U.S. Supreme Court Alters Method of Determining Qualified Immunity of Public Officials and Employees in Cases Alleging Violation of Federal Rights
On January 21, 2009, the United States Supreme Court addressed the process for analyzing qualified immunity defenses in Pearson v. Callahan, __ U.S. __, 172 L. Ed. 2d 565 (2009). In Pearson, the Court addressed the two-step inquiry it had developed in Saucier v. Katz, 533 U.S. 194 (2001. Under Saucier, lower courts had been directed to determine, first, whether a constitutional violation had occurred in the case and then decide, second, whether the defendant’s actions violated clearly established federal law. If the court answered either question in the negative, then qualified immunity shielded the defendant from liability.
In Pearson, the Court rejected such a rigid procedure, instead, opting for a more flexible approach. The Court recognized that the Saucier process “is often beneficial” to help develop constitutional law. However, Justice Alito noted the price that it carries, including: the disdain that lower court judges have for the procedure; the “substantial expenditure of scarce judicial resources” that it involves, even when the difficult constitutional questions may have no bearing on the resolution of the case; the resulting waste of the parties’ resources; and the risk of bad decision making that the process engenders, because qualified immunity is raised at the pleading stage of litigation, before discovery, where the factual basis of the plaintiff’s claim may be unclear and the briefing inadequate. In addition, Justice Alito observed that Saucier “departs from the general rule of constitutional avoidance” and varies from the Court’s usual reluctance to “mandate the order of decision that the lower courts must follow.”
The Court emphasized that it was not telling lower courts always to address the “clearly established” prong of the qualified immunity defense first. It clarified that “[o]ur 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.” Courts no longer are required to conduct their qualified immunity analysis along the rigid strictures of Saucier. Rather, the Court may now review a claim of qualified immunity based on the facts at hand and exercise its “sound discretion in deciding which of the two prongs of the qualified immunity analysis should be addressed first.”
Practice Pointer: Defense counsel should consider making a motion for summary judgment at the earliest stages of litigation based upon qualified immunity of the individual defendants where they can establish that the individual defendants had no clear and fair notice that their action(s) would violate the plaintiff’s constitutional rights, even where the existence or scope of such rights is in dispute. This strategy may avoid extensive discovery and help terminate the overall litigation sooner. Where no claim has been made against the municipal entity, this strategy could lead to an early termination of the entire litigation.