Government entities and their insurance carriers should take note of a sea change in qualified immunity jurisprudence. Suing Government: Courts Part the Skirts of Qualified Immunity

Government entities and their insurance carriers should take note of a sea change in qualified immunity jurisprudence. The defense of qualified immunity to constitutional rights violations is increasingly and, in many instances, appropriately coming under attack since the U.S. Supreme Court ruled against defendant officials last June in a case involving a prisoner punished by being lashed to a hitching post. Just last week, the First, Fifth, Sixth, Eighth and Eleventh Circuits each decided cases involving constitutional rights claims, and in each such case where the affirmative defense of qualified immunity was raised, the "state actor" was not entitled to its protection.

If that statistic isn’t enough to raise the neck hairs of an insurance executive, there’s more. Also, last week, the U.S. Supreme Court shipped back to the Eleventh Circuit a civil rights case against two police officers and the largely self-insured city of Boynton Beach, Florida with instructions to reconsider the case in light of its June ruling. In that ruling, Hope v. Pelzer, the Supreme Court held that the critical issue concerning qualified immunity is whether the defendant official had "fair notice" that his conduct was unconstitutional. (For more about the ruling, click here).

Prior to the Hope ruling, the Eleventh Circuit had reversed a federal jury award of $6 million to a shooting victim, ruling that the police officers were entitled to qualified immunity for their actions because no similar case had been tried. As a result, the officers could not have known what they were doing was wrong, the Eleventh Circuit reasoned in granting them qualified immunity. The Supreme Court’s order effectively puts the officers and the city back on the liability hook.

Section 1983 is the federal statutory cause of action that allows a person to sue a government officer or entity for a deprivation of federal constitutional rights. Section 1983 states that "[e]very 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 in an action at law, suit in equity, or other proper proceeding for redress." 42 U.S.C. § 1983 (1994). To recover damages against a government official under section 1983, a plaintiff must establish that a constitutional right exists, that the defendant violated that right under color of state law, and that the defendant's acts proximately caused the plaintiff's injury.

A public official who engaged in constitutional wrongdoing may nonetheless avoid liability by invoking the affirmative defense of qualified immunity. Qualified immunity insulates officials from liability for conduct that "does not violate clearly established statutory or constitutional rights of which a reasonable person would have known." Harlow v. Fitzgerald, 457 U.S. 800, 818 (1982). The Court later stated that: "The contours of the right must be sufficiently clear that a reasonable official would understand that what he is doing violates that right. This is not to say that an official action is protected by qualified immunity unless the very action in question has previously been held unlawful ... but it is to say that in the light of pre-existing law the unlawfulness must be apparent." Anderson v. Creighton, 483 U.S. 635, 640 (1987) (citations omitted).

As a practical matter, qualified immunity led to the dismissal of a significant percentage of civil rights cases against public officials, until the Hope decision threw up its major roadblock. In December, the Supreme Court will hear oral arguments in Chavez v. Martinez (No. 01-1444) and address whether the Ninth Circuit was correct in holding that the conduct of an officer making a stop and use of deadly force in a narcotics case was so offensive as to deny him qualified immunity. Government actors, their insurers and those of us concerned about government disregard for constitutional rights must closely follow this case as it provides another opportunity for the Court to reduce blanket use of the qualified immunity defense.

October 25, 2002
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