Professor Karen Blum: Qualified Immunity


I had the opportunity to interview Professor Karen Blum, who specializes in § 1983 litigation, on qualified immunity for the November/December Lincoln Douglas topic. She is a Professor of Law at Suffolk University and teaches in the areas of civil procedure, federal courts, civil rights, and police misconduct litigation. She also serves as a faculty member for workshops sponsored by the Federal Judiciary Center for Federal Judges and Magistrate Judges. Professor Blum earned her B.A. in Philosophy from Wells College, J.D. from Suffolk University, and LL.M. from Harvard University.

An Explanation of Qualified Immunity

by, Professor Karen Blum

Qualified immunity is an affirmative defense that police officers (and other public officials who act “under color of state law”) may raise when such officials are sued in their individual capacities for damages (i.e., a civil suit) under the federal civil rights statute, 42 U.S.C. § 1983.

42 U.S.C. § 1983 (enacted in 1871 following the Civil War as the Ku Klux Klan Act) provides in relevant part:

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 in an action at law, suit in equity, or other proper proceeding for redress . . . .

So, if a state or local government (city, town, county) police officer or sheriff uses or abuses his/her power in such a way as to violate a person’s constitutional rights, that person may sue the officer for damages under § 1983. But, an officer may raise the so-called “qualified immunity defense” to defeat the plaintiff’s claim.  Qualified immunity, while rooted in the common law, is currently very much a product of policy choices made by the Supreme Court to afford deference and protection to officials who are faced with making difficult choices in the carrying out of their public duties.  The law does not always provide clear guidance as to what conduct is permissible or impermissible under the Constitution.  Thus, the Court has held that even if particular conduct is deemed to violate the Constitution under current law, an official will have qualified immunity from both suit and liability if the law was not clearly established enough at the time of the challenged conduct such that every reasonable officer would have understood or had warning that the particular conduct engaged in violated the Constitutional rights of the plaintiff.

This is an objective test. It’s not what this officer understood, but what an objectively reasonable, well-trained officer would have understood given the facts and circumstances confronting this officer at the time.

For a plaintiff to overcome qualified immunity, the plaintiff must demonstrate both:

  1. The violation of a constitutional right under current law, and
  2. The law was clearly established at the time such that a reasonable officer (or “every reasonable officer”) would have understood that the particular conduct engaged in violated the Constitution.

Courts used to have to address both steps or “prongs” of the analysis.  That is, the two-step approach was mandatory. The first step had to be addressed before going on to the second.  Thus, courts confronting the qualified immunity defense would have to decide whether the conduct alleged by the plaintiff in the complaint was conduct that indeed violated a constitutional right before deciding whether that right was clearly established at the time.  So, in some cases, even though the officer may have prevailed on the second prong or step of the analysis, the court would set a standard for cases going forward by holding that certain conduct should now be understood to violate the Constitution. You get a “pass” this time because the law wasn’t clear, but next time there will be no pass and an officer who engages in this conduct going forward will be held liable.

In 2009, in a case called Pearson v. Callahan, the Supreme Court held that the two-step analysis was no longer mandatory. Lower courts were free to “jump” to the second step and dispose of a case on just that prong if the law was not clearly established at the time.  This approach is one the S.Ct. itself has used in reversing the denial of qualified immunity in nine cases in the last 4 years. Many lower courts routinely jump to the second prong now in qualified immunity cases.  This is unfortunate for plaintiffs (and arguably for officers as well) because no standards get established. Case after case may involve conduct that was not clearly violative of the Constitution at the time, but if the courts don’t address the “merits” question raised by prong one, we will never have an answer to whether such conduct does violate the Constitution and officers will continue to prevail on the “clearly established law” prong of the analysis.

“Pros” of Qualified Immunity Defense:

Qualified immunity provides public officials with much needed protection from being dragged through law suits and being exposed to personal liability for conduct that was not clearly unconstitutional.

Police officers, especially, must make many decisions in tense situations, where their lives and the lives of others are in jeopardy.  We don’t want officers constantly in the mode of second-guessing themselves and being afraid to do the job they were hired to do.

We should not expect police officers to predict or guess what conduct may violate the Constitution in contexts where the borders of the law are “hazy.”  Unless the law establishing a right was “beyond debate,” officers should be protected even if they make the wrong decision.

“Cons” of Qualified Immunity Defense:

Qualified Immunity does little to protect the “pocketbook” of individual police officers. In a study of 40+ major police agencies across the country, Prof. Johanna Schwartz concluded that the overwhelming majority of law enforcement agencies indemnified their officers for any damages awarded in § 1983 lawsuits (Schwartz 952).

The notion that qualified immunity protects officers who often engage in “split-second” decision making is mistaken.  Officers do or should receive training as to how to respond in many situations they encounter.  The training is for the purpose of not having officers put themselves in situations where they must then make “split second” decisions.

Qualified immunity leaves citizens whose constitutional rights have been violated with no redress for their injuries.  State law immunities often protect officers from state law claims that might be asserted.

Under the approach that now allows courts “jump” to the second prong, standards governing conduct of police officers in many contexts will be left undefined and unclear going forward.

Qualified Immunity: The Nuances

Qualified immunity is considered to be an affirmative defense. Generally, in civil cases, the defendant has the burden of both pleading and proving the elements of an affirmative defense. With respect to the qualified immunity defense, however, most Circuits hold that after the defendant has raised the defense, either at the motion to dismiss or summary judgment stage, the burden shifts to the plaintiff to show that the right plaintiff asserts has been violated was clearly established at the time of the challenge action. (See, e.g., Ashcroft v. Iqbal).

The First Circuit, for example, places “the burden of demonstrating the law was clearly established at the time of the alleged constitutional violation […] on the plaintiff” (McGrath v. Tavares, et al.). The Tenth Circuit, in a manner similar to the First Circuit, simply requires that a “public official first shows that she was acting within the scope of her discretionary authority” to establish a qualified immunity defense. After the defendant satisfies this standard, “the burden shifts to the plaintiff to establish that qualified immunity is not appropriate” (Maddox v. Stephens et al.).

In the majority of cases, Professor Blum explains, “the defendant raises the qualified immunity defense, but after it is raised, it becomes the plaintiff’s burden to overcome the defense”, at which point the plaintiff must produce evidence to support their allegations that the defendant violated a clearly-established constitutional right.

Qualified Immunity Within A Case

After the plaintiff initiates a civil suit by filing a complaint, the qualified immunity defense can be asserted at various stages as it filters through the courts. The motion to dismiss stage, the point at which the court decides whether or not the claims raised by the plaintiff may go forward, is the first phase at which the defendant can claim immunity under § 1983. As Professor Blum asserts, however, “it is difficult for a defendant to win on qualified immunity at the motion to dismiss stage” and, assuming plaintiff has at least alleged facts that support a claim, most courts allow the plaintiff to engage in some limited discovery before the qualified immunity defense is resolved. During litigation discovery, both parties examine documents, take witness depositions, subpoena third parties, and hire experts “with almost no involvement by a judge,” allowing both the plaintiff and defendant to craft their arguments prior to appearing before the court (Gorga and Halberstam 1391). After the discovery phase is completed, it moves into the summary judgement phase, in which the question before the court becomes whether or not the plaintiff has produced sufficient evidence for a jury to find for the plaintiff on each of the elements necessary to make out the plaintiff’s claim in trial. This “is where the rubber really hits the road”, according to Professor Blum.

The general rule applied in civil litigation is that there is no appeal allowed until there is a final judgment. Essentially, when the case is over a party then may appeal and ask the appellate court to review whatever matters the party thinks were erroneously decided by the trial judge. With qualified immunity, the defendant is allowed to take what is called an interlocutory appeal, that is an appeal before the case is over. If the trial court denies the qualified immunity defense, either at the motion to dismiss stage or at summary judgment, the defendant may take an immediate appeal of that denial to the extent that the defendant is raising legal questions for the appellate court to decide. Since the qualified immunity defense is supposed to protect public officials from burdensome discovery and trial, as well as ultimate liability, the courts have allowed these immediate appeals to insure that erroneous denials of qualified immunity are addressed before the official is required to engage in protracted litigation. This interlocutory appeal may be taken more than once, after a denial at the motion to dismiss stage, and again after denial at the summary judgment stage. Such interlocutory appeals are extremely time-consuming and expensive, prolong the litigation and often frustrate plaintiffs who are anxious to have their day in court on the merits of the case.

This will be added to continually.

Works Cited

“Affirmative Defense.” Wex. LII / Legal Information Institute, n.d. Web. 23 Oct. 2016. (link)

Ashcroft v. Iqbal, 556 U.S. 662 (2009) (link)

CortesReyes v. Salas-Quintana, 608 F.3d 41, 52 (1st Cir. 2010) (link)

Gorga, Erica, and Michael Halberstam. “Litigation Discovery and Corporate Governance: The Missing Story About the “Genius of American Corporate Law”.” Emory Law Journal 63 (2014): 1383-498. (link)

Maddox v. Stephens, 727 F.3d 1109 (11th Cir. 2013) (link)

McGrath v. Tavares, et al., No. 12-2277 (1st Cir. 2014) (link)

Schwartz, Joanna. “Police Indemnification.” New York University Law Review 89.3 (2014): 885-1005. (link)

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