056, 2065 n.4 (2014).
  107. ↑ Hunter, 502 U.S. at 228. Accord Anderson, 483 U.S. at 646 n.6.
  108. ↑ Anderson, 483 U.S. at 646 n.6; Harlow v. Fitzgerald, 457 U.S. 800, 818–19 (1982).
  109. ↑ Behrens v. Pelletier, 516 U.S. 299, 312–13 (1996).
  110. ↑ See also id. at 306 (“Unless the plaintiff’s allegations state a claim of violation of clearly established law, a defendant pleading qualified immunity is entitled to dismissal before the commencement of discovery.” (internal quotation marks and citation omitted)).
  111. ↑ Mitchell v. Forsyth, 472 U.S. 511, 526 (1985) (plurality opinion).
  112. ↑ 457 U.S. 800 (1982).
  113. ↑ Anderson, 483 U.S. at 646 n.6.
  114. ↑ Lewis v. City of Fort Collins, 903 F.2d 752, 758 (10th Cir. 1990) (quotation omitted). See Fed. R. Civ. P. 56(f).
  115. ↑ 523 U.S. 574 (1998).
  116. ↑ Id. at 598–99.
  117. ↑ Id. at 599.
  118. ↑ Id.
  119. ↑ Id. at 599 n.20.
  120. ↑ Id. at 600 (quoting 28 U.S.C. § 1915(e)(2) (Supp. 1998)).
  121. ↑ Id. at 601.
  122. ↑ Anderson v. Creighton, 483 U.S. 635, 646 n.6 (1987).
  123. ↑ 134 S. Ct. 1861, 1865–68 (2014) (per curiam).
  124. ↑ 550 U.S. 372 (2007), discussed supra Chapter 5, § V.3.
  125. ↑ Mitchell v. Forsyth, 472 U.S. 511, 526 (1985).
  126. ↑ 131 S. Ct. 884 (2011).
  127. ↑ See Hunter v. Bryant, 502 U.S. 224, 228 (1991). See also Mitchell, 472 U.S. at 526; Harlow v. Fitzgerald, 457 U.S. 800, 817–18 (1982).
  128. ↑ See, e.g., A.D. v. Cal. Highway Patrol, 712 F.3d 446, 459 (9th Cir. 2013) (post-verdict court must apply qualified immunity framework to facts found by jury); Cortes-Reyes v. Salas-Quintana, 608 F.3d 41, 51 n.10 (1st Cir. 2010) (district court erroneously submitted qualified immunity to jury; whether defendant protected by qualified immunity is legal question for court, and jury’s role is to determine any preliminary factual questions); Gonzales v. Duran, 590 F.3d 855, 859–61 (10th Cir. 2009) (when facts relevant to qualified immunity in dispute, district court should submit special interrogatories to jury to determine facts, and should reserve for itself legal issue of qualified immunity; in rare cases when narrow issues of disputed material facts are dispositive of qualified immunity defense, district court may define clearly established law for jury and instruct jury to decide qualified immunity defense, i.e., whether defendant’s conduct was objectively reasonable under clearly established law defined by court; it is never proper to allow jury to determine what is clearly established law); Torres v. City of L.A., 548 F.3d 1197, 1211 (9th Cir. 2008) (qualified immunity may be submitted to jury when historical facts material to qualified immunity in dispute), cert. denied, 129 S. Ct. 1995 (2009). For other decisions taking this position, see Curley v. Klem, 499 F.3d 199, 211–15 (3d Cir. 2007); Willingham v. Crooke, 412 F.3d 553, 560 (4th Cir. 2005); Littrell v. Franklin, 388 F.3d 578, 584–85 (8th Cir. 2004); Carswell v. Borough of Homestead, 381 F.3d 235, 242 (3d Cir. 2004); Stephenson v. Doe, 332 F.3d 68, 80–81 (2d Cir. 2003); Johnson v. Breeden, 280 F.3d 1308, 1319 (11th Cir. 2002). But see Brown v. Sudduth, 675 F.3d 472, 482 (5th Cir. 2012) (“A jury may be given the issue of qualified immunity if that defense was not resolved on summary judgment.”) (citing Melear v. Separs, 862 F.2d 1177, 1184 (5th Cir. 1989)); McCoy v. Hernandez, 203 F.3d 371, 376 (5th Cir. 2000) (jury may decide qualified immunity defense); Presley v. City of Benbrook, 4 F.3d 405, 409 (5th Cir. 1993) (same). See also Zellner v. Summerlin, 494 F.3d 344, 368 (2d Cir. 2007) (citations omitted):

    Once the jury has resolved any disputed facts that are material to the qualified immunity issue, the ultimate determination of whether the officer’s conduct was objectively reasonable is to be made by the court. . . . To the extent that a particular finding of fact is essential to a determination by the court that the defendant is entitled to qualified immunity, it is the responsibility of the defendant to request that the jury be asked the pertinent question. If the defendant does not make such a request, he is not entitled to have the court, in lieu of the jury, make the needed factual finding.
  129. ↑ Rodriguez-Marin v. Rivera-Gonzales, 438 F.3d 72, 83 (1st Cir. 2006). Accord Curley, 499 F.3d at 215 (qualified immunity focuses on “established legal standards and requires a review of relevant case law, a review a jury simply cannot make”).
  130. ↑ 533 U.S. 194 (2001), overruled in part, Pearson v. Callahan, 555 U.S. 223 (2009).
  131. ↑ Saucier, 533 U.S. at 201. For decisions that reached the same result, see Harris, 550 U.S. at 377; Hope v. Pelzer, 536 U.S. 730, 736 (2002); Wilson v. Layne, 526 U.S. 603, 609 (1999); Conn v. Gabbert, 526 U.S. 286, 290 (1999); Cnty. of Sacramento v. Lewis, 523 U.S. 833, 841 n.5 (1998); Siegert v. Gilley, 500 U.S. 226, 231 (1991).
  132. ↑ 555 U.S. 223 (2009).
  133. ↑ Accord Plumhoff v. Rickard, 134 S. Ct. 2012, 2020 (2014); Tolan v. Cotton, 134 S. Ct. 1861, 1866 (2014) (per curiam); Reichle v. Howards, 132 S. Ct. 2088, 2093 (2012); Ashcroft v. al-Kidd, 131 S. Ct. 2074, 2080 (2011); Camreta v. Green, 131 S. Ct. 2020, 2031 (2011).
  134. ↑ Pearson, 555 U.S. at 242–43.
  135. ↑ Id. at 236 (quoting Lyons v. City of Xenia, 417 F.3d 565, 581 (6th Cir. 2005) (Sutton, J., concurring)).
  136. ↑ Id.
  137. ↑ Id. at 242. See, e.g., Plumhoff , 134 S. Ct. at 2020. When a circuit court follows the two-step procedure and decides both issues, the Supreme Court has “discretion to correct errors at each step.” al-Kidd, 131 S. Ct. at 2080. When the court of appeals finds that the defendant acted unconstitutionally, but is protected by qualified immunity because she did not violate clearly established federal law, the Supreme Court has discretion to review the decision of the circuit court, so long as an Article III case or controversy remains between the parties. Camreta v. Greene, 131 S. Ct. 2020 (2011).
  138. ↑ Pearson, 555 U.S. at 237, 239. See also Reichle, 132 S. Ct. at 2093 (court exercised discretion granted by Pearson and grated defendants “qualified immunity on the ground that a purported right was not ‘clearly established’ by prior case law, without resolving the often more difficult question whether the purported right exists at all”); al-Kidd, 131 S. Ct. at 2080.
  139. ↑ al-Kidd, 131 S. Ct. at 2080.
  140. ↑ Pearson, 555 U.S. at 237.
  141. ↑ Id.
  142. ↑ Id. at 238.
  143. ↑ Id.
  144. ↑ Id. at 238–39.
  145. ↑ 297 U.S. 288 (1936) (Brandeis, J., concurring).
  146. ↑ Pearson, 555 U.S. at 241.
  147. ↑ Behrens v. Pelletier, 516 U.S. 299, 313 (1996); Johnson v. Jones, 515 U.S. 304, 311 (1995); Mitchell v. Forsyth, 472 U.S. 511, 526–27 (1985). See also Ortiz v. Jordan, 131 S. Ct. 884, 891 (2011). The jurisdictional basis for this appeal is 28 U.S.C. § 1291, which provides that the “courts of appeal . . . shall have jurisdiction of appeals from all final decisions of the district courts of the United States.” When the qualified immunity appeal can be decided as a matter of law, the order denying qualified immunity is considered final under the “collateral order doctrine” articulated in Cohen v. Beneficial Industrial Loan Corp., 337 U.S. 541, 546 (1949). See Mitchell, 472 U.S. at 524–27.
  148. ↑ Johnson, 515 U.S. at 313. See also Ortiz, 131 S. Ct. at 2011.
  149. ↑ See Ashcroft v. Iqbal, 556 U.S. 662 (2009); McKenna v. Wright, 386 F.3d 432 (2d Cir. 2004).
  150. ↑ 516 U.S. 299 (1996).
  151. ↑ Id. at 306–07.
  152. ↑ Apostol v. Gallion, 870 F.2d 1335, 1339 (7th Cir. 1989).
  153. ↑ Behrens, 516 U.S. at 310–11; Chan v. Wodnicki, 67 F.3d 137, 139 (7th Cir. 1995); Yates v. City of Cleveland, 941 F.2d 444, 448 (6th Cir. 1991); Apostol, 870 F.2d at 1339.
  154. ↑ Behrens, 516 U.S. at 310–11. The appellate court also determines whether it has jurisdiction after the district court has determined the appeal to be frivolous. See, e.g., Dickerson v. McClellan, 37 F.3d 251, 252 (8th Cir. 1994).
  155. ↑ 131 S. Ct. 884 (2011).
  156. ↑ Id. at 889.
  157. ↑ Id. (citing Fed. R. Civ. P. 50(a), (b)).
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