AJEI provided a panel of speakers well-versed in the issue of qualified immunity to delve a little deeper into this well-known, sometimes misunderstood, and presently much discussed federal defense. In light of general public outcry and challenges to law enforcement and the criminal justice system of late, the topic could not be more necessary and relevant. Speakers included Professor Emerita and Research Professor of Law at Suffolk University Law School, Karen M. Blum, who has taught for over forty years in the areas of Federal Courts, Police Misconduct Litigation, and Civil Procedure; Lisa Soronen, the Executive Director of the State and Local Legal Center, who files amicus curiae briefs to the United States Supreme Court on behalf of numerous associations of state and local government agencies on issues of importance to them; and Moderator Brian Miller, who is a partner at Royston Rayzor Vickery & Williams L.L.P. in Corpus Christi, Texas and focuses on civil appellate litigation, including civil rights. Though scheduled to be on the panel, John Fattahi, who is a civil rights attorney litigating police and jail misconduct cases throughout California, was unable to attend the summit. Although one voice was missing from the knowledgeable panel, the panel spoke about current issues being debated in the legal community on the continuing viability of the defense and its practical workability. These varying views serve as a good jumping off point for further exploration of how the defense can be understood and what modifications might be considered to help the doctrine better achieve its goals. Revisions to the doctrine or its application might provide better protection of public officials and the public fisc, while still allowing cases to proceed in which there are genuine issues of potential liability.
Ms. Soronen began by summarizing background principles underlying qualified immunity: it is a defense to federal claims under 42 U.S.C. Section 1983, which relate to constitutional and statutory violations seeking money damages; the doctrine is very favorable to public/governmental officials, in that it provides a one-time free pass for alleged violations of rights -- as to matters of fact/law that are not clearly established, and the defense is only denied to those who are plainly incompetent. It is often used in the context of law enforcement, but also as to free speech rights.
Prof. Blum addressed the fundamental question of “Where did qualified immunity come from?” In answer to this query, she noted that qualified immunity has underlying roots in the decision in Pierson v. Ray, 386 U.S. 547 (1967), which recognized a good faith defense under common law.
Pierson involved a claim that officers had falsely arrested and imprisoned ministers who had entered segregated areas and were arrested under Mississippi law for conduct that was alleged to be a breach of the peace. Indeed, under Pierson, the Supreme Court recognized that a police officer is “excus[ed] . . . from liability for acting under a statute that he reasonably believed to be valid but that was later held unconstitutional, on its face or as applied.” Id. at 555.
In addition, Prof. Blum referenced Harlow v. Fitzgerald, 457 U.S. 800 (1982), wherein the qualified immunity defense was morphed into today’s standard. This landmark decision solidified the now-ruling objective component of the qualified immunity defense. Prof. Blum further emphasized that qualified immunity only applies to individual officials sued in their individual capacity.
As Harlow recognized, “[t]here are special costs to ‘subjective’ inquiries,” in that “questions of subjective intent so rarely can be decided by summary judgment,” and such motions can, in turn “be peculiarly disruptive of effective government.” Id. at 816-817. Thus, the standard since Harlow has been an inquiry into only the objective intent of an official claiming qualified immunity. As Harlow states: “government officials performing discretionary functions, generally are shielded from liability for civil damages insofar as their conduct does not violate clearly established statutory or constitutional rights of which a reasonable person would have known.” Id. at 818. These principles have become fashioned into an analysis of whether the law was clearly established at the time of the official’s actions, such that every reasonable person would know that the actions of the official were a violation of the law. See, e.g., Saucier v. Katz, 533 U.S. 194, 201 (2001) (asking whether a constitutional right was “clearly established” at time of alleged violation).
The panel noted that there is some question in the legal community as to the underlying foundation of the defense being adequately or legitimately based on the common law. There are also questions as to whether the doctrine should remain as-is, or whether it should be modified, or even eliminated.
Notably, Prof. Blum referenced Justice Thomas’s questioning of the underpinnings of qualified immunity and its reliance on the common law. See Ziglar v. Abbasi, 137 S. Ct. 1843 (2017) (Thomas, J., concurring). This is discussed in Prof. Blum’s article, which was provided in the panelists’ materials: “Qualified Immunity: Time to Change the Message,” 93 Notre Dame L. Rev. 1887 1891 (2018). Prof. Blum also referenced a dissent by Justice Sotomayor wherein she cautioned that the Court’s opinion “tells officers that they can shoot first and think later.” See Kisela v. Hughes, 138 S. Ct. 1148, 1162 (2018) (Sotomayor, J., dissenting).
Ms. Soronen mentioned that, given changes to the makeup of the Court, there may be changes to qualified immunity in the future, and that those changes potentially entail strengthening of the doctrine. Though the views of Justices Gorsuch and Barrett are not really known, Soronen noted one opinion from Justice Kavanaugh as a circuit judge offered a glowing view of qualified immunity – likely referring to Wesby v. District of Columbia, 816 F.3d 96, 102 (D.C. Cir. 2016) (Kavanaugh, J., dissenting).
Moderator Miller noted that, given Mr. Fattahi’s impressive success rate bringing Section 1983 cases on behalf of plaintiffs -- despite the difficulty of such cases, the panel was really missing his perspective. This consideration of the value of the viewpoint of a plaintiff-side, successful civil rights practitioner came as the panel discussed one of the primary purposes of qualified immunity -- freedom from suit. This purpose means that issues relating to applicability of the defense should be able to be decided quickly, such as on motions to dismiss or summary judgment. With respect to such motions, litigants in may need to rely on particular sources of evidence relating to immunity, such as training materials and public information concerning violations, other complaints, news articles, or key witnesses.
Once a case has commenced, Prof. Blum cited Anderson v. Creighton on the issue of limited discovery that may be needed at the outset of an action, in order for a qualified immunity issue to be decided at early stages. See 483 U.S. 635 (1987). However, she noted that even the limited discovery relating to immunity can delay the action. This is particularly true when a qualified immunity issue is directly appealed, and further delays the action proceeding to trial. She referenced the Fifth Circuit’s decision in Carswell v. Camp, which found that a court must rule on a motion to dismiss claiming qualified immunity, and cannot defer ruling on that issue, even for tailored discovery. See 2022 U.S. App. LEXIS 33072, *10 (5th Cir. 2022) (citing Ashcroft v. Iqbal, 556 U.S. 662 (2009)).
Moderator Miller pointed out that early determination of qualified immunity can facilitate settlement, if not too much is spent on discovery. In fact, quick decisions are needed on motions to dismiss, due to direct appeal rights in qualified immunity decisions.
Prof. Blum addressed the question of who has the burden of proof on this defense. She noted that the United States Supreme Court has not answered this question, and the circuit courts are split on the issue. The Ninth Circuit has even decided it both ways, and an Arizona case recently noted the array of conflicting decisions. She also questioned whether there should even be a burden of proof since qualified immunity presents a question of law at early stages. In fact, she pointed out that the Supreme Court has recently made clear that it is the court that must find that there is clearly established law in order to deny the defense.
Ms. Soronen noted recent media attention highlighting the defense of qualified immunity. She referenced the views and research of Joanna Schwartz, who has raised policy questions regarding whether Harlow’s justification is proper. In the materials the panel members provided, a copy of a recent article by Ms. Schwartz was included: “The Case Against Qualified Immunity,” 93 Notre Dame L. Rev. 1797 (2018).
One of the concerns with qualified immunity among critics of its current configuration is whether and how well it achieves some of the purposes on which courts have relied to justify the doctrine. For instance, one purpose is protecting individual public officials from being subject to damages. However, in reality, it is often public entity employers that pay damages awarded against employees in their individual capacities – indemnifying them from such liability. Thus, the policy purpose of protecting individuals against money damages awards seems unnecessary. Nonetheless, there is a very real benefit to governmental officials not being subject to suit. Even when damages are paid by an employer, an important psychological advantage remains for individual defendants, which is an important purpose that is still satisfied.
The purpose of public officials being free from suit is also often an elusive benefit, as qualified immunity, many times, fails to achieve quick exclusion of individual defendants. Often, the doctrine does not prevent discovery, or even trial. However, the reality is that even if some actions are allowed to proceed, there is potential value from the fact that the doctrine may discourage some actions from being brought at all.
Finally, the best justification for the doctrine is giving public officials breathing room in an area of the law that is not clear. However, Ms. Soronen highlighted Ms. Schwartz’s assertions that officers can rely on the uncertainties in the law, which favor the granting of qualified immunity, and that this may allow officers to act more aggressively in reliance on the defense being widely available. Ms. Soronen did note, though, that Ms. Schwartz’s data referenced in the article was from the 1990s, which may be outdated.
With respect to officers’ actual knowledge of the law, Ms. Soronen noted that many officers are often trained only on more prominent case opinions, not circuit or district court cases. Prof. Blum added that qualified immunity can thus be viewed as irrational because it requires case facts on all fours with a situation presented to an officer to overcome qualified immunity, but officers are not even trained on all of the case opinions or the more varied factual circumstances that best define the parameters of applicable law.
Prof. Blum pointed to the concurrence in Jefferson v. Lias, which agrees with the majority’s decision, but criticizes the “deference to law enforcement that consistently results in qualified immunity in excessive force cases [and] is inconsistent with the vast amount of research in such cases.” 21 F.4th 74, 87 (3d Cir. 2021) (McKee, J., concurring). Indeed, the concurring opinion highlights the practical difficulty in officers having to consider so many potentially applicable case opinions in carrying out their duties, and the fact that the reasonableness standard to which police agencies should be held might actually be more effectively set by experts in policing and based on best practices policies, rather than courts.
Moderator Miller noted that judges often do not agree on constitutional interpretation. Thus, application of immunity principles may depend too much on the judge, the district, and the circuit addressing a particular issue. There is no easy answer as to such line drawing, and there is a concern that there could be a chilling effect as to proper development in this area of the law.
Indeed, there is much attention given to policy and prison cases under Section 1983, but there are also other officers subject to such claims in other areas of the law. For instance, the panel referred to Flying Dog Brewery v. Mich. Liquor Control Comm'n, relating to the balancing of rights that may be required of public officials, and unknown decision making. 597 Fed. Appx. 342, 353 (6th Cir. 2015). In Flying Dog Brewery, alcoholic beverage commissioners were denied qualified immunity over a decision banning a beer label, based on general principles of free speech -- “even without a body of relevant case law.” Id. at 355. Thus, there can be a real impact on public officials, who must make educated guesses in often difficult fact scenarios, with competing rights that must be balanced.
In recent times, with heightened awareness of racial equity considerations, Ms. Soronen identified a more prominent concern that individual biases can impact outcomes and the standards for individual evaluations of fact situations. She commented that these issues will not rectify themselves. Prof. Blum mentioned the Philadelphia racial remedy program. It seeks “to identify root causes of disparate outcomes” in varying city departments and implement strategies “for a more racially equitable Philadelphia.” See, e.g., City of Philadelphia, “Progress on the City’s Racial Equity Strategy” (2021) (last visited January 3, 2023).
Moderator Miller noted that a more flexible approach may be prohibiting conduct by statute and providing for specific remedies in that manner. He referenced a Texas statute providing that a tort action can be brought against an employer only when committed by an employee. There is no waiver of immunity for intentional torts, so no excessive force claims can be made against an employer or employee. He raised the question, though, whether a loosening of state law may make it easier to bring claims under state provisions, which could allow Section 1983 suits to be avoided altogether.
In fact, Ms. Soronen noted that some states have made claims under state laws easier after the death of George Floyd. Specifically, she referenced statutes in New Mexico and Colorado, which created state rights similar to those under Section 1983, but with no qualified immunity. In the materials provided by the panelists, copies of New Mexico House Bill 4 and Colorado Senate Bill 20-217 were provided as examples of this new push for eliminating qualified immunity under state law. Also included was a copy of Connecticut House Bill 6004. Notwithstanding these trends, there have not been a lot of states that have acted on this issue. Indeed, the panelists noted that many other existing state laws that provide civil rights remedies still include defenses that are very similar to qualified immunity.
The panel also discussed what law can be used to analyze the second prong of qualified immunity – namely, what constitutes clearly established law. Ms. Soronen referenced Ballentine v. Tucker, 28 F.4th 54 (9th Cir. 2022), in which the Ninth Circuit held that there was no qualified immunity because the law with respect to the claimed violation was clear in that circuit. The Ballentine Court expressly stated that “a right can also be clearly established by this circuit’s precedent.” Id. at 64.
However, even clear circuit opinions on an issue can often leave open questions regarding whether law is settled, such as when language appears in dicta, when the decision is not en banc, when there are conflicting or differing intra-circuit opinions, etc. Prof. Blum noted an example of clearly established law that could be set forth by circuit opinions. In Frasier v. Evans, the court found immunity should have been given to officers who were alleged to have interfered with the right of an individual to film the officers, which was not a clearly established right when the incident occurred in 2014. 992 F.3d 1003, 1015 (10th Cir. 2021). However, Prof. Blum noted that the Tenth Circuit’s subsequent opinion in Irizarry v. Yehia, found that between the time of the incident in Frasier in 2014 and the one in Irizarry in 2019, a “consensus” was formed on the issue; “the Third and Fifth Circuits joined the four other circuits in concluding there is a First Amendment right to film the police performing their duties in public.” 38 F.4th 1282, 1295-1296 (10th Cir. 2022) (quotations omitted). Thus, opinions in other circuits can constitute a clearly established constitutional right, if there is such a consensus; six circuit opinions finding a right to videotape officers was sufficient to put the officer on notice, when “[n]o other circuit ha[d] concluded otherwise.” Id. at 1296. In fact, there must not just be a consensus among circuits, but “a robust consensus of cases of persuasive authority.” Ashcroft v. al-Kidd, 563 U.S. 731, 742 (2011) (quotations omitted, italics added). A split in authority does not constitute such consensus, and this is so even if the conflict may not be stated by courts until after an incident. Wilson v. Layne, 526 U.S. 603, 618 (1999).
Moderator Miller discussed the general parameters of municipal liability under Monell v. Department of Soc. Svcs., 436 U.S. 658 (1978). Pursuant to the landmark decision in Monell, only constitutional violations actually attributable to a city or local governmental entity or agency -- based on the oft-referenced policy, practice or custom -- can establish entity (municipal) liability. There is no entity liability based merely on its status as an employer. However, such liability requires identification of a policy, causation, and actions of an official. It can be an onerous standard, and there has been some discussion about potentially amending Section 1983 on this aspect of liability as well, which could allow for some kind of respondeat superior liability that might relieve individual officers’ personal participation in actions.
Prof. Blum referenced testimony she provided to a congressional committee the prior year on the issue of problems with the Monell standards. The main concern is that, as to certain kinds of claims, a majority of circuits find a city cannot be held responsible for a failure to train when an individual officer prevails on qualified immunity on that issue of law not being clearly established. This can be referred to as “Monell Backdoor Immunity” for entities. See, e.g., Joanna C. Schwartz, “Backdoor Municipal Immunity,” 132 Yale L.J. F. 136, 139 n.13 (2022) (citing Petition for a Writ of Certiorari, at 18-20, Stewart v. City of Euclid, 141 S. Ct. 2690 (2021) (last visited January 3, 2023)). See also, Brief for Legal Scholars as Amicus Curiae, Stewart v. City of Euclid, 141 S. Ct. 2690 (2021) (last visited January 3, 2023).
Moderator Miller referenced the application of qualified immunity procedurally to a motion for summary judgment. In such instances, the genuineness of factual disputes cannot be argued. On appeal, the court cannot be asked to look at the record or facts. Prof. Blum added that there is a split of circuit decisions regarding whether inferences must be accepted. She referenced Justice Gorsuch’s opinion for the Tenth Circuit in Walton v. Powell. 821 F.3d 1204, 1206 (10th Cir. 2016), noting that the Walton Court found, for instance, that the court can consider inferences from facts. However, she contrasted this with the approach taken by the Seventh Circuit, which had found that the court must accept all facts and inferences made by the lower court.
In sum, the discussion provided a good overview of the legal picture as to the qualified immunity defense and reviewed some of the ongoing legal discussions regarding its parameters and potential future. The panel highlighted some of the longstanding discourse about the origination of the defense, difficulties in its application, potential solutions for remedies, the possible need for comprehensive reform, the need and potential ways to preserve its definitive purposes, etc. Recent and current events have made these questions especially relevant and necessary, especially so that protections of public officials may be preserved in a meaningful, coherent, and straightforward way.
