Qualified immunity

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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.[1] Qualified immunity thus protects officials who "make reasonable but mistaken judgments about open legal questions,"[2] but does not protect "the plainly incompetent or those who knowingly violate the law"[3].

History and background[edit]

Bivens and 42 USC § 1983 lawsuits[edit]

Qualified immunity frequently arises in civil rights cases,[4] particularly in lawsuits arising under 42 U.S.C § 1983 and Bivens v. Six Unknown Named Agents.[5] Under 42 U.S.C § 1983, a plaintiff can sue for damages when state officials violate her Constitutional rights or other federal rights.

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 ...[6]

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.[7] Thus far the Supreme Court has recognized Bivens claims for violations of the Fourth Amendment,[5] the Fifth Amendment's equal protection component of due process,[8] and the Eighth Amendment.[9]

History of qualified immunity[edit]

The modern test for qualified immunity was established in Harlow v. Fitzgerald.[10][11]

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.[11] 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.[11] 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",[12] 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."[13] 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[edit]

Discretionary function requirement[edit]

Qualified immunity only applies to acts that are "discretionary" rather than ministerial.[13] Courts specifically distinguish discretionary acts from ministerial acts.[14] 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.[15] By contrast, a ministerial act is "clerical nature"—the official is typically required to perform the action regardless of his own opinion.[15] 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.[16]

Clearly established law requirement[edit]

Qualified immunity does not protect officials who violate "clearly established statutory or constitutional rights of which reasonable person would have known".[13] 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.[17]

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.[18] 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[19]—though the Supreme Court has cast doubt on this theory.[20]

Judicial application: The Saucier two-step test[edit]

In 2001, the US Supreme Court in Saucier v. Katz[21] 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,"[22] 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" [23]

Relevant cases[edit]

See also[edit]


  1. ^ 63C Am. Jur. 2d Public Officers and Employees § 314-15.
  2. ^ Ashcroft v. al-Kidd, 563 U.S. 731, 743 (2011).
  3. ^ Malley v. Briggs, 475 U.S. 335, 341 (1986).
  4. ^ See 63C Am. Jur. 2d Public Officers and Employees § 314.
  5. ^ a b Bivens v. Six Unknown Named Agents, 403 U.S. 388 (1971).
  6. ^ 42 U.S.C. § 1983.
  7. ^ Actions Against Federal Agencies and Officers, 14 Fed. Prac. & Proc. Juris. § 3655 (4th ed.)
  8. ^ Davis v. Passman, 442 U.S. 228, 245 (1979).
  9. ^ Carlson v. Green, 446 U.S. 14, 25 (1980).
  10. ^ Harlow v. Fitzgerald, 457 U.S. 800 (1982).
  11. ^ a b c III. Private Party Immunity from Section 1983 Suits, 123 Harv. L. Rev. 1266, 1267 (2010).
  12. ^ Harlow, 457 U.S. at 814.
  13. ^ a b c Harlow, 457 U.S. at 818.
  14. ^ See e.g. Bletz v. Gribble, 641 F.3d 743, 757 (6th Cir. 2011); Kennedy v. Mathis, 297 Ga. App. 295, 297, 676 S.E.2d 746, 748 (2009); Rodriguez v. State, 218 Md. App. 573, 615 (2014); Baptie v. Bruno, 195 Vt. 308, 314, 88 A.3d 1212 (2013).
  15. ^ a b 63C Am. Jur. 2d Public Officers and Employees § 318.
  16. ^ 63C Am. Jur. 2d Public Officers and Employees § 319.
  17. ^ 63C Am. Jur. 2d Public Officers and Employees § 315.
  18. ^ 63C Am. Jur. 2d Public Officers and Employees § 316
  19. ^ § 8:22. Post-Harlow qualified immunity test in the circuits and the states: applicable principles (Part I)—Whose decisions determine clearly settled law?, 2 Nahmod, Civil Rights & Civil Liberties Litigation: The Law of Section 1983 § 8:22
  20. ^ City & Cty. of San Francisco v. Sheehan, No. 13-1412, 575 U.S. ___ (2015).
  21. ^ Saucier v. Katz, 533 U.S. 194 (2001).
  22. ^ Pearson v. Callahan, 555 U.S. 223, 818 (2009).
  23. ^ Pearson, 555 U.S. at 821.