XV. Personal Liability: Qualified Immunity

• Library: Sword and Shield: A Practical Approach to Section 1983 Litigation (ABA) (2015 Ed.)

XV. PERSONAL LIABILITY: QUALIFIED IMMUNITY

A. Introduction

Qualified immunity is the most important defense to § 1983 personal-capacity monetary claims. It is very frequently asserted as a defense to § 1983 personal-capacity claims for damages. Furthermore, courts decide a high percentage of § 1983 personal-capacity claims for damages in favor of the defendant on the basis of qualified immunity. Supreme Court decisional law holds that qualified immunity is not just an immunity from liability but an "immunity from suit"—that is, from the burdens of having to defend the litigation.²⁹⁶ The Court has thus "repeatedly 'stressed the importance of resolving [qualified] immunity questions at the earliest possible stage [of the] litigation.'"²⁹⁷ In fact, qualified immunity is usually raised on a motion for summary judgment and at times, on a motion to dismiss. And if the motion is denied, the defendant can usually take an immediate appeal from the denial of the motion.

Qualified immunity protects an 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.²⁹⁸ That the official may have violated clearly established state law is generally irrelevant.²⁹⁹ 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."³⁰⁰

B. Qualified Immunity Is an Objective Standard

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 not act in an objectively reasonable manner. The "dispositive inquiry" is whether it would have been clear to a reasonable official that her conduct violated federal law.³⁰¹ The official's subjective motivation is irrelevant to the qualified immunity defense but may be relevant to the constitutional claim asserted.³⁰²

The Supreme Court described qualified immunity 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.³⁰³ Under qualified immunity, public officials "are not liable for bad guesses in grey areas; they are liable for transgressing bright lines."³⁰⁴ In Hope v. Pelzer,³⁰⁵ the Supreme Court held that the defendant 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. The Supreme Court in Hope 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. "[Officials can still be on notice that their conduct violates established law even in novel factual circumstances."³⁰⁶ The Court in Hope found that the defendants had fair warning that their conduct was unconstitutional from (1) the reasoning of Eleventh Circuit authority, although not factually on all fours; (2) a regulation of the State Department of Corrections relating to use of the hitching post that had been ignored by prison officials; and (3) a U.S. Justice Department transmittal to the State Department of Corrections advising it that its use of the hitching post was unconstitutional. The Supreme Court relied upon this last factor even though the record did not show that the Department of Justice's position had been communicated to the defendant state officials.

C. Who May Assert Qualified Immunity?

State and local officials who carry out executive and administrative functions may assert qualified immunity.³⁰⁷ The Supreme Court has decided three cases concerning the right of a private party sued under § 1983 to assert qualified immunity. In Richardson v. McKnight³⁰⁸ the Supreme Court held that private prison guards are not entitled to assert qualified immunity. In Wyatt v. Cole,³⁰⁹ the Court held that a creditor who employed a state replevin procedure could not assert qualified immunity. The Supreme Court in Richardson and Wyatt left open whether the defendants in those cases 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.³¹⁰

In Richardson v. McKnight, the Supreme Court regarded the lack of government supervision over the private prison guards as an important factor justifying denial of the right to assert qualified immunity. Another important factor was that the prison guards were employed by a private business entity with a private profit motive to keep prison guard employees in line—that is, to ensure that they neither act too timidly, nor too aggressively, in violation of constitutional norms. The Court in Richardson and Wyatt did not resolve whether private-party state actors who carry out public functions, such as mental evaluations or civil commitments, may assert qualified immunity.³¹¹

More recently, in Filarsky v. Delia,³¹² the Supreme Court unanimously held that Steve Filarsky, a private attorney hired by a city to conduct an investigation concerning an employment dispute between the city and a city firefighter, and who was subsequently sued by the firefighter under § 1983, was entitled to assert qualified immunity. The Court said that there was no question that if Filarsky had been a public employee, he would have been entitled to assert qualified immunity. In holding that Filarsky should not be denied qualified immunity because he was not a public employee but a private individual retained by the city to participate in an internal affairs investigation, the Court looked to the common law in 1871 when the original version of § 1983 was enacted, including an appreciation of the "nature of government at that time."³¹³ In the late 19th century, government was smaller in size and in reach than it is today and was significantly administered by part-time public servants and private citizens who "were actively involved in government work," and the common-law immunities did not distinguish between public servants and private individuals engaged in carrying out governmental functions.³¹⁴ The Court in Filarsky also found that as a matter of policy, immunity under § 1983 should not depend on whether an individual works for the government full time or part time or is a private party retained by the government for a particular purpose. In all of these circumstances, affording the individual the protection of qualified immunity furthers the government's interests in attracting talented individuals to public service, and allows them to carry out their official responsibilities without fear of liability.

The Court in Filarsky distinguished the holding in Wyatt v. Cole that private creditors who invoked a state replevin law under which the sheriff seized disputed property were not entitled to claim qualified immunity on the ground that those creditors, unlike Filarsky, pursued merely private ends and carried out no governmental responsibilities.

The Court in Filarsky distinguished the holding in Richardson v. McKnight that prison guards employed by a private prison were not entitled to assert qualified immunity because private market forces ensured that the guards would not perform their public duties with unwarranted timidity. Nor was it likely that denial of qualified immunity would deter an individual from becoming a private prison guard. Further, the Court in Filarsky pointed out that the Richardson Court said it was making a "narrow" decision based upon the particular circumstances of "a private firm, systematically organized to assume a major lengthy administrative task (managing an institution) with limited direct supervision by the government, undertaking] that task for profit and potentially in competition with other firms."³¹⁵ The Court said that these factors were not present in the Filarsky case.³¹⁶ It should be noted that the Court in Filarsky, Richardson, and Wyatt did not make any determination whether the defendants in those cases acted under color of state law but bypassed that question and proceeded directly to the immunity issue. Of course, a determination that a private party sued under § 1983 did not act under color of state law would obviate the need to decide the immunity issue.

D. Clearly Established Federal Law

Normally, a controlling precedent of either the U.S. Supreme Court, the particular circuit, or the highest court in the state is necessary to clearly establish the federal law.³¹⁷

[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 has been held unlawful, but it is to say that in light of preexisting law the unlawfulness must be apparent.³¹⁸

For federal law to be clearly established, there must be fairly close factual correspondence between the prior precedents and the case at hand.³¹⁹ Federal law is less likely to be clearly established when it depends on an ad hoc balancing of competing interests.³²⁰ 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."³...