Wednesday, May 22, 2013

Qualified immunity motions under Rule 12 are usually not a good idea

A pro se plaintiff sues the City of Mount Vernon alleging that she was arrested without probable cause. The district court denied the Rule 12 motion to dismiss, finding that qualified immunity could not attach on the basis of the plaintiff's allegations. The Court of Appeals affirms and tells us that a Rule 12 motion is not the best time to seek qualified immunity in cases like this.

The case is Barnett v. Mount Vernon Police Department, a summary order decided on May 3. Qualified immunity means that the police officers acted in good faith under the circumstances, and they cannot be sued. Not all police officers get qualified immunity, but that defense surfaces in nearly every Section 1983 civil rights suit. Maybe the city thought it could win the argument with a pro se plaintiff on the other side of the case. The City must have really thought it would win the appeal when the pro se plaintiff failed to file a brief in the Second Circuit. The City loses the appeal and the case heads to discovery.

The Second Circuit (Leval, Katzmann and Hall) summarizes the allegations in the complaint: "The complaint alleges that the defendants relied solely on the victim Dwight Douse’s identification of Barnett in a photo array to establish probable cause even though Douse actually identified someone else in the array. As the district court found, Barnett pled sufficient facts to plausibly indicate that Douse identified someone other than the plaintiff and that the defendants did not have probable cause to arrest Barnett based on Douse’s identification."

This is enough to state a claim for false arrest. The complaint does not provide a basis for the police to argue that they are entitled to qualified immunity. Nothing remarkable here. What stands out is the Second Circuit's advice to defense counsel about motions like this under Rule 12:

a defendant asserting a qualified immunity defense on a motion to dismiss “faces a formidable hurdle . . . and is usually not successful.” The defense will succeed only where entitlement to qualified immunity can be established “based [solely] on facts appearing on the face of the complaint.” For these reasons, a motion to dismiss “is a mismatch for immunity and almost always a bad ground of dismissal.” Because the standard of review is the same on a motion for judgment on the pleadings, the hurdle for the defendants here is similarly formidable. Defendants moving to dismiss a suit by reason of qualified immunity would in almost all cases be well advised to move for summary judgment, rather than for dismissal under Rule 12(b)(6) or 12(c).
This is useful advice. But it will probably go unheeded. This case is an unpublished summary order, which tends to attract little notice.

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