Qualified Immunity in the Eleventh Circuit After Hope v. Pelzer

• Citation: Vol. 9 No. 2 Pg. 0002
• Pages: 0002
• Publication year: 2003

Georgia Bar Journal Volume 9.

GSB Vol. 9, No. 2, Pg. 2. Qualified Immunity in the Eleventh Circuit After Hope v. Pelzer

Georgia State Bar Journal
Vol. 9, No. 2, October 2003

"Qualified Immunity in the Eleventh Circuit After Hope v. Pelzer"

By Michael B. Kent Jr.

The defense of qualified immunity protects government officials performing discretionary functions from liability trial, and other burdens of civil litigation (such as discovery), as long as their conduct does not violate "clearly established statutory or constitutional rights of which a reasonable person would have known."1 This defense, which ultimately derives from the common law immunity enjoyed by judicial officers2, plays a significant role in lawsuits alleging constitutional or civil rights violations by officials of local governments.3 In situations where officials are forced to make quick decisions under volatile circumstances - for example, when a police officer must use force to effect an arrest - the defense is particularly necessary to balance the rights of individuals legitimately falling victim to abuse of power against the costs that insubstantial litigation imposes on society.4

Since 1982, when the Supreme Court established the contemporary formula for granting qualified immunity, the Eleventh Circuit Court of Appeals has frequently been called upon to define the contours of the defense as it applies to government officials in Georgia, Florida and Alabama. Over the course of time, the Eleventh Circuit's decisions gave a distinct shape to the doctrine of qualified immunity and rendered the defense the decisive issue in most cases alleging civil rights violations by government officials. As the court explained as recently as 2001: "A government-officer defendant is entitled to qualified immunity unless, at the time of the incident, the 'preexisting law dictates, that is, truly compel[s],' the conclusion for all reasonable, similarly situated public officials that what Defendant was doing violated Plaintiffs' federal rights in the circumstances."5 Although circumstances clearly existed under which qualified immunity would be denied, government officials could find comfort that, in most cases, their entitlement to qualified immunity would be upheld

In July 2002, however, the Supreme Court issued a decision that threatened the stability of the Eleventh Circuit's qualified immunity jurisprudence and raised several questions about the doctrine's applicability in the states that comprise the Eleventh Circuit. In Hope v. Pelzer6 - a case where a panel of the Eleventh Circuit had affirmed the district court's grant of qualified immunity - the Supreme Court held that the defense was not applicable and accused the Eleventh Circuit of imposing a "rigid gloss on the qualified immunity standard."7 The decision in Hope potentially dealt a harsh blow to twenty years' worth of case law, as well as to the rules under which qualified immunity in the Eleventh Circuit was analyzed. Since Hope, however, the Eleventh Circuit has indicated that those rules, and the defense of qualified immunity, are very much alive and well despite premature reports to the contrary

This article explains the law of qualified immunity in the Eleventh Circuit prior to the Hope decision and examines how the fundamental characteristics of that law were called into question by Hope. This article also examines the Eleventh Circuit's post-Hope decisions, demonstrating that the substance of qualified immunity in the Eleventh Circuit essentially remains the same

QUALIFIED IMMUNITY IN THE ELEVENTH CIRCUIT PRIOR TO HOPE

In Harlow v. Fitzgerald, the Supreme Court laid down the general rule that "government officials performing discretionary functions generally are shielded from liability for civil damages insofar as their conduct does not violate clearly established statutory or constitutional rights of which a reasonable person would have known."8 Abandoning prior precedent that largely analyzed qualified immunity by looking to the subjective intent of the official, the Court announced that, from that point forward, the entitlement to qualified immunity would depend primarily on objective factors.9 The Court explained that its new test struck the proper balance between the competing interests underlying most civil rights litigation. Where an individual's rights are clearly established, the official can be expected to know whether his conduct violates those rights, and he should be subject to liability. On the other hand, where an individual's rights are not clearly established, the public interest is better served by allowing the official to perform his duties "with independence and without fear of consequences."10

At first, the Eleventh Circuit seemed slow to adopt the new Harlow formula for qualified immunity11, but the court clearly had become a believer by 1994 when it issued its en banc decision in Lassiter v. Alabama A&M University.12 Latching on to Harlow's rationale that an official can be charged with knowing whether his conduct violates a "clearly established" right, the court undertook to define what "clearly established" meant in the objective context of qualified immunity. Noting that "government agents are not always required to err on the side of caution," the court explained that rights generally are clearly established only when they previously have been developed in "such a concrete and factually defined context to make it obvious to all reasonable government actors, in the [official's] place, that 'what he is doing' violates federal law."13 What this means in real life, according to the Lassiter court, is that a civil rights plaintiff cannot defeat the qualified immunity defense by pointing to general propositions and abstractions, such as a requirement that the official act reasonably.14 Rather, to defeat qualified immunity, the rights at issue must have been defined by prior cases, the facts of which, although not required to be identical, must be "materially similar" to the facts of the case being decided.15 Put differently, "[f]or qualified immunity to be surrendered, pre-existing law must dictate, that is, truly compel (not just suggest or allow or raise a question about), the conclusion for every like-situated, reasonable government agent that what defendant is doing violates federal law in the circumstances."16

The Lassiter formulation of qualified immunity itself became "clearly established" in the Eleventh Circuit, although the court did add two clarifications and one...