Qualified Immunity Developments: Not Much Hope Left For Plaintiffs

By   /   April 1, 2014 

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29 Touro Law Review 633

Qualified Immunity Developments: Not Much Hope Left For Plaintiffs

Karen Blum,* Erwin Chemerinsky,** & Martin A. Schwartz***



I.             Introduction: Recent Trends in the Qualified Immunity Defense

This Article highlights important developments in the qualified immunity defense to Section 1983 claims.  The focus is on recent Supreme Court decisions and the fallout from such decisions in the lower courts.  First, however, we tackle the Supreme Court’s recent expansion of absolute immunity to grand jury witnesses, and its impact on the application of qualified immunity.  Second, consideration is given to the Court’s newfound willingness to provide qualified immunity to private actors engaged in conduct under color of state law.  Third, this Article discusses the continued effects of the Supreme Court’s reformulation of the qualified immunity analysis that allows lower courts to skip deciding the merits of the constitutional issue and jump to the question of whether the law was clearly established.  Finally, this Article discusses recent decisions making it more difficult for Section 1983 plaintiffs to establish that the federal law was clearly established.

A.             The Line Between Absolute and Qualified Immunity Since Rehberg

PROFESSOR BLUM: A discussion about significant developments in the landscape of qualified immunity would not be complete without a few words about the Supreme Court’s most recent case on absolute immunity and the impact that case might have on the line drawn between absolute and qualified immunity in certain circumstances.  This past Term, in Rehberg v. Paulk,1 the Supreme Court clarified that the absolute immunity traditionally afforded to trial witnesses2 extends to grand jury witnesses as well.3  Paulk was a chief investigator in a local district attorney’s office.4  His testimony before a grand jury on three different occasions was instrumental in bringing about three different indictments against Mr. Rehberg, each of which was ultimately dismissed.5  The Court rejected the argument that Paulk should be treated as a “complaining witness,” and thus entitled to only qualified immunity.6  Noting that “testifying, whether before a grand jury or at trial, was not the distinctive function performed by a complaining witness,”7 the Court concluded that a law enforcement officer who testifies before a grand jury is performing a function quite different from the function of applying for an arrest warrant or the decision to initiate a prosecution.8  In holding that absolute immunity would protect grand jury witnesses from Section 1983 claims based on their grand jury testimony, the Court also warned that “this rule may not be circumvented by claiming that a Grand Jury witness conspired to present false testimony, or by using evidence of the witness’s testimony to support any other § 1983 claim concerning the initiation or maintenance of a prosecution.”9  Although this language provides for a very expansive protection for all claims based on grand jury witness testimony,10 two post-Rehberg cases suggest windows that may be carved out for plaintiffs to pursue Section 1983 claims, even in cases where grand jury testimony or grand jury witnesses might be implicated.11

In Sankar v. City of New York,12 a district court in New York noted that “Rehberg did not alter controlling Second Circuit (and New York) law that an officer’s filing of a sworn complaint is sufficient to satisfy the initiation prong of a malicious prosecution claim.”13  Thus, according to the court, the fact that the officer in this case eventually provided grand jury testimony was not an “all-purpose shield from malicious prosecution.”14  The court stated that in the event false testimony is provided during the filing of the affidavit, the swearing of the complaint, or the filing of the sworn complaint, an officer is entitled only to the protection of qualified immunity—even if the officer ultimately testifies at a grand jury proceeding.15  Therefore, despite Rehberg’s language, which establishes absolute immunity from claims based on a conspiracy to provide false testimony,16 law enforcement officials should still be entitled to only qualified immunity for conduct performed as a complaining witness prior to the giving of grand jury testimony.17

A second case, Frederick v. New York City,18 from the Southern District of New York, involved a motion to unseal selected portions of an eyewitness’ grand jury testimony to support a malicious prosecution claim against the arresting officers, not the witness.19  In Frederick, after the witness of a drive by shooting told the police he could not identify the shooter or driver and failed to identify anyone in a photo array, the police brought the witness to a lineup where he identified a man as the shooter.20  The man was arrested under the theory that he was a driver, not a shooter; however, all charges were dropped three days later.21

Here, the court drew an important distinction between the protection for a defendant’s grand jury testimony and the grand jury testimony of a different witness.22  The court stated that it would examine the testimony in camera to decide whether to unseal it, but if the testimony was unsealed, it could only be used against the defendant police officers in the malicious prosecution claim, not against the grand jury witness.23  Thus, under Frederick, Rehberg does not preclude the use of grand jury testimony to support all Section 1983 claims, such as those against a police officer for malicious prosecution; Rehberg’s language that suggests grand jury testimony cannot be used to support a Section 1983 claim merely prohibits the use of such testimony against the witness who gave the testimony.24

The discussion of absolute immunity would not be complete without mentioning a third case involving prosecutorial immunity.  The Second Circuit’s decision in Giraldo v. Kessler25 reflects a trend towards expanding the scope of absolute immunity to protect conduct associated not only with the prosecutorial function, but conduct typically viewed as investigative.  In Giraldo, a New York state senator, Hiram Monserrate, went to an emergency room with a female companion, Karla Giraldo, because of a cut on Giarldo’s eye.26  Despite Monserrate’s claim that such injuries resulted from a glass accidentally breaking, domestic violence was suspected, and he was arrested.27  Giraldo supported Monserrate’s story and stated that she did not want to talk to the police.28  However, despite her unwillingness, the police continued to question her at the hospital, brought her to a police precinct to have her sign a statement, and brought her, against her will, to the District Attorney’s office for two more hours of interrogation.29

In response, Giraldo filed a claim against the assistant district attorneys who interrogated her, alleging that she was “ ‘unlawfully detained, held against her will and maliciously interrogated’ . . . in violation of her right to be free from unreasonable seizures . . . .”30  Although the prosecutors’ challenged conduct could be viewed as investigative, the court concluded that once Monserrate had been arrested, the questioning of Giraldo was clearly in preparation for and in furtherance of the court proceeding, and thus the prosecutors were entitled to absolute immunity for that conduct.31  “While questioning an important witness may accurately be described as investigative, appellants’ interview was an integral part of appellants’ advocatory function as prosecutors protected by absolute immunity.”32  This case serves as an extreme application of absolute immunity because the statements were made during an investigative stage, in which the police were still gathering evidence to support probable cause for an arrest they had made.33

DEAN CHEMERINSKY: The result of Giraldo illustrates the recent trend by the Supreme Court to provide absolute immunity for prosecutors.  The Supreme Court has consistently drawn a distinction between investigative and prosecutorial acts in terms of when there is absolute immunity for prosecutors.  For example, in the cases of Burns v. Reed34 and Buckley v. Fitzsimmons,35 the Court held that prosecutors are entitled to absolute immunity for prosecutorial, but not for investigative or administrative acts.36  On the other hand, in Van De Kamp v. Goldstein,37 a prosecutorial immunity case, the Supreme Court stated that even administrative decisions that affect subsequent events in the courtroom should be protected by absolute prosecutorial immunity.38  Therefore, if certain acts relate to what is going to occur at trial, then absolute prosecutorial immunity is available for prosecutorial conduct that relates to courtroom events.39

PROFESSOR BLUM: In sum, recent decisions from both the Supreme Court and the Second Circuit suggest that absolute immunity will be applied quite broadly to protect grand jury witnesses from civil rights claims based on their grand jury testimony, and to protect prosecutors who engage in administrative or investigative conduct that can be linked to their ultimate prosecutorial function in the courtroom.40

II.                         Qualified Immunity and Private Actors Since Filarsky

Another recent development in the qualified immunity defense to Section 1983 claims is the Court’s recent grant of qualified immunity to private actors working with the government.  In Wyatt v. Cole,41 the Supreme Court held that a private person, who had acted in conjunction with a sheriff in invoking a state replevin statute to allegedly deprive the plaintiff of property without due process, was not entitled to the qualified immunity defense available to the government official.42  Subsequently, the Supreme Court, in Richardson v. McKnight,43 held that prison guards who were employed by a private prison management firm and assumed to be acting under color of state law, were not entitled to qualified immunity from prisoners’ Section 1983 claims.44  The Court found no “ ‘firmly rooted’ tradition”45 of qualified immunity for privately employed prison guards and no public policy concerns driving a qualified immunity defense where private employees performed with no government supervision, and private for-profit employers had market incentives to monitor and avoid improper conduct by employees.46  In the Court’s last Term, however, both Wyatt and Richardson were distinguished in Filarsky v. Delia,47 which raised the issue of whether a private attorney retained by a city to conduct an internal affairs investigation was entitled to qualified immunity.48

In Filarsky, a firefighter, Nicholas Delia, was suspected of feigning illness to receive disability benefits and to get time off from work to make improvements to his home.49  The city hired a private attorney, who specialized in employment and labor law, to assist in the investigation.50  The investigators and attorney went to Delia’s house and, without a warrant, requested to go inside to search for evidence to prove he was not making improvements, but Delia refused.51  Claiming a violation of his Fourth Amendment rights, Delia sued the city, the fire department, and the private attorney.52  In response, the private attorney claimed qualified immunity.53  The Court held that the private attorney who had worked with the government in such a capacity was entitled to the same immunity as a full-time employee of the government.54  Therefore, in some cases, a private actor may be entitled to qualified immunity.55

Although some circuits had granted qualified immunity for private citizens acting in the capacity of a public official prior to Richardson,56 very few have since Richardson.57  Thus, since Filarsky, it is unclear whether private actors acting under color of state law and vulnerable to suit under Section 1983 are entitled to qualified immunity.58

PROFESSOR SCHWARTZ: In my opinion, Richardson and Filarsky are inconsistent because in Richardson the Court emphasized that there was no direct government supervision over the prison guards,59 but that was true of the attorney in Filarsky as well.60  Additionally, there was profit-making incentive for the attorney in Filarsky, assuming he was hired for profit, just as there was profit incentive for the prison company in Richardson, which was critical to the Court’s rejection for the need of qualified immunity for the prison guards.61  Thus, it appears, Filarsky may signal to a new trend: private actors working closely with the government may obtain qualified immunity based on the nature of their relationship with state officials, even if the private actor had independent profit incentive.62

PROFESSOR BLUM: A new trend is likely; but, on the other hand, Filarsky may only be an exception to the general rule.  Even after Richardson and before Filarsky, a number of circuits granted qualified immunity to private actors who were working closely with the government in unique, extreme circumstances, such as a one-on-one or closely monitored situation.63  However, it remains unclear how the attorney in Filarsky is different from the private prison guards in Richardson, and Filarsky lacks any of the unique circumstances found in previous exception cases.  As a result, it will be important for practitioners in this area to track cases dealing with private actors sued under Section 1983 to see where the circuits stand with regard to qualified immunity in this context post-Filarsky.  For example, in Currie v. Cundiff,64 one of the first post-Filarsky decisions to address the question of Filarsky’s impact on qualified immunity for private actors in other contexts, the district court found that “the Supreme Court’s recent decision in [Filarsky] . . . makes clear that qualified immunity is a defense available in this case,”65 involving private health care workers employed by a private corporation under contract with the county to provide health care to inmates at a county jail.66  It is truly difficult to distinguish private health care workers from private prison guards, but the court obviously thought that Filarsky was sending a message that qualified immunity was the default for private actors in such settings and Richardson was now the exception.  In contrast, in McCullum v. Tepe,67  the Sixth Circuit held there was no qualified immunity for a physician who was employed by an independent, nonprofit organization to work in a county prison as a psychiatrist.68  Therefore, even though Richardson involved a for-profit corporation, and the court clearly stated that qualified immunity for employees of for-profit corporations is unnecessary because such corporations are likely to be self-monitoring, the physician’s employer’s non-profit status was not important to the Sixth Circuit.69  McCullum is clearly inconsistent with Currie and other post-Filarsky cases dealing with doctors working in prisons.70  There will inevitably be a circuit split on this issue in the near future, and the Supreme Court will undoubtedly revisit the question.  Until then, practicing attorneys should keep a close watch on their own circuits to understand that circuit’s position on qualified immunity for private actors after Filarksy.71

III.             The Nature of Qualified Immunity Analysis Post-Pearson

PROFESSOR BLUM: Another development worth following in the world of qualified immunity is the approach taken by courts in performing the qualified immunity analysis post-Pearson.  In Saucier v. Katz,72 the Supreme Court instructed lower courts to perform a mandatory two-step analysis when deciding the issue of qualified immunity.73  The analysis required, first, a determination of whether the plaintiff had alleged a violation of a constitutional right under current law: in essence, the “merits” or constitutional question.74  Only if the first inquiry were answered in the affirmative were courts to turn to the second inquiry, the qualified immunity prong, which requires the plaintiff to show that the pertinent law was clearly established at the time of the defendant’s conduct so that a reasonable official would have understood that his or her conduct violated that clearly-established right.75

After much resistance to and criticism of Saucier’s mandatory approach, the Supreme Court, in Pearson v. Callahan,76 provided lower courts with the freedom to avoid the merits question, allowing them instead to go directly to the second prong of the immunity inquiry.77  Pearson, decided in 2009, involved a confidential informant, not a police officer, who went to a drug dealer’s house and signaled the police to enter during a drug deal.78  The police did not have a warrant, but they contended that the consent given to the confidential informant to enter the house operated as consent for the police.79

The Tenth Circuit held the police did not have consent to enter, the entry was a violation of clearly established Fourth Amendment law, and that the police were not entitled to qualified immunity.80  After asking the parties to brief the issue of whether Saucier’s two-step analysis should continue to be mandatory, the Supreme Court decided the first step was no longer mandatory, vacated the Tenth Circuit’s decision, and granted the police officers qualified immunity based exclusively on the second prong of the analysis.81  After Pearson, lower courts are free to use their discretion.82  Hence, in appropriate cases, courts may go directly to the second prong.83

A.                         The Supreme Court’s Avoidance of the Merits Inquiry

Two recent post-Pearson cases reflect the tendency of the Supreme Court to favor bypassing the merits prong of the qualified immunity test, thus leaving unsettled constitutional issues raised in the context of qualified immunity.  First, in Messerschmidt v. Millender,84 a warrant was issued to search a home for any weapons and indicia of gang membership.85  Questions regarding the constitutionality of the search and warrant were raised.86  Although the incident that provided the grounds for the search warrant resembled a domestic dispute—a young man shooting at his girlfriend after an argument escalated—the police viewed it as gang related.87  Additionally, even though a particular gun was used, the warrant authorized the police to search for any weapons and gang-related paraphernalia in the house.88

The Supreme Court found the validity of the warrant under the Fourth Amendment was not an issue.89  Rather, the question was whether the police were entitled to immunity even if the warrant should not have been issued.90  Here, the Court focused on the fact that the officers acted appropriately in many respects;91 they sought and got approval for the warrant application from a superior and a deputy district attorney, and they went before a judge to get the warrant.92  Although the fact that a warrant was issued does not in itself provide qualified immunity, this case certainly suggests that a warrant is given great weight in supporting a claim of qualified immunity, regardless of whether the Court determined the plaintiff had a constitutional right violated.93  While avoiding the merits question of whether, on the particular facts of the case, there was probable cause to support the scope of the warrant issued, the Court made it clear that reasonable conduct by the police will go a long way towards supporting a finding of qualified immunity.94

In Reichle v. Howards,95 once again, the Court went directly to the second prong.  Mr. Howards was arrested after he approached then-Vice President Cheney at a shopping mall in Colorado where Cheney was making a public appearance.96  Howards criticized Cheney’s policies, touched the Vice President on the shoulder, walked away and was then questioned by secret service agents.97  When he falsely denied having touched the Vice President, Howards was arrested.98  He sued the responsible secret service officers for violating his Fourth and First Amendment rights, claiming that his arrest was in retaliation for his critical comments about the Vice President.99  Ultimately, Howards did not challenge the determination that there was no Fourth Amendment violation because probable cause existed to arrest him “for making a materially false statement to a federal official.”100  The federal agents, however, sought review of the denial of qualified immunity with respect to Howards’ First Amendment claim.101  The Tenth Circuit held that Howards had established a material factual dispute as to whether his arrest was motivated by an impermissible purpose and, if so, the law was clearly established in the Tenth Circuit that a retaliatory arrest was unlawful even if supported by probable cause.102  The Supreme Court granted certiorari “on two questions: whether a First Amendment retaliatory arrest claim may lie despite the presence of probable cause to support the arrest, and whether clearly established law at the time of Howards’ arrest so held.”103  Leaving the merits question undecided,104 the Court held the officials were entitled to qualified immunity because the law was not clearly established regarding First Amendment retaliatory arrest claims in cases where there was probable cause for the arrest.105  Given the current circuit split on the merits question,106 the Supreme Court will no doubt be urged to revisit the question of retaliatory arrests to clarify whether the existence of probable cause defeats a First Amendment retaliatory arrest claim.107

B.                         The Lower Courts’ Avoidance of the Merits Inquiry

The extent of Pearson’s negative effect on the development and clarification of constitutional rights is also apparent in lower court decisions, which demonstrate the courts’ willingness to ignore the merits question, leaving the constitutional issue for another day.  For example, in Doninger v. Niehoff,108 the Second Circuit refused to express an opinion as to whether there was a violation of a student’s First Amendment free speech right when she was prohibited from running for senior class secretary in response to a post on the Internet regarding the possible cancellation of a student event and the superintendent’s involvement in the upset of plans.109  The court saw “no need to decide”110 the question of whether the school officials violated plaintiff’s constitutional rights, because the First Amendment right was not clearly established at the time.111

Similarly, the Sixth Circuit in Embody v. Ward112 left undecided the question of whether the Second Amendment provides a right to bear arms within state parks.113  Where such a right was not clearly established at the time of the arrest, the officer was entitled to qualified immunity.114  And, in Hagans v. Franklin County Sherriff,115 involving a repeated tasing of an individual after he resisted arrest,116 the court avoided the merits question: whether there was a Fourth Amendment violation.117  The court held that the law governing taser use on a suspect who was resisting arrest was not clearly established, and as a result, the officer was entitled to qualified immunity.118  Qualified immunity often arises in cases involving the use of a taser, which is a relatively new technology with very little governing law, and consequently, some courts have jumped to the second prong without resolving whether the use of the taser in the particular situation was unlawful.119  Like the Supreme Court, lower courts too have left constitutional issues unanswered as a result of Pearson.

C.                         Answering the Merits Question Since Pearson

Not all courts have avoided the merits inquiry.  In Mattos v. Agarano,120 for example, the Ninth Circuit, sitting en banc, confronted the question of whether the use of a taser violated the Fourth Amendment in the contexts presented in the two cases consolidated for en banc review.  One case involved a seven-month pregnant woman who was tased three times in drive stun mode for refusing to sign the back of a speeding ticket.121  The plaintiff in the companion case, a victim of domestic violence,122 was tased, apparently in dart mode,123 when she tried to defuse the situation by stepping between her husband and the police.124  The court held that both tasings constituted a violation of the plaintiffs’ constitutional rights, but the officers were entitled to qualified immunity because the law at the time of both incidents was unclear as to what level of force was involved with taser use, on what constituted a significant level of force, or under what circumstances a taser could be used.125

When a court of appeals addresses the merits question and declares a constitutional right has been violated, but the defendant prevails on the qualified immunity prong of the analysis, an interesting problem is presented.  May the defendant, the prevailing party in the court below, seek review in the Supreme Court of the merits question that was decided in the plaintiff’s favor?  While the defendant officials whose conduct has been deemed unconstitutional are shielded from liability in the case decided, future conduct under similar circumstances will be governed by the newly declared constitutional standard and qualified immunity will not be afforded.  For example, in Mattos, police officials may not have agreed with the Ninth Circuit’s decision that the taser use was unconstitutional, even though the officers were relieved of liability by a finding of qualified immunity.126

The Supreme Court provided instruction on this issue in Camreta v. Greene.127  In Camreta, a police officer and a social worker removed a child from her classroom to investigate suspected abuse at home.128  The issue was whether this “seizure” and questioning required a warrant under the Fourth Amendment or whether an exception applied due to the school setting.129  The Ninth Circuit held that regular Fourth Amendment doctrine applied, thereby requiring a warrant to remove a child from the classroom and interrogate her.130  Nevertheless, the social worker and police officer were given qualified immunity because the law was not clearly established.131  Subsequently, the defendants, despite prevailing, sought review in the Supreme Court as to the holding that a warrant is required under such circumstances.132

The Supreme Court held that on rare occasions it will grant certiorari to review the merits question, even though the appealing parties prevailed below.133  However, the Court emphasized that the holding only applied to its own authority to hear such appeals, not the circuit courts.134  Circuit courts need not review district court opinions at the behest of defendants who have prevailed on qualified immunity, even if such opinions err on the merits question, because district court opinions do not carry the same precedential authority as opinions from the courts of appeals, and thus cannot serve to clearly establish the law.135  Therefore, although courts may be avoiding the merits inquiry with ever-greater frequency, attorneys should be aware of the precedent that may be created by a circuit court’s adverse ruling on the merits question, even if qualified immunity is ultimately granted.  In Camreta, the Court signaled a willingness to review such constitutional determinations.

IV.             The Standard For Ascertaining “Clearly Established Law”

Because qualified immunity is entwined with the question of whether there was “clearly established law” at the time of the challenged action to put a reasonable official on notice that his or her conduct violated the plaintiff’s constitutional rights, it is obviously important to figure out what makes the law “clearly established.”  First, there is the question of what law controls.  In Wilson v. Layne,136 news reporters on a police ride-along were invited to enter a citizen’s home during a police search, which was authorized by a warrant.137  In this pre-Pearson case, the Supreme Court first addressed the merits inquiry: whether it was unconstitutional for the police to bring the news reporters into the home of a private citizen.138  The Court unanimously held that bringing reporters into a private home, even when the police entry was authorized by a warrant, violated the Fourth Amendment “when the presence of the third parties in the home was not in aid of the execution of the warrant.”139  With only Justice Stevens dissenting,140 the Court went on to conclude that, despite the finding of a constitutional violation by a unanimous Court, the law was not clearly established at the time of the incident such that a reasonable officer would have known that the conduct violated the Fourth Amendment.141  The Court framed the issue as the objective question of “whether a reasonable officer could have believed that bringing members of the media into a home during the execution of an arrest warrant was lawful, in light of clearly established law and the information the officers possessed.”142 The Court concluded that general Fourth Amendment principles did not apply with obvious clarity to the officers’ conduct in this case.143  Furthermore, “[p]etitioners [had] not brought to [the Court’s] attention any cases of controlling authority in their jurisdiction at the time of the incident which clearly established the rule on which they [sought] to rely, nor [had] they identified a consensus of cases of persuasive authority such that a reasonable officer could not have believed that his actions were lawful.”144  Thus, absent any pertinent Supreme Court or controlling circuit court decision or a consensus of persuasive authority from other circuits, the Court concluded that the law was not clearly established such that reasonable officers would have understood that, under these circumstances, entering the house with the reporters violated the Fourth Amendment.145  While most circuits will consider a consensus of persuasive authority from other circuits in the absence of controlling precedent,146 both the Second and Eleventh Circuits have expressed disapproval of such an approach.147

Once the relevant source of “clearly established law” has been determined, the more difficult task is figuring out what is required to make the law “clearly established.”  It is on this issue that most of the debate takes place, and what has become clear is that the framing of the question may be determinative of the answer.

One problem with negotiating the clearly-established-law terrain is that the Supreme Court, in earlier cases, sent mixed signals as to what is sufficient to give officials notice that certain conduct is unconstitutional.  In Saucier v. Katz, Hope v. Pelzer,148 and Brosseau v. Haugen,149 the Supreme Court addressed the problem of defining the contours of the right in the Fourth Amendment and Eighth Amendment contexts.  In Saucier, the Court instructed the Ninth Circuit to construe the clearly established law standard more narrowly and to frame the contours of the right that must be found clearly with more attention to the particular facts of the case before the court.150  Asking whether it was clearly established that unreasonable use of force violates the Fourth Amendment is framing the question too broadly.151  In Hope, the plaintiff alleged that he was handcuffed to a hitching post for seven hours in the hot sun, without bathroom breaks and with no or very little water.152  The Eleventh Circuit held that the alleged conduct violated the Eighth Amendment, but affirmed the district court’s grant of qualified immunity on the clearly-established-law prong of the analysis.153  The Supreme Court granted certiorari and agreed with the Eleventh Circuit’s conclusion that the plaintiff had asserted a violation of the Eighth Amendment.154  The Court reversed, however, as to the grant of qualified immunity, admonishing the court of appeals for its overly rigid approach to the qualified immunity analysis.155  The Court instructed the Eleventh Circuit to construe the clearly-established-law standard more liberally, rejecting the requirement of a case on point,156 instead stating that all that was required was “fair warning” that the challenged conduct was unconstitutional.157

The Court’s language in Hope is clearly more “plaintiff-friendly,” but since that decision, the “fair warning” formula has been virtually ignored by the Supreme Court.158  For example, in Brosseau, the Court addressed just the second prong of the analysis and summarily reversed the denial of qualified immunity to the defendant officer because the plaintiff could point to no case that “squarely governed” the situation confronting Officer Brosseau in that case, “whether to shoot a disturbed felon, set on avoiding capture through vehicular flight, when persons in the immediate area are a risk from that flight.”159  More significantly, in Ashcroft v. al-Kidd,160 the Supreme Court recently raised the bar for plaintiffs to overcome the clearly-established-law hurdle.  The majority opinion, written by Justice Scalia, added the “every reasonable” phrase to the clearly established law test, surreptitiously changing the game when nobody was looking.161

Thus, defendants seeking qualified immunity will now proffer the Al-Kidd formulation of the test and argue that “ ‘a government official’s conduct violates clearly established law when at the time of the challenged conduct the contours of the right are sufficiently clear’ that every ‘reasonable official would have understood that was he is doing violates that right.’ ”162  The language “a reasonable official” was replaced and is now “every reasonable official,”163 a major change in the stringency of the clearly-established-law test.164  The Court further explained that the “existing precedent must have placed the statute or constitutional question beyond debate.”165  Lower courts have taken note of the Supreme Court’s conflicting messages and the current Court’s raising of the qualified immunity bar.  In a post-Al-Kidd en banc decision, Morgan v. Swanson,166 the Court of Appeals for the Fifth Circuit granted qualified immunity to elementary school principals who restricted the distribution of written religious materials in public elementary schools.167  Writing for the majority of the en banc panel, Judge Benevides made the following observations:

The Al-Kidd Court, in admonishing lower courts “not to define clearly established law at a high level of generality,” did not discuss or even cite Hope, nor other earlier opinions reflecting a similar concern that a damages remedy be available for “obvious” or flagrant constitutional violations.  This silence is puzzling given that Al-Kidd reversed a Ninth Circuit decision denying immunity in reliance on Hope.  Adding to the perplexity is that, in its next major “clearly established” opinion after Hope, the Supreme Court granted qualified immunity because there were no cases that “squarely govern[ed].”  That said, this case does not call on us to decide whether the Court’s statements in Hope survive Al-Kidd: the constitutional issue in this case is far from “beyond debate,” as evidenced by a large body of oft-conflicting case law and the variety of opinion among members of this Court.  We leave for another day the question of whether and when a constitutional violation may be so “obvious” that its illegality is clear from only a generalized statement of law.168

DEAN CHEMERINSKY: The heightened standard is facially apparent in the test’s phrasing.  The Harlow standard for thirty years focused on whether it was clearly established law that “a” reasonable officer should know; now it must be law that “every” reasonable officer should know.169  Now, after Ashcroft v. Al-Kidd, it must be a right that is beyond dispute.170  Why did no Justice challenge this?  Perhaps it was that Justice Scalia did not call attention to the shift and the other Justices simply did not notice the change in the law.171

Therefore, courts are able to grant qualified immunity and dismiss Section 1983 claims by requiring an exact case on point from a high level court and the recently implemented heightened standard for proving a clearly established law.

V.                         Conclusion

PROFESSOR BLUM: Looking through any lens, it is difficult to avoid the conclusion that the Roberts Court is strongly pro-immunity.  The scope of absolute immunity has been expanded to include prosecutors engaged in administrative functions172 and witnesses before grand juries.173  With respect to qualified immunity, it appears the Court is ready to afford the protection to various categories of private actors working with government officials, and Richardson will be confined to its facts.174  The standard for determining when the law is clearly established has been ratcheted up.  Hope, while not overruled, is largely ignored or distinguished by both the Supreme Court and lower courts.  Beyond the issue of how one determines whether the law is clearly established, many other questions regarding the qualified immunity defense to Section 1983 claims remain unanswered.175  For litigators in this area, it is imperative to keep up with the many twists and turns that may result from Supreme Court cases that often confuse more than clarify the issues.  One thing is certainly clearly established.  Whether you represent plaintiffs or defendants in these cases, you have a tough job, and staying on top of the law, as murky as it may be, is essential.



* Professor and Associate Dean at Suffolk University Law School.  She earned a J.D. from Suffolk University Law School and an L.L.M. from Harvard.  Professor Blum is a regular lecturer for the Federal Judicial Center Education and Training Division for Federal Judges and Federal Magistrate Judges.  Professor Blum has authored numerous articles in the Section 1983 area and is a co-author, along with Michael Avery and David Rudovsky, of Police Misconduct, Law and Litigation.  Michael Avery, David Rudovsky, & Karen Blum, Police Misconduct, Law and Litigation (3d ed., West 2012-2013).  This Article is based on presentations given at the Practising Law Institute’s Twenty-Ninth Annual Section 1983 Civil Rights Litigation Program, in New York City on October 26, 2012.

** Dean and Distinguished Professor of Law, University of California, Irvine School of Law.

*** Professor of Law at Touro Law Center, a leading authority on and author of a multi-volume treatise on Section 1983 civil rights litigation, and a columnist for the New York Law Journal.


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  1. 132 S. Ct. 1497 (2012).
  2. See, e.g., Briscoe v. LaHue, 460 U.S. 325, 342 (1983) (holding that police officers are entitled to absolute immunity for claims brought pursuant to Section 1983 arising out of allegedly perjured testimony at criminal trials).
  3. Rehberg, 132 S. Ct. at 1505. (“The factors that justify absolute immunity for trial witnesses apply with equal force to grand jury witnesses.”).
  4. Id. at 1500.
  5. Id. at 1501.
  6. Id. at 1507 n.1 (distinguishing Kalina v. Fletcher, 522 U.S. 118, 129-131 (1997), and Malley v. Briggs, 475 U.S. 335, 340-345 (1986), where only qualified immunity was provided to law enforcement officers for the filing of false affidavits).
  7. Id. at 1507.
  8. Rehberg, 132 S. Ct. at 1507-08.
  9. Id. at 1506.
  10. See, e.g., Jones v. Dalton, 867 F. Supp. 2d 572, 584 (D.N.J. 2012) (stating absolute immunity prohibited plaintiff from rebutting presumption of probable cause with evidence that investigator made misrepresentations to grand jury).
  11. See, e.g., Sankar v. City of New York, No. 07 CV 4726(RJD)(SMG), 2012 WL 2923236, at *3 (E.D.N.Y. July 18, 2012) (granting only qualified immunity on malicious prosecution claim for police officer who filed the initial sworn complaint and who also subsequently testified at grand jury); see also Frederick v. New York City, No. 11 Civ. 469(JPO), 2012 WL 4947806, at *4, *6 (S.D.N.Y. Oct. 11, 2012) (suggesting grand jury testimony could be used to support a malicious prosecution claim against someone other than the person who provided the grand jury testimony).
  12. No. 07 CV 4726(RJD)(SMG), 2012 WL 2923236 (E.D.N.Y. July 18, 2012).
  13. Id. at *3.
  14. Id.
  15. Id.  The grand jury testimony was inadmissible in that case; additionally, if the officer did, in fact, do something prior to the grand jury to warrant a malicious prosecution claim, the filing of the sworn complaint remains a basis for a malicious prosecution claim.  Id.
  16. Rehberg, 132 S. Ct. at 1506 (“This rule may not be circumvented by claiming that a Grand Jury witness conspired to present false testimony . . . .”).
  17. Sankar, 2012 WL 2923236, at *3.
  18. No. 11 Civ. 469(JPO), 2012 WL 4947806 (S.D.N.Y. Oct. 11, 2012).
  19. Id. at *1, *2.
  20. Id.
  21. Id.
  22. Id. at *4.
  23. Frederick, 2012 WL 4947806, at *14.
  24. Id. at *3, *4.
  25. 694 F.3d 161 (2d Cir. 2012).
  26. Id. at 164.
  27. Id.
  28. Id.
  29. Id.
  30. Giraldo, 694 F.3d at 164.
  31. Id. at 167.  The police said the arrest occurred before the intensive questioning of the woman, and it was the reason they arrested Monserrate.  Id.  But, the police were still essentially in the investigative stage.  Id.
  32. Id.
  33. Giraldo, 694 F.3d at 166-67.
  34. 500 U.S. 478 (1991).
  35. 509 U.S. 259 (1993).
  36. Burns, 500 U.S. at 496; Buckley, 509 U.S. at 278.
  37. 555 U.S. 335 (2009).
  38. Id. at 349.
  39. Ephraim Unell, A Right Not to Be Framed: Preserving Civil Liability of Prosecutors in the Face of Absolute Immunity, 23 Geo. J. Legal Ethics 955, 963 (2010) (“This decision [Van De Kamp] has implications for cases addressing the investigatory function because, in classifying administrative actions that relate to trial as protected prosecutorial functions, it implies that investigatory acts, which by definition relate to trial, are protected as well.”).  To resolve this, the Court must consider earlier cases that drew a bright line distinction between investigative and prosecutorial.  See, e.g., Burns, 500 U.S. at 494 (“Absolute immunity is designed to free the judicial process from the harassment and intimidation associated with litigation . . . .  That concern therefore justifies absolute prosecutorial immunity only for actions that are connected with the prosecutor’s role in judicial proceedings, not for every litigation-inducing conduct.”); Buckley, 509 U.S. at 276 (“A prosecutor may not shield his investigative work with the aegis of absolute immunity merely because, after a suspect is eventually arrested, indicted, and tried, that work may be retrospectively described as preparation for a possible trial . . . .  When the functions of prosecutors and detectives are the same, as they were here, the immunity that protects them is also the same.”).
  40. See generally Susan Bendlin, Qualified Immunity: Protecting “All But the Plainly Incompetent” (and Maybe Some of Them, Too), 45 J. Marshall L. Rev. 1023, 1024, 1049 (2012) (discussing the Court’s trend in granting absolute and qualified immunity).
  41. 504 U.S. 158 (1992).
  42. Id. at 168.
  43. 521 U.S. 399 (1997).  The opinion was 5-4, with Justice Breyer writing for the majority, joined by Justices Stevens, O’Connor, Souter, and Ginsburg.  See also Alexander A. Reinert, Does Qualified Immunity Matter?, 8 U. St. Thomas L.J. 477, 483 (2011).
  44. Richardson, 521 U.S. at 402.
  45. Id. at 404.
  46. Id. at 409.
  47. 132 S. Ct. 1657 (2012).
  48. Id. at 1660.
  49. Id.
  50. Id.
  51. Id.
  52. Filarsky, 132 S. Ct. at 1661.
  53. Id.
  54. Id. at 1667-68.
  55. Id. at 1667.
  56. See, e.g., Eagon Through Eagon v. City of Elk City, 72 F.3d 1480, 1490 (10th Cir. 1996) (holding private citizen employed as event chairman was entitled to qualified immunity); Warner v. Grand Cnty., 57 F.3d 962, 967 (10th Cir. 1995) (holding private actor who performed strip search of female detainee at request of sheriff was entitled to qualified immunity); Williams v. O’Leary, 55 F.3d 320, 323-24 (7th Cir. 1995) (holding a private physician whose employer provided medical services to a prison was entitled to qualified immunity); Frazier v. Bailey, 957 F.2d 920, 929 (1st Cir. 1992) (“We hold, therefore, that individuals . . . under contract with the government, are entitled to raise a qualified immunity defense because they are the functional equivalent of public officials.”).  But see Burrell v. Bd. of Trustees of Ga. Military College, 970 F.2d 785, 796 (11th Cir. 1992) (qualified immunity not available for private actor who was “alleged to have acted in concert with public officials for the sole purpose of depriving another of her constitutional rights”).
  57. See, e.g., Toussie v. Powell, 323 F.3d 178, 183 (2d Cir. 2003) (denying qualified immunity for a private doctor who was working in a prison); see also Harrison v. Ash, 539 F.3d 510, 524 (6th Cir. 2008) (holding nurses working for private company that contracted to work in prison were not entitled to qualified immunity based on Richardson); Jensen v. Lane Cnty., 222 F.3d 570, 576-80 (9th Cir. 2000) (holding no qualified immunity for privately organized group of psychiatrists under contract to provide psychiatry services to mental health detainees).
  58. See Martin A. Schwartz, Section 1983 Litigation Claims and Defenses § 9A.03 (4th ed. Supp. 2012) (“Richardson v. McKnight seems like a harder case to distinguish from Filarsky because, like Filarsky, the private prison guards in Richardson were carrying out governmental responsibilities and presumably functioning akin to government employed prison guards.  Nevertheless, the Filarsky Court brushed Richardson aside as a ‘narrow’ decision.”).
  59. Richardson, 521 U.S. at 408-09 (“[I]t never has held that the mere performance of a governmental function could make the difference between unlimited § 1983 liability and qualified immunity, especially for a private person who performs a job without government supervision or direction.”).
  60. Filarsky, 132 S. Ct. at 1667.
  61. Id.
  62. Id.
  63. See, e.g., Bartell v. Lohiser, 215 F.3d 550, 557 (6th Cir. 2000) (“[B]ecause of the closely monitored, non-profit interrelationship between FIA [Family Independence Agency] and LSS [Lutheran Social Services], we hold that the LSS defendants may assert qualified immunity.”); Camilo-Robles v. Hoyos, 151 F.3d 1, 10 (1st Cir. 1998) (“[T]he psychiatrists, . . . are for purposes of this case state actors performing in concert with the department.  As such, they are . . . eligible for the balm of qualified immunity.”); see also Murphy v. N.Y. Racing Ass’n, Inc., 76 F. Supp. 2d 489, 507 (S.D.N.Y. 1999) (“NYRA is not really a market participant subject to competitive market pressures.  As such, unlike the prison firm’s employees [in Richardson], NYRA’s trustees need the encouragement and protection of qualified immunity.”).
  64. No. 09-CV-866-MJR, 2012 WL 2711469 (S.D. Ill. July 8, 2012).
  65. Id. at *4.
  66. Id.
  67. 693 F.3d 696 (6th Cir. 2012).
  68. Id. at 704.
  69. Id.; Richardson, 521 U.S. at 407.
  70. See, e.g., Ford v. Wexford Health Sources, Inc., No. 12 C 4558, 2013 WL 474494, at *8 (N.D. Ill. Feb. 7, 2013) (noting that “[w]hether a privately employed medical official working at a prison may invoke qualified immunity is an open question in the Seventh Circuit,” but assuming the individual defendants could seek qualified immunity); Braswell v. Shoreline Fire Dep’t, No. C08-924-RSM, 2012 WL 1857858, at *7 (W.D. Wash. May 22, 2012) (“Here, as in Filarsky, Dr. Somers is an individual hired by the government to assist in carrying out its work . . . .  Accordingly, Dr. Somers is entitled to assert qualified immunity.”).
  71. PROFESSOR SCHWARTZ: Yet another interesting point raised by Filarsky is that the Supreme Court rendered a qualified immunity decision without first determining whether there was state action.  Filarsky, 132 S. Ct. at 1668.  The Court did the same thing in Richardson.  521 U.S. 399.  Determining state action should be the first inquiry because it is an essential element of a Section 1983 claim that the defendant acted under the color of state law; if there is no state action, there is no immunity issue.  42 U.S.C. § 1983 (2012).  However, despite this, the Court jumped straight to the immunity inquiry with no explanation.  See, e.g., Filarsky, 132 S. Ct. at 1661-62; McCullum, 693 F.3d at 700.
  72. 533 U.S. 194 (2001).
  73. Id. at 200.
  74. See id. (“[T]he first inquiry must be whether a constitutional right would have been violated on the facts alleged; second, assuming the violation is established, the question whether the right was clearly established must be considered on a more specific level . . . .”).
  75. Id. at 201-02 (emphasis added).
  76. 555 U.S. 223 (2009).
  77. See, e.g., Hilton v. Wright, 673 F.3d 120, 126 (2d Cir. 2012) (“Pearson freed courts from the mandatory nature of Saucier’s two-step process and allowed them to do the second, and often dispositive, step first.”); see also Costello v. City of Burlington, 632 F.3d 41, 51 (2d Cir. 2011) (“Saucier’s two-step framework, while often helpful, is not mandatory . . . .”); Ammons v. Wash. Dept. of Soc. & Health Serv., 648 F.3d 1020, 1026 (9th Cir. 2011) (“[W]e first examine the clearly established law with respect to the alleged Fourteenth Amendment violation, and then determine whether the facts before us support such a violation.”); Haley v. City of Boston, 657 F.3d 39, 47 (1st Cir. 2011) (“Because the answer to the second of the two qualified immunity inquiries required by Pearson is plain, we . . . proceed directly to the question of whether the specific right upon which the claim hinges was clearly established . . . .”); Moldowan v. City of Warren, 570 F.3d 698, 720 (6th Cir. 2009) (“In light of Pearson, . . . we are free to consider those questions in whatever order is appropriate in light of the issues before us.”).
  78. Pearson, 555 U.S. at 227.
  79. Id. at 229.  The doctrine of consent-once-removed is accepted in virtually all circuits for an undercover police officer who is allowed into a house and then signals other officers, but there was some question among the circuits about whether the consent-once-removed doctrine applied when it was not a police officer but a confidential informant who was given the consent.  John F. Decker & Kathryn A. Idzik, Disguising a New Exception to the Warrant Requirement: An Examination of the Consent-Once-Removed Doctrine and Its Hollow Justifications, 61 Drake L. Rev. 127, 156, 203 (2012) (noting that most jurisdictions have expressly adopted the doctrine of consent-once-removed and most other jurisdictions have developed a similar doctrine).
  80. Callahan v. Millard Cnty., 494 F.3d 891, 899 (10th Cir. 2007), rev’d, Pearson, 555 U.S. 223.
  81. Pearson, 555 U.S. at 245.  While this author agrees with much of the criticism that had been directed towards Saucier’s mandatory “merits-first” approach to qualified immunity analysis, Pearson was a case where it would have made sense to address the merits question.  The issue was not particularly fact driven, and it would have been helpful and instructive to law enforcement agencies and citizens to have a definitive answer to the question of whether consent given to a confidential informant operates as consent to officers entering the house without a warrant.  Nevertheless, the Supreme Court declined to answer that first question, instead going directly to the second question, and holding that there was qualified immunity.  Id.
  82. Id. at 236 (“The judges of the district courts and the courts of appeals should be permitted to exercise their sound discretion in deciding which of the two prongs of the qualified immunity analysis should be addressed first in light of the circumstances in the particular case at hand.”).
  83. Id.
  84. 132 S. Ct. 1235 (2012).
  85. Id. at 1241.
  86. Id.  PROFESSOR SCHWARTZ: Messerschmidt looked at the whole picture in evaluating whether the officer acted in a reasonable manner for the purpose of qualified immunity.  Id.
  87. Id.
  88. Messerschmidt, 132 S. Ct. at 1243.  DEAN CHEMERINSKY: The majority opinion is that it would be permissible to do the search for the purpose of gathering evidence for impeachment only.  Generally, the focus of searches by the police is gathering information to use in a prosecution, and this is the only instance in which the Supreme Court has stated that a search is permissible, but only to gather information for impeachment at trial.  See id. at 1248 (stating that “evidence demonstrating Bowen’s membership in a gang might prove helpful in impeaching Bowen or rebutting various defenses he could raise at trial”); see also id. at 1256 (Sotomayor, J., dissenting) (stating the Court has never treated searches differently for impeachment purposes and to do so would allow the police to search almost anyone simply by saying it is for impeachment); Id. at 1252 (Kagan, J., concurring) (stating support for validity of search for weapons, but “for all gang-related items . . . I would not award qualified immunity to Messerschmidt and his colleagues for this aspect of their search”).
  89. Id. at 1249 (“Whether any of these facts, standing alone or taken together, actually establish probable cause is a question we need not decide.”).
  90. Messerschmidt, 132 S. Ct. at 1250.
  91. Id. at 1249-50 (noting officers sought approval from a superior and a warrant).
  92. Id. at 1249.  PROFESSOR SCHWARTZ: Additionally, officers are typically given the benefit of the doubt, because an officer may have acted unreasonably under the Fourth Amendment but nevertheless, may be found to have acted reasonably for the purpose of qualified immunity.  See, e.g., Moore v. Andreno, 505 F.3d 203, 215-16 (2d Cir. 2007) (holding defendant’s actions were unreasonable in terms of the Fourth Amendment, but were reasonable as to qualified immunity); see also Bendlin, supra note 40, at 1045 (“Currently, the objective government official merely has to act in a way that is not ‘entirely unreasonable.’ ”).  PROFESSOR BLUM: The fact that an officer got approval from a superior or a warrant will count heavily towards granting qualified immunity but no one factor is determinative.  See Malley, 475 U.S. at 345 (“We also reject petitioner’s argument that . . . the act of applying for a warrant is per se objectively reasonable,”); see also Messerschmidt, 132 S. Ct. at 1249 (focusing on police officer defendant’s actions in obtaining a warrant).  But see Groh v. Ramirez, 540 U.S. 551, 565 (2004) (“[A] warrant may be so facially deficient . . . that the executing officers cannot reasonably presume it to be valid” for the purposes of qualified immunity (quoting United States v. Leon, 468 U.S. 897, 923 (1984) (internal quotation marks omitted))).  DEAN CHEMERINSKY: Thus, whether the officer is afforded qualified immunity turns on reasonableness: if the conduct is clearly unreasonable, even if a superior approved it, qualified immunity will not be given.  Malley, 475 U.S. at 345.
  93. Justices Kagan, Sotomayor and Ginsburg all dissented.
  94. See also Ryburn v. Huff, 132 S. Ct. 987, 990, 992 (2012) (per curiam) (Without deciding the merits question, concluding that “reasonable police officers in petitioners’ position could have come to the conclusion that the Fourth Amendment permitted them to enter the Huff residence if there was an objectively reasonable basis for fearing that violence was imminent.”).
  95. 132 S. Ct. 2088 (2012).
  96. Id. at 2091.
  97. Id.
  98. Id. at 2092.
  99. Id.
  100. Reichle, 132 S. Ct. at 2092.
  101. Id.  Because federal agents were sued, the case was brought as a Bivens action, not a Section 1983 action.  While the Court “has recognized an implied cause of action for damages against federal officials for Fourth Amendment violations,” the Court in Reichle assumed without deciding that a First Amendment violation could give rise to a claim under BivensId. at 2093 n.4.
  102. Id. at 2092.
  103. Id. at 2093.
  104. Reichle, 132 S. Ct. at 2093 (electing to address only the second question).
  105. Id.
  106. See Randolph A. Robinson II, Policing the Police: Protecting Civil Remedies in Cases of Retaliatory Arrest, 89 Denv. U. L. Rev. 499, 500 (2012) (stating in Reichle “the Court punted on the more important legal issue, thereby insuring a continued circuit split . . . as to the role that probable cause should play in civil suits for retaliatory arrests”).
  107. For post-Reichle decisions, see, e.g., Ford v. City of Yakima, 706 F.3d 1188, 1196 (9th Cir. 2013) (recognizing a First Amendment retaliatory “booking and jailing” claim even where probable cause existed); Thayer v. Chiczewski, 705 F.3d 237, 253 (7th Cir. 2012) (holding officer had qualified immunity “because neither our circuit nor the Supreme Court has ‘recognized a First Amendment right to be free from a retaliatory arrest that is supported by probable cause’ ”); Storey v. Taylor, 696 F.3d 987, 997 (10th Cir. 2012) (“The court below found Storey’s arrest was lawful.  It also found that when an arrest is lawful, ‘then there is no but-for causation for a related tort requiring a retaliatory motive.’  Thus, the court applied qualified immunity and granted summary judgment. This result was consistent with [Reichle].”); Veth Mam v. City of Fullerton, No. 8:11-cv-1242–JST (MLGx), 2013 WL 951401, at *6  (C.D. Cal. Mar. 12, 2013) (noting that “the Ford decision makes it apparent that Reichle has not cast doubt on the Ninth Circuit’s prior precedents holding that retaliatory arrests supported by probable cause are actionable under § 1983”).
  108. 642 F.3d 334 (2d Cir. 2011).
  109. Id. at 346.
  110. Id.
  111. Id.
  112. 695 F.3d 577 (6th Cir. 2012).
  113. See id. at 581-82 (“No court has held that the Second Amendment encompasses a right to bear arms within state parks . . . .  Such a right may or may not exist, but the critical point for our purposes is that it has not been established—clearly or otherwise at this point.  That suffices to resolve this claim under the Court’s qualified-immunity precedents.”).
  114. Id.
  115. 695 F.3d 505 (6th Cir. 2012).  The court only determined that the police did not violate a well settled law, declining to determine whether an individual has a Fourth Amendment right against the police’s use of a taser.  See id. at 508 (“We opt to answer the easier of the two questions, saving the harder one for another day.”).
  116. Id. at 507.
  117. Id. at 508.
  118. Id. at 511.
  119. See, e.g., German v. Sosa, 399 F. App’x 554, 557 (11th Cir. 2010) (“No case, statute, or principle within the Constitution provides the necessary precedent to clearly establish the rights [plaintiff] claims were violated by the [defendant’s] use of a taser.  Thus, qualified immunity applies . . . .”); Russell v. Wright, No. 3:11-cv-00075, 2013 WL 74439, at *11  (W.D. Va. Jan. 4, 2013) (“Given the dearth of caselaw on the use of tasers in excessive force cases, particularly within the Fourth Circuit, the court simply cannot say that Wright’s use of his taser under these circumstances violated clearly established law. Tasers are still relatively novel devices, and courts across the country continue to grapple with determining their proper role in assisting law enforcement officers.”).  But see Meyers v. Baltimore Cnty,, No. 11-2192, 2013 WL 388125, at *8 (4th Cir. Feb. 1, 2013) (“[T]he absence of a judicial decision holding that it is unlawful to use a taser repeatedly and unnecessarily under similar circumstances does not prevent a court from denying a qualified immunity defense.”); Abbott v. Sangamon Cnty., 705 F.3d 706, 732 (“[W]e conclude that it was clearly established on June 25, 2007, that it is unlawful to deploy a taser in dart mode against a nonviolent misdemeanant who had just been tased in dart mode and made no movement when, after the first tasing, the officer instructed her to turn over.”);  Austin v. Redford Twp. Police Dept., 690 F.3d 490, 499 (6th Cir. 2012) (“ ‘Even without precise knowledge that the use of the [t]aser would be a violation of a constitutional right,’ on these facts, Morgan ‘should have known based on analogous cases that [his] actions were unreasonable.’ ”) (citation omitted); Shekleton v. Eichenberger, 677 F.3d 361, 367 (8th Cir. 2012) (“[G]eneral constitutional principles against excessive force that were clearly established at the time of the incident between Deputy Eichenberger and Shekleton were such as to put a reasonable officer on notice that tasering Shekleton under the circumstances as presented by Shekleton was excessive force in violation of the clearly established law.”); see generally Aaron Sussman, Shocking the Conscience: What Police Tasers and Weapon Technology Reveal About Excessive Force Law, 59 UCLA L. Rev. 1342, 1344 (2012).
  120. 661 F.3d 433 (9th Cir. 2011) (en banc).
  121. Id. at 436-37.
  122. Id. at 438.
  123. For a description of the difference between dart mode and drive stun mode, see, e.g., Abbott, 705 F.3d at 725.  A major difference is that the use of the taser in dart mode will subject the victim to temporary paralysis of the muscles, overriding the victim’s central nervous system.  The use of the taser in drive stun mode inflicts temporary pain in order to achieve compliance with the officer’s commands, but does not result in paralysis of the muscles.  Id.
  124. Mattos, 661 F.3d at 439.
  125. Id at 452.
  126. See generally id. (deciding first prong in favor of plaintiff, but granting qualified immunity based on second prong).
  127. 131 S. Ct. 2020 (2011).  The Court addressed the question of whether “government officials who prevail on grounds of qualified immunity [may] obtain our review of a court of appeals’ decision that their conduct violated the Constitution . . . .”  Id. at 2026; see also id. at 2030 (“As a matter of practice and prudence, we have generally declined to consider cases at the request of a prevailing party . . . .”).
  128. Id. at 2027.
  129. Id. at 2026.
  130. Camreta, 131 S. Ct. at 2027.
  131. Id.
  132. Id.
  133. Id. at 2032.  In this particular case, the issue turned out to be moot because by the time it reached the Supreme Court the child was no longer a child, but had already grown and moved out of the state and clearly would not be subjected to such conduct again.  In light of its finding of mootness, the Court vacated the Ninth Circuit’s holding on the merits.  Id. at 2035-36.
  134. Camreta, 131 S. Ct. at 2033 (“We emphasize, however, two limits of today’s holding.  First, it addresses only our own authority to review cases in this procedural posture.”).
  135. Wheeler v. City of Lansing, 660 F.3d 931, 940 (6th Cir. 2011).
  136. 526 U.S. 603 (1999).
  137. Id. at 607.
  138. Id. at 609, 611.
  139. Id. at 614.
  140. Id. at 618 (Stevens, J., concurring in part and dissenting in part).
  141. Wilson, 525 U.S. at 615.
  142. Id.
  143. Id. at 615-16.
  144. Id. at 617.
  145. Id. at 617-18.
  146. See, e.g., McClendon v. City of Columbia, 305 F.3d 314, 329 (5th Cir. 2002) (en banc) (stating it is appropriate for courts to look to other circuits when neither the Fifth Circuit nor the Supreme Court has spoken); Hatch v. Dep’t for Children, Youth & Their Families, 274 F.3d 12, 23 (1st Cir. 2001) (instructing courts to “look not only to Supreme Court precedent but to all available case law” in determining the contours of a right); Medina v. City of Denver, 960 F.2d 1493, 1498 (10th Cir. 1992) (“[T]here must be a Supreme Court or Tenth Circuit decision on point, or [there must be] clearly established weight of authority from other courts . . . .”).   See also Buckley v. Rogerson, 133 F.3d 1125, 1129 (8th Cir. 1998) (“In the absence of binding precedent, a court should look to all available decisional law, including decisions of state courts, other circuits, and district courts.” (quoting Norfleet v. Ark. Dep’t of Human Servs., 989 F.2d 289, 291 (8th Cir. 1993))).
  147. See Pabon v. Wright, 459 F.3d 241, 255 (2d Cir. 2006) (denying law was clearly established, without looking to other circuits, “because neither this court nor the Supreme Court had recognized such a right at that time”); see also Thomas ex rel. Thomas v. Roberts, 323 F.3d 950, 955 (11th Cir. 2003) (“[O]nly Supreme Court cases, Eleventh Circuit caselaw, and Georgia Supreme Court caselaw can ‘clearly establish’ law in this circuit.”); Marsh v. Butler Cnty., 268 F.3d 1014, 1032 n.10 (11th Cir. 2001) (“When case law is needed to ‘clearly establish’ the law applicable to the pertinent circumstances, we look to decisions of the U.S. Supreme Court, the United States Court of Appeals for the Eleventh Circuit, and the highest court of the pertinent state.”).
  148. 536 U.S. 730 (2002).
  149. 543 U.S. 194 (2004).
  150. See Saucier, 533 U.S. at 200 (“[T]he question whether the right was clearly established must be considered on a more specific level than recognized by the [Ninth Circuit] Court of Appeals.”).
  151. Id. at 201-02.
  152. Hope, 526 U.S. at 734-35.
  153. Id. at 735-36.
  154. Id. at 737.
  155. Id. at 739.
  156. Id. at 739, 741.
  157. Hope, 526 U.S. at 741.
  158. See generally Daniel K. Siegel, Clearly Established Enough: The Fourth Circuit’s New Approach to Qualified Immunity in Bellotte v. Edwards, 90 N.C. L. Rev. 1241, 1252 (2012) (discussing the modern trend among the circuits to require a case on point for law to be clearly established).
  159. Brosseau, 543 U.S. at 200-01.
  160. 131 S. Ct. 2074 (2011).
  161. Id. at 2083.
  162. Id. (emphasis added).
  163. See Anderson v. Creighton, 483 U.S. 635, 640 (1987) (“[O]ur cases establish that the right the official is alleged to violate must have been “clearly established” in a more particularized, and hence more relevant, sense: The contours of the right must be sufficiently clear that a reasonable official would understand that what he is doing violates that right.”); see also Harlow v. Fitzgerald, 457 U.S. 800, 818 (1982) (“We therefore hold that government officials . . . 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.”) (emphasis added).
  164. Although it is surprising that no Justice opposed this addition, it is not clear whether they were unaware of the addition or they actually agreed with it.  See generally Ashcroft v. al-Kidd, 131 S. Ct. 2074.  While sitting in the Second Circuit, Justice Sotomayor wrote a concurrence touching on this distinction.  Walczyk v. Rio, 496 F.3d 139, 169 (2d Cir. 2007) (Sotomayor, J., concurring) (“Whether reasonably competent officers could disagree about the lawfulness of the conduct at issue, however, is not the same question the Supreme Court has repeatedly instructed us to consider: whether ‘it would be clear to a reasonable officer that his [or her] conduct was unlawful in the situation he [or she] confronted.’ ”) (citing Saucier, 533 U.S. at 202) (emphasis in original).
  165. Al-Kidd, 131 S. Ct. at 2083.
  166. 659 F.3d 359 (5th Cir. 2011) (en banc).
  167. Id. at 382.
  168. Id. at 373 (footnotes omitted).  See also Mattos, 661 F.3d at 448  (“We cannot conclude . . . that ‘every ‘reasonable official would have understood’ . . .  beyond debate’ that tasing Brooks in these circumstances constituted excessive force.”); De Contreras v. City of Rialto, 894 F. Supp. 2d 1238, 1252 (C.D. Cal. 2012) (“The Supreme Court recently emphasized the high burden that must be met for a plaintiff to overcome qualified immunity, replacing Anderson’s language of ‘a reasonable official’ with ‘every reasonable official’ and stating that ‘existing precedent must have placed the statutory or constitutional question beyond debate.’ ”).  But see Morgan, 659 F.3d at 393 (Dennis, J., specially concurring in parts and not joining in other parts) (“The Supreme Court’s recent decisions in Camreta v. Greene, 131 S. Ct. 2020 (2011), and Ashcroft v. al-Kidd, 131 S. Ct. 2074 (2011), do not overrule Hope, Lanier, or any case in that line.”).
  169. See Harlow, 457 U.S. at 818 (requiring a reasonable person); see also Al-Kidd, 131 S. Ct. at 2083 (requiring every reasonable official).
  170. Al-Kidd, 131 S. Ct. at 2083.
  171. See generally id.
  172. Van de Kamp, 555 U.S. at 344.
  173. Rehberg, 132 S. Ct. at 1506.
  174. Filarsky, 132 S. Ct. at 1667.
  175. PROFESSOR SCHWARTZ: One of the biggest issues that is unresolved is, does qualified immunity protect reasonable mistakes of fact.  See generally Karen Blum, Qualified Immunity in the Fourth Amendment: A Practical Application of § 1983 as It Applies to Fourth Amendment Excessive Force Cases, 21 Touro L. Rev. 571, 577-78, 591-92 (2005).  There is Supreme Court authority that it protects only reasonable mistakes of law; however, Justice Kennedy wrote in dissent that it also protects reasonable mistakes of fact.  See, e.g., Torres v. City of Madera, 648 F.3d 1119, 1127 (9th Cir. 2011) (“While the constitutional violation prong concerns the reasonableness of the officer’s mistake of fact, the clearly established prong concerns the reasonableness of the officer’s mistake of law.”).  But see Groh, 540 U.S. at 567 (Kennedy, J., dissenting) (“Our qualified immunity doctrine applies regardless of whether the officer’s error is a mistake of law, a mistake of fact, or a mistake based on mixed questions of law and fact.”).  See also Pearson v. Callahan, 555 U.S. 223, 231 (2009).

    PROFESSOR BLUM:  Additionally, issues of the role of the judge and the jury as fact finders also arise when there is a dispute regarding qualified immunity and there are material facts that have to be decided by the jury.  If the case goes to the jury, there should be special interrogatories given to the jury on the questions of fact.  Although the judge ultimately decides the question of law, that decision will be based on the jury’s findings of fact; thus, factual, detailed and specific questions are essential—general interrogatories are not helpful.  See Zellner v. Summerlin, 494 F.3d 344, 368 (2d Cir. 2007) (“To the extent that a particular finding of fact is essential to a determination by the court that the defendant is entitled to qualified immunity, it is the responsibility of the defendant to request that the jury be asked the pertinent question.”).