Friday, April 16, 2010

Judge Straub calls out the Second Circuit in qualified immunity

Qualified immunity is no joke. If you bring a Section 1983 case, the individual defendants may be entitled to qualified immunity if their actions were objectionably reasonable even if, in hindsight, the defendant violated the Constitution. A few years ago, Judge Sotomayor suggested that the Second Circuit has been misinterpreting the Supreme Court's qualified immunity case law. Judge Sotomayor now sits on the Supreme Court, but Judge Straub on the Second Circuit is now carrying the torch.

The case is Taravella v. Town of Wolcott, decided on March 16. The Court of Appeals (Jacobs and Hall) holds that the plaintiff cannot proceed with his procedural due process case arising from his employment dispute with the Town. Not the most intriguing case in the world ... except that Judge Straub dissents on the merits and also suggests the Second Circuit's qualified immunity rules miss the bullseye.

The Second Circuit's current qualified immunity doctrine reads like this:

A government official sued in his individual capacity ... is entitled to qualified immunity in any of three circumstances: (1) if the conduct attributed to him is not prohibited by federal law ... ; or (2) where that conduct is so prohibited, if the plaintiff’s right not to be subjected to such conduct by the defendant was not clearly established at the time of the conduct ... ; or (3) if the defendant’s action was objectively legally reasonable ... in light of the legal rules that were clearly established at the time it was taken. X-Men Sec., Inc. v. Pataki, 196 F.3d 56, 65-66 (2d Cir. 1999)

This means that even if the governing case law was clearly established (and in hindsight it looks like the defendant broke the law), that defendant can still avoid liability if his actions were objectively reasonable. Judge Straub has given this a lot of thought. Other Second Circuit cases only describe qualified immunity in two steps, i.e., whether the defendant's conduct was prohibited by law and whether the case law at the time was clearly established on that point. The objective reasonableness prong is sometimes omitted from the analysis in Second Circuit cases. It is the objective reasonablness angle which prompts judges to dismiss a lot of Section 1983 cases on the basis that the defendant acted reasonably at the time on the basis of facts known to him, i.e., he was confronted with a strange or urgent set of circumstances and used his reasonable judgment.

As Judge Sotomayor noted in her concurrence in Walczyk v. Rio, 496 F.3d 139, 166 (2d Cir. 2007), the "objective reasonablness" prong finds no support in Supreme Court case law and the Second Circuit is therefore erecting an additional hurdle for plaintiffs in civil rights cases. Judge Straub now adopts Judge Sotomayor's take on this issue, highlighting an inconsistency between Second Circuit and Supreme Court decisions and even an inconsistency in the Second Circuit, depending on the panel hearing the case. The case law in this area remains muddled, Judge Straub notes. This lack of clarity cries out for full Second Circuit review, Judge Straub suggests, summarizing his views as follows:

I attempt to call our Court’s attention to the apparent long-standing inconsistency in our case law regarding the proper standard for analyzing qualified immunity claims. We should — and it is my hope that we soon will — resolve this inconsistency by holding that qualified immunity is decided in accordance with a two-step analysis: (1) a court must determine whether the facts, taken in the light most favorable to the party asserting the injury, show that the state official’s conduct violated a constitutional right; and (2) even if a constitutional violation can be made out on a favorable view of the submissions, the official is entitled to immunity if the right was not clearly established.

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