This is part II of my discussion of Barboza v. D'Agata, a summary order issued on January 18, which grants qualified immunity to two police officers who arrested plaintiff for aggravated harassment after he send in a traffic ticket payment form to a Sullivan County municipality. He wrote on the form "Fuck your shitty town bitches." As I wrote here, the Court of Appeals finds the police officers are entitled qualified immunity because it was not clearly-established at the time that plaintiff's language did not support an arrest for aggravated harassment.
This blog entry discusses the reasoning leading up to the qualified immunity holding. If you handle Section 1983 cases, qualified immunity is a part of your life. It says that even if the police or some other governmental actor violated the plaintiff's rights, the defendant is immune from suit in certain circumstances. Qualified immunity provides a cushion for governmental officials to avoid suit depending on the circumstances.
The Supreme Court has always framed the qualified immunity inquiry this way: officers are immune from suit unless they violated the plaintiff's constitutional rights and those rights were clearly established at the time of the violation. We know when rights are clearly established by looking at the case law in place at the time of the incident. You don't need a case on "all fours," but preexisting case law must be close enough that the government defendants were on notice that they were violating the plaintiff's rights. Despite the two-step test used by the Supreme Court (a process that continues to this day in the several qualified immunity rulings issued by the Court each year), the Second Circuit has often applied a third step, asking if the defendant's actions were objectively reasonable. This means that even if the officers violated a clearly established right, if they acted in an objectively reasonable manner, or in objective good faith, they cannot be sued.
In 2007, Judge Sotomayor (when she was still sitting on the Second Circuit) noted in a concurring opinion that the third step is not appropriate because the Supreme Court has never adopted that approach. That case was Walcyk v. Rio, 496 F.3d 139 (2d Cir. 1997). While other judges on the Court of Appeals had also pointed out this anomaly, the Second Circuit still applied a third step from time to time, depending on the appellate panel.
I represented the plaintiff in Barboza. On appeal I argued that there is no third step as per Judge Sotomayor's concurrence in Walcyk and Supreme Court precedent. We also had an amicus brief that advanced the same argument. This position impacted Barboza because the district court said that while the officers violated clearly established law in arresting Barboza for his vulgarities, they were still entitled to qualified immunity under the third step because it was objectively reasonable for the officers, in part, to rely on the advice of the assistant district attorney, who told them to arrest Barboza.
In affirming the judgment in favor of the police officers, the Second Circuit (Chin, Raggi and Lohier) says the district court nonetheless got the qualified immunity inquiry wrong: there is no third step. The Court says its precedent has already rejected the third step, in Zaleski v. City of Hartford, 723 F.3d 382 (2d Cir. 2013), and Okin v. Village of Cornwall, 577 F.3d 415 (2d Cir. 2009). In my view, it was not that clear that the Second Circuit had squarely rejected the third step in those cases, as the Court of Appeals had gone back and forth on that issue over the years. That issue is settled now. There is no "objective reasonabeless" third step under the qualified immunity equation.
That does not make it easier to sue the police for constitutional violations. The panel in Barboza repeatedly notes that, even under the clearly established element of qualified immunity, the plaintiff must show the law was clearly established "in certain respects," depending on the facts of the case. So the Court of Appeals makes this step a fact-specific inquiry. Language in the ruling further emphasizes that qualified immunity is a "forgiving" test that allows police officers "breathing room to make reasonable, even if sometimes mistaken judgments, without fear of disabling liability." This means that only the "plainly incompetent" government defendants will lose in court. The Second Circuit cites Supreme Court authority for most of this reasoning. In the end, reasoning like this makes it easier for government defendants to avoid liability, even if the plaintiff can show that his rights were violated.