New Supreme Court Section 1983 Qualified Immunity Decision: Ortiz v. Jordan
Qualified Immunity Fundamentals
Qualified immunity under section 1983 is a powerful affirmative defense, protecting a state or local government official sued in an individual capacity from damages liability where the official can show that he or she acted with a reasonable belief in the constitutionality of the challenged conduct. To put it somewhat differently: a government official is not liable for damages for violating a person’s constitutional rights where a reasonable official, confronting the circumstances as they appeared to the official at the time of the challenged conduct and in light of then-established law, could have believed his or her conduct was constitutional. If the challenged conduct violated clearly settled law as of the time of the conduct, the official acted unreasonably and loses on qualified immunity. The qualified immunity standard is thus objective in nature. Harlow v. Fitzgerald, 457 U.S. 800 (1982) and Anderson v. Creighton, 483 U.S. 635 (1987). See generally chapter 8 of my treatise, CIVIL RIGHTS AND CIVIL LIBERTIES LITIGATION: THE LAW OF SECTION 1983 (4th ed. 2010)(CIVLIBLIT on Westlaw).
However, qualified immunity amounts to even more than this. Over the years it has increasingly begun to function more like absolute immunity: qualified immunity provides significant protection not only from damages liability but from the costs of defending as well. Thus, qualified immunity summary judgment motions should ordinarily be decided before any significant discovery is undertaken. Harlow v. Fitzgerald. In addition, denials of qualified immunity summary judgment motions are immediately appealable on issues of law, although not for evidentiary sufficiency. Johnson v. Jones, 515 U.S. 304 (1995).
The Decision in Ortiz v. Jordan
Suppose that defendants in a section 1983 case raise qualified immunity on summary judgment and lose at the district court level because there are genuine issues of material fact in dispute. The defendants choose not to appeal, the case goes to trial and a jury finds for the plaintiff. Suppose further that defendants never contested the jury’s liability finding under F.R.C.P. 50 (b) and also did not request a new trial under Rule 59(a). After the district court enters judgment for the plaintiff, the defendants appeal and argue that the district court should have granted their qualified immunity motion for summary judgment in the first place.
May the defendants appeal the denial of their qualified immunity motion for summary judgment after the district court has held a full trial on the merits? The Court in Ortiz v. Jordan (PDF), No. 09-737 (1-25-11), resolved a conflict in the circuits and unanimously answered NO.
In Ortiz, the plaintiff, a former inmate in a state reformatory, sued two superintending prison officials alleging that they violated the Eighth and Fourteenth Amendments when they failed to protect her from a second sexual assault (after she reported the first one) and also retaliated against her when she thereafter reported that she had been sexually assaulted twice by the same corrections officer. The defendants’ qualified immunity summary judgment motion was denied by the district court on the ground that there were genuine issues of material fact in dispute. Rather than appeal, the defendants proceeded to trial after unsuccessfully making motions for judgment as a matter of law under F.R.C.P. 50(a). The jury awarded $350,000 in compensatory and punitive damages against one defendant and $275,000 against the other. Defendants then appealed the district court’s order denying their qualified immunity summary judgment motion, and the Sixth Circuit reversed (PDF) on the ground that the defendants were protected by qualified immunity.
The Supreme Court in turn reversed unanimously in an opinion by Justice Ginsburg. The Court explained: “The order retains its interlocutory character as simply a step along the route to final judgment.” Once there is a trial, the qualified immunity defense must be addressed “in light of the character and quality of the evidence received in court.” Even though the Sixth Circuit in this case apparently reviewed the district court’s pretrial order in light of some evidence submitted at trial, this was impermissible because the defendants’ failure to renew their motion for judgment as a matter of law under Rule 50(b) deprived the Sixth Circuit of any “warrant to reject the appraisal of the evidence” by the district court which had seen and heard the witnesses. Furthermore, the Sixth Circuit’s decision was not based on a purely legal issue pursuant to Johnson v. Jones: the relevant Eighth Amendment law was clearly settled at the time of the challenged conduct. Consequently, defendants’ appeal was not properly before the Sixth Circuit because it involved evidentiary sufficiency, which defendants could have raised by post-trial motion under Rule 50(b) but did not.
Justice Thomas, joined by Justices Scalia and Kennedy, concurred in the judgment. They complained that the Court should have limited its decision to the impropriety of appealing a district court’s denial of a qualified immunity summary judgment motion after a trial on the merits without getting into the effect of the defendants’ post-trial failure to renew their motion for judgment as a matter of law under Rule 50(b). In their view, this was a relatively easy case where the Court of Appeals did not have jurisdiction to review, and the Court should not have reached out to address “difficult and far-reaching questions of civil procedure.”
1. The Court did not rule that the defendants waived their qualified immunity defense. Rather, had they properly used Rule 50(b), they could have renewed the question of their entitlement to qualified immunity after trial. Because they did not do so, the Sixth Circuit did not have jurisdiction over their attempt to appeal the district court’s denial of their pretrial qualified immunity summary judgment motion.
2. Note that the Court rejected the defendants’ contention that their appeal only raised issues of law that the Sixth Circuit had jurisdiction to decide.
3. Despite the misgivings of the concurring Justices, the Court acted appropriately in advising attorneys how to deal with qualified immunity under Rule 50(b) in situations where denials of qualified immunity summary judgment motions are not immediately appealed and section 1983 damages claims against state and local government officials go to trial.