Qualified immunity

**Qualified immunity** is a legal doctrine in United States federal law that shields government officials from being sued for discretionary actions performed within their official capacity, unless their actions violated "clearly established" federal law or constitutional rights. Qualified immunity thus protects officials who "make reasonable but mistaken judgments about open legal questions," but does not protect "the plainly incompetent or those who knowingly violate the law".

(This is why you should not tackle someone being chased by the police. The police have immunity. You dont.)

## History and background

### *Bivens* and 42 USC § 1983 lawsuits

Qualified immunity frequently arises in civil rights cases, particularly in lawsuits arising under 42 U.S.C § 1983 and *Bivens v. Six Unknown Named Agents*. Under 42 U.S.C § 1983, a plaintiff can sue for damages when state officials violate her Constitutional rights or other federal rights. The text of 42 U.S.C. Sec. 1983 reads as follows:

> Every person who, under color of any statute, ordinance, regulation, custom, or usage, of any State or Territory or the District of Columbia, subjects, or causes to be subjected, any citizen of the United States or other person within the jurisdiction thereof to the deprivation of any rights, privileges, or immunities secured by the Constitution and laws, shall be liable to the party injured ...
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Similarly, under *Bivens v. Six Unknown Named Agents*, plaintiffs may sue for damages if federal officials violate their Constitutional rights. However, not all Constitutional violations give rise to a *Bivens* cause of action. Thus far the Supreme Court has recognized *Bivens* claims for violations of the Fourth Amendment, the Fifth Amendment's equal protection component of due process, and the Eighth Amendment.

### History of qualified immunity

The modern test for qualified immunity was established in *Harlow v. Fitzgerald*.

Prior to *Harlow v. Fitzgerald*, the U.S. Supreme Court granted immunity to government officials only if (1) the official believed in good faith that his conduct was lawful and (2) the conduct was objectively reasonable. However, determining an official's subjective state of mind (i.e. did he have a good faith belief that his action was lawful) required a trial, often by jury. Concerned allowing suits to go this far deterred officials from performing their duties, "[diverted] official energy from pressing public issues, and [deterred] able citizens from acceptance of public office", the Supreme Court handed down the current rule for qualified immunity: "[G]overnment 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." Therefore, the application of qualified immunity no longer depends upon an official's subjective state of mind, but on whether or not a reasonable person in the official's position would have known their actions were in line with clearly established legal principles.

## Application of qualified immunity

### Discretionary function requirement

Qualified immunity only applies to acts that are "discretionary" rather than ministerial. Courts specifically distinguish discretionary acts from ministerial acts. A discretionary act requires an official to determine "whether an act should be done or a course pursued" and to determine the best means of achieving the chosen objective. By contrast, a ministerial act is "clerical nature"—the official is typically required to perform the action regardless of his own opinion. However, even ministerial tasks will sometimes involve a small amount of discretion but this small amount of discretion will not necessarily satisfy the requirements qualified immunity.

### Clearly established law requirement

Qualified immunity does not protect officials who violate "clearly established statutory or constitutional rights of which reasonable person would have known". This is an objective standard, meaning that the standard does not depend on the subjective state of mind of the official but rather on whether a reasonable person would determine that the relevant conduct violated clearly-established law.

Whether the law is "clearly established" will depend on whether the case law has addressed the disputed issue or has established the "contours of the right" such that it is clear that official's conduct is illegal. It is undisputed that Supreme Court opinions can "clearly establish" the rule for the entire country. However, circuit court of appeals opinions may have a more limited effect. Circuit courts of appeals typically treat their opinions as clearly establishing the law within that circuit—though the Supreme Court has cast doubt on this theory. In order to meet the requirement of "Clearly Establilshed Law", the facts of the instant case must also fairly closely resemble the facts of the case relied on as precedent.

### Judicial application: The *Saucier* two-step test

In 2001, the US Supreme Court in *Saucier v. Katz* established a rigid order in which courts must decide the merits of a defendant's qualified immunity defense. First, the court determines whether the complaint states a constitutional violation. If so, the next sequential step is to determine whether the right at issue was clearly established at the time of the official's conduct. The Court subsequently modified *Saucier* in *Pearson v. Callahan*, holding that "the *Saucier* protocol should not be regarded as mandatory in all cases," and that its decision "does not prevent the lower courts from following the *Saucier* procedure; it simply recognizes that those courts should have the discretion to decide whether that procedure is worthwhile in particular cases"

## Objections and criticisms

### Vagueness

The invention of "qualified immunity" has eliminated much of the protection of the constitution under USC 1983. It is almost always possible for a judge to claim there isn't an *exact* match in law *and* precedent, if sufficiently determined.

The Court has claimed to based qualified immunity on three factors: a "good faith" defense at common law, making up for the supposedly mistaken broadening of 1983, and serving as a "warning" to government officials. But William Baude, Professor of Law at the University of Chicago Law School, states that "there is no such defense, there was no such mistake, and lenity [warning] should not apply. And even if these things were otherwise, the doctrine of qualified immunity would not be the best response."

In fact, a century earlier the Supreme Court specifically rejected "good faith" as a defense against 1983, which held until the invention of qualified immunity in 1967.

### Ineffectiveness

Conversely, in *How Qualified Immunity Fails*, Joanna C. Schwartz of The Yale Law Journal published paper that produced a different criticism of qualified immunity. Examining 1,183 Section 1983 cases, she found that it was being invoked primarily when it should not have been, and therefore was being ignored or dismissed frequently. Her conclusion was that it is ineffective for its stated goals in such a way that it could not be strengthened, and should be replaced by other mechanisms for obtaining those ends.

Many examples of improper, but successful, use of qualified immunity have made media attention, like the case of an illegal search of Dr. Joseph Zadeh's medical records without warrant, a clear example of misconduct but dismissed under qualified immunity. Even as the Fifth Circuit Court ruled in favor of this claim, Justice Don Willett stated that the US Supreme Court's precedents, themselves, were a problem.

Even on the Supreme Court, both the right and left have objected. Clarence Thomas has expressed "growing concern with our qualified immunity jurisprudence", stating that there is no apparent basis for it in the original intent of the law. Justice Sonia Sotomayor has noted a "disturbing trend" of siding with police officers using excessive force, with qualified immunity.

### Higher expectations of police officers

Another argument is that, under the principle that all are created equal and should be seen as equal under the eyes of the law, police should be held to a *higher* standard of behavior than normal people, to balance out their special powers, not a lower standard. Otherwise, the police have both higher powers and lower responsibility, becoming civil masters instead of civil servants.

### Rule of law

Courts can legally and constitutionally interpret laws, creating what is known as case law. Case law is legally binding precedent. The doctrine of qualified immunity has been codified by most State legislatures.