Martin A. Schwartz
Martin A. Schwartz ()

Plaintiffs who assert constitutional claims under 42 U.S.C. §1983 commonly seek money damages against a state or local official in the official’s personal capacity. These personal-capacity claims are subject to common law immunity defenses, either an absolute or qualified immunity.

An official sued under §1983 for carrying out a judicial, prosecutorial or legislative function is shielded by absolute immunity. Most §1983 defendants are sued for carrying out allegedly unconstitutional executive and administrative actions. These officials are entitled to assert qualified immunity, which, while not as potent as the absolute immunities, is a very formidable defense. It protects an official who violated federal law from liability so long as she did not violate clearly established federal law. In the author’s view it is the most important defense in §1983 litigation. In fact, a large percentage of §1983 claims are resolved in the defendant’s favor on the basis of qualified immunity.

This past term the U.S. Supreme Court rendered five decisions concerning qualified immunity (Lane v. Franks,1Wood v. Moss,2Plumhoff v. Rickard,3Tolan v. Cotton4 and Stanton v. Sims5). In four of these cases the court ruled in favor of the defendant on the basis of qualified immunity. In the fifth case, Tolan v. Cotton, the court decided only procedural issues. Although Wood v. Moss is actually a Bivens action against federal officials, the U.S. Supreme Court employs the same immunity principles for Bivens and §1983 claims. (A Bivens claim is a claim for damages against a federal official in his or her personal capacity. Bivens v. Six Unknown Agents of the Federal Bureau of Narcotics, 403 U.S. 388 (1971).) These five decisions, while not breaking new ground, apply numerous important qualified immunity principles. They are required reading for all Section 1983 litigators.

Explaining Immunity

Under qualified immunity, an official who violated the plaintiff’s constitutional rights will nevertheless be protected from liability if she did not violate clearly established federal law. In Wood,6 the court said that the “‘dispositive inquiry…is whether it would have been clear to a reasonable officer“‘ in the defendant’s position that her conduct was unconstitutional.

In Tolan,7 the court put it this way: The “‘salient question…is whether the state of the law’ at the time of the incident provided ‘fair warning‘ to the defendants ‘that their alleged [conduct] was unconstitutional.”‘8 The immunity is thus designed to balance ‘”the need to hold public officials accountable when they exercise power irresponsibly’” by violating clearly established constitutional rights “‘and the need to shield officials from harassment, distraction and liability when they perform their duties reasonably,”‘ even should it turn out that they acted unconstitutionally.9

The court in Plumhoff v. Rickard10 reiterated that qualified immunity is not just an immunity from liability, but also an “‘immunity from suit,’” which means an immunity from the litigation burdens of having to defend the action. To implement this “immunity from suit,” the court in Wood said that it has “repeatedly ‘stressed the importance of resolving immunity questions at the earliest possible stage [of the litigation].”‘11 The idea is to relieve officials sued under §1983 of the burdens of a trial and even, if possible, of discovery. Therefore, officials are entitled to raise qualified immunity on a pre-trial motion. In fact,qualified immunity is typically raised on a motion for summary judgment, which is how it was raised in four of the five Supreme Court cases last term. Sometimes, it is raised on a motion to dismiss, as in Wood.

The fact that qualified immunity is not just an immunity from liability, but also an “immunity from suit,” has another significant consequence. As the Supreme Court stated in Plumhoff, “pre-trial orders denying qualified immunity generally fall within the collateral order doctrine” exception to the federal courts’ final judgment rule, with the result that pre-trial orders denying qualified immunity normally are immediately appealable to the Court of Appeals.12

This right of immediate appeal can have serious negative consequences for §1983 plaintiffs stemming from the added litigation costs of the interlocutory appeal,13 as well as from the litigation delays caused by it, because the interlocutory appeal will normally stay proceedings in the district court. We will have more to say about the procedural aspects of qualified immunity later.

Right ‘Clearly Established’

In Tolan and Wood, the court identified the two pertinent issues when qualified immunity is raised on either a motion for summary judgment or a motion to dismiss; (1) Has the plaintiff alleged a violation of a federal right; and (2) If so, was that right clearly established at the time of the challenged conduct.14 In the 2009 case Pearson v. Callahan,15 the Supreme Court held that federal courts have discretion to either follow this two-step approach or, alternatively, bypass the first merits step and jump directly to the second “clearly established” federal law issue. So, how did the Supreme Court exercise this Pearson discretion in last term’s immunity decisions?

In Lane v. Franks, the court, without discussion about Pearson discretion, rendered an important decision holding that a public employee who testified truthfully pursuant to subpoena on a matter of public concern, outside of his ordinary job responsibilities, was engaged in protected First Amendment activity for the purpose of a §1983 free speech retaliatory firing claim. The court, however, went on to hold that because the First Amendment law had not been clearly established when the firing occurred, qualified immunity protected the defendant official from §1983 liability. It certainly made sense for the court in Lane to resolve the important First Amendment merits issue before proceeding to the “clearly established” federal law question. In addition, there was a pending official-capacity claim in the case, the resolution of which required a determination of the First Amendment merits issue.

On the other hand, in Wood, the court avoided the First Amendment free speech issue altogether by deciding only that the defendant secret service agents, who, charged with protecting President George W. Bush while he was traveling with his motorcade, moved a group of Bush protesters further away from the president while not moving the Bush supporters, were protected by qualified immunity because they did not violate clearly established First Amendment law. The court explained that it limited its decision to the immunity issue because it was reviewing the circuit court’s denial of the agents’ qualified immunity defense, and the agents’ brief in the Supreme Court “trained on the issue of qualified immunity.”16

In Stanton,17 too, which raised a §1983 Fourth Amendment claim, the U.S. Supreme Court “addressed only” the clearly established federal law issue, and held that the officers were protected by qualified immunity. In other words, it did not decide the merits of the Fourth Amendment issue, namely, whether the doctrine of hot pursuit extends to fleeing misdemeanants.

The problem is that when the Supreme Court, or a circuit court for that matter, does not decide the constitutional merits, an important constitutional issue may remain unresolved. This in turn will likely mean that when §1983 defendants in future cases raise qualified immunity as a defense to these claims, the constitutional law will still not be clearly established.

The court took a different approach in Plumhoff, a case in which the §1983 plaintiff asserted a Fourth Amendment excessive force claim. The court first addressed the Fourth Amendment merits issue because doing so was thought to be ‘”beneficial’ in develop[ing] constitutional precedent’ in an area that courts typically consider in cases in which the defendant asserts a qualified immunity defense.”18 Interestingly, after ruling on the merits that the officers’ use of force did not violate the Fourth Amendment, the court ruled in the alternative that even if their use of force violated the Fourth Amendment, they “would still be entitled to summary judgment based on qualified immunity” because they did not violate clearly established Fourth Amendment law. Lower courts,too, at times take this “even if” approach.

Making Determination

How do courts determine whether the governing constitutional law was clearly established at the time the defendant acted? Plumhoff stressed the court’s repeated admonition to not define ‘”clearly established law at a high level of generality,’… since doing so avoids the crucial question whether the official acted reasonably in the particular circumstances that he or she faced.”19 Normally, for the law to be clearly established there must be controlling precedent from the U.S. Supreme Court, the governing circuit, the highest court in the state, or perhaps a “robust ‘consensus of [other] cases of persuasive authority.’”20 On the other hand, a conflict in the circuits, or tension among precedent within a circuit, is a very strong indicator that the law was not clearly established.21 In Lane, the Supreme Court found that the law was not clearly established because there was both a conflict within the circuits and a discrepancy in the precedent of the governing circuit.

In Stanton, the Fourth Amendment law governing the hot pursuit of a fleeing misdemeanant was not clearly established because, inter alia, U.S. Supreme Court opinions on the issue were “equivocal,” “the most relevant opinion of the [governing] Ninth Circuit was readily distinguishable;… and the federal and state courts of last resort around the Nation were sharply divided.”22

Qualified immunity applies even in Fourth Amendment excessive force cases in which the governing constitutional merits standard itself is one of objective reasonableness. As a result, an officer’s use of force found to be objectively unreasonable under the Fourth Amendment may nevertheless be protected by qualified immunity if the officer acted reasonably for the purpose of qualified immunity. In other words, even though the use of force violated the Fourth Amendment, qualified immunity will protect the officer if he or she did not violate clearly established Fourth Amendment law.

Sometimes courts describe this as an officer’s use of force being at the “hazy border” between reasonable and unreasonable force.23 In Plumhoff, the Supreme Court held that prior Supreme Court precedent supported the conclusion that the defendants’ use of deadly force to terminate a dangerous high-speed pursuit did not violate clearly established Fourth Amendment law.24

In Wood, the court, in holding the secret service agents protected by qualified immunity, stressed that deferring to their exercise of discretion is especially critical when they are carrying out their obligation to protect the president. At the oral argument the chief justice gave plaintiffs’ attorney an “emergency evacuation” hypothetical that pretty much spelled doom for the plaintiffs:

Chief Justice John Roberts: “You’ve got to evacuate the President right away. Do you go through the anti-Bush crowd or through the pro-Bush crowd? You’ve got to decide right now quickly. I’m serious.”

Plaintiff’s Attorney (after pause): “Whichever way provides the clearest egress.”

Roberts: “It’s too late; you’ve got to decide like that.” (snapping his fingers).

Plaintiff’s Attorney: “… I’m not a security expert.”

Justice Antonin Scalia: “You’re the farthest thing from a security expert if you don’t know the answer to that one.” (audience chuckles).25

Procedural Issues

Qualified immunity brings to the table a large range of procedural issues, some of which can be difficult. In the author’s view the major difficulty stems from the Supreme Court’s persistence that district courts should normally decide qualified immunity pre-trial as a matter of law, when the reality is that in many cases whether the defendant violated clearly established federal law cannot be determined until disputed factual issues are resolved. Be that as it may, the great majority of qualified immunity defenses are in fact resolved on a defendant’s motion for summary judgment.

In Tolan,26 the court held that regardless of whether a court exercises discretion to first decide the constitutional merits, or proceeds directly to the clearly established federal law issue, the court must adhere to the generally applicable summary judgment principles of (1) not resolving “genuine disputes of fact in favor of the party seeking summary judgment”; and (2) evaluating the facts in the light most favorably to the non-movant, which means on a summary judgment qualified immunity motion to the plaintiff.27

The court in Scott v. Harris28 recognized an exception to this later principle, namely, when a videotape which accurately depicts the incident in question contradicts plaintiff’s version of the incident, a court on summary judgment should rely on the videotape. “When opposing parties tell two different stories, one of which is blatantly contradicted by the record, so that no reasonable jury could believe it, a court should not adopt that version of the facts for the purposes of…summary judgment.”29 Although there was video evidence in Plumhoff, the circuit court found that it did not provide “clear support for either the plaintiff’s or defendant’s version of what occurred,”30 which is likely why the Supreme Court in Plumhoff did not rely on the Scott principle.

The defendant’s right to take an interlocutory appeal from the denial of her summary judgment qualified immunity motion is analyzed in Plumhoff.31 The defendant has the right to take such an appeal where, as in Plumhoff, qualified immunity can be decided on appeal as a matter of law. On the other hand, if the district court denies summary judgment because it finds a disputed issue of material fact, and the defendant is not willing to concede plaintiff’s version of the facts for the purpose of her immunity appeal, the defendant does not have the right to take an immediate appeal.32

A defendant, such as the defendants in Wood, may take an immediate appeal from the denial of her motion to dismiss based on qualified immunity because on such a motion the court must take the factual allegations as true.33 This, of course, enables the appeals court to decide the qualified immunity issue as a matter of law.

The U. S. Supreme Court qualified immunity quintet encompasses a broad array of issues. They illustrate how hard it is in many cases for a plaintiff whose federal rights were violated by a state or local official to overcome the immunity defense.

1. 134 S. Ct. 2369 (2014).

2. 134 S. Ct. 2056 (2014).

3. 134 S. Ct. 2012 (2014).

4. 134 S. Ct. 1861 (2014)(per curiam).

5. 134 S. Ct. 3 (2014)(per curiam).

6. Wood, 134 S. Ct. at 2067 (quoting Saucier v. Katz, 533 U.S. 194, 202 (2001)).

7. 134 S. Ct. at 1866 (quoting Hope v. Pelzer, 536 U.S. 730, 741 (2002)) (emphasis added)).

8. See also Ashcroft v. Al-Kidd, 131 S. Ct. 2074, 2083 (2011) (law not clearly established unless it places right in question “beyond debate” ).

9. Wood, 134 S. Ct. at 2067 (quoting Pearson v. Callahan, 555 U.S. 223, 231 (2009)).

10. 134 S. Ct. at 2019 (quoting Pearson v. Callahan, 555 U.S. at 231, in turn quoting Mitchell v. Forsyth, 472 U.S. 511, 526 (1985)).

11. Wood, 134 S. Ct. at 2065 n.4 (quoting Hunter v. Bryant, 502 U. S. 224, 227 (1991) (per curium)).

12. Plumhoff, 134 S. Ct. at 2019 (citing cases).

13. In some cases there may be multiple interlocutory appeals. See Behrens v. Pelletier, 516 U.S. 299 (1996).

14. Tolan, 134 S. Ct. at 1863 (on summary judgment); Wood, 134 S. Ct. at 2066—67 (on motion to dismiss), Plumhoff, 134 S. Ct. at 2017.

15. 555 U.S. 223 (2009).

16. Wood, 134 S. Ct. at 2070.

17. 134 S. Ct. 3 (2014).

18. Plumhoff, 134 S. Ct. at 2020 (quoting Pearson v. Callahan, 555 U.S. at 236).

19. Id. at 2023 (quoting Ashcroft v. Al-Kidd, 131 S. Ct. 2074, 2084 (2011)) (emphasis added)). See also Tolan, 134 S. Ct. at 1866 (citing Saucier v. Katz, 533 U.S. 194, 201 (2001) and Anderson v. Creighton, 483 U.S. 635 (1987)).

20. See Plumhoff, 134 S. Ct. at 2023. See also Schwartz, Section 1983 Litigation: Claims and Defenses, Ch 9A §9A.09 (4th ed. 2014).

21. See e.g., Reichle v. Howards, 132 S. Ct. 2088 (2012) (conflict in circuits).

22. Stanton, 134 S. Ct. at 7.

23. Saucier v. Katz, 533 U.S. at 206. See also Brosseau v. Haugen, 543 U. S. 194, 201 (2004) (per curium).

24. Brosseau v. Haugen, 543 U.S. 194 (2004) (per curium). See also Scott v. Harris, 550 U.S. 372 (2007).

25. See 82 U.S.L.W. 3561.

26. 134 S. Ct. at 1865-68.

27. Because the circuit court in Tolan violated this second principle the Supreme Court summarily reversed.

28. 550 U.S. 372 (2007).

29. Id. at 380.

30. Estate of Allen v. City of Memphis, 509 Fed. Appx. 388, 391 (6th Cir. 2014).

31. 134 S. Ct. at 2018-20.

32. Johnson v. Jones, 515 U.S. 304 (1995). The Supreme Court refers to these non-appealable cases as raising a question of “evidence sufficiency,” that is, the propriety of the district court’s ruling that the summary judgment evidence is sufficient to support a version of the facts contrary to defendant’s version.

33. Wood, 134 S. Ct. at 2065 n.3 (quoting Ashcroft v. Iqbal, 556 6.5 at 678).