IV. Qualified Immunity

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IV. QUALIFIED IMMUNITY

The U.S. Supreme Court has held that government officials performing discretionary functions are entitled to qualified immunity from suit and damages if "their conduct does not violate clearly established statutory or constitutional rights of which a reasonable person would have known."⁹⁶The critical issue is not whether a defendant actually infringed upon a plaintiff's rights: "Even defendants who violate constitutional rights enjoy a qualified immunity that protects them from liability for damages unless it is further demonstrated that their conduct was unreasonable under the applicable standard."⁹⁷ To aid in that determination, the Court has reaffirmed that "whether an official protected by qualified immunity may be held personally liable for an allegedly unlawful action turns on the 'objective legal reasonableness' of the action . . . assessed in light of the legal rules that were 'clearly established' at the time it was taken."⁹⁸ For the relevant legal standards to be "clearly established," the "contours" of the right alleged to have been violated "must be sufficiently clear that a reasonable official would understand that what he is doing violates that right."⁹⁹ Under the Harlow standard, "a defense of qualified immunity may not be rebutted by evidence that the defendant's conduct was malicious or otherwise improperly motivated. Evidence concerning the defendant's subjective intent is simply irrelevant to that defense."¹⁰⁰

A. The Evolution of Qualified Immunity

The doctrine of qualified immunity, like the absolute immunities discussed earlier in this chapter, is a judicially created doctrine that recognizes the common-law immunity of public officials for their "good faith" actions. The public policy behind such qualified immunity includes attracting competent individuals to public-sector jobs, encouraging individuals to serve in elected offices, allowing public officials to exercise unfettered discretion in serving the public good, and avoiding exposing public officials to unnecessary litigation that would distract them from their civic responsibilities.¹⁰¹ This concept of "good faith" qualified immunity has evolved from a two-pronged objective and subjective test, to a one-pronged objective test.

B. Wood v. Strickland and the Subjective Test

In Wood v. Strickland,¹⁰² the U.S. Supreme Court defined qualified immunity in § 1983 actions as including both an objective and subjective element. The Court, in a case involving the liability of school board members for disciplinary actions against students, articulated the standard as follows:

[A] school board member is not immune from liability for damages under § 1983 if he knew or reasonably should have known that the action he took within his sphere of official responsibility would violate the constitutional rights of the student affected, or if he took the action with the malicious intention to cause a deprivation of constitutional rights or other injury to the student.¹⁰³

Under the two-pronged Wood test, public officials could be held liable under § 1983 for violations of federal law when their conduct was either objectively unreasonable or in subjective bad faith.

The use of a subjective "good faith" standard in the application of qualified immunity, however, proved problematic because it triggered an examination of the public official's subjective state of mind at the time of the alleged unconstitutional act. Such a factual determination obviously frustrated the intent of qualified immunity to quickly resolve insubstantial lawsuits by way of a motion to dismiss or a motion for summary judgment.

C. Harlow v. Fitzgerald and the Objective Test

In Harlow v. Fitzgerald,¹⁰⁴ the Supreme Court recognized this problem and significantly redefined the standard for qualified immunity by abandoning the subjective prong of the qualified immunity test and holding that § 1983 defendants would only be liable for damages when their conduct violated clearly established federal law.¹⁰⁵ The Court discussed the parameters of its newly defined objective qualified immunity test as follows:

[W]e conclude today that bare allegations of malice should not suffice to subject government officials either to the costs of trial or to the burdens of broad-reaching discovery. We therefore hold 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.
Reliance on the objective reasonableness of an official's conduct, as measured by reference to clearly established law, should avoid excessive disruption of government and permit the resolution of many insubstantial claims on summary judgment. On summary judgment, the judge appropriately may determine not only the currently applicable law, but whether that law was clearly established at the time an action occurred. If the law at that time was not clearly established, an official could not reasonably be expected to anticipate subsequent legal developments, nor could he fairly be said to "know" that the law forbade conduct not previously identified as unlawful. Until this threshold immunity question is resolved, discovery should not be allowed. If the law was clearly established, the immunity defense ordinarily should fail, since a reasonably competent public official should know the law governing his conduct. Nevertheless, if the official pleading the defense claims extraordinary circumstances and can prove that he neither knew nor should have known of the relevant legal standard, the defense should be sustained. But again, the defense would turn primarily on objective factors.
By defining the limits of qualified immunity essentially in objective terms, we provide no license to lawless conduct. The public interest in deterrence of unlawful conduct and in compensation of victims remains protected by a test that focuses on the objective legal reasonableness of an official's acts. Where an official could be expected to know that certain conduct would violate statutory or constitutional rights, he should be made to hesitate; and a person who suffers injury caused by such conduct may have a cause of action. But where an official's duties legitimately require action in which clearly established rights are not implicated, the public interest may be better served by action taken "with independence and without fear of consequences."¹⁰⁶

The Court's reasoning in Harlow was later elaborated on in Crawford-El:

Two reasons that are explicit in our opinion in Harlow, together with a third that is implicit in the holding, amply justified Harlow's reformulation of the qualified immunity defense. First, there is a strong public interest in protecting public officials from the costs associated with the defense of damages actions. That interest is best served by a defense that permits insubstantial lawsuits to be quickly terminated. Second, allegations of subjective motivation might have been used to shield baseless lawsuits from summary judgment. The objective standard, in contrast, raises questions concerning the state of the law at the time of the challenged conduct—questions that normally can be resolved on summary judgment. Third, focusing on "the objective legal reasonableness of an official's acts" avoids the unfairness of imposing liability on a defendant who "could not reasonably be expected to anticipate subsequent legal developments, nor . . . fairly be said to 'know' that the law forbade conduct not previously identified as unlawful." That unfairness may be present even when the official conduct is motivated, in part, by hostility to the plaintiff.¹⁰⁷

1. Breaking Down the Harlow Standard

The U.S. Supreme Court has stated 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."¹⁰⁸

The discretionary versus ministerial function dichotomy in decision making, however, has rarely been used as a disqualifier for undertaking a qualified immunity analysis. In fact, more recent recitations of the qualified immunity standard by the U.S. Supreme Court do not even mention the discretionary function component of the test.¹⁰⁹

To the extent that the discretionary versus ministerial function test remains a part of qualified immunity practice, it has rarely been a standalone disqualifier of qualified immunity. For example, in Horta v. Sullivan,¹¹⁰the First Circuit downplayed the importance of discretionary versus ministerial functions in a qualified immunity analysis.

[In] spite of the reference to discretionary functions [in Harlow], it has never since been clear exactly what role, if any, this concept is supposed to play in applying qualified immunity. Judge Cummings, writing for the Seventh Circuit, warned that "it would be unwise to engage in a case by case determination of Section 1983 immunity based upon the ministerial versus the discretionary nature of the particular official act challenged."¹¹¹

Other circuits also have recognized the danger in rejecting qualified immunity claims merely on the basis of a determination that the functions involved are ministerial, rather than discretionary.

The distinction between ministerial and discretionary duties of public officials has a long history. However, the plaintiffs have cited, and we can find, no recent case other than that before us in which a court has rejected qualified immunity simply because the official in question was performing a ministerial duty.¹¹²

In Davis v. Scherer,¹¹³ the Supreme Court dramatically circumscribed the viability of the ministerial duty exception to qualified immunity. In Davis, the plaintiff, a discharged employee of the Florida Highway Patrol, sued certain...