Second Circuit clarifies qualified immunity inquiry

I often write about qualified immunity. This a legal doctrine that allows public defendants in civil rights cases to win the case if their objectionable actions did not violate clearly established law even if, in hindsight, the court finds that their actions were in fact illegal.

Here is how qualified immunity works, in simplified form. Let's say the plaintiff alleges that a public official seized her political pamphlets at a board of education meeting. The public officials says the pamphlet distribution disrupted the meeting. The plaintiff says that the pamphlets were seized because they criticized board of education policies and that she did not disrupt anything. The plaintiff brings a lawsuit. The judge decides that there is no case law that resembles this fact pattern. So, while the judge decides that the seizure was in fact illegal, since the law was not clear at the time the pamphlets were confiscated (due to the lack of case law in the federal jurisdiction), the public official who seized the documents is immune from suit. The rationale behind qualified immunity is that the public official is not expected to know where the case law is headed and that she gets the benefit of the doubt in trying to discharge her public responsibilities.

In Okin v. Cornwall-on-Hudson, decided on August 18, the Court of Appeals dropped an interesting footnote (number 11) that attempts to clarify the qualified immunity inquiry. (The domestic violence portion of the decision is discussed here). The Court notes in the body of the opinion that "government actors are entitled to qualified immunity 'insofar as their conduct does not violate clearly established statutory or constitutional rights of which a reasonable person would have known.'" The Court of Appeals then notes that "a police officer who has an objectively reasonable belief that his actions are lawful is entitled to qualified immunity. 'The relevant, dispositive inquiry in determining whether a right is clearly established is whether it would be clear to a reasonable officer that his conduct was unlawful in the situation he confronted." This statement for the most part derives from Supreme Court authority on the issue.

As anyone who follows federal case law knows, however, Supreme Court authority has to be applied by the Court of Appeals, each of which may interpret Supreme Court authority differently. In footnote 11, the Second Circuit in Okin attempts to clear up conflicting language about what qualified immunity really means. Here's Judge Pooler:

Some cases frame the test as disjunctive: an officer “is entitled to qualified immunity if his conduct did not violate a clearly established constitutional right, or if it was objectively reasonable for him to believe that his conduct did not violate such a right.” Gilles v. Repicky, 511 F.3d 239, 246 (2d Cir. 2007). This would imply that an officer whose actions violated clearly established law might escape liability if he had an objectively reasonable belief that his conduct did not violate the clearly established law. However, Saucier [v. Katz, 533 U.S. 194] makes it clear that the “objectively reasonable” inquiry is part of the “clearly established” inquiry. 533 U.S. at 202. ... Thus, once a court has found that the law was clearly established at the time of the challenged conduct and for the particular context in which it occurred, it is no defense for a police officer who violated this clearly established law to respond that he held an objectively reasonable belief that his conduct was lawful. This is so because a police officer who violates clearly established law necessarily lacks an objectively reasonable belief that his conduct was lawful. We clarify here that the two are part of the same inquiry, not independent elements as some cases suggested.

What does this mean? It means that, through footnote 11, the Court of Appeals is saying that, if the state of the law was clearly established at the time of the alleged violation, the qualified immunity analysis ends. The analysis should not include the question of whether the officer reasonably believed that his conduct was lawful. In practical terms, this means that there only one inquiry in resolving the qualified immunity question: whether the law was clearly established. Many cases in the past have -- after determining that the law was clearly established -- ruled in favor of the defendant on qualified immunity grounds because the defendant public officer acted reasonably under the circumstances. This usually happens when the officer is presented with a strange or difficult factual scenario and has to use her judgment in the course of her public responsibilities. This footnote has important implications for Section 1983 cases, which often raise a qualified immunity defense. Under footnote 11, more civil rights cases against public officials would go to trial.

A footnote to the footnote: the Court's clarification of the qualified immunity inquiry was first raised in the Second Circuit a few years ago when then Circuit Judge Sotomayor made this argument in a concurring opinion. That was in Walczyk v. Rio, 496 F.3d 139, 165 (2d Cir. 2007). I wrote about that concurrence here. Judge Sotomayor was on the Okin panel until she was elevated to the Supreme Court. Since her nomination to the Supreme Court was pending while the Court of Appeals decided this case, she did not take part in deciding Okin.