SECTION 1983: QUALIFIED IMMUNITY Karen M. Blum ([email protected]) Suffolk University Law School Research Date: December 24, 2008 I. QUALIFIED IMMUNITY: PRELIMINARY PRINCIPLES . 1 A. Basic Doctrine .....................................1 B. Affirmative Defense.................................3 C. Timing and Questions of Waiver . 4 D. Discretionary Function .............................13 E. “Extraordinary Circumstances” . 22 1. Reliance on Advice of Counsel . 23 2. Reliance on Statutes, Ordinances, Regulations . 31 F. Supervisory Officials vs. “Line” Officers . 44 G. Constitutional-First-Question Analysis Required by Wilson/Saucier ................................52 II. HEIGHTENED PLEADING REQUIREMENT . 61 A. The Leatherman Decision ...........................61 B. Crawford-El v. Britton ..............................62 C. Swierkiewicz v. Sorema /Hill v. McDonough ............65 D. Jones v. Bock .....................................65 E. Bell Atlantic v. Twombly ............................67 F. Erickson v. Pardus .................................68 G. Cases in the Circuits ...............................68 III. ROLE OF THE JUDGE/JURY ..............................78 IV. QUALIFIED IMMUNITY AND FOURTH AMENDMENT CLAIMS .................................................91 A. Saucier v. Katz ....................................92 B. Brosseau v. Haugen ...............................94 C. Post-Brosseau Case Law............................95 V. SCOTT v. HARRIS : IMPLICATIONS FOR FOURTH AMENDMENT DEADLY FORCE CASES . 202 A. Reliance on the Video .........................202 B. “Objective Reasonableness” is “Pure Question of Law” ...............................211 C. Garner Does Not Establish “Magical On/Off Switch”.........................212 D. Post-Scott Cases ..............................214 I. QUALIFIED IMMUNITY : PRELIMINARY PRINCIPLES A. Basic Doctrine A public official performing a discretionary function enjoys qualified immunity in a civil action for damages, provided his or her conduct does not violate clearly established federal statutory or constitutional rights of which a reasonable person would have known. Harlow v. Fitzgerald, 457 U.S. 800, 818 (1982). The immunity is "immunity from suit rather than a mere defense to liability." Mitchell v. Forsyth, 472 U.S. 511, 526 (1985). See Tapley v. Collins, 211 F.3d 1210, 1214, 1215 (11th Cir. 2000) (“In Gonzalez the plaintiff argued that the existence of the good faith defenses in the Fair Housing Act meant that Congress intended to abrogate the defense of qualified immunity to claims under that act. We unequivocally rejected that argument and held that qualified immunity is a defense to the Fair Housing Act, despite the inclusion of a good faith statutory defense. We cited eleven federal appeals court decisions holding that qualified immunity is available as a defense to claims arising under eight different federal statutes. Gonzalez forecloses Tapley's contention, and the district court's holding, that the existence of an explicit good faith defense in [the Federal Wiretap Act] rules out the defense of qualified immunity. [C]ourts should not infer that Congress meant to abolish in the Federal Wiretap Act that extra layer of protection qualified immunity provides for public officials simply because it included an extra statutory defense available to everyone.”). Accord Blake v. Wright, 179 F.3d 1003 (6th Cir.1999); Babb v. Eagleton, No. 07-CV-24-TCK-SAJ, 2008 WL 2492272, at *3, *4 & n.4 (N.D. Okla. June 18, 2008) (“First, the Court must address whether quasi-judicial absolute immunity is a defense to a Title III claim, which presents a question of first impression in the Tenth Circuit. Father argues that the only defenses to a Title III claim are those listed in the statute, see, e.g., 18 U.S.C. § 2511(2)(a)-(i) (setting forth specific exceptions to Title III liability), and that the Court may not apply any defenses existing solely at common law, such as quasi-judicial immunity. The Court concludes that quasi-judicial absolute immunity is a defense to Title III liability, notwithstanding the fact that it is not listed as a specific statutory exception in the text of Title III. In the context of prosecutors performing quasi-judicial functions, federal courts have indicated that quasi-judicial immunity can serve as a defense to a Title III claim. In addition, there is authority holding that qualified immunity extended to government actors is a defense to Title III liability. [citing cases] . .The Tenth Circuit has not directly weighed in on the -1- question of whether qualified immunity is a defense to Title III. In the case of Davis v. Gracey, 111 F.3d 1472, 1481-85 (10th Cir.1997), the court addressed separately the issues of whether officers were entitled to qualified immunity from § 1983 liability and whether officers qualified for a statutory defense to Title III liability. This led the Sixth Circuit to classify the Tenth Circuit as having ‘implied’ that statutory defenses and qualified immunity are ‘separate defenses.’. However, the Court does not interpret Davis to hold or imply that federal common-law immunity doctrines are not defenses to Title III claims.”); Contra Berry v. Funk, 146 F.3d 1003 (D.C.Cir.1998). See also Gonzalez v. Lee County Housing Authority, 161 F.3d 1290, 1299, 1300 (11th Cir. 1998) ("Neither the text nor the legislative history of section 3617 [of Fair Housing Act] indicates that Congress intended to abrogate the qualified immunity to which executive-branch officials were entitled under common law. Because of this fact and in light of the importance of protecting officials' decision-making capacity, we conclude that executive-branch officials sued in their individual capacities under section 3617 may assert the defense of qualified immunity. In reaching this conclusion, we follow the only other court of appeals that has considered the matter. See Samaritan Inns, Inc. v. District of Columbia, 114 F.3d 1227, 1238-39 (D.C.Cir.1997) (allowing public officials sued in their individual capacities under section 3617 to plead the affirmative defense of qualified immunity); see also Baggett v. Baird, No. Civ.A.4:94CV0282-HLM, (N.D.Ga. Feb. 18, 1997) (granting summary judgment on the basis of qualified immunity in section 3617 action). Our holding also is consistent with various decisions in which this court and others have held that public officials are entitled to assert the defense of qualified immunity when sued under a federal statute other than section 1983."). The Eleventh Circuit has held that "for qualified immunity purposes, the term ‘damages' includes costs, expenses of litigation, and attorneys' fees claimed by a plaintiff against a defendant in the defendant's personal or individual capacity." D'Aguanno v. Gallagher, 50 F.3d 877, 881 (11th Cir. 1995). The court noted: In the present case, these kinds of monetary claims might follow from plaintiffs having a successful outcome (if they do) on their federal-law-based demands for injunctive and declaratory relief. The policy that supports qualified immunity--especially removing for most public officials the fear of personal monetary liability--would be undercut greatly if government officers could be held liable in their -2- personal capacity for a plaintiff's costs, litigation expenses, and attorneys' fees in cases where the applicable law was so unsettled that defendants, in their personal capacity, were protected from liability for other civil damages. Put differently, if a defendant has qualified immunity for damages, the defendant has good faith immunity for the purposes of fees and so on. Id. at 881-82. But see Meredith v. Federal Mine Safety and Health Review Commission, 177 F.3d 1042, 1049 (D.C. Cir. 1999) (“In this case, the UMWA sought an order under section 105(c) of the Mine Act. directing the party accused of unlawful discrimination to take affirmative action to abate the violation--a purely equitable remedy. In one of the complaints, the UMWA additionally sought payment of attorney's fees; but where attorney's fees are provided for by statute, as here, qualified immunity has no application.”); Tonya K. v. Board of Educ. of the City of Chicago, 847 F.2d 1243, 1246 (7th Cir.1988) (attorneys' fee award does not violate qualified immunity); Helbrans v. Coombe, 890 F. Supp. 227, 232 (S.D.N.Y. 1995) ("[T]he defense [of qualified immunity] has no application to a request for attorneys [sic] fees under Section 1988."). B. Affirmative Defense Although qualified immunity is an affirmative defense, see Gomez v. Toledo, 446 U.S. 635, 640 (1980), once the defendant pleads qualified immunity, the majority of circuits hold that the burden then shifts to the plaintiff to show that the right allegedly violated was clearly established at the time of the challenged conduct. See, e.g., Gardenhire v. Schubert, 205 F.3d 303, 311(6th Cir. 2000) (“The defendant bears the initial burden of coming forward with facts to suggest that he acted within the scope of his discretionary authority during the incident in question. Thereafter, the burden shifts to the plaintiff to establish that the defendant's conduct violated a right so clearly established that any official in his position would have clearly understood that he was under an affirmative duty to refrain from such conduct.”); Pierce v. Smith, 117 F.3d 866, 871 (5th Cir. 1997) (where § 1983 defendant pleads qualified immunity and shows he is a government official whose position involves the exercise of discretion, plaintiff has the burden to rebut qualified