Nahmod Law

The Background

I have posted previously about absolute immunity, including legislative and judicial immunity. As discussed in those posts, absolute immunity from section 1983 damages liability is intended to protect certain persons who engage in allegedly unconstitutional legislative, judicial and prosecutorial conduct from not only liability but from the very costs of defending.

(see https://nahmodlaw.com/2012/10/25/a-section-1983-primer-7-introduction-to-absolute-individual-immunity/; https://nahmodlaw.com/2013/02/20/a-section-1983-primer-8-absolute-legislative-immunity/; https://nahmodlaw.com/2013/03/14/a-section-1983-primer-9-absolute-judicial-immunity/)

In contrast, qualified immunity from section 1983 damages liability (which covers state and local government officials who are not protected by absolute immunity) is intended primarily to protect these officials from liability itself. However, over the years the Supreme Court has increasingly broadened the scope of qualified immunity so that it often functions like absolute immunity to protect state and local government officials even from the costs of defending.

The Basics

Qualified immunity is an affirmative defense and so it must be raised by the defense. It becomes relevant when state or local government officials are sued in their individual capacities for damages. It once had both a subjective component–actual knowledge– and an objective component–the duty to know clearly settled law. See Wood v. Strickland, 420 U.S. 308 (1975). However, in a game-changing decision, the Supreme Court eliminated the subjective part, with the result that qualified immunity is now objective in nature. Harlow v. Fitzgerald,  457 U.S. 800 (1982).

In Harlow and other cases, the Court has emphasized that the qualified immunity determination is for the district court and should be made as quickly as possible, even before discovery. This change was intended by the Court, as a matter of policy, to protect government officials from “insubstantial” claims and thereby minimize the costs of defending.

The qualified immunity inquiry is as follows: as of the time of the challenged conduct, and under the circumstances facing the defendant, would a reasonable official have believed that he or she was violating clearly settled law.

This inquiry is, as noted, made as of the time of the challenged conduct (and is therefore backward-looking), while the constitutional merits of the section 1983 claim itself are decided under current constitutional standards. The Court has since emphasized that the clearly settled law inquiry should be made at a fairly fact-specific level because “fair notice” is what is required. Anderson v. Creighton, 107 S. Ct. 3034 (1987).

However, a case on all fours is not required for a finding of a violation of clearly settled law. Some conduct can be so obviously unconstitutional when it occurred that even without a comparable precedent, the government official violated clearly settled law. Hope v. Pelzer, 122 S. Ct. 2508 (2002). On the other hand, in the past decade and a half, the Court, particularly in law enforcement cases, has taken a much more pro-defendant position on qualified immunity, instructing courts not to make the clearly settled law inquiry at too general a level. For example, see: https://nahmodlaw.com/2019/03/04/city-of-escondido-v-emmons-another-scotus-summary-reversal-in-a-qualified-immunity-excessive-force-case/.

Whose decisions constitute clearly settled law? At the top of the list is a relevant Supreme Court decision. Next is a relevant decision of the particular circuit court of appeals (district court decisions are not clearly settled law although they may be evidence of it). Next is a strong consensus in the circuits. And although I have never seen this, it is even possible that a state Supreme Court decision on the relevant federal constitutional issue could constitute clearly settled law as well.

The qualified immunity inquiry is primarily for the trial judge. The jury should not be instructed about qualified immunity, although the jury’s findings of fact may be relevant to the qualified immunity outcome. Hunter v. Bryant, 112 S. Ct. 534 (1992). And while it is better for the development of constitutional law that the trial judge decide the constitutional merits before deciding qualified immunity, that is not mandatory. Pearson v. Callahan, 129 S. Ct. 534 (1992).

Finally, district court denials of qualified immunity based on the clearly settled law determination (and not on factual disputes) may be appealed immediately by government officials to the circuit court of appeals. See Mitchell v. Forsyth, 105 S. Ct. 2806 (1985) and Johnson v. Jones, 115 S. Ct. 2151 (1995).

On qualified immunity generally, see ch. 8 in Nahmod, CIVIL RIGHTS AND CIVIL LIBERTIES LITIGATION: THE LAW OF SECTION 1983 (2019)(West & Westlaw). You might also want to search “qualified immunity” on this blog for additional discussions of qualified immunity decisions.

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