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Pro Se Tips and Tactics
1. Immunities In General
The word "immunity", as it is used in Section 1983 cases, refers to an "immunity from suit." A defendant who has an immunity cannot be sued for damages; he or she is entitled to be free from the trouble and possible expense of a lawsuit for damages because the courts have found that there are values more important than the plaintiff getting compensation.
A good example of an immunity that courts always apply is so-called "judicial immunity." A judge cannot be sued for damages for decisions made while acting as a judge. See, for example, Stump v. Sparkman, 435 U.S. 349 (1978). Courts consistently find that it is important for judges to make their decisions free from the threat of paying damages whenever someone thinks a wrong decision has been made, and so judges cannot be sued in damages for such actions.
Note that I have emphasized that immunities apply only to suits for damages. Immunities do not apply to claims for declaratory and injunctive relief. See, for example, Pulliam v. Allen, 466 U.S. 522 (1984)(judges can be sued for an injunction and for attorneys fees for a prevailing plaintiff). The policy reason for this is straightforward: If a plaintiff in a Section 1983 case can prove an ongoing violation of constitutional rights, federal courts will issue an injunction to stop the ongoing violation no matter who is responsible for it. This is much different in the eyes of a court than a claim for damages, which looks backward to a violation that has already been completed and also involves the payment of money damages.
(Note that there are other absolute immunities, but as this column is primarily about qualified immunity, there is not space to catalog all absolute immunities.)
2. Absolute vs. Qualified Immunities
Only some officials have a claim to absolute immunity. But all government officials or employees sued under Section 1983 have a potential immunity called "qualified immunity." Qualified immunity applies to claims for money damages unless the actions the plaintiff complains of violated constitutional law that was "clearly established" when the actions happened. Harlow v. Fitzgerald, 457 U.S. 800 (1982). As the Supreme Court said in Harlow, "government 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 should have known." 457 U.S. at 818.
The reasons the Court has given for establishing this immunity are similar to those given for absolute immunities: At least when a government official does not reasonably know she or he is violating the Constitution, says the Court, such officials should not be put to the trouble of a suit for damages. See, for example, Elder v. Holloway, 114 S.Ct. 1022 (1994).
As with absolute immunities, qualified immunity applies only to claims for damages; if injunctive relief is sought, then the defense does not apply. See: Wood v. Strickland, 420 U.S. 308, 314 footnote 6 (1975). Also, the qualified immunity defense applies only to public officials, and only those whom the plaintiff claims personally did something to violate constitutional rights. Even though some private persons can be sued under Section 1983 (such as those using the courts to collect debts without due process), private persons cannot use the qualified immunity defense. Wyatt v. Cole, 112 S.Ct. 1827 (1992). Also, the defense is not available to, for example, a city or county government (governments that, unlike the state, can be sued under Section 1983); only individual persons employed by the governments who are sued as defendants have the defense available.
3. How The Qualified Immunity Defense Works In Section 1983 Actions
A defendant claiming qualified immunity must plead it, that is assert it in the Answer to the Complaint or a motion to dismiss. Gomez v. Toledo, 446 U.S. 635 (1980). Failure to raise the defense at an early stage can be a waiver, although some courts have allowed it to be raised fairly late.
Even though the defendants are supposed to plead qualified immunity as a defense, there is some language in the caselaw suggesting that the plaintiff in a damages case must plead that the constitutional right violated was clearly established at the time of the violation. Compare Hunter v. District of Columbia, 943 F.2d 69 (D.C. Cir. 1991)(plaintiff must plead that the right was clearly established) with Castro v. United States, 34 F.3d 106 (2d Cir. 1994)(plaintiff need not plead this because it is an affirmative defense).
Since the law is uncertain on this, it would be wise to simply add a sentence in your Section 1983 complaint (if it is true) that the constitutional right you claim was violated was clearly established when the defendant acted. That is all that is required to "plead" this point.
Usually, a defendant claiming qualified immunity makes a motion for summary judgment asking that the damage claim be dismissed because there was not, at the time of the incident, law clearly establishing violation of a constitutional right. The summary judgment process is used because the Supreme Court has found that qualified immunity presents a question of law -- was the law clearly established? -- that can be resolved on such a motion, often at an early stage in the case. Harlow v. Fitzgerald, 457 U.S. at 818; Mitchell v. Forsyth, 472 U.S. 511, 526 (1985).
If the defendant makes a motion for summary judgment based on qualified immunity early enough, Harlow and Mitchell say there should be no discovery until the issue is determined. Also, under Mitchell, defendants claiming qualified immunity can immediately appeal, thus holding up the entire case until the circuit court determines the appeal. This is called an "interlocutory appeal." Thus, a defendant who has failed to convince the federal district court that qualified immunity applies can still hold up the case for long periods while the appeal of that ruling goes on. Defendants regularly take such appeals, and this is a powerful weapon against plaintiffs' desire to get a case resolved as soon as possible.
The Supreme Court recently held that while defendants can take an interlocutory appeal on the purely legal question of whether the law was clearly established when the defendant acted, defendants may not take an interlocutory appeal on factual issues about whether there is evidence sufficient to show that the defendant committed the acts plaintiff claims. Johnson v. Jones, 115 S.Ct. 2151 (1995). Johnson is a good example of the difference: The plaintiff claimed that police officers used excessive force on him while other officers watched. It is clearly established constitutional law that officers cannot use excessive force on an arrestee, but the appealing defendants claimed that there was not enough evidence to show they did participate or stand by. The Supreme Court said this factual question was not properly raised in an interlocutory appeal, and that such appeals should be used only to determine the legal issue of what was the "clearly established law."
B. Figuring Out Clearly Established Law
The Supreme Court has made the qualified immunity question turn on the determination of "clearly established law" of which a reasonable public officer should have been aware at the time of the action. The Court has emphasized that it wants this to be a so-called "objective" test, that is that it depends not on what the particular defendant knew or believed about constitutional law, but rather on what the case law existing at the time of the action (and which a reasonable public official would know about) said about the particular action.
The federal courts do not find clearly established law just from the existence of the constitutional amendment on which you plan to rely, or from very general statements in case law about broad constitutional ideas. Instead, the plaintiff must show as much similarity as possible between the conduct he or she complains of and conduct that the cases have held unconstitutional. However, the factual details do not have to be identical. Anderson v. Creighton, 483 U.S. 635, 639-640 (1987). How close the facts have to be to existing caselaw will vary depending on the situation; your job as plaintiff is to find the closest match you can find.
You should therefore try to find all cases in which a court ruled on constitutional claims similar to yours before the defendants in your case acted. The Supreme Court has helpfully found that it is not just the cases you might find, however, that govern the "clearly established law," but rather "all relevant precedents, not merely those cited to or discovered by the district court." Elder v. Holloway, 114 S.Ct. 1019, 1021 (1994).
You do not necessarily need to find a U.S. Supreme court case closely on point to show "clearly established law." Decisions from the federal circuit you are in can be enough by themselves. Also, cases from other federal courts and even state courts are helpful, especially if there are many of them and they all say basically the same things.
The law on qualified immunity is complicated and there is much more of it than I have been able to cover in this short column. Likewise, there is not space to touch on the many possible ways in which qualified immunity issues have played out in particular cases. However, I hope that this overview will alert you generally to the immunity issues that may come up in any Section 1983 damages case in which you are involved.
[John Midgley is an attorney for Columbia Legal Services in Washington.]
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