Nahmod Law

Years ago, I argued a section 1983 case for the plaintiff before the Seventh Circuit (Richman v. Sheahan, 270 F.3d 430 (7th Cir. 2001)), where the primary issue on appeal was whether the defendant deputy sheriffs who allegedly used excessive force against the decedent in court were protected by absolute quasi-judicial immunity or instead only by qualified immunity. As I was in the middle of arguing that the deputy sheriffs were not protected by absolute immunity, Judge Posner asked me this question (and I paraphrase): “Mr. Nahmod, even if you’re correct that only qualified immunity applies, why can’t the defendants argue that because the scope of immunity issue on appeal here is not clearly settled, then they win regardless because they are thereby protected by qualified immunity?”

My answer was that the clearly settled law inquiry focused on the applicable constitutional norm, and not on whether it was unclear to the defendant at the time he acted that he might be protected by absolute immunity. After all, wasn’t qualified immunity concerned with a defendant’s duty to know clearly constitutional law in the course of deciding how to act? Other section 1983 considerations should be irrelevant to this particular inquiry, I argued. My answer seemed to satisfy Judge Posner because he leaned back in his chair and did not pursue the matter further.

I think my answer was correct then and it is still correct now. And that is what the Sixth Circuit soundly ruled in Jackson v. City of Cleveland, 925 F.3d 793 (6^th Cir. 2019), cert denied, 140 S. Ct. 855 (2020), an important and under-appreciated qualified immunity decision.

In Jackson, exonerated plaintiffs, former convicts, alleged that a police officer who in 1975 fabricated evidence and withheld exculpatory information from the prosecution, but did not testify for the prosecution, was liable for section 1983 malicious prosecution. The Sixth Circuit ruled that the defendant was not protected by qualified immunity. It rejected the officer’s argument that section 1983 malicious prosecution law was in a state of flux and not clearly settled in 1975, and that therefore he was entitled to qualified immunity.

The Sixth Circuit responded: “Whether a defendant is protected by qualified immunity turns not on whether the defendant was on notice that his actions satisfied the elements of a particular cause of action, but instead on whether the defendant was on notice that his actions violated the laws of the United States.” The clearly settled law focus was thus on whether a reasonable officer was on fair notice that his conduct was unconstitutional because it violated due process.

Along these lines, the Sixth Circuit observed, the defendant had cited no case indicating that for due process purposes, an officer who fabricates evidence must also have testified for the prosecution and thereby influenced the decision to prosecute. Consequently, the defendant was not protected by qualified immunity: his conduct in fabricating evidence violated clearly established due process law. It did not matter “what name we give to the claim.”

(Judge Keith concurred, suggesting that a jury instruction on immunity could have resolved the qualified immunity issue at trial because this case was so fact intensive and depended on whose view of the facts was believed by the jury.)

Comment

The Sixth Circuit got it right. There are various elements of any section 1983 claim that do not go to the particular constitutional norm whose violation is alleged. Causation in fact, proximate cause, damages and the scope of immunity are examples. So that even if the law regarding these elements was not clearly settled at the time of the allegedly unconstitutional conduct, a defendant who has violated the relevant clearly settled constitutional law norm is not protected by qualified immunity.

In short, it is not a defendant’s uncertainty about potential liability that is determinative of the clearly settled law inquiry, and therefore of qualified immunity protection. Rather, it is the defendant’s uncertainty about the relevant constitutional norm that is determinative of qualified immunity protection.

And just in case you’re wondering, the Seventh Circuit in Richman untlmately held in the plaintiff’s favor that the deputy sheriffs were not protected by absolute quasi-judicial immunity.

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