Landmark Publications

The Affirmative Defense of Qualified Immunity for Law Enforcement Landmark Publications

THIS CASEBOOK contains a selection of U. S. Court of Appeals decisions that analyze and discuss issues raised when law enforcement officers assert the affirmative defense of qualified immunity. Volume 1 of the casebook covers the District of Columbia Circuit and the First through the Fifth Circuit Court of Appeals. * * * Qualified immunity is a doctrine aimed at providing government officials (including police officers) a modicum of protection from civil damages liability for actions taken under color of state law. See Harlow v. Fitzgerald, 457 U. S. 800, 818, 102 S. Ct. 2727, 73 L. Ed.2d 396 (1982); McKenney v. Mangino, 873 F.3d 75, 80 (1st Cir. 2017), cert. denied, ___ U. S. ___, 138 S. Ct. 1311, 200 L. Ed.2d 475 (2018). This p.10 protection attaches "to all but the plainly incompetent or those who knowingly violate the law." Malley v. Briggs, 475 U. S. 335, 341, 106 S. Ct. 1092, 89 L. Ed.2d 271 (1986). Thus, a government official may invoke the defense of qualified immunity when his actions, though causing injury, did "not violate clearly established statutory or constitutional rights of which a reasonable person would have known." Conlogue v. Hamilton, 906 F.3d 150, 154 (1st Cir. 2018) (quoting Harlow, 457 U. S. at 818, 102 S. Ct. 2727). The qualified immunity analysis has two facets: "[t]he court must determine whether the defendant violated the plaintiff's constitutional rights" and then must determine "whether the allegedly abridged right was 'clearly established' at the time of the defendant's claimed misconduct." Id. at 155 (quoting McKenney, 873 F.3d at 81). [ . . . ] [The question whether the allegedly abridged right is clearly established] has two facets. First, the plaintiff must "identify either 'controlling authority' or a 'consensus of cases of persuasive authority' sufficient to send a clear signal to a reasonable official that certain conduct falls short of the constitutional norm." Alfano v. Lynch, 847 F.3d 71, 75 (1st Cir. 2017) (quoting Wilson v. Layne, 526 U. S. 603, 617, 119 S. Ct. 1692, 143 L. Ed.2d 818 (1999) ). Second, the plaintiff must demonstrate that "an objectively reasonable official in the defendant's position would have known that his conduct violated that rule of law." Id. This latter step is designed to achieve a prophylactic purpose: it affords "some breathing room for a police officer even if he has made a mistake (albeit a reasonable one) about the lawfulness of his conduct." Conlogue, 906 F.3d at 155. Taken together, these steps normally require that, to defeat a police officer's qualified immunity defense, a plaintiff must "identify a case where an officer acting under similar circumstances was held to have violated the Fourth Amendment." City of Escondido v. Emmons, ___ U. S. ___, 139 S. Ct. 500, 504, 202 L. Ed.2d 455 (2019) (per curiam) (quoting District of Columbia v. Wesby, ___ U. S. ___, 138 S. Ct. 577, 590, 199 L. Ed.2d 453 (2018) ); see Anderson v. Creighton, 483 U. S. 635, 639-40, 107 S. Ct. 3034, 97 L. Ed.2d 523 (1987). Although such a case need not arise on identical facts, it must be sufficiently analogous to make pellucid to an objectively reasonable officer the unlawfulness of his actions. See City of Escondido, 139 S. Ct. at 504; Ashcroft v. al-Kidd, 563 U. S. 731, 741, 131 S. Ct. 2074, 179 L. Ed.2d 1149 (2011). Gray v. Cummings, 917 F. 3d 1 (1st Cir. 2019)