Is There Hope After Hope? Qualified Immunity in the Eleventh Circuit - Christopher D. Balch

• Publication year: 2003

Special Contribution

Is There Hope After Hope?

Qualified Immunity in the

Eleventh Circuitby Christopher D. Balch*

"Qualified immunity jurisprudence has been turned on its head."¹ With those words at the beginning of his dissent in Hope v. Pelzer,² Justice Thomas uttered with obvious trepidation his perception that the majority of the Supreme Court had so completely disregarded the history and purpose of qualified immunity for public officials that the doctrine was effectively eliminated.³ However, the joyful celebration planned by lawyers for plaintiffs in civil rights suits was short lived.⁴ Qualified immunity is alive and well in the United States Court of Appeals for the Eleventh Circuit and, like Mark Twain, the reports of its death have been greatly exaggerated.⁵

I. Qualified Immunity: History and Purpose

Title 42 of the United States Code Sec. 1983 provides for civil actions against individuals who commit torts under color of state law.⁶ While the statute provides that every person who deprives someone of federally protected rights, privileges, or immunities "shall be liable" to the person wronged,⁷ the Supreme Court has long held that defenses are available to public actors.⁸ Qualified immunity is yet another in this litany of affirmative defenses.

The doctrine of qualified immunity was first announced in Harlow v. Fitzgerald.⁹ The Court held the doctrine was designed to protect public officials from liability unless their conduct violated "clearly established statutory or constitutional rights of which a reasonable person would have known."¹⁰ The pre-existing law must make the unlawfulness of the official's conduct readily apparent.¹¹ Qualified immunity was designed, from its inception, to give civil defendants the same protection afforded criminal defendants in the face of vague statutes.¹² in addition, the more practical purpose of qualified immunity was to "avoid excessive disruption of government and permit the resolution of many insubstantial claims on summary judgment."¹³ Qualified immunity is to protect "all but the plainly incompetent or those who knowingly violate the law."¹⁴

The Court's opinion in United States v. Lanier¹⁵ provides a salient example of the application of qualified immunity and hinted at the outcome of Hope v. Pelzer¹⁶ five years later. Judge David Lanier sat as the sole state Chancery Judge for two counties in West Tennessee. From 1989 to 1991, he sexually assaulted five women in his chambers who had cases pending before him or who were there on court business. He was initially charged with eleven counts of violating 18 U.S.C. Sec. 242¹⁷ and was convicted of seven of those charges.¹⁸ Section 242 is the criminal counterpart to 42 U.S.C. Sec. 1983¹⁹ and makes it a criminal offense to willfully deprive a person of a federally protected right or privilege.²⁰ The United States Court of Appeals for the Sixth Circuit, sitting en banc, reversed the conviction, holding that Judge Lanier was not on notice that his conduct might violate a federally protected right of his victims.²¹

The Supreme Court in turn vacated the Sixth Circuit's judgment and remanded.²² The Court held that some rights are just too plain to raise any sensible question about whether a public official had reasonable notice that his conduct was a violation of clearly established law.²³ In addition, the Court explained that the "fair warning" to which a public official accused of violating 18 U.S.C. Sec. 242 is entitled is the same notice that civil defendants receive by virtue of the qualified immunity defense.²⁴ Thus, Lanier provides both an interpretive guide and a landmark for the further application of qualified immunity.

However, a very special aspect of qualified immunity has made the doctrine as much a sword as a shield against claims. In the judicial creation of qualified immunity, the Supreme Court held that it is to be a shield against the burdens of litigation, not just a defense to liabili-ty.²⁵ As such, it should be decided as early in the litigation process as possible.²⁶ This also means that legal issues related to qualified immunity should be resolved prior to any trial of the case.²⁷ Thus, the denial of qualified immunity on a motion to dismiss or a motion for summary judgment is immediately appealable, even though there is no final order.²⁸ The right of interlocutory appeal and the purpose of qualified immunity to avoid the rigors of litigation make the defense nearly unique in American jurisprudence.

II. The United States Court of Appeals Puts a Spin on Qualified Immunity

In this circuit, the judges took the instructions of the Supreme Court seriously, and qualified immunity has received exceptional treatment. The immunity became very nearly one of unqualified immunity from suit.

While the seeds had been present for a number of years, the real turning point in this circuit's qualified immunity jurisprudence occurred in Lassiter v. Alabama A&M University.²⁹ In that case, Circuit Judge J.L. Edmondson, writing for the majority, explained:

For the law to be clearly established to the point that qualified immunity does not apply, the law must have earlier been developed in such a concrete and factually defined context to make it obvious to all reasonable government actors, in the defendant's place, that "what he is doing" violates federal law. Qualified immunity is a doctrine that focuses on the actual, on the specific, on the details of concrete cases.³⁰

The doctrine of qualified immunity has nothing to do with abstract or general rights in the Court's opinion. Rather, the inquiry requires the trial court to examine the conduct of defendants in light of the specific, factual contexts of prior cases.

"If case law, in factual terms, has not staked out a bright line, qualified immunity almost always protects the defendant."³¹ "The line is not to be found in abstractions—to act reasonably, to act with probable cause, and so forth—but in studying how these abstractions have been applied in concrete circumstances."³²

In the court's understanding of the doctrine of qualified immunity, public officials need not seek legal counsel or be lawyers themselves before acting reasonably under the circumstances.³³ "For 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."³⁴ The Eleventh Circuit later held that United States v. Lanier did not alter this circuit's qualified immunity analysis, despite the admonition from the Supreme Court that the Sixth Circuit's nearly identical standard was too rigid.³⁵ Finally, the database of relevant case law has been restricted by the Eleventh Circuit.³⁶ Not only do the facts of the pending case have to be very nearly on all fours with some past case, the only case law to be considered is that of the United States Supreme Court, the applicable United States court of appeals, and the highest court in the state where the case arose.³⁷ Prior to Hope, district judges thought "long and hard"³⁸ before determining that the case was sufficiently factually similar to a prior case from a court with binding authority that established a federally protected right that stripped a defendant of his right to qualified immunity.³⁹

III. Hope Gives Brief Hope to Plaintiffs

Whether Hope v. Pelzer⁴⁰ is the end of qualified immunity as we know it or simply an admonition to the Eleventh Circuit not to be so harsh or rigid in its analysis remains to be seen. It could also be that the case presented such appalling or egregious facts, like in United States v. Lanier,⁴¹ that the facts themselves shocked the majority's judicial conscience. Which it is, or if it is either, cannot yet be said, but an examination of the facts and the Court's application of law is nonetheless instructive.

Larry Hope was an inmate in the Alabama Department of Corrections. He was twice chained to a horizontal bar of sturdy, nonflexible material placed between four and five feet above the ground. Inmates were handcuffed to this bar in a standing position and remained in that position with their hands at about face level. The bar was used any time an inmate was disruptive on a work detail. On the second occasion that Hope was chained to the "hitching post," his shirt was removed, and he was left in the late spring sun for seven hours. Not only was Hope sunburned from this experience, he suffered from having his arms over his head the entire time (as he was only slightly taller than the bar). The sun's heat warmed the handcuffs to the point that they were hot and caused pain, and the sun heated the bar, which caused additional radiant heat to burn the inmate. On one occasion during this second experience, a guard taunted Hope by giving water to some dogs in the prison yard before tipping the cooler over and spilling water on the ground in front of Hope.⁴²

In affirming the grant of summary judgment to the individual defendants, the Eleventh Circuit first addressed a question left unanswered by the district court: Whether or not the conduct alleged constituted a constitutional violation?⁴³ The court of appeals concluded that shackling an inmate to a post in the manner described...