Could Rhett and Stacy lose qualified immunity in the Miller case because of violating clearly established statutory or constitutional rights

Besides authorizing official capacity suits against state and local officials for structural injunctive relief, 42 U.S.C. § 1983authorizes claims against those officials in their individual capacity for compensatory and punitive damages. Although the Eleventh Amendment limits official capacity claims against state officials to prospective injunctive relief, it does not affect damage claims against those officials in their individual capacity

Section 1983 imposes liability without defense on state and local officials who, acting under color of law in their individual capacity, deprive plaintiffs of rights created by the Constitution and federal law. Nevertheless, the Supreme Court, drawing on common law, created absolute immunity from liability for some government officials and qualified immunity for others. Absolute and qualified immunity were developed to protect officials from lawsuits for actions relating to their official duties. The Court explained the underlying rationale for immunity:

[T]he public interest requires decisions and actions to enforce laws for the protection of the public . . . . Public officials, who fail to make decisions when they are needed or who do not act to implement decisions when they are made do not fully and faithfully perform the duties of their offices. Implicit in the idea that officials have some immunity— absolute or qualified —for their acts, is a recognition that they may err. The concept of immunity assumes this and goes on to assume that it is better to risk some error and possible injury from such error than not to decide or act at all.  Yet in the case of Dr. Miller, the acts wer not in err but rather intentional and that is why our insurance trust would not provide coverate or defense.  Their acts were typiclly criminal malfeasance.

Absolute immunity is restricted to those persons performing judicial or legislative functions.

Struggling to define the boundaries of prosecutorial immunity, the Court held that a prosecutor who advised police officers on Fourth Amendment considerations in an ongoing criminal investigation performed an investigatory rather than a prosecutorial function and was, therefore, not entitled to absolute immunity. That same prosecutor, however, was entitled to absolute immunity for eliciting misleading testimony from those officers at a hearing on an application for a search warrant Although a prosecutor who suborns perjury at a criminal trial is absolutely immune, a prosecutor who manufactures false evidence does not enjoy absolute immunity. 

The U.S. president enjoys absolute immunity from suits for damages arising from his conduct as president. But every other executive official, from cabinet officials and governors, legislators, and judges performing administrative functions, to the tens of thousands of public employees exercising state and local authority such as law enforcement officers and schoolteachers, enjoy only QUALIFIED IMMUNITY from suit  A private individual temporarily retained by the government to carry out its work is also entitled to seek qualified immunity from suit under § 1983.

Drawn from analogous common-law defenses available to public officials, qualified immunity protects public officials from personal liability unless their conduct violates then clearly established constitutional law. The defense rests upon two mutually dependent rationales: (1) the injustice, particularly in the absence of bad faith, of subjecting to liability an officer who is required, by the legal obligations of his position, to exercise discretion; (2) the danger that the threat of such liability would deter his willingness to execute his office with the decisiveness and the judgment required by the public good.

Qualified immunity is an affirmative defense. Early cases required a public employee to establish both that he did not violate clearly established law and that he acted without malicious intent.  Because proof of subjective good faith was incompatible with summary judgment, the Supreme Court modified the defense to shield public employees performing discretionary government functions “insofar as their conduct does not violate clearly established statutory or constitutional rights of which a reasonable person would have known.”/84/ 

Specifically, it protects government officials from lawsuits alleging that they violated plaintiffs’ rights, only allowing suits where officials violated a “clearly established” statutory or constitutional right.

Apart from special needs and administrative search cases, the Court has cautioned against examination of subjective intent  Because public employees almost always perform discretionary functions,qualified immunity really turns on two issues: (1) whether the action in question violated a constitutional right and (2) whether that action violated clearly established law. Although the former question may involve disputed facts, the latter is a question of law subject to early resolution. This involves a historical inquiry into whether the law was clearly established when the defendant acted.

“Qualified immunity balances two important interests—the need to hold public officials accountable when they exercise power irresponsibly and the need to shield officials from harassment, distraction, and liability when they perform their duties reasonably

The Court observed that it is sometimes easier to determine whether a constitutional right was clearly established than whether there is such a right. Whether qualified immunity applies critically depends on the level of generality at which a court assesses whether the law is clearly established.

In a series of cases, the Supreme Court sketched out the approach to be taken. Anderson v. Creighton refined the meaning of “clearly established law” in a law enforcement officer’s qualified immunity defense against a claim that he conducted a warrantless search without probable cause or exigent circumstances. The plaintiff argued that no officer could reasonably believe that he could conduct an unreasonable search as the Fourth Amendment itself clearly established the prohibition against unreasonable searches. The Court, rejecting the argument, held that it stated the legal inquiry too generally; because probable cause determinations are fact dependent, the relevant question was “the objective (albeit fact-specific) question whether a reasonable officer could have believed Anderson’s warrantless search to be lawful, in light of clearly established law and the information the searching officers possessed.” Although identifying a case in which “the very action in question has previously been held unlawfulis not necessary, it is essential that “in the light of pre-existing law, the unlawfulness must be apparent.”/94/ Thus, to be “clearly established a right must be sufficiently clear ‘that every reasonable official would [have understood] that what he is doing violates that right.'”

With the rise of objective reasonableness as the standard for qualified immunity, the inquiry into the scope of discretion would seem relevant only to whether the official may raise the defense; an official who acts outside the scope of his discretionary authority and who violates the Constitution cannot assert qualified immunity even if his conduct did not violate then clearly established law.

.Conventional claims of unlawful discrimination and retaliation rest upon conduct whose legality depends upon the motive for rather than the character of the conduct. The Constitution does not prohibit firing public employees, but it does prohibit firing them because of their race or in retaliation for protected speech. To avoid summary judgment on the merits of the underlying constitutional claim, the plaintiff must produce sufficient evidence, usually circumstantial, from which a reasonable jury can infer that the defendant intentionally discriminated or retaliated; without that evidence, the plaintiff cannot establish unconstitutional conduct./116/ With no evidence of unconstitutional conduct, the defendant will prevail without reaching the question of qualified immunity. But if the plaintiff has sufficient evidence of unconstitutional motive to avoid summary judgment, qualified immunity generally will not benefit a defendant (Town)

 Because the constitutional prohibition against intentional discrimination or retaliation has long been clearly established law.

It is well established that allegedly unlawful actions by governmental employees cannot be imputed to cities and other local government units, and do not give rise to liability by local governing units under Section 1983, because a city, county, or similar governmental agency is only liable for the deprivation of federal rights caused by its own policy, custom or practiceHence, the government entity – as opposed to the individual government employee or agent – is liable only for acts of its employee or agent that stem from a “custom, policy or practice” of the entity, and not from an individual aberration or isolated act, even one committed “under color of law.”This is generally not an issue when the deprivation of federal rights results from enforcement of “a policy statement, ordinance, regulation, or decision officially adopted and promulgated” by the officers of a local governing body. The problems arise when the source of the policy, or the authority under which it is enforced, is uncertain.

In addition to deprivations of rights caused by official policy, local governments may be sued for deprivations caused by “governmental ‘custom’ even though such a custom has not received formal approval through the body’s official decision making channels.” To establish a custom or practice in the absence of a formal policy will usually require proof of repeated incidents suggesting a pattern or practice. The existence of a widespread practice can be so permanent and well-settled to constitute a custom or usage with the force of law.

The jury then must determine whether those officials who have the power to make official policy caused the deprivation of rights by their decisions “or by acquiescence in a longstanding practice or custom which constitutes the ‘standard operating procedure’ of the local government entity.

Governmental immunity only applies to suits against government officials as individuals, not suits against the government for damages caused by the officials’ actions. Although qualified immunity frequently appears in cases involving police officers, it also applies to most other executive branch officials

The violations of our constitutional rights was part of a policy and long standing plan of action carried out by the Town’s decision making authorities.



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