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Qualified immunity is a legal doctrine in United States federal law that shields government officials from being sued for discretionary actions performed within their official capacity, unless their actions violated "clearly established" federal law or constitutional rights. Qualified immunity thus protects officials who "make reasonable but mistaken judgments about open legal questions," but does not protect "the plainly incompetent or those who knowingly violate the law".

Bivens and § 1983 Lawsuits
Qualified immunity frequently arises in civil rights cases, particularly in lawsuits arising under 42 U.S.C Section 1983 and Bivens v. Six Unknown Named Agents, 403 U.S. 388 (1971). Under 42 U.S.C § 1983, a plaintiff can sue for damages when state officials violate his or her Constitutional rights or certain federal statutory rights.

"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 . . .."

Similarly, under Bivens v. Six Unknown Named Agents, plaintiffs may sue for damages if federal officials violate their Constitutional rights. However, not all Constitutional or statutory rights violations give rise to a Bivens cause of action. Thus far the Supreme Court has recognized Bivens claims for violations of the Fourth Amendment, Fifth Amendment's equal protection component of due process, and the Eight Amendment.

History of Qualified Immunity
The modern test for qualified immunity was established in Harlow v. Fitzgerald, 457 U.S. 800 (1982).

Prior to Harlow v. Fitzgerald, the U.S. Supreme Court granted immunity to government officials only if (1) the official believed in good faith that his or her conduct was lawful and (2) the conduct was objectively reasonable. However, determining an official's subjective state of mind (i.e. did he have a good faith belief that his or her action was lawful) required a trial, often by jury. Concerned allowing suits to go this far deterred officials from performing their duties, "[diverted] official energy from pressing public issues, and [deterred] able citizens from acceptance of public office," the Supreme Court handed down the current rule for qualified immunity: "[G]overnment officials performing discretionary functions generally are shielded from liability for civil damages insofar as their conduct does not violate clearly established statutory or constitutional rights of which a reasonable person would have known." Therefore, the application of qualified immunity no longer depends upon an official's subjective state of mind, but on whether a reasonable person in the official's position would have known that his or her actions violated clearly established law.

Application of Qualified Immunity
"[G]overnment officials performing discretionary functions generally are shielded from liability for civil damages insofar as their conduct does not violate clearly established statutory or constitutional rights of which a reasonable person would have known."

Discretionary Function Requirement
Qualified immunity only applies to acts that are "discretionary" rather than ministerial. Courts specifically distinguish discretionary acts from ministerial acts. A discretionary act requires an official determine "whether an act should be done or a course pursued" and to determine the best means of achieving the chosen objective. By contrast, a ministerial act is "clerical nature"—the official is typically required to perform the action regardless of his or her own opinion. However, even ministerial tasks will sometimes involve a small amount of discretion but this small amount of discretion will not necessarily satisfy the requirements qualified immunity.

Clearly Established Law Standard
Qualified immunity does not protect officials who violate "clearly established statutory or constitutional rights of which reasonable person would not have known." This is an objective standard, meaning that the standard does not depend on the subjective state of mind of the official but rather on whether a reasonable person would determine that the relevant conduct violated clearly-established law.

Whether the law is "clearly established" will depend on whether the case law has addressed the disputed issue or has established the "contours of the right" such that it is clear that official's conduct is illegal. It is undisputed that Supreme Court opinions can "clearly establish" the rule for the entire country. However, circuit court of appeals opinions may have a more limited effect. Circuit courts of appeals typically treat their opinions as clearly establishing the law within that circuit —though the Supreme Court has has cast doubt on this theory.

Judicial Application: The Saucier Two-Step
In 2001, the US Supreme Court in Saucier v. Katz 533 U.S. 194 (2001) established a rigid order in which courts must decide the merits of a defendant's qualified immunity defense. First, the court determines whether the complaint states a constitutional violation. If so, the next sequential step is to determine whether the right at issue was clearly established at the time of the official's conduct. The Court subsequently modified Saucier in Pearson v. Callahan 555 U.S. 223 (2009), holding that "the Saucier protocol should not be regarded as mandatory in all cases," and that its decision "does not prevent the lower courts from following the Saucier procedure; it simply recognizes that those courts should have the discretion to decide whether that procedure is worthwhile in particular cases."

Procedural Operation of Qualified Immunity
shielded from litigation NOT just liability.

Interlocutory appeal,

Critiques of Qualified Immunity Doctrine
Reasons for having it, articulated in Harlow and other SCOTUS cases.

Judicial inefficiency - Saucier method.

Development of the law - if Saucier not followed.

Unnecessary to protect officials from liability because they are almost always indemnified by the government divisions that they work for and therefore will not fact liability. Counter-arguments??

This grant of immunity is available to state or federal employees performing discretionary functions where their actions, even if later found to be unlawful, did not violate "clearly established law." Harlow v. Fitzgerald, 457 U.S. 800 (1982).

Application to Police Use-of-Force
Reasonable person would know that this violated the law.

While Harlow did not involve a law enforcement officers' actions, the decision is significant because law enforcement officers are government officials who perform discretionary functions and may be protected by qualified immunity. Stated differently, officers are not liable for damages "as long as their actions reasonably could have been thought consistent with the rights they are alleged to have violated." Anderson v. Creighton483 U.S. 635, 645 (1987).

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Wikipedia Assignment: Topic Selection

Topic: Qualified Immunity

This page interests me because it deals with the interesting and controversial doctrine of qualified immunity, which I learned about in my Constitutional Litigation class. Right now, the page does not do a good job explaining how qualified immunity works. I hope to add (1) a short history of qualified immunity doctrine, (2) more comprehensive explanation of how qualified immunity works, (3) a subsection discussing irregularities in the doctrine when dealing with fact-bound inquires related to police use of force, (4) more expansive summaries of leading qualified immunity cases, (5) discussion of public and academic critiques of the doctrine.

Preliminary Source List:

Cases


 * 1) Harlow v. Fitzgerald, 457 U.S. 800 (1982).
 * 2) Malley v. Briggs, 475 U.S. 335, 341 (1986).
 * 3) Anderson v. Creighton, 483 U.S. 635 (1987).
 * 4) Saucier v. Katz, 533 U.S. 194 (2001).
 * 5) Hope v. Pelzer, 536 U.S. 730, 735, 122 S. Ct. 2508, 2513, 153 L. Ed. 2d 666 (2002)
 * 6) Brosseau v. Haugen, 543 U.S. 194, 197, 125 S. Ct. 596, 598, 160 L. Ed. 2d 583 (2004)
 * 7) Deals QI in police cases, fact-bound.
 * 8) Pearson v. Callahan, 555 U.S. 223 (2009).
 * 9) Camreta v. Greene, 563 U.S. 692 (2011).
 * 10) City & Cty. of San Francisco, Calif. v. Sheehan, 135 S. Ct. 1765, 1772 (2015)
 * 11) Plumhoff v. Rickard, 134 S. Ct. 2012, 2017, 188 L. Ed. 2d 1056 (2014)
 * 12) Deals with QI in police cases, fact-bound.