Indiana Law Review


Indiana Law Review
Volume 26 1993 Number 2

ARTICLES

Qualified Immunity: A User's Manual

Karen M. Blum*

Introduction

The qualified immunity defense remains one of the toughest issues
for both bench and bar to negotiate as they work their way through the
maze of legal doctrines that now envelops litigation under 42 U.S.C. §
1983.

' The basic formulation of the qualified immunity standard, as it

is currently applied, is set out in Harlow v. Fitzgerald1 and Anderson

v. Creighton? An official performing discretionary functions has qualified

* Professor of Law, Suffolk University Law School. B.A., 1968, Wells College;
J.D., 1974, Suffolk University; LL.M., 1976, Harvard University. The author wishes to

express her gratitude to Michael Avery, with whom she spent an exciting sabbatical in the
fall of 1991' and from whom she learned a great deal about the "real world" of section
1983. I also want to convey my appreciation to the Federal Judicial Center for the
opportunities it has afforded me to teach and to learn from extremely dedicated and hard-
working federal judges, magistrate judges and appellate staff attorneys. Finally, my thanks
to Dean Paul Sugarman and Suffolk University Law School for their financial and moral
support.

1. 42 U.S.C. § 1983 (1982). The statute provides in relevant part:

Every person who, under color of any statute, ordinance, regulation, custom, or

usage, of any State . . . 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.

2. 457 U.S. 800 (1982).

3. 483 U.S. 635 (1987).



188 INDIANA LAW REVIEW [Vol. 26:187

immunity from damages liability4 under § 1983, so long as his or her

conduct conforms to what a reasonable official would have believed

lawful in light of clearly established law and the information possessed

by the particular official at the time of the challenged conduct. 3

4. Qualified immunity is not a defense to a claim for injunctive relief. See, e.g.,

Newman v. Burgin, 930 F.2d 955 (1st Cir. 1991).
A government official may invoke one of two types of immunity from personal liability

for damages: absolute or qualified immunity. The Supreme Court has adopted a "functional"

approach to immunity, so that whether an official is entitled to absolute or qualified

immunity will depend on the function performed by that official in a particular context.

Forrester v. White, 484 U.S. 219, 224 (1988). Most government officials are entitled only

to qualified immunity. Officials performing judicial, legislative, or prosecutorial functions

have been afforded absolute immunity. See, e.g., Mireles v. Waco, 112 S. Ct. 286, 289

(1991) (holding that absolute judicial immunity exists when conduct is in excess of jurisdiction

rather than in absence of jurisdiction); Burns v. Reed, 111 S. Ct. 1934, 1940-45 (1991)

(holding that prosecutor is absolutely immune for functions performed in probable cause

hearing, but only qualified immunity attached to function of giving legal advice to police);

Forrester v. White, 484 U.S. 219, 228-29 (1988) (holding that judge has absolute immunity

only when acting in judicial, as opposed to adminstrative, capacity); Lake Country Estates,

Inc. v. Tahoe Regional Planning Agency, 440 U.S. 391, 406 (1979) (finding absolute immunity

for members of regional land planning agency acting in legislative capacity); Stump v.

Sparkman, 435 U.S. 349 (1978) (finding absolute immunity for judge acting within juris-

diction); Imbler v. Pachtman, 424 U.S. 409, 424-26 (1976) (finding absolute immunity for

prosecutors performing prosecutorial acts); Tenney v. Brandhove, 341 U.S. 367 (1951)

(absolute immunity for members of Congress).

See also Watts v. Burkhart, 978 F.2d 269 (6th Cir. 1992) (en banc) (affording absolute

immunity to members of state medical licensing board sued in their individual capacities

with respect to suspension or revocation of doctor's license); Buckley v. Fitzsimmons, 952

F.2d 965, 967 (7th Cir. 1992) ("[UJnless the act of gathering and evaluating the evidence

independently violates someone's rights . . . both witnesses and prosecutors are entitled to

the same immunity they possess when they present the evidence in court." The court

rejected the defendant's argument that statements made by the prosecutor during a press

conference violated his rights because publicity deprived him of a fair bail hearing and

trial, and because any injury apart from defamation, which is not actionable under the

Constitution, depended on judicial action for which there is immunity.), cert, granted, 113

S. Ct. 53 (1992); Antoine v. Byers & Anderson, Inc., 950 F.2d 1471 (9th Cir. 1991)
(deciding that a court reporter and her employer enjoyed absolute immunity when the delay

in producing transcripts held up the defendant's appeal for four years and only a partial

transcript was produced because of loss of tapes), cert, granted, 113 S. Ct. 320 (1992).

The Supreme Court has recently held that private persons, named as defendants in

§ 1983 suits challenging their use of state replevin, garnishment, or attachment statutes

later held unconstitutional cannot invoke the qualified immunity available to government

officials in such suits. Wyatt v. Cole, 112 S. Ct. 1827 (1992).

5. In Harlow, the Supreme Court abandoned the subjective prong of qualified

immunity that had been established in Wood v. Strickland, 420 U.S. 308, 322 (1975), which
made the state of mind of the official relevant to the immunity inquiry and made disposition

of the immunity defense difficult at the summary judgment stage. Harlow, 457 U.S. at

815-18. Under Harlow, the inquiry became objective: whether the official violated "clearly

established statutory or constitutional rights of which a reasonable person would have



1993] QUALIFIED IMMUNITY 189

The legal literature is filled with articles addressing the policy questions
underlying the availability and scope of the defense.6 This author would

tend to agree with those who have concluded that the costs of the defense
may outweigh the benefits to such a degree that the defense should be
abandoned as an inefficient allocation of resources.7 The purpose of this

known." Id. at 818.

In Anderson v. Creighton, a case involving the question of whether probable cause

and exigent circumstances existed to support a warrantless search, the Supreme Court made

the facts surrounding the conduct of the officer(s) in the particular situation relevant to

the qualified immunity issue. The question became "the objective (albeit fact-specific)" one

of "whether a reasonable officer could have believed [the] warrantless search to be lawful,

in light of clearly established law and information the searching officers possessed." 483

U.S. at 641.

6. See, e.g., Gary S. Gildin, Immunizing Intentional Violations of Constitutional

Rights Through Judicial Legislation: The Extension of Harlow v. Fitzgerald to Section

1983 Actions, 38 Emory L.J. 369 (1989); Kit Kinports, Qualified Immunity in Section 1983

Cases: The Unanswered Questions, 23 Ga. L. Rev. 597 (1989); David Rudovsky, The

Qualified Immunity Doctrine in the Supreme Court: Judicial Activism and the Restriction

of Constitutional Rights, 138 U. Pa. L. Rev. 23 (1989); Kathryn R. Urbanya, Problematic

Standards of Reasonableness: Qualified Immunity in Section 1983 Actions for a Police

Officer's Use of Excessive Force, 62 Temple L. Rev. 61 (1989); Henk J. Brands, Note,

Qualified Immunity And The Allocation of Decision-Making Functions Between Judge and
Jury, 90 Colum. L. Rev. 1045 (1990); Mary A. McKenzie, Note, The Doctrine of Qualified

Immunity in Section 1983 Actions: Resolution of the Immunity Issue on Summary Judgment,
25 Suffolk U. L. Rev. 673 (1991).

7. In K.H. v. Morgan, 914 F.2d 846 (7th Cir. 1990), Judge Posner made the

following comments in dicta:

The defense of public officer immunity in civil rights damage suits is thought

in some quarters a second-best solution to the problems created by imposing tort

liability on public officers. The defense is not found in the civil rights statutes

themselves, but is a judicial addition to the statutes ... a creative graft, and

viable therefore only if it serves a social purpose. . . .

An alternative that is sometimes discussed would be to abolish public officer
immunity but couple abolition with the imposition of respondeat superior liability

on the public officer's employer. Although rejected in Monell, ... it would be

a step no bolder than the creation, and in recent years amplification, of public

officer immunity itself. The officer would be liable but so would be his employer;

as a practical matter the officer would be even farther off the hook than under

existing law plus the practice of indemnity; but this end would be accomplished

without denying a recovery to the plaintiff and thereby diluting the deterrent

effect of the civil rights laws. Only as a theoretical matter would the employee

be worse off because an employer held liable for an employee's torts under the

doctrine of respondeat superior is entitled to indemnity from the employee. Practice

is more important than theory.

Id. at 850-51.

This author long ago advocated the adoption of respondeat superior liability in § 1983

suits. See Karen M. Blum, From Monroe to Monell: Defining the Scope of Municipal
Liability in Federal Courts, 51 Temp. L.Q. 409, 413 n.15 (1978). See also Jon O. Newman,
Suing the Lawbreakers: Proposals to Strengthen the Section 1983 Damage Remedy for Law



190 INDIANA LAW REVIEW [Vol. 26:187

Article, however, is not to debate the validity of the defense as a historical

matter nor the soundness of the defense or its scope as a matter of

policy. The Article is offered as a "user's manual' ' to qualified im-
munity—a map for lawyers and judges who must cross this road frequently
in the course of their daily travels.

The Article first outlines the new structure of analysis for qualified
immunity as established in Siegert v. Gille^ and examines some post-
Siegert case law for the purpose of identifying courts following and not

following the mandated Siegert analysis. In the context of discussing

Siegert, attention is devoted to the "heightened pleading standard," its

relationship to the issue of qualified immunity, and its role as a common
source of confusion between elements of the substantive constitutional

claim being asserted and elements of the defense of qualified immunity.

Part II addresses how courts decide whether the right allegedly violated
was clearly established at the time of the challenged conduct and focuses

particularly on how the right is framed and what is viewed as sufficient
precedent to establish the right. Part III explores the relevance of factual

disputes to the pretrial disposition of the qualified immunity issue and

the role of the judge and jury in the process. Part IV examines the

availability of interlocutory appeal and the effect on appealability, if any,

of a denial of qualified immunity based on the existence of material

issues of fact in dispute. Part V deals briefly with the particular problem
of the applicability of qualified immunity in Fourth Amendment excessive
force cases. In concluding, the Article summarizes and organizes the

qualified immunity analysis into a framework which should be helpful

to those who have to wind their way through the network as it operates
today.

I. Structure of Analysis for Qualified Immunity

In Siegert, the plaintiff, a clinical psychologist, brought a Bivens9

action against his supervisor, claiming impairment of future employment

prospects due to a defamatory letter of reference sent by the supervisor. 10

Enforcers' Misconduct, 87 Yale L.J. 447, 455-58 (1978) (arguing § 1983 should be amended

to make local government units the proper defendants) ("[Tine good faith defense, imported

into [§] 1983 through unwarranted borrowing from the common law, should be abolished.");
Rudovsky, supra note 6, at 31 n.43 (collecting works of commentators advocating broadened

governmental liability in lieu of individual liability).

8. HIS. Ct. 1789 (1991).
9. Bivens v. Six Unknown Named Agents of Fed. Bureau of Narcotics, 403 U.S.

388 (1971). When a plaintiff claims that her constitutional rights have been violated by an
official acting under color of federal law, as opposed to state law, a Bivens action is the

counterpart to a § 1983 action, with the right and the remedy being derived directly from

the Constitution.

10. Siegert, 111 S. Ct. at 1791-92.



1993] QUALIFIED IMMUNITY 191

The Court of Appeals for the District of Columbia dismissed on the

grounds plaintiff had not overcome respondent's claim of qualified im-

munity under that Circuit's
*

'heightened pleading standard."

"

The Supreme Court held that the claim failed at "an analytically

earlier stage of the inquiry into qualified immunity." 12 The plaintiff did

not state a claim for the violation of any rights secured by the Con-

stitution.
13 Under Paul v. Davis,™ there was no constitutional protection

for one's interest in his reputation, even if facts sufficient to establish

malice were pleaded. 15 Chief Justice Rehnquist set out the "analytical

structure under which a claim of qualified immunity should be ad-

dressed." 16 The first inquiry is whether the plaintiff has alleged the

violation of a constitutional right under the law as currently interpreted. 17

This question is purely legal, and it should be resolved before any discovery

is allowed. 18

Decisions from the courts of appeals after Siegert reflect an under-

standing by the majority of the circuits that the analytical framework

has changed. In Enlow v. Tishomingo County, 19 for example, the court
noted that although the typical approach to qualified immunity had been

to address the issue of whether the right allegedly violated was clearly

established at the time without first inquiring whether the right existed

at all, Siegert instructs courts to first examine the merits of the plaintiff's

underlying constitutional claim.20 Likewise in Silver v. Franklin Town-

ship,
21 the Court of Appeals for the Sixth Circuit admonished the district

court for its failure to follow "the Supreme Court's directive in Siegert

. . . that before reaching a qualified immunity issue a court should

determine whether there has been a constitutional violation."22 The district

court, without determining whether the Board's action—even accepting
the plaintiff's version of it—constituted a violation of the plaintiff's
substantive due process rights, had concluded that members of a town

Board of Zoning Appeals were immune from liability for a particular

11. Id. at 1791-93

12. Id. at 1791.

13. Id.

14. 424 U.S. 693 (1976).

15. Siegert, 111 S . Ct. at 1794.

16. Id. at 1793 (Chief Justice Rehnquist was joined by Justices White, O'Connor,

Scalia, and Souter).

17. Id.

18. Id.

19. 962 F.2d 501 (5th Cir. 1992).

20. Id. at 508 & n.19.
21. 966 F.2d 1031 (6th Cir . 1992).

22. Id. at 1035.



192 INDIANA LAW REVIEW [Vol. 26:187

zoning decision. 23 The court of appeals held that the plaintiff stated no

viable claim under the Constitution, and therefore, there was no need

to reach the qualified immunity issue. 24

Not all courts have digested Siegert's message. For example, in Wright

v. Whiddon,25 the court takes an approach which is arguably inconsistent

with the analysis required by Siegert. The parents of a pretrial detainee

who was shot and killed during an attempted escape asserted the use of
deadly force violated the detainee's Fourth Amendment rights. The court
of appeals, with no mention of Siegert; did not decide the question of

whether a pretrial detainee could assert an excessive force claim under

the Fourth Amendment, but disposed of the case on qualified immunity
grounds because "[t]he presence of such doubt about the existence and

content of the constitutional right that [the defendant] is alleged to have

violated is enough to entitle him to qualified immunity."26 Rather than

first deciding whether a pretrial detainee can state a claim for excessive

23. Id. at 1036.

24. Id. In addition to Enlow and Silver, there are a number of post-Siegert decisions

discussing and applying the new analytical framework established in that case. See, e.g.,

Pena v. Gardner, 976 F.2d 469, 471 (9th Cir. 1992) (holding that when a complaint lacked

facts sufficient to state a claim under § 1983, consideration of qualified immunity was

premature); Maldonado v. Josey, 975 F.2d 727, 729 (10th Cir. 1992) ("As a threshold

inquiry to qualified immunity, we first must determine whether [the plaintiff's] allegations,
even if accepted as true, state a claim for violation of any rights secured under the United

States Constitution."); Gordon v. Kidd, 971 F.2d 1087, 1093 (4th Cir. 1992) ("In analyzing

the appeal of a denial of summary judgment on qualified immunity grounds, it is necessary

first to identify the specific constitutional right allegedly violated."); Get Away Club, Inc.
v. Coleman, 969 F.2d 664, 666 (8th Cir. 1992) ("In Siegert, ... the Supreme Court

clarified the proper analysis for determining when a public official is entitiled to qualified

immunity. First, [plaintiff] must assert a violation of its constitutional rights .... If no

constitutional right has been asserted, [plaintiff's] complaint must be dismissed."); Mozzochi

v. Borden, 959 F.2d 1174, 1179 (2d Cir. 1992) ("The first step is to determine whether

the alleged conduct violates any constitutionally protected right at all. Conduct that does

not violate any constitutional right certainly does not violate a constitutional right that was

'clearly established' at the time the conduct occurred."); Frohmader v. Wayne, 958 F.2d

1024, 1026 n.3 (10th Cir. 1992) ("Identification of the controlling constitutional principles

and evaluation of the defendant's compliance therewith is, as a matter of analysis, the

threshold question to be resolved when qualified immunity is asserted." (citing Spielman

v. Hildebrand, 873 F.2d 1377, 1385 (10th Cir. 1989)); Elliott v. Thomas, 937 F.2d 338,

342 (7th Cir. 1991) ("Deciding just when it became 'clearly established' that public officials

could not do something that the Constitution allows them to do is silly."); Anderson v.

Alpine City, 804 F. Supp. 269, 277 (D. Utah 1992) ("The court cannot determine whether

qualified immunity applies until it first determines that there has been a violation of a

constitutional right."); Pride v. Kansas Highway Patrol, 793 F. Supp. 279, 283 n.3 (D.Kan.

1992) ("Because the threshold requirement of establishing a constitutional violation is not

met, the qualified immunity analysis necessarily terminates at this point.").

25. 951 F.2d 297 (11th Cir. 1992).

26. Id. at 300.



1993] QUALIFIED IMMUNITY 193

force under the Fourth Amendment, the court, ignoring Siegert, exclusively
addressed whether the right was clearly established at the time.27

Siegert promises a resolution to a serious problem created by the

traditional application of the immunity doctrine. Under the qualified

immunity analysis commonly applied prior to Siegert,28 courts could and
would avoid deciding the issue of whether particular conduct violated

constitutional law as presently interpreted, if, at the time of the challenged

conduct, the right allegedly violated was not clearly established. This

process frequently resulted in cases disposed of on qualified immunity

grounds, with no resolution of the underlying constitutional claim.29

27. Id. For other decisions that are arguably inconsistent with the Court's directive

in Siegert, see Woodward v. City of Worland, 977 F.2d 1392, 1401 (10th Cir. 1992):
We do not take the occasion here to decide whether an outside third party or
co-employee could ever be liable for sexual harassment under § 1983 and the

Equal Protection Clause. We resolve this case simply by noting that the Officers
here were not violating clearly established law under the Equal Protection Clause

when they acted as they did with respect to [plaintiffs].

See also Erickson v. United States, 976 F.2d 1299, 1301 (9th Cir. 1992):

Fundamental principles of judicial restraint require federal courts to consider

nonconstitutional grounds for decision prior to reaching constitutional ques-

tions. . . . Thus, a federal court should decide constitutional questions only when

it is impossible to dispose of the case on some other ground. . . . Because the

doctrine of qualified immunity disposes of this case, we do not reach the question

whether the individual defendants violated [plaintiff's] constitutional rights.

28. Some courts, even prior to Siegert, were doing the analysis that Siegert mandates.
See, e.g., Brown v. Grabowski, 922 F.2d 1097, 1110 (3d Cir. 1990) (holding that the
inquiry into whether the asserted constitutional right to assistance in gaining access to the

civil courts was clearly established at the time, would seem to encompass an inquiry into

whether the right was recognized at all), cert, denied, 111 S. Ct. 2827 (1991); Snell v.

Tunnell, 920 F.2d 673, 696 (10th Cir. 1990) ("Once a defendant raises the defense of

qualified immunity, plaintiffs must come forward with facts or allegations to show both

that the defendants alleged conduct violated the law and that the law was clearly established

when the alleged violation occurred." If the plaintiff cannot produce enough evidence to

show that the challenged conduct violated law "as presently interpreted," then it is un-

necessary to consider whether the law was clearly established at the time.).

29. See, e.g., Long v. Norris, 929 F.2d 1111, 1115 (6th Cir. 1991):

We need not define in this case precisely what level of individualized suspicion
is required in the context of prison visitor searches. The question before the

court is not whether the proper standard should be reasonable suspicion ... or

probable cause, but whether a constitutional right to be free from strip and body

cavity search absent probable cause was clearly established at the time of the

searches.

See also Rudovsky, supra note 6, at 53-55 (discussing cases in which courts have addressed

the qualified immunity issue but left the constitutional issue undecided).

Because qualified immunity is not available as a defense to claims for injunctive relief,

see note 4 supra, and is not available to local governments sued under § 1983, Owen v.
City of Independence, 445 U.S. 622 (1980), a new constitutional doctrine could be announced
in cases including these kinds of claims. But see Rudovsky, supra note 6, at 55-56 (discussing



194 INDIANA LAW REVIEW [Vol. 26:187

Siegert clearly changes the approach most courts were taking in

qualified immunity cases and mandates resolution of the constitutional

question. To the extent that the merits of plaintiff's constitutional claim
are in issue at the threshold stage of the qualified immunity analysis,

Siegert calls into question language in Mitchell v. Forsyth™ where the

Supreme Court stated that in reviewing the denial of qualified immunity

on interlocutory appeal, an appellate court need not determine "whether

the plaintiffs allegations actually state a claim.

"

3I In the wake of Siegert,
attention to the adequacy of plaintiff's underlying claim is required as

an initial step in the qualified immunity inquiry. 32

Although Rule 8 of the Federal Rules of Civil Procedure has been

construed to require only "notice pleading,"33 a number of courts impose

a "heightened pleading requirement" in § 1983 cases. The higher standard

is most often applied when one or more of the following factors exists:

(1) individual defendants have a potential immunity defense, 34 (2) state

the problems with reliance on these kinds of claims for development of constitutional

doctrine).

30. 472 U.S. 511 (1985). The Court in Forsyth held that a pretrial denial of qualified

immunity is immediately appealable under the collateral order doctrine of Cohen v. Beneficial

Indus. Loan Corp., 337 U.S. 541 (1949). For an interlocutory order to be appealable under

Cohen, the order must conclusively determine the matter in question, address an issue

separate from and collateral to the merits of the case and be effectively unreviewable after

a final judgment in the case. Forsyth, All U.S. at 525-527.

31. Forsyth, All U.S. at 528.

32. Note that to the extent that Siegert requires a court to focus on the merits of

the underlying claim, the rationale of allowing interlocutory appeals under the collateral

order doctrine for orders denying qualified immunity might be strained.

33. Conley v. Gibson, 355 U.S. 41, 47 (1957). Rule 8(a)(2) provides that a complaint

shall contain "a short and plain statement of the claim showing that the pleader is entitled

to relief." Fed. R. Civ. P. 8(a)(2) (1987).

34. Although the Supreme Court in Harlow v. Fitzgerald, 457 U.S. 800 (1982), and

Gomez v. Toledo, 446 U.S. 635 (1980), has indicated that qualified immunity is an affirmative
defense, a number of courts require plaintiffs to plead enough facts about the violation

of a "clearly established" right so as to defeat a defendant's anticipated claim of qualified

immunity. See, e.g., Sawyer v. County of Creek, 908 F.2d 663, 665-66 (10th Cir, 1990);

Elliot v. Perez, 751 F.2d 1472, 1481-82 (5th Cir. 1985).

See also Oladeinde v. City of Birmingham, 963 F.2d 1481, 1485 (11th Cir. 1992):

[WJe want to use this opportunity to repeat that, Mn an effort to eliminate

nonmeritorious claims on the pleadings and to protect public officials from

protracted litigation involving specious claims, we, and other courts, have tightened

the application of Rule 8 to § 1983 cases.' ... In pleading a section 1983 action,

some factual detail is necessary, especially if we are to be able to see that the

allegedly violated right was clearly established when the allegedly wrongful acts

occurred. We also stress that this heightened Rule 8 requirement—as the law of
the circuit—must be applied by the district courts, (citation omitted);

Jackson v. City of Beaumont Police Dept., 958 F.2d 616, 620 (5th Cir. 1992) ("[T]his

circuit requires that § 1983 plaintiffs meet heightened pleading requirements in cases . . .



1993] QUALIFIED IMMUNITY 195

of mind is an essential element of the underlying constitutional claim,35

(3) a conspiracy is alleged,
36 or (4) local government liability is asserted. 37

Although the majority in Siegert avoided the issue by disposing of

the case on grounds the plaintiff stated no claim for relief, four Justices

who did confront the question approved of the "heightened pleading
standard' ' when the state of mind of the defendant is an essential
component of the underlying constitutional claim. 38 However, the four

in which an immunity defense can be raised. . . . We have consistently held that plaintiffs
who invoke § 1983 must plead specific facts that, if proved, would overcome the individual
defendant's immunity defense. . . ."); Hunter v. District of Columbia, 943 F.2d 69, 75-77

(D.C. Cir. 1991) ("[Tine heightened pleading requirement is not contingent upon the existence

of a substantively distinct qualified immunity 'defense,' .... When a plaintiff claims that
an officer used excessive force, the heightened pleading standard demands that he make
'nonconclusory allegations of evidence' sufficient to demonstrate that the force used actually

was unreasonable.").

35. See e.g., Branch v. Tunnell, 937 F.2d 1382 (9th Cir. 1991). The plaintiff alleged

that an officer violated his Fourth amendment rights by deliberately or recklessly misleading

the magistrate to obtain search warrants. The court adopted a heightened pleading standard

and allowed supporting allegations of motivation supportable by direct or circumstantial

evidence. Id. at 1386-87; Pueblo Neighborhood Health Ctrs. v. Losavio, 847 F.2d 642

(10th Cir. 1988) ("Where the defendant's subjective intent is an element of the plaintiff's

claim and the defendant has moved for summary judgment based on a showing of objective
reasonableness of his actions, the plaintiff may avoid summary judgment only by pointing
to specific evidence that the official's actions were improperly motivated.").

36. See, e.g., Crabtree v. Muchmore, 904 F.2d 1475, 1481 (10th Cir. 1990).

37. Plaintiffs attempting to impose liability upon a governmental unit pursuant to

Monell v. Department of Social Servs., 436 U.S. 658 (1978), may be required to plead
with particularity the existence of an official policy or custom which can be causally linked

to the claimed underlying violation. See, e.g., Strauss v. City of Chicago, 760 F.2d 765

(7th Cir. 1985).

See also Leatherman v. Tarrant County Narcotics Intelligence & Coordination Unit, 954
F.2d 1054, 1057 (5th Cir. 1992), cert, granted, 112 S. Ct. 2989 (1992):

Since Elliott v. Perez, 751 F.2d 1472 (5th Cir. 1985), [t]his circuit has, without

fail, applied the heightened pleading requirement in cases in which the defendant-

official can raise the immunity defense. ... In Palmer v. City of San Antonio,

810 F.2d 514, 516-17 (5th Cir. 1987), a panel of this court extended the heightened

pleading requirement into the municipal liability context.

In Leatherman, the Fifth Circuit upheld the dismissal of a complaint against a governmental

entity for failure to plead with the requisite specificity. "While plaintiffs' complaint sets

forth the facts concerning the police misconduct in great detail, it fails to state any facts

with respect to the adequacy (or inadequacy) of the police training." 954 F.2d at 1058.

In his specially concurring opinion, Judge Goldberg noted and discussed criticism of the

heightened pleading requirement. He acknowledged the challenge encountered by plaintiffs
who are required to provide specific facts and evidence of inadequate training prior to
any discovery. Although "impressed by the wealth of authority plaintiffs cite in support

of their position, I politely decline [plaintiffs'] invitation to reexamine the wisdom of this

circuit's heightened pleading requirement." 954 F.2d at 1060-61 (Goldberg, J., concurring

specially).

38. Siegert v. Gilley, 111 S. Ct. 1789, 1795 (1991) (Kennedy, J., concurring in the

judgment); id. at 1800-01 (Marshall, J., joined by Blackmun and Stevens, JJ., dissenting).



196 INDIANA LAW REVIEW [Vol. 26:187

Justices rejected the District of Columbia Circuit Court's "direct evidence"

requirement and instead required nonconclusory allegations of subjective

motivation supported by either direct or circumstantial evidence.39 If this

threshold is satisfied, then limited discovery may be allowed.
In Elliott v. Thomas* Judge Easterbrook of the Court of Appeals

for the Seventh Circuit noted the potential conflict between a "heightened

pleading requirement" and the relatively minimal requirements set out

by Federal Rules of Civil Procedure 8 and 9(b),41 but resolved the apparent

inconsistency by "deprecating] the expression heightened pleading re-

quirement' and speak [ing] instead of the minimum quantum of proof
required to defeat the initial motion for summary judgment."42 The
plaintiff need not anticipate an immunity defense in her pleadings, but

once the defense is raised in the answer and defendants move for summary
judgment on qualified immunity grounds, the plaintiff must produce

"'specific, nonconclusory factual allegations which establish [the necessary

mental state] or face dismissal.'"43

Judge Easterbrook's portrayal of the "heightened pleading require-

ment" as the burden of proof which plaintiffs are required to meet under

summary judgment principles,44 a burden which is imposed after, rather
than at, the initial pleading stage, makes sense and helps eliminate some

of the confusion and tension permeating the relationship between the

39. Id.

40. 937 F.2d 338 (7th Cir. 1991). Elliott was one of two cases consolidated for

appellate purposes. The other was Propst v. Weir. Although much of the discussion that

follows stems from issues that arose in the facts of Propst, the case will be referred to

as Elliott.

41. Judge Easterbrook observed:

Rule 8 establishes a system of notice rather than fact pleading; Rule 9(b) says

that motive and intent may be pleaded generally; Rule 56 requires a court acting
on a motion for summary judgment to draw all reasonable inferences favorable

to the party opposing the motion. A 'heightened pleading requirement' in con-
stitutional cases appears to conflict with all three rules.

Id. at 345. Judge Easterbrook's concerns are shared by Judge Patrick Higginbotham of

the Fifth Circuit. See Elliot v. Perez, 751 F.2d 1472, 1482-83 (5th Cir. 1985) ("[NJotice

pleading concepts rest on acceptance of the idea that one may sue now and discover
later.").

42. Elliott, 937 F.2d at 345.

43. Id. at 344-45 (citing Justice Kennedy's opinion in Siegert, 111 S. Ct. at 1795

(Kennedy, J., concurring in the judgment)). Judge Easterbrook agreed with Justice Kennedy's

view that circumstantial, as well as direct, evidence should be allowed to support the

allegations. 937 F.2d at 345.

44. For a comprehensive treatment of the history, development, and application of

summary judgment principles, see William W. Schwarzer et al., The Analysis and Decision

of Summary Judgment Motions, 139 F.R.D. 441 (1992). See also Celotex Corp. v. Catrett,
477 U.S. 317 (1986); Anderson v. Liberty Lobby, 477 U.S. 242 (1986); Matsushita Elec.

Indus. Co. v. Zenith Radio Corp., 475 U.S. 574 (1986).



1993] QUALIFIED IMMUNITY 197

Federal Rules of Civil Procedure governing pleading and the misnamed

"heightened pleading requirement."

Although Elliott removes one source of confusion by making clear

that plaintiffs do not have to "anticipate and plead around" the defense

of qualified immunity,45 the opinion appears to embrace another common
source of confusion: the failure to distinguish between the substantive

law controlling the question of liability when a claim requires proof of
impermissible motive and the law applicable to the qualified immunity

defense.46

One of the cases on appeal in Elliott involved a plaintiff who claimed
she was transferred from one position to another as a means of punishing

her for speech she believed was protected by the First Amendment. The
defendants contended the transfer was motivated by legitimate concerns

about disruption in working conditions.47 The court noted the distinction

between "the role of intent in defining the violation [and] the role of

intent in ascertaining whether particular conduct was clearly unlawful at

the time."48 However, the court then blurred the distinction when con-
cluding that, absent plaintiffs production of specific, nonconclusory

factual allegations of subjective motivation, defendants would be entitled

to judgment on qualified immunity grounds.49

In a case in which subjective motivation is an essential element of

the plaintiffs substantive constitutional claim, 50 and the plaintiff fails to

45. 937 F.2d at 345.

46. See, e.g., Gainor v. Rogers, 973 F.2d 1379, 1390 (8th Cir. 1992) (Loken, J.,

dissenting):

There is an issue lurking here that the Supreme Court has not yet addressed: if

the plaintiff's constitutional claim is based upon the defendant's bad motives

. . . and if the undisputed facts demonstrate that the defendant had an objectively

reasonable basis for his conduct, can this alleged bad motive defeat summary

judgment on qualified immunity grounds?

47. Elliott, 937 F.2d at 341, 343.

48. Id. at 344. See also Fiorenzo v. Nolan, 965 F.2d 348, 351-52 (7th Cir. 1992):

In Wade v. Hegner, 804 F.2d 67 (7th Cir. 1986), we held that Harlow requires
the district court to conduct a two-part analysis when state of mind is at issue:

'(1) Does the alleged conduct set out a constitutional violation? and (2) Were

the constitutional standards clearly established at the time in question?' Id. at

70. Intent is relevant to the first inquiry. Id.

Accord, Auriemma v. Rice, 910 F.2d 1449, 1453 (7th Cir. 1990) (en banc) ("[W]hen intent
is crucial to a party's claim ... the court's consideration of intent is relevant to the

determination of whether a constitutional violation exists but not in deciding if the con-

stitutional standard was clearly established.").

49. Elliott, 937 F.2d at 344-45.

50. When the underlying constitutional claim has no state of mind requirement, it
is clear that "bad faith" or improper motive is irrelevant to both the constitutional claim

as well as the qualified immunity analysis. See, e.g., Pritchett v. Alford, 973 F.2d 307,



198 INDIANA LAW REVIEW [Vol. 26:187

meet his or her summary judgment burden of proof on the state of
mind element, the result should be summary judgment for the defendant
on the merits, not on qualified immunity grounds. Qualified immunity

is irrelevant if the plaintiff cannot make out a constitutional violation. 51

As a practical matter, in some cases the distinction will be insignificant;

however, in many cases the distinction will make a difference. In cases in
which both a governmental entity and an individual are sued, summary

judgment for the individual defendant on qualified immunity grounds does

not dispose of a claim brought under Monell v. Department of Social Services52

315 (4th Cir. 1992) ("Illegal motive on the officer's part need not ... be shown in order

to defeat a qualified immunity defense to a Fourth Amendment claim which itself has no
motive element."). Compare Corum v. University of N.C., 413 S.E.2d 276, 286 (N.C.

1992) ("Where the 'clearly established law' contains a subjective element ... of motive

or intent, it is a part of the summary judgment analysis.").

51. See, e.g., Monroe v. Mazzarano, No. 90-C-5696, 1992 WL 199829, *13 (N.D.
Ill.)(Rovner, J.) (unreported case):

[T]he only purpose for which state of mind is considered in a qualified immunity

analysis is to determine whether the defendant's alleged conduct, if true, would

amount to a violation of the plaintiff's constitutional rights. . . . [T]his can only

be the case where . . . intent to violate those rights is an element of the con-

stitutional claim. . . .

Subsequent decisions of the Seventh Circuit have made crystal clear that a
defendant's 'improper motivation'. . . simply is not considered when a court is

determining whether a defendant is protected by qualified immunity.

See also Sanchez v. Sanchez, 777 F. Supp. 906, 916 (D. N.M. 1991):
With all due respect to the Circuit, this Court believes that ... the Circuit has

unnecessarily confused the nature of the qualified immunity analysis in cases of

this sort. Like the First, Second, Third, Seventh, Eighth and Ninth Circuits, this

Circuit should maintain a firm distinction between the plaintiff's burden of proof

under the applicable substantive law and a defendant's entitlement to qualified

immunity. When there is no proof to support a plaintiff's claim that a facially
neutral act was infected by a defendant's constitutionally impermissible motive,

the defendant is entitled to summary judgment because he has committed no act

for which he can be held liable. In such situations the qualified immunity analysis

is simply irrelevant.

52. 436 U.S. 658 (1978). In Monell, the Supreme Court overruled Monroe v. Pape,

365 U.S. 167 (1961), to the extent that Monroe had held that local government units could

not be sued as "persons" under § 1983. Monell holds that local government units may

be sued for damages, as well as declaratory and injunctive relief, whenever

the action that is alleged to be unconstitutional implements or executes a policy

statement, ordinance, regulation, or decision officially adopted and promulgated

by that body's officers. Moreover . . . local governments . . . may be sued for
constitutional deprivations visited pursuant to governmental 'custom' even though

such a custom has not received formal approval through the body's decisionmaking

channels.

Id. at 690-91. Monell rejects government liability based on the doctrine of respondeat

superior. Thus, a government body cannot be held liable under § 1983 merely because it

employs a tortfeasor. Id. at 691-92. See generally Karen M. Blum, Monell, DeShaney, and



1993] QUALIFIED IMMUNITY 199

against the governmental entity. 53 Furthermore, in such context, the plaintiff

cannot take an interlocutory appeal from the court's grant of qualified

immunity to the individual defendant, whereas a dismissal of the claim against

the individual defendant on the merits would make the order a final judgment
ripe for immediate appeal.54

II. When Is a Right "Clearly Established?"

Assuming a plaintiff is able to get by the first hurdle in the qualified

immunity analysis by asserting the violation of a constitutional right under

the law as presently construed, the next step requires the plaintiff to

prove that the law regarding this right was clearly established at the time

Zinermon: Official Policy, Affirmative Duty, Established State Procedure, and Local Gov-

ernment Liability Under Section 1983, 24 Creighton L. Rev. 1 (1990); Karen M. Blum,

From Monroe to Monell: Defining the Scope of Municipal Liability in Federal Courts, 51
Temp. L.Q. 409 (1978).

In Owen v. City of Independence, 445 U.S. 622 (1980), the Court held that a government
defendant has no qualified immunity from compensatory damages liability.

53. Given the law on qualified immunity, a government body could still be subject

to liability under Monell for a constitutional violation when the individual officer is able

to invoke qualified immunity as a defense to the § 1983 claim against her. See, e.g., Dodd
v. City of Norwich, 815 F.2d 862, 868 (2d Cir. 1987) (on rehearing), cert, denied, 484

U.S. 1007 (1987); Palmerin v. City of Riverside, 794 F.2d 1409, 1415 (9th Cir. 1986).

Courts sometimes confuse the consequences that flow from two very different deter-

minations. If the court concludes that there is no underlying constitutional violation, then

City of Los Angeles v. Heller, 475 U.S. 796 (1986), would dictate no liability on the part

of any defendant. In Heller, the Supreme Court made clear that if there is no constitutional

violation, there can be no liability, either on the part of the individual officer or the

government body. The Court held that "[ijf a person has suffered no constitutional injury

at the hands of the individual police officer, the fact that the departmental regulations

might have authorized the use of constitutionally excessive force is quite beside the point."

Id. at 799.

If, however, the determination is that there is no liability on the part of the individual

official because of the applicability of qualified immunity, it does not necessarily follow

that there has been no constitutional violation and that the municipality cannot be liable.

See, e.g., Doe v. Sullivan County, Tenn., 956 F.2d 545, 554 (6th Cir. 1992) ("To read

Heller as implying that a municipality is immune from liability regardless of whether the

plaintiff suffered a constitutional deprivation simply because an officer was entitled to

qualified immunity would . . . represent a misconstruction of its holding and rationale.");

Munz v. Ryan, 752 F. Supp. 1537, 1551 (D. Kan. 1990) (finding no inconsistency in ruling
that an official is entitled to qualified immunity but holding the municipality liable for

any constitutional violations if caused by the final policymaker).

54. If the case were disposed of completely by dismissal of the particular constitutional

claim on the merits, appeal would be available under 28 U.S.C. § 1291, which provides

that courts of appeals shall have jurisdiction of appeals from all final decisions of the

district courts. If other claims were to proceed against other defendants or indeed, if other

claims were to proceed against the same defendant, the order of dismissal could be appealed

if certified under Fed. R. Civ. P. 54(b) (1987).



200 INDIANA LAW REVIEW [Vol. 26:187

of the challenged conduct. 55 In Anderson v. Creighton,56 the Supreme

Court announced that for the right to be clearly established, "[t]he

'contours' of the right must be sufficiently clear that a reasonable official

would understand that what he is doing violates that right . . . [I]n light

of pre-existing law the unlawfulness must be apparent. ,,S7

A number of courts have held that when the right in question is
subject to a balancing test, the right will rarely be found clearly es-

tablished.58 In such cases, a plaintiff should strive to find case law that

presents facts as closely analogous to her situation as possible.59

In most cases, the answer to the question of whether the right was

clearly established will be a function of how narrowly the ' 'contours'

'

of the particular right are drawn when framing the inquiry. A few examples
help illustrate how the framing of the question affects the outcome of

55. Although qualified immunity is a defense which must be pleaded by the defendant,

Gomez v. Toledo, 446 U.S. 635, 640 (1980), once the defendant raises qualified immunity,
the burden of proof is on the plaintiff to show that the right allegedly violated was clearly

established at the time of the challenged conduct. See, e.g., Dixon v. Richer, 922 F.2d

1456, 1460 (10th Cir. 1991).

In Elder v. Holloway, 975 F.2d 1388, 1390 (9th Cir. 1992), the court affirmed the

district court's grant of qualified immunity on the basis that the law was not clearly

established at the time. The court held that:

[i]n an adversary system where the plaintiff has the burden of showing that a

specific right was clearly established in the law, if the court "gets it wrong"

because the universe of cases proffered by the plaintiff in support of his claim

that the right was clearly established turns out to be less than all of the potentially

relevant legal facts, the plaintiff has invited whatever error occurs.

Id. at 1395.

56. 483 U.S. 635 (1987).

57. Id. at 640.

58. See, e.g., Medina v. City and County of Denver, 960 F.2d 1493, 1498 (10th

Cir. 1992) ("In determining whether the law was clearly established, we bear in mind that

allegations of constitutional violations that require courts to balance competing interests

may make it more difficult to find the law 'clearly established' when assessing claims of

qualified immunity."); Frazier v. Bailey, 957 F.2d 920 (1st Cir. 1992) (relying on Myers

v. Morris, 810 F.2d 1437, 1462 (8th Cir. 1987), cert, denied, 484 U.S. 828 (1987) and

Benson v. Allphin, 786 F.2d 268, 276 (7th Cir. 1986), cert, denied, 479 U.S. 848 (1986))

(concluding that a right subject to a balancing test can rarely be found 'clearly established'

and finding that the right of familial integrity is such a right); Borucki v. Ryan, 827 F.2d

836, 848 (1st Cir. 1987) ("[W]hen the law requires a balancing of competing interests, . . .

it may be unfair to charge an official with knowledge of the law in the absence of a
previously decided case with clearly analogous facts."); Franz v. Lytle, 791 F. Supp. 827,

833 (D. Kan. 1992) ("The qualified nature of the right to familial integrity, requiring

government officials to balance certain rights against others, makes it 'difficult, if not

impossible, for officials to know when their conduct has violated "clearly established
law." ' ") (citing Frazier, 957 F.2d at 931).

59. See, e.g., Bartlett v. Fisher, 972 F.2d 911, 918 n.3 (8th Cir. 1992) ("Factually

analogous cases are highly relevant to the qualified immunity inquiry when the constitutional

right in question is subject to a balancing test.").



1993] QUALIFIED IMMUNITY 201

the qualified immunity analysis. In Mozzochi v. Borden™ the plaintiff
sued officials claiming his prosecution under a criminal harassment statute

was motivated by the impermissible purpose of desiring to chill his First

Amendment rights. 61 The district court denied qualified immunity, framing
the question "as whether 'a citizen possessed a clearly established con-

stitutional right not to have his speech regulated because the state actor

disagreed with its content.
,,,62 As the court of appeals noted, when

formulated at this level of generality, "the question answers itself."63

Anderson requires a more fact-specific framing of the question. The court

reformulated the question, incorporating the undisputed facts, as follows:

[T]he qualified immunity question is whether, at the time the

alleged acts took place, it was clearly established that an indi-

vidual's constitutional rights were violated when a criminal pros-
ecution, supported by probable cause, was initiated in an attempt

to deter or silence the exercise by the criminal defendant of his

right to free speech, but without the effect of actually deterring

or silencing the individual. 64

Not surprisingly, the court concluded that this right was not clearly

established and the defendant was entitled to summary judgment on
qualified immunity grounds.65

In White v. Taylor,66 the plaintiff sued the Chief of Police and the

City of Morton, Mississippi, claiming that he had been arrested without

probable cause and detained for an unreasonable period without a de-

termination of probable cause by a neutral magistrate.67 The Chief of

Police raised the qualified immunity defense both by way of a motion
to dismiss and by motion for summary judgment. The defense was denied,
the case tried to a jury, and a verdict rendered in favor of the defendants

on all claims except the unreasonable detention claim against the Chief.

The Chief then appealed. 68 The Court of Appeals for the Fifth Circuit

60. 959 F.2d 1174 (2d Cir. 1992).

61. Id. at 1175.

62. Id. at 1178.

63. Id. (citing Police Dep't v. Mosley, 408 U.S. 92, 95 (1972) ("[A]bove all else,

the First Amendment means that government has no power to restrict expression because
of its message, its ideas, its subject matter, or its content.")).

64. Id. at 1179.

65. Id. at 1180. The court actually concluded that the plaintiff's allegations stated

no constitutional claim. Id. Thus, under Siegert v. Gilley, 111 S. Ct. 1789 (1991), the court

should have ordered summary judgment on the merits.

66. 959 F.2d 539 (5th Cir. 1992).

67. Id. at 540.

68. Id. at 541.



202 INDIANA LAW REVIEW [Vol. 26:187

concluded that the Chief of Police was entitled to qualified immunity

as a matter of law.

[W]hile we think the law was clearly established on May 29,
1987 that a warrantless misdemeanor arrestee had a right to a

prompt determination of probable cause, ... we hold the con-
tours of that right were not sufficiently clear so that a reasonable

law enforcement officer would have known that such a person,
arrested late at night in a city without a night magistrate, could

not be held overnight before taking the arrestee before a mag-

istrate.
69

Even within the same circuit, there is not always agreement on whether

the contours of the right have been clearly established. In Rich v. City

of Mayfield Heights,10 the plaintiff sued individual police officers and
the city after a pretrial detainee attempted suicide in the city jail. Included

among the plaintiff's claims were allegations of the individual police
officers' deliberate indifference to medical needs. The thrust of the plain-

tiff's complaint was that the detainee had not been cut down immediately
when discovered hanging from his jail cell door. Instead, a dispatcher
had been asked to call a fire department rescue squad for assistance.

The district court denied qualified immunity on the claim of deliberate

indifference to medical needs, and the officers pursued an interlocutory

appeal. 71 The Court of Appeals for the Sixth Circuit found that although

the pretrial detainee had a due process right to adequate medical care,

this generalized right did not establish the more particularized "right of

a pretrial detainee to be cut down by police officers when discovered
hanging in a jail cell." 72

About one month after Rich was decided, another panel of the Sixth

Circuit rendered a split opinion in Heflin v. Stewart County. 13 Heflin,

like Rich, was a suit brought by relatives of a pretrial detainee who was
found hanging in his cell and was not cut down and did not receive
cardio-pulmonary resuscitation (CPR) immediately. On facts which were
somewhat more egregious than those in Rich,14 the majority of the panel

69. Id. at 546.

70. 955 F.2d 1092 (6th Cir. 1992).

71. Id. at 1093.

72. Id. at 1097-98.

73. 958 F.2d 709 (6th Cir. 1992).

74. The detainee in Heflin was found by a deputy sheriff. His hands and feet were

tied together, a rag stuffed in his mouth, and his feet were touching the floor. Although

offers were made to help the Deputy cut Heflin down, he ordered people out of the cell

until an emergency medical team arrived. At that point, the Sheriff ordered pictures to be

taken of the hanging body before it was cut down. Id. at 711-12.



1993] QUALIFIED IMMUNITY 203

held that "[t]he unlawfulness of doing nothing to attempt to save [the

inmate's] life would have been apparent to a reasonable official in

[defendants'] position" in light of pre-existing law. 75 Judge Kennedy, in

dissent, cited Rich in support of her position that "the right of hanging

victims displaying no vital signs to be immediately cut down and ad-
ministered CPR by jail officials was [not] clearly established such that
a reasonable official would have known of it." 76

Apart from the question of how fact-specific a court may get in
framing the right for the qualified immunity inquiry, there is also the

issue of what law a court will consider in determining whether the

particularized right is clearly established. Once the contours of the right
have been defined, the most compelling proof of the right being clearly

established will be recognition by the Supreme Court or by courts of

appeals. 77 Where such controlling precedent is lacking, the question is to
what extent courts will look to other circuits or state law to clearly

establish a right.

The Sixth Circuit Court of Appeals has taken the hardest line on

this issue. In Marsh v. Arn,1% the court observed that "when there is
no controlling precedent in the Sixth Circuit our court places little or

no value on the opinions of other circuits in determining whether a right

is clearly established."79 For noncontrolling precedent to be the source

of clearly established law in the Sixth Circuit, such decisions "must . . .

point unmistakenly to the unconstitutionality of the [challenged] con-

duct." 80 For example, in Dougherty v. Campbell? 1 the court held that

where the very conduct in question, a visual body cavity search of a

prison visitor without reasonable suspicion, had been declared unconsti-

tutional by every circuit addressing the issue in similar cases, the contours

of the right were clearly established.82

75. Id. at 717.

76. Id. at 719 (Kennedy, J., dissenting).

77. See Jensen v. Conrad, 747 F.2d 185, 194 (4th Cir. 1984) (looking to other

courts of appeals to decide whether clearly established right existed), cert, denied, 470 U.S.

1052 (1985); Williamson v. City of Virginia Beach, 786 F. Supp. 1238, 1261-62 (E.D. Va.

1992).

78. 937 F.2d 1056 (6th Cir. 1991).

79. Id. at 1069. See also Hall v. Shipley, 932 F.2d 1147, 1150 (6th Cir. 1991);

Eugene D. v. Karman, 889 F.2d 701, 706 (6th Cir. 1989), cert, denied, 496 U.S. 931 (1990).

80. Ohio Civil Serv. Employees Ass'n. v. Seiter, 858 F.2d 1171, 1177 (6th Cir.

1988) (The unconstitutionality of the conduct must "be so clearly foreshadowed by applicable

direct authority as to leave no doubt in the mind of a reasonable officer that his conduct,

if challenged on constitutional grounds, would be found wanting.").

81. 935 F.2d 780 (6th Cir. 1991), cert, denied, 112 S. Ct. 939 (1992).

82. Id. at 787.



204 INDIANA LAW REVIEW [Vol. 26:187

In Johnson-El v. Schoemehl™ a case of a pretrial detainee complaining
of prison conditions, defendants made the argument that for the law to
be clearly established, the particular conduct of the officials must have

been held unlawful by that circuit or another court "with direct jurisdiction

over the institution."84 Although the Eighth Circuit agreed attention to

cases within the circuit was important and the existence of precedent
within the circuit would be relevant in determining whether and to what

degree an official would be aware of the law, the court, nonetheless,

rejected the per se rule offered by defendants.85

In the Seventh, Ninth, and Tenth Circuits, there is more flexibility
in looking at noncontrolling precedent. The approach in these circuits is
to look to "all available decisional law" in determining whether a right

has been clearly established. 86 Although the Seventh and Tenth Circuits

are willing to look to decisional law from other circuits, those decisions

must make the unlawfulness of the official's conduct apparent.87 The
approach in the Ninth Circuit does not appear to require the non-

controlling precedent to be as solidly developed.

In Wood v. Ostrander™ the Ninth Circuit held that a police officer
owed a duty of care under the due process clause of the Fourteenth
Amendment to a woman who was left abandoned on a highway after
the officer arrested the driver of the car in which she was a passenger. 89

83. 878 F.2d 1043 (8th Cir. 1989).

84. Id. at 1049.

85. Id.

86. Romero v. Kitsap County, 931 F.2d 624, 629 (9th Cir. 1991) (quoting Ward
v. County of San Diego, 791 F.2d 1329, 1332 (9th Cir. 1986), cert, denied, 483 U.S. 1020

(1987)). See McDonald v. Haskins, 966 F.2d 292, 294 (7th Cir. 1992) (deciding that case
on "all fours" is not required and allowing the plaintiff to rely on precedent from Third

Circuit to demonstrate the law was clearly established); Patrick v. Miller, 953 F.2d 1240,

1249 (10th Cir. 1992) ("The law may be found clearly established by reference to decisions
from other circuits."); Henderson v. DeRobertis, 940 F.2d 1055, 1058-59 (7th Cir. 1991)

(indicating that court should look to whatever decisional law is available to decide whether

the right is clearly established). See also Courson v. McMillian, 939 F.2d 1479, 1498 n.32

(11th Cir. 1991):

[C]learly established law in this circuit may include court decisions of the highest
state court in the states that comprise this circuit as to those respective states,

when the state supreme court has addressed a federal constitutional issue that

has not been addressed by the United States Supreme Court or the Eleventh

Circuit.

87. See, e.g., Patrick v. Miller, 953 F.2d 1240, 1249 (10th Cir. 1992) ("We consider
the law to be 'clearly established' when it is well developed enough to inform the reasonable
official that his conduct violates that law."); Henderson v. DeRobertis, 940 F.2d 1055,

1059 (7th Cir. 1991) ("[U]ntil a particular constitutional right has been stated so that

reasonably competent officers would agree on its application to a given set of facts, it has

not been clearly established.").

88. 879 F.2d 583 (9th Cir. 1989), cert, denied, 111 S. Ct. 341 (1990).

89. Id. (indicating the standard is "deliberate indifference").



1993] QUALIFIED IMMUNITY 205

The woman was subsequently raped when trying to make her way home.
In denying qualified immunity to the officer, the court relied on one

analogous decision from the Seventh Circuit to conclude that the law

was clearly established that the officer owed a duty of protection to the
plaintiff in this situation.

90 In Hilliard v. City and County of Denver,91

the Tenth Circuit, when confronted with essentially the same facts as in
Wood, concluded that the existence of two opinions from other circuits
was not sufficient to make the law clearly established in the Tenth Circuit
that a duty to protect could be imposed outside of a custodial context.92

In the absence of controlling precedent from the Fourth Circuit Court

of Appeals on the question of whether the law from other circuits may
be considered in the "clearly established law" inquiry, the court in

Williamson v. City of Virginia Beach93 opted for the Eighth Circuit's
approach, which rejected a per se rule that controlling precedent must

exist for a claim to be valid. The court reasoned this approach "provide[d]
the best balance of the competing interests at stake."94 The court in

Williamson viewed the Eighth Circuit's approach as a middle ground

between the Sixth Circuit's insistence on Supreme Court or Sixth Circuit

precedent and the Seventh and Ninth Circuits' willingness to consider

"all available decisional law."95

This "common sense" approach does not allow officials to escape
liability for unlawful conduct merely because the issue is one of first

impression in that circuit. 96 Although a single decision from another

federal or state court would presumably not suffice to put an official

on notice as to the unlawfulness of her particular conduct, if other circuits

have proscribed similar conduct to such an extent that a reasonable

official would be aware of the law, then the law is clearly established.97

III. The Relevance of Factual Disputes to the Pretrial
Disposition of Qualified Immunity: Role of the Judge Versus the

Role of the Jury

In Hunter v. Bryant,98 the Supreme Court admonished the Ninth

Circuit Court of Appeals for what had become a common practice in

90. Id. at 591-94. In the case relied upon, White v. City of Rochford, 592 F.2d

381, 383-85 (7th Cir. 1979), the court held that police had an affirmative duty to protect

children left abandoned in a car on a busy freeway after police arrested the children's

uncle for drag racing.

91. 930 F.2d 1516 (10th Cir. 1991), cert, denied, 112 S. Ct. 656 (1991).

92. Id. at 1520.

93. 786 F. Supp. 1238 (E.D. Va. 1992).

94. Id. at 1262.

95. Id.

96. Id.

97. Id.

98. 112 S. Ct. 534 (1991) (per curiam). The Court reversed a judgment of the Ninth



206 INDIANA LAW REVIEW [Vol. 26:187

that circuit: sending the qualified immunity issue to the jury." In criticizing

the approach taken by the Ninth Circuit, the Supreme Court made the
following observations:

The Court of Appeals' confusion is evident from its statement
that '[wjhether a reasonable officer could have believed he had

probable cause is a question for the trier of fact, and summary
judgment . . . based on lack of probable cause is proper only

if there is only one reasonable conclusion a jury could reach.'

903 F.2d at 721. This statement of law is wrong for two reasons.
First, it routinely places the question of immunity in the hands

of the jury. Immunity ordinarily should be decided by the court

long before trial. . . . Second, the court should ask whether the

agents acted reasonably under settled law in the circumstances,

not whether another reasonable, or more reasonable, interpre-

tation of the events can be constructed five years after the fact. 100

The Court's message is clear. 101 In the absence of a genuine dispute

about material facts, the question of whether a reasonable official could

have believed her conduct to be lawful, in light of clearly established

Circuit denying qualified immunity to federal agents who had arrested, without probable
cause, someone they suspected of threatening the President's life. Id. at 537.

99. Id. at 536-37. For examples of this practice in the Ninth Circuit, see Barlow

v. Ground, 943 F.2d 1132, 1139 (9th Cir. 1991) (holding that the question of whether

reasonable official would know she is violating clearly established law was question for
jury), cert, denied, 112 S. Ct. 2995 (1992); Floyd v. Laws, 929 F.2d 1390, 1394 (9th Cir.

1991) (holding that the trial court did not abuse its discretion by issuing jury instruction

on qualified immunity); Ting v. U.S., 927 F.2d 1504, 1511 (9th Cir. 1991) (holding that

the issue of qualified immunity could not be resolved as a matter of law in light of the

factual conflict surrounding the shooting but was a jury question); Thorstead v. Kelly, 858

F.2d 571 (9th Cir. 1988) (holding that qualified immunity is a jury issue).

100. Bryant, 112 S. Ct. at 536-37.

101. Indeed, in the wake of Bryant, the Ninth Circuit has recognized that the Supreme

Court has expressly rejected the approach previously taken in that Circuit. In Act Up!/

Portland v. Bagley, 971 F.2d 298 (9th Cir. 1992), the court noted:

We interpret Bryant to hold that the question of whether a reasonable officer
could have believed his conduct was proper under established law is a question

of law that must be determined by the district court at the earliest possible point

in the litigation. Where the facts underlying the qualified immunity determination

are not in dispute, the determination should be made at summary judgement.

Id. at 301. See also Tachiquin v. Stowell, 789 F. Supp. 1512, 1520 (E.D. Cal. 1992) ("The

question of whether a reasonable officer would have concluded that he had probable cause

for an arrest under the circumstances is not ordinarily a question of fact for the jury.").

But see Coates v. Daugherty, 973 F.2d 290, 293 (4th Cir. 1992) ("As [defendants]

apparently requested, the magistrate judge instructed the jury on the qualified immunity

question. Neither party challenges the propriety of submitting this question to the jury nor

the contents of the instruction; thus we do not consider these questions here.").



1993] QUALIFIED IMMUNITY 207

law and the circumstances surrounding the particular incident, is a question

of law for the court to decide. Most federal courts, even prior to Bryant,

had been treating the qualified immunity issue as a question of law when

the facts were undisputed. 102 Thus, when no material facts relevant to

the immunity defense are in dispute, the issue should be disposed of

prior to trial.

If the complaint fails to satisfy the threshold requirement of stating

a constitutional claim under Siegert or fails to allege facts from which

the court could conclude that the right allegedly violated was clearly

established at the time, then the qualified immunity issue can be disposed

of on a motion to dismiss. Even if the plaintiff states a claim and the

court decides the law was clearly established at the time, summary
judgment would be appropriate if the court concludes that, given the

undisputed facts, a reasonable official in defendant's position could have

understood her conduct to be lawful.

The Supreme Court has emphasized the desirability of disposing of

the immunity defense "long before trial," 103 but such early disposition

may be difficult or impossible when the facts are undeveloped or when
material facts remain in dispute. The Anderson "fact-specific" inquiry

makes the particular conduct of the official relevant in the qualified

immunity analysis. When the law in a particular case is found to be
clearly established, whether a reasonable official would have understood

that her particular conduct was unlawful will depend upon the facts and

information the officer possessed at the time of the conduct.

In some cases, factual disputes can be resolved prior to trial simply

by allowing limited discovery to proceed on the facts crucial to the

qualified immunity defense. 104 Rather than deny qualified immunity at

this early stage (which inevitably leads to delay and more expense in the

102. See, e.g., Snell v. Tunnell, 920 F.2d 673, 696 (10th Cir. 1990) (deciding qualified

immunity is a legal, not a factual, issue which must be resolved in the first instance by

the trial court); Finnegan v. Fountain, 915 F.2d 817, 821 (2d Cir. 1990) (holding that

application of qualified immunity is ultimately a question of law for the court to decide);

Rakovich v. Wade, 850 F.2d 1180, 1204 (7th Cir. 1988) (en banc) (deciding that qualified

immunity is question of law for district judge and not jury).

103. Bryant, 111 S. Ct. at 537. See also Anderson v. Creighton, 483 U.S. 635, 646

n.6 (1987) (noting that qualified immunity should be disposed of in "earliest possible stage

of litigation"); Mitchell v. Forsyth, 472 U.S. 511, 526 (1985) (stating that qualified immunity

"is an immunity from suit rather than a mere defense to liability; ... it is effectively lost

if a case is erroneously permitted to go to trial.").

104. The Court in Anderson recognized that some limited discovery on the immunity

issue might be required before a defendant's motion for summary judgment could be

decided. The Court noted that "if the actions [defendant] claims he took are different

from those [plaintiffs] allege (and are actions that a reasonable officer could have believed

lawful), then discovery may be necessary before [defendant's] motion for summary judgment
on qualified immunity grounds can be resolved." 483 U.S. at 646 n.6.



208 INDIANA LAW REVIEW [Vol. 26:187

form of an interlocutory appeal), 105 the district court should simply defer

its decision on qualified immunity until the material facts are sufficiently

developed or clarified so that a decision can be made at the summary
judgment stage. 106

In many cases, however, material issues of fact will remain in dispute
and will have to be decided by a jury. It is worth stressing at this point

that not every factual dispute is a dispute about a material issue of

fact.
107 A material fact is one which must be resolved to decide the

qualified immunity issue. A material fact is a dispositive fact. Clearly,
a material factual issue does not exist if the plaintiff has failed to allege

the violation of a constitutional right sufficient to survive the threshold

requirement of Siegert. 10* Likewise, if a plaintiffs allegations, though

disputed, are taken as true but, even on plaintiffs version of the facts,

the defendant is entitled to qualified immunity as a matter of law, then

the facts in dispute are not material and should not preclude summary
judgment. 109

105. The problems of abuse, delay, and costs of interlocutory appeals based upon

Mitchell v. Forsyth, 472 U.S. 511 (1985), have been the subject of discussion by some

courts. See e.g., Yates v. City of Cleveland, 941 F.2d 444, 448-49 (6th Cir. 1991); Abel

v. Miller, 904 F.2d 394, 396 (7th Cir. 1990); Apostol v. Gallion, 870 F.2d 1335, 1338-39

(7th Cir. 1989). See also discussion infra Part IV.

106. See, e.g., Act Up!/Portland v. Bagley, 971 F.2d 298, 301-02 (9th Cir. 1992)

("[TJhe court is obliged to make every effort to develop the record to the extent necessary

to make the determination at [the summary judgment] stage."); Mee v. Ortega, 967 F.2d

423, 430 & n.5 (10th Cir. 1992) (holding that factual disputes on the record required more
development before a ruling on qualified immunity would be appropriate) ("If, at any

point before trial, it appears to the district court that, as a matter of law, a reasonable

parole officer could have believed [plaintiff's] continued incarceration lawful, summary

judgment would be appropriate."); Workman v. Jordan, 958 F.2d 332, 336 (10th Cir.
1992) (holding that a court may allow limited discovery to develop or clarify facts needed
to rule on qualified immunity claim and defer decision on qualified immunity); Howell v.

Evans, 922 F.2d 712, 717-18 (11th Cir. 1991) (holding that when factual development is

necessary, it can be achieved through discovery prior to trial, while still preserving opportunity

to determine legal issues and to appeal before trial).

107. For an excellent discussion of how to determine "materiality" for summary
judgment purposes, see Schwarzer et al., supra note 44, at 476.

108. See, e.g., Adams v. St. Lucie County Sheriff's Dep't, 962 F.2d 1563, 1566 n.l
(11th Cir. 1992) (agreeing with the district court's observation that factual disputes do not

preclude summary judgment if plaintiff's complaint does not allege a violation of clearly

established law); Bennett v. Parker, 898 F.2d 1530, 1532 (11th Cir. 1990) (holding that no

material issues of fact are in dispute if the plaintiff's evidence fails to establish a constitutional

violation).

109. See, e.g., Cartier v. Lussier, 955 F.2d 841, 845 (2d Cir. 1992) (holding that if,

even when all facts as alleged by the nonmoving party are regarded as true, the moving

party is still entitled to judgment as a matter of law, then factual disputes, however genuine,

are not material, and their presence will not preclude summary judgment); Rozek v.



1993] QUALIFIED IMMUNITY 209

When historical facts' 10 material to the issue of qualified immunity
remain in dispute, summary judgment is inappropriate and a jury should
decide those facts. 111 It is important to understand that a defendant does

not lose his or her immunity simply because the qualified immunity issue

cannot be disposed of on summary judgment. 112 If the qualified immunity
issue is not resolved at the summary judgment stage, it is subject to
disposition during trial, on a directed verdict motion, or even after trial

on a motion for a judgment notwithstanding the verdict. 113 When factual
issues remain for the jury, the best way to accomplish jury resolution
of the facts while maintaining the court's control over the legal question

of qualified immunity is to submit special interrogatories to the jury that

will provide answers to the facts dispositive of the immunity defense. 114

Topolnicki, 865 F.2d 1154, 1157 (10th Cir. 1989) (Issues of fact in dispute were not material

"because even if they were resolved in [plaintiffs] favor, defendants . . . would still be

entitled to qualified immunity for their handling of the investigation and prosecution.");

Bailey v. Kenney, 791 F. Supp. 1511, 1519 (D. Kan. 1992) ("[Accepting plaintiff's version

of the disputed facts, the court finds that reasonable officers could have believed the

fugitive to have been at plaintiffs residence.").

110. A historical fact has been defined as "a thing done, an action performed, or
an event or occurrence." Schwarzer et al., supra note 44, at 455.

111. See, e.g., Pritchett v. Alford, 973 F.2d 307, 313 (4th Cir. 1992):

[T]he narrow threshold question whether a right allegedly violated was clearly

established at the appropriate level of inquiry and at the time of the challenged

conduct is always a matter of law for the court, hence is always capable of

decision at the summary judgment stage. Whether the conduct allegedly violative

of the right actually occurred or, if so, whether a reasonable officer would have

known that that conduct would violate the right, however, may or may not be
then subject to determination as a matter of law. If there are genuine issues of

historical fact respecting the officer's conduct or its reasonableness under the

circumstances, summary judgment is not appropriate, and the issue must be
reserved for trial.

112. See, e.g., Buenrostro v. Collazo, 973 F.2d 39, 45 & n.8 (1st Cir. 1992):
In this case, there seem to be additional facts, not yet fully developed and-or

resolved, which could potentially inform the ultimate decision on qualified im-

munity. Hence, the defendants remain free to adduce additional proof at trial

in an effort to demonstrate that they, or some among them, should be held
harmless from damages by the doctrine of qualified immunity.

113. Adams v. St. Lucie County Sheriff's Department, 962 F.2d 1563, 1567 n.2 (11th
Cir. 1992).

114. See, e.g., Warlick v. Cross, 969 F.2d 303, 305 (7th Cir. 1992):

The question of a defendant's qualified immunity is a question of law for the

court, not a jury question. . . When the issue of qualified immunity remains
unresolved at the time of trial, ... the district court may properly use special
interrogatories to allow the jury to determine disputed issues of fact upon which

the court can base its legal determination of qualified immunity.;

Stone v. Peacock, 968 F.2d 1163, 1166 (11th Cir. 1992):

The law is now clear . . . that the defense of qualified immunity should be



210 INDIANA LAW REVIEW [Vol. 26:187

Because of the emphasis placed on early establishment of qualified

immunity, courts sometimes will ignore the principles normally applied

in summary judgment practice. A comparison of two cases from the
First and Fourth Circuits helps to illustrate the problem. In Prokey v.

Watkins," 5 the plaintiff, an undercover police officer, alleged that de-

fendants conspired to arrest her without probable cause. The facts in

the case were "complex, intricate and in key areas contested.
" ,l6 In

affirming the denial of defendants' motion for summary judgment on
qualified immunity grounds, the Court of Appeals for the First Circuit

articulated the very important distinction between the legal issue of

qualified immunity and issues of disputed material facts. As the court
stated:

Whether ... a reasonable policeman, on the basis of the in-

formation known to him, could have believed there was probable
cause is a question of law, subject to resolution by the judge

not the jury. . . . [I]f what the policeman knew prior to the
arrest is genuinely in dispute, and if a reasonable officer's per-

ception of probable cause would differ depending on the correct

version, that factual dispute must be resolved by a fact finder. 117

An interesting case to contrast with Prokey is Gooden v. Howard
County."* In Gooden, police officers responding to complaints of a

decided by the court, and should not be submitted for decision by the jury. . . .

If there are disputed issues of fact concerning qualified immunity that must be

resolved by a full trial and which the district court determines that the jury

should resolve, special interrogatories would be appropriate.;

Warren v. Dwyer, 906 F.2d 70, 76 (2d Cir. 1990), cert, denied, 111 S. Ct. 431 (1990):

If there are unresolved factual issues which prevent an early disposition of [qualified

immunity] defense, the jury should decide these issues on special interrogatories.

The ultimate legal determination whether, on the facts found, a reasonable officer

should have known he acted unlawfully is question of law better left for court

to decide.

115. 942 F.2d 67 (1st Cir. 1991).

116. Id. at 73.

117. Id. See also Gainor v. Rogers, 973 F.2d 1379, 1385 (8th Cir. 1992):

The cases are legion in this and other circuits which establish that where there

are genuine issues of material fact surrounding an arrestee's conduct it is impossible

for the court to determine, as a matter of law, what predicate facts exist to

decide whether or not the officer's conduct clearly violated established law.;

Enlow v. Tishomingo County, 962 F.2d 501, 510 (5th Cir. 1992) (When facts relied on

to establish probable cause for arrest were in dispute, "[wjhether or not [defendant could]

claim qualified immunity from [plaintiff's] Fourth Amendment claims remained] a fact-
disputed issue."); Frohmader v. Wayne, 958 F.2d 1024, 1028 (10th Cir. 1992) ("Courts

may not resolve disputed questions of material fact in order to grant summary judgment

.... [CJourts, at the summary judgment level, are required to take the facts and reasonable

inferences in the light most favorable to the party opposing summary judgment.").

118. 954 F.2d 960 (4th Cir. 1992) (en banc).



1993] QUALIFIED IMMUNITY 211

disturbance in an apartment complex took the plaintiff into protective

custody for emergency psychiatric evaluation. The officers' conclusion

that the plaintiff was the source of the disturbance was mistaken, and

plaintiff brought suit under 42 U.S.C. § 1983 alleging, inter alia, a

violation of her Fourth Amendment right to be free from seizure without
probable cause of mental illness. 119 In a narrowly divided vote, the majority

of the en banc court reversed a divided panel opinion 120 which had

affirmed the district court's denial of qualified immunity to the police

officers.
121

The majority admitted that the underlying events giving rise to the

officers' conduct on the evening in question were a matter of dispute;

the plaintiff's version of what happened differed significantly from the

defendants' account of the facts. 122 Furthermore, the majority acknowl-

edged that there was evidence to suggest that a neighbor (other than the

one who complained of noises coming from plaintiff's apartment) had
informed the officers that the disturbance came from a couple arguing

in the apartment below the complaining neighbor's, rather than from

the plaintiff's apartment above. 123 There was also evidence that the officers

had investigated a domestic dispute in the apartment below, took in-

formation and filed a report.

The majority minimized the importance of the factual disputes, taking

the position that the "inevitable confusion" that commonly results when
witnesses to an incident give different accounts as to what occurred "need

not signify a difference of triable fact." 124 The relevant inquiry was stated

119. The court acknowledged that the "general right to be free from seizure unless

probable cause exists was clearly established in the mental health seizure context." Id. at

968.

120. Five of the 11 judges sitting en banc dissented from the majority opinion. 954

F.2d at 970 (Phillips, J., joined by Ervin, C.J., and Mumaghan, Sprouse, Butzner, JJ.,
dissenting).

121. Gooden v. Howard County, 917 F.2d 1355 (4th Cir. 1990).
122. Gooden, 954 F.2d 962-63. The facts are rather detailed, but the important

disputes can be summarized. The defendants claimed that when they responded to a

neighbor's second complaint about a loud disturbance coming from the apartment above

her, they also thought they heard a loud scream coming from the plaintiff's apartment.

When they proceeded to investigate, the plaintiff explained that she had been ironing and
had burned herself. The plaintiff stated that she showed the defendants the hot iron, clothes

on the ironing board, and a red mark on her arm. The officers claimed the iron was cold,

no clothes were on the board, and they saw no evidence of a burn. After returning to

the neighbor's downstairs apartment, the officers claimed to have heard another loud

disturbance, including a male voice and a female voice, but never simultaneously. The

officers concluded that plaintiff had a multiple personality and that she should be taken

into custody to prevent her from harming herself. Plaintiff claimed that she informed the

officers that she had been on the phone with her mother and a friend.

123. Id. at 964.

124. Id. at 965.



212 INDIANA LAW REVIEW [Vol. 26:187

as: "What matters is whether the officers acted reasonably upon the
reports available to them and whether they undertook an objectively
reasonable investigation with respect to that information in light of the

exigent circumstances they faced.

"

i25

Having so formulated the relevant question, the majority then ap-

parently ignored the significance of factual disputes concerning which

reports were available to the officers and what information they possessed

at the time they took the plaintiff into custody. Instead, the court

determined that there was "little dispute . . . about what the officers

perceived," or the reasonableness of their perceptions. 126

To conclude that the officers reasonably believed their conduct to
be lawful, given the information they possessed at the time, the majority

either dismissed as immaterial any dispute between the plaintiff and the

officers about the historical facts of what occurred that evening, as well

as the testimony of the neighbor, or the majority simply engaged in fact

finding, deciding the historical facts and inferences to be drawn from

them in favor of the officers. 127

As the dissent in Gooden observes: "The importance of this case
. . . lies in the classic problem it poses of accommodating qualified

immunity doctrine's preference for pre-trial establishment of the defense,

with summary judgment's insistence that, desirable as this may be, it
cannot be done if genuine issues of fact material to the defense exist." 128

Throughout its opinion, the majority repeatedly stressed the purpose

and policy underlying qualified immunity, emphasizing each time the

deference to be accorded officers who must make on-the-scene judgment
calls in the performance of their duties. 129 Gooden is indeed a case in

125. Id.

126. Id. The majority's determination that the officers' investigation uncovered no
other possible sources for the noise, id. at 966, seems contradictory to its earlier acknowl-

edgement that the officers had been informed of a domestic dispute, had investigated that

incident and filed a report. Id. at 964.

127. As the dissent put it:

[TJhe majority essentially, though without ever saying so, shifts the burden to

the plaintiff as nonmovant, either resolving conflicting inferences arising from

conflicting versions of critical historical facts in favor of the defendants in an

exercise of raw fact-finding, or simply sweeping aside as immaterial the existence

of flat conflict in the evidence as forecast on certain critical issues.

Id. at 972 (Phillips, J., dissenting).

128. Id. at 974 (Phillips, J., dissenting).

129. The court first noted that an en banc hearing was granted "to underscore the

reasonable latitude accorded law enforcement officers in the performance of their duties."

Id. at 962. Shortly thereafter, the court stated that the doctrine of qualified immunity had

been developed "with the express purpose of according police officers latitude in exercising

what are inescapably discretionary functions replete with close judgment calls." Id. at 964.



1993] QUALIFIED IMMUNITY 213

which Seventh Amendment concerns about having juries decide disputed
historical facts appear to be given less weight when balanced against the

policy concerns underlying the judicially crafted qualified immunity de-

fense. As the dissent suggests, the majority in Gooden "succumbed to

what may be a rather widespread temptation to put another finger on
the scale favoring pretrial establishment of immunity—by skewing sum-
mary judgment doctrine. ,,,3°

IV. Availability of Interlocutory Appeal

In Mitchell v. Forsyth, 121 the Supreme Court held that "a district

court's denial of a claim of qualified immunity, to the extent that it

turns on an issue of law, is an appealable * final decision,,, under the

Later in its opinion, the court declared, "the basic purpose of qualified immunity ... is

to spare individual officials the burdens and uncertainties of standing trial in those instances

where their conduct would strike an objective observer as falling within the range of

reasonable judgment." Id. at 965.

130. Id. at 974 (Phillips, J., dissenting). For what may be considered another example
of this tendency to "tip the scales" in favor of a pretrial finding of qualified immunity,

see Cross v. City of Des Moines, 965 F.2d 629, 632 (8th Cir. 1992) ("If a case involves

a question of whether probable cause existed to support an officer's actions, the case should

not be permitted to go to trial if there is any reasonable basis to conclude that probable

cause existed.") (citing Hunter v. Bryant, 112 S. Ct. 534, 537 (1991)).

In a subsequent panel opinion of the Fourth Circuit, the court rejected defendant's

reliance on Gooden to support his claim that the district court had erred in not granting

his motion for summary judgment or a directed verdict on qualified immunity grounds.

Rainey v. Conerly, 973 F.2d 321 (4th Cir. 1992). The court in Rainey observed:

This case is distinguishable from this court's recent decision in Gooden. In

Gooden, the en banc court addressed a similar situation in which the applicability

of qualified immunity arguably depended on resolution of conflicting versions of

the facts. The majority ultimately concluded that resolution of what actually

happened was irrelevant to the qualified immunity claim, because the appropriate

focus was on the perceptions of the officers. . . .

Unlike Gooden where what actually happened did not need to be resolved

by the trier of fact in order to reach a decision on the applicability of qualified

immunity, in this case a determination of what actually happened is absolutely

necessary to decide whether [defendant! could reasonably have believed that his

actions were lawful. [Defendant] does not claim, as did the officers in Gooden,

that he operated under a mistaken, but reasonable, perception of the facts.

Instead, the crux of the dispute revolves entirely around the level of force utilized

by [defendant] in removing [plaintiff] from the vestibule. . . . The determination

of what actually happened depends exclusively on an assessment of the credibility

of the respective witnesses. This assessment is a disputed issue of fact and,

therefore, cannot be resolved on summary judgment or directed verdict.

Id. at 324.

131. 472 U.S. 511 (1985). Some courts refer to the case as Mitchell, others as Forsyth.
For purposes of this Article, the case will be referred to in text as Forsyth, although

quotations in footnotes may refer to either party name.



214 INDIANA LAW REVIEW [Vol. 26:187

collateral order doctrine. 132 As noted earlier, language in Forsyth stating

that an appellate court need not decide "whether the plaintiff's allegations

actually state a claim" 133 appears inconsistent with the Court's directive

in Siegert to address the constitutional issue as a threshold to the qualified

immunity analysis.

Furthermore, since Forsyth was decided before Anderson made facts
surrounding challenged conduct a relevant part of the immunity analysis,

the issue that Forsyth envisions as reviewable on interlocutory appeal is

"a purely legal one: whether the facts alleged (by the plaintiff, or, in

some cases, the defendant) support a claim of violation of clearly es-

tablished law." 134 Anderson adds another question of law which must

be reviewed on interlocutory appeal: whether a reasonable official, given

the information possessed by the defendant, would have known that her
particular conduct violated a clearly established constitutional right.

There is general agreement that if the defense is "I didn't do it,"

an interlocutory appeal will not lie from a denial of summary judgment.

Obviously, such a defense goes to the very merits of the case and has

nothing to do with qualified immunity. 135

132. Id. at 530. See supra notes 30-32 and accompanying text for discussion of the

collateral order doctrine.

133. Id. at 528.

134. Id. at 528 n.9.

135. See, e.g., Kulwicki v. Dawson, 969 F.2d 1454, 1461 n.7 (3d Cir. 1992):

We note that an appeal from a denial of immunity where factual issues remain
is distinct from that where the defendant official denies taking the actions at

issue. Unlike a claim of official immunity, the 'I didn't do it' defense relates

strictly to the merits of the plaintiff's claim, and is therefore not immediately

appealable.;

Crawford-El v. Britton, 951 F.2d 1314, 1317 (D.C. Cir. 1991):

We note that some of [defendant] Britton' s arguments on appeal take the form
of a simple denial — an 'I didn't do it' defense. Immediate review of the district
court's treatment of those issues is beyond the scope of Mitchell's exception,

which exists to supply early review of the law 'clearly established' at the relevant

time.;

Elliott v. Thomas, 937 F.2d 338, 342 (7th Cir. 1991):

It would extend Mitchell well beyond its rationale to accept an appeal containing

nothing but a factual issue. . . . Mitchell did not create a general exception to

the finality doctrine for public employees. Every court that has addressed the

question expressly has held that Mitchell does not authorize an appeal to argue

'we didn't do it.' We join them.;
Johnson v. Estate of Laccheo, 935 F.2d 109 (6th Cir. 1991) (Guy, J., dissenting). Judge

Guy criticized the majority for failing:
to differentiate between a true qualified immunity motion, which when denied

may be the subjection [sic] of an interlocutory appeal . . . and a regular summary

judgment motion, which cannot be appealed when denied .... [I]f what the

officer actually did, as opposed to the legal effect of what he did, is the basis



1993] QUALIFIED IMMUNITY 215

Some confusion and conflict exists about the availability of inter-
locutory appeal when qualified immunity has been denied because of

material issues of fact in dispute. There is case law in both the Second

and Eleventh Circuits holding that when a qualified immunity summary
judgment motion is denied because of material issues of fact in dispute,

no jurisdiction exists to hear an interlocutory appeal. 136 The majority of

circuits, however, do exercise jurisdiction over such appeals. 137

of the dispute, . . . then we evaluate a district court's ruling as well as the right

to interlocutory appeal by the same standards we use in reviewing any other type

of summary judgment.

Id. at 113.

See also Unwin v. Campbell, 863 F.2d 124, 137-141 (1st Cir. 1988) (Breyer, J.,

dissenting). Judge Breyer presents a strong argument for the view that a defendant is not

entitled to a 'qualified immunity' interlocutory appeal in respect to a pure fact-based

'evidence sufficiency' ruling.

136. See, e.g., Cartier v. Lussier, 955 F.2d 841, 844-45 (2d Cir. 1992) (holding if

factual determination is necessary predicate to resolution of qualified immunity issue,

interlocutory review is not available); Wright v. Whiddon, 951 F.2d 297, 299 n.l (11th

Cir. 1992) (Although in this case there was no dispute about the underlying historical facts,

the court noted that "[t]here is some conflict in our precedent whether we have jurisdiction

over the denial of a qualified immunity summary judgment motion if the motion is denied

because of a factual dispute."); Moffitt v. Town of Brookfield, 950 F.2d 880, 884 (2d
Cir. 1991) (holding if a factual determination is necessary to the resolution of the issue

of qualified immunity, immediate appeal is not permitted); Stewart v. Baldwin County

Board of Education, 908 F.2d 1499, 1506-07 (11th Cir. 1990) (affirming denial of summary

judgment where availability of qualified immunity turned on question of fact, but noted

that several panels of this circuit have indicated that proper disposition in this context is

to dismiss appeal for want of jurisdiction); Bennett v. Parker, 898 F.2d 1530 (11th Cir.

1990).

But see Burrell v. Board of Trustees of Georgia Military College, 970 F.2d 785, 787-

88 (11th Cir. 1992) ("Even assuming . . . that some facts remain disputed in this case,

the mere existence of a factual quarrel does not affect the appealability of a denial of

qualified immunity.").

137. Kulwicki v. Dawson, 969 F.2d 1454, 1460-61 (3d Cir. 1992) (recognizing that

"Courts of Appeals do not take a uniform view of appellate jurisdiction over denials of

immunity"). The court concluded:

[o]ur jurisdiction to hear immunity appeals is limited only where the district court

does not address the immunity question below, or where the court does not base

its decision on immunity per se . . . . Insofar as there may be issues of material
fact present in a case on appeal, we would have to look at those facts in the

light most favorable to the non-moving party.

Id.; Austin v. Hamilton, 945 F.2d 1155, 1157 (10th Cir. 1991) (deciding that interlocutory

appellate jurisdiction existed under Forsyth, even though a district court based its denial

of motion on a finding that disputed material facts existed in the case); Johnson v. Hay,

931 F.2d 456, 459-60 (8th Cir. 1991) (holding that the court had jurisdiction to hear the

appeal of an order denying the defendant's motion for summary judgment on qualified

immunity grounds even though the appeal presented an issue that is not purely legal and

concluding that a genuine issue of material fact existed as to whether a prison pharmacist



216 INDIANA LAW REVIEW [Vol. 26:187

The justification is compelling for allowing interlocutory appeals under

Forsyth from denials of qualified immunity on grounds that disputed

issues of material fact preclude the granting of summary judgment. When
a district court denies qualified immunity at the summary judgment stage
because of genuine issues of material fact in dispute, the question of the

materiality of the facts in dispute is a question of law. 138 The facts in

dispute are material only if they are dispositive of the immunity issue;

that is, if, viewing the facts and the inferences to be drawn from them

in the light most favorable to the plaintiff, the conclusion is that a

reasonable official would have understood that the defendant's alleged

conduct violated clearly established law.

Ultimately, any denial of qualified immunity, whether or not the

facts are in dispute, rests on the determination of a question of law,

whether the facts as alleged by either the plaintiff or defendant support

a claim that a reasonable official would have understood the conduct in

question violated clearly established law. 139 A court's deferral of a qualified
immunity decision to allow limited discovery and facilitate pretrial res-

olution of the issue should not be immediately appealable. 140

At the motion to dismiss stage, if a court frames its order as a

denial of qualified immunity, as opposed to a deferral of its decision

pending a motion for summary judgment, the defendant runs a risk by
taking an interlocutory appeal at this point. An appellate court faced
with an interlocutory appeal from a denial of qualified immunity at the

motion to dismiss stage has only the plaintiff's allegations in the complaint

to review. Courts are reluctant to dismiss a complaint this early in the

process if there are any facts alleged by the plaintiff which, if proved,

would support the conclusion that the defendant violated a clearly es-

reasonably could have believed that he was not violating the plaintiff's constitutional rights

by refusing to fill prescriptions); Cinelli v. Cutillo, 896 F.2d 650, 653-54 (1st Cir. 1990)

(deciding that the court of appeals had jurisdiction to review a district court's denial of

qualified immunity on grounds that a genuine issue of material fact existed and explaining

that in such review a court must examine discovered facts regarding the defendant's conduct

relevant to the immunity claim, and, applying normal summary judgment principles, de-

termine whether a genuine issue does or does not exist as to qualified immunity).

138. Cartier v. Lussier, 955 F.2d 841, 844-45 (2d Cir. 1992) (deciding whether disputed

facts are material to resolving the applicability of the doctrine is a legal question subject

to de novo review).

139. Chief Judge Tjoflat makes a persuasive case for this proposition in Bennett v.

Parker, 898 F.2d 1530, 1534-37 (11th Cir. 1990) (Tjoflat, C.J., concurring).

140. See, e.g., Workman v. Jordan, 958 F.2d 332, 335-36 (10th Cir. 1992) (holding
that when a court allows limited discovery to develop or clarify facts needed to rule on

a qualified immunity claim and defers decision on qualified immunity, such an order is

not immediately appealable, but if the district court postpones its decision on qualified

immunity until trial, the order is appealable).



1993] QUALIFIED IMMUNITY 217

tablished right. 141 Furthermore, the defendant is not likely to be afforded

an opportunity to pursue a subsequent pretrial interlocutory appeal on

the issue of qualified immunity. 142

Because a Forsyth appeal divests the district court of jurisdiction to

proceed with the trial, 143 there is considerable potential for abuse of the

process by defendants who seek to delay the trial at plaintiffs expense.
In Apostol v. Galiion y

1A4 Judge Easterbrook, expressing concern that

defendants might invoke Forsyth appeals unjustifiably for such purpose,

suggested that trial courts certify such appeals as frivolous and proceed

with the trial. 145 Faced with a finding of frivolousness by the district

court, the defendant would have to seek a stay from the court of appeals

in order to bring the trial to a halt. 146 The district court must provide

141. See, e.g., McMath v. City of Gary, Ind., 976 F.2d 1026, 1031 (7th Cir. 1992)
("Although raising qualified immunity in a motion to dismiss ... is permissible, it means

that the only facts before [the court of appeals] in ruling on the motion are those alleged

in the complaint, which must be taken as true."); Doe v. State of Louisiana, 974 F.2d

36, 37 (5th Cir. 1992):

On review of a district court's denial of dismissal for failure to state a claim
for which relief can be granted, we must accept as true all well-pleaded facts.
The complaint is not subject to dismissal "unless it appears beyond doubt that

the plaintiff can prove no set of facts in support of his claim which would entitle

him to relief." (citations omitted) The same is true when immunity is urged in

a motion to dismiss.;

Pelletier v. Federal Home Loan Bank, 968 F.2d 865, 871 (9th Cir. 1992):
If the district court determines that the defendant's entitlement to qualified

immunity is not established at the motion to dismiss stage, he appeals at his

peril. He may appeal immediately or he may answer the complaint and defer
pursuit of his qualified immunity claim, and of appellate review of any denial

of that claim, until it appears that a motion for summary judgment would be
appropriate.

142. See, e.g., Abel v. Miller, 904 F.2d 394, 397 (7th Cir. 1990) (holding that

sequential appeals of pretrial orders denying qualified immunity are not authorized under

Forsyth).

143. Apostol v. Gallion, 870 F.2d 1335, 1338 (7th Cir. 1989). Plaintiffs who resist
a defendant's motion to stay the trial while the interlocutory appeal is pending and who
fail to pursue a certification of frivolousness from the district court, may find themselves
in the unfortunate position of plaintiff in Stewart v. Donges, No. 91-2073, 1992 WL 317622
(10th Cir. Nov. 6, 1992), who was denied any attorneys' fees for trial preparation and a
trial that went forward after defendant had filed a notice of appeal. Holding the plaintiff

"responsible for the district court proceeding with the trial," id. at *6, without jurisdiction,

the court noted that "[t]his case exemplifies the precise problem that the Supreme Court

in Forsyth was trying to avoid." Id.

144. 870 F.2d 1335 (7th Cir. 1989).

145. Id. at 1339. The court also observed that defendants might waive or forfeit
their right not to be subject to trial by waiting "too long after denial of summary judgment,"
or "using claims of immunity in a manipulative fashion." Id.

146. Id.



218 INDIANA LAW REVIEW [Vol. 26:187

a reasoned finding to accompany its certification of frivolousness, 147 and
the Seventh Circuit has advised that "[t]he stamp of frivolity should only

be used when a Forsyth appeal is 'unfounded."' 148

V. Qualified Immunity and Fourth Amendment Excessive Force
Claims

Because there is still considerable disagreement about whether the

qualified immunity defense makes sense in the Fourth Amendment ex-
cessive force context, it is worth noting the nature of the problem and

some of the recent case law in this area. 149

A necessary starting point for judges and lawyers involved in an
excessive force case is to understand in what context the force was used

to determine the appropriate constitutional standard. As the Tenth Circuit
has noted:

In determining whether a § 1983 claim involving excessive

force by law enforcement officers has been stated the court must

apply a constitutional standard. Three alternative constitutional

standards have been utilized: 1) the Eighth Amendment's ban on

cruel and unusual punishment; 2) the Fourth Amendment standard
of 'objective reasonableness'; . . . and 3) the Fourteenth Amend-
ment substantive due process standard which protects against use

of excessive force that amounts to punishment. 150

147. Id.

148. McMath v. City of Gary, Ind., 976 F.2d 1026, 1031-32 (7th Cir. 1992).
149. For an excellent and more detailed analysis of the problem, see Urbanya, supra

note 6.

150. Culver v. Town of Torrington, 930 F.2d 1456, 1460 (10th Cir. 1991). Discussion
of the standards applied in the Fourteenth Amendment substantive due process context
and the Eighth Amendment context is beyond the scope of this Article. The Supreme Court
has yet to definitively establish the Fourteenth Amendment due process standard for excessive
force claims. Multiple standards (e.g., recklessness, deliberate indifference, intentional con-

duct, conduct "shocking the conscience") have been articulated by the lower federal courts.

See, e.g., Frohmader v. Wayne, 958 F.2d 1024, 1027 (10th Cir. 1992) (Referring to Glick

factors (see infra notes 151-52 and accompanying text) in deciding whether the force was

excessive under due process clause, the court noted: "[t]he due process standard is more

onerous than the Fourth Amendment reasonableness standard since the former requires, in
addition to undue force, personal malice amounting to an abuse of official power sufficient

to shock the conscience.").

See also Redman v. County of San Diego, 942 F.2d 1435, 1443 (9th Cir. 1991):
We therefore hold that deliberate indifference is the level of culpability that pre-
trial detainees must establish for a violation of their personal security interests

under the fourteenth amendment. We also hold that conduct that is so wanton
or reckless with respect to the "unjustified infliction of harm as is tantamount

to a knowing willingness that it occur," Whitley, 475 U.S. at 321, ... will also



1993] QUALIFIED IMMUNITY 219

Prior to Tennessee v. Garner151 and Graham v. Connor^ 52 the majority

of federal courts treated all excessive force claims as governed by a single

standard: the standard set out by Judge Friendly in Johnson v. Glick. 15 *

Under this standard, established in a substantive due process context,

courts would consider four factors: (1) the need for force, (2) the re-

lationship between the need and the amount of force used, (3) the extent

of injury inflicted, and (4) whether force was applied in a good faith

effort to maintain or restore discipline or maliciously and sadistically for

the purpose of causing harm. 154

After Garner and Graham, it is clear that the Fourth Amendment
is the sole source of protection for a plaintiff who has been subjected
to force in the context of "an arrest, investigatory stop, or other 'seizure'"

of a free citizen. 155 The Fourth Amendment standard is one of "objective
reasonableness," which requires the challenged conduct to be evaluated

by looking at the totality of the circumstances from the perspective of

a reasonable officer at the scene. 156

Although Anderson makes it clear that qualified immunity is available

as a defense to a Fourth Amendment claim of an unreasonable search,
Graham leaves open the question of whether qualified immunity would

apply in the excessive force case. 157 Because the Fourth Amendment

suffice to establish liability because it is conduct equivalent to a deliberate

choice. . . . This may be termed "reckless indifference.";
Salazar v. City of Chicago, 940 F.2d 233, 238-39 (7th Cir. 1991) (holding that deliberate

indifference is the proper standard for pretrial detainees). Deliberate indifference, in this

circuit, is synonymous with intentional or criminally reckless conduct. Id. at 238.

For the standard in Eighth Amendment excessive force cases, see Hudson v. McMillian,

112 S. Ct. 995 (1992). The Court adopted the standard established in Whitley v. Albers,

475 U.S. 312 (1986), concerning force used in the context of a prison riot. The Court

held the Whitley standard applicable "whenever prison officials stand accused of using

excessive physical force in violation of the Cruel and Unusual Punishments Clause." Hudson,

112 S. Ct. at 999. In those circumstaces, "the core judicial inquiry is . . . whether force

was applied in a good-faith effort to maintain or restore discipline, or maliciously and

sadistically to cause harm." Id.

151. 471 U.S. 1 (1985).

152. 490 U.S. 386 (1989).

153. 481 F.2d 1028 (2d Cir.), cert, denied, 414 U.S. 1033 (1973).

154. Id. at 1033.

155. Graham, 490 U.S. at 388.

156. Id. at 396. The factors to be considered include: (1) the severity of the crime,

(2) whether the suspect poses an immediate threat to the safety of the officers or others,

and (3) whether the suspect is actively resisting arrest or attempting to flee. Id. But see

Moore v. Gwinnett County, 967 F.2d 1495, 1498-99 (11th Cir. 1992), in which the court

determined "objective reasonableness" in a Fourth Amendment context by consideration

of the Glick factors.

157. See Graham, 490 U.S. at 399 n.12 ("[TJhe officer's objective 'good faith'—

that is, whether he could reasonably have believed that the force used did not violate the



220 INDIANA LAW REVIEW [Vol. 26:187

excessive force inquiry is governed by the same "objective reasonableness"

standard as the qualified immunity inquiry, a number of courts and
commentators have suggested that the qualified immunity defense is

redundant in this context and does not apply. 158 Those adhering to this

view would frame the question on the merits and the qualified immunity

question in the same way: was the officer's conduct objectively reasonable

given the totality of the circumstances? 159

Fourth Amendment—may be relevant to the availability of the qualified immunity defense
to monetary liability under § 1983."). Because the defense was not raised in Graham, the

Court did not address the issue.

158. See, e.g., Hopkins v. Andaya, 958 F.2d 881, 885 n.3 (9th Cir. 1992) (per

curiam) ("In Fourth Amendment unreasonable force cases, unlike in other cases, the qualified
immunity inquiry is the same as the inquiry made on the merits."); Quezada v. County

of Bernalillo, 944 F.2d 710, 718 (10th Cir. 1991):

While qualified immunity is a powerful defense in other contexts, in excessive

force cases the substantive inquiry that decides whether the force exerted by police

was so excessive that it violated the Fourth Amendment is the same inquiry that
decides whether the qualified immunity defense is available to the government

actor.;

Hunter v. District of Columbia, 943 F.2d 69 (D.C. Cir. 1991) (Noting that several courts

have concluded that qualified immunity is not available as a defense to Fourth Amendment
excessive force actions under the objective reasonableness test of Graham, the court declared:

"We too doubt whether a substantively distinct qualified immunity defense would be available
to an officer acting after Graham, but we need not resolve that question here."); Yates

v. City of Cleveland, 941 F.2d 444, 450 (6th Cir. 1991) (Suhrheinrich, J., concurring):

I believe generally . . . that qualified immunity is not available in excessive force

cases. ... It seems to this writer that qualified immunity has no relevance unless

there is excessive force, for if there is no excessive force, the officer acted in

an objectively reasonable manner under the circumstances and there is no con-

stitutional violation. It also seems that once you have determined the need for

the defense of [qualified immunity], ... as a matter of law ... the officer has

acted unreasonably . . . and has violated clearly established law.

See also Jackson v. Hoylman, 933 F.2d 401, 402 (6th Cir. 1991) (acknowledging that the

district court's conclusion that qualified immunity turns on the same objective reasonableness

standard as does a claim of excessive force); Street v. Parham, 929 F.2d 537, 540-41 (10th

Cir. 1991) (holding it was error for a jury to be instructed regarding qualified immunity

defense after it found force used was unreasonable because after a jury concludes excessive

force has been used, the inquiry is over and the question of objective reasonableness is

foreclosed); Dixon v. Richer, 922 F.2d 1456, 1463 (10th Cir. 1991) ("[I]n excessive force

claims asserted under the Fourth Amendment, the qualified immunity question is usually

answered in the Fourth Amendment inquiry."); Berry v. City of Phillipsburg, Kansas, 796
F. Supp. 1400, 1404 (D. Kan. 1992) ("[IJn passing on a claim of excessive force in violation

of the Fourth Amendment, the constitutional inquiry of reasonableness is the same inquiry

that determines whether qualified immunity is available to the state actor in his individual

capacity."); McDonald v. Haskins, 966 F.2d 292, 293 (7th Cir. 1992) ("lT]he relation

between Graham*s purely objective test for excessive force claims and the comparable

approach adopted in Harlow v. Fitzgerald for determining qualified immunity ... is

somewhat uncertain."). See generally Urbanya, supra note 6.

159. See Mahoney v. Kesery, 976 F.2d 1054, 1057 (7th Cir. 1992) (Judge Posner,



1993] QUALIFIED IMMUNITY 221

The majority of courts, however, find qualified immunity equally

applicable in all Fourth Amendment contexts, including excessive force
cases.

160 The qualified immunity defense is considered to provide an extra

layer of protection to the officer, beyond her defense on the merits. 161

The qualified immunity question is not simply whether the officer's

conduct was objectively reasonable under the circumstances, but is whether

a reasonable officer could have believed his or her conduct to be lawful

(i.e., objectively reasonable) under the circumstances. 162

somewhat puzzled by an analysis that calls for addressing the question of whether there

was probable cause for an officer to believe he had probable cause, suggests that in a

case challenging probable cause for an arrest, "the issue of immunity and the principal

issue on the merits are one and the same.").

160. See Posr v. Doherty, 944 F.2d 91, 95 (2d Cir. 1991) (a qualified immunity

defense is available to a police officer to meet claim of excessive force); Slattery v. Rizzo,

939 F.2d 213 (4th Cir. 1991) ("There is no principled reason not to allow a defense of

qualified immunity in an excessive use of force claim."). The court decided the critical

issue was whether a reasonable police officer could have had probable cause to believe

that the appellee posed an immediate and deadly threat. Id. at 216; Hammer v. Gross,
932 F.2d 842, 850 (9th Cir. 1991) (rejecting the plaintiff's argument that an officer who
has used unreasonable force cannot, by definition, have acted reasonably); Hamm v. Powell,
893 F.2d 293, 299 (11th Cir. 1990) (qualified immunity is available in excessive force cases);

Brown v. Glossip, 878 F.2d 871, 873 (5th Cir. 1989) (finding no principled distinction

between availability of qualified immunity as a defense to unreasonable searches and seizures

and as a defense to excessive force claim under the Fourth Amendment); Ellis v. City of

Indianapolis, 800 F. Supp. 733, 738 (S.D. Ind. 1992) ("If, based on the undisputed facts

of the incident, a reasonable officer in [defendant's] position could have believed use of

deadly force against [plaintiff] was constitutional, then [defendant] is entitled to immunity

for his conduct.").

161. As David Rudovsky has pointed out, one danger of this extra layer of protection

is that a whole body of subconstitutional law will develop in the Fourth Amendment

context. Cases will be decided and disposed of on the basis of whether a reasonable officer

could have believed he violated the Fourth Amendment reasonableness standard. "[T]he
fourth amendment soon would be quite unknown, and the controlling standards would

reflect the immunity rule, rather than the established concept of probable cause." Rudovsky,

supra note 6, at 53.

See, e.g., Malley v. Briggs, 475 U.S. 335, 344-45 (1986) (holding that officers seeking

arrest warrants are entitled to qualified immunity unless "the warrant application is so

lacking in indicia of probable cause as to render official belief in its existence unreasonable.");

Hoffman v. Reali, 973 F.2d 980, 985 (1st Cir. 1992) ("The issue in this case ... is not

whether [defendant] in fact had probable cause but whether his conclusion to that effect

was sufficiently reasonable to afford him the protection of qualified immunity."); Thompson
v. Reuting, 968 F.2d 756, 760 (8th Cir. 1992) ("The issue is not whether the affidavit

actually establishes probable cause, but rather whether the officer had an objectively

reasonable belief that it established probable cause."); Moore v. Gwinnett County, 967

F.2d 1495, 1497 (11th Cir. 1992):

[T]he question before us ... is not precisely whether probable cause existed in

fact. When a law enforcement officer seeks summary judgment on the basis of
qualified immunity, we only must ask whether, viewing the facts in a light

favorable to the non-movant, there was arguable probable cause for the arrest.

162. Slattery v. Rizzo, 939 F.2d 213, 216 (4th Cir. 1991).



222 INDIANA LAW REVIEW [Vol. 26:187

The clearest case for the availability of qualified immunity in the
Fourth Amendment excessive force action is one in which the substantive
constitutional standard controlling at the time of the challenged conduct

differs from the standard governing the conduct in question under current

law. A number of cases in the wake of Graham involve uses of force
which, at the time of the events in question, were governed by the

substantive due process standard of Glick, but which now are controlled
by the Fourth Amendment objective reasonableness standard of Graham.^
An officer's use of force in a particular context may be subjected to
Fourth Amendment scrutiny under Graham in deciding whether plaintiff
alleges a violation of a constitutional right under current law, but if the

objective reasonableness standard was not established in the given context

at the time of the conduct in question, qualified immunity should protect

the officer, unless a reasonable officer would have understood her conduct

to be unlawful under the standard then controlling. 164

VI. Conclusion

Siegert changes the structure of the qualified immunity analysis, and

Bryant insists that the immunity issue be resolved by the court as long

before trial as possible. Because qualified immunity is an affirmative

163. See, e.g., Frohmader v. Wayne, 958 F.2d 1024, 1027 (10th Cir. 1992) (holding

that although the Fourth Amendment objective reasonableness standard was controlling for

purpose of assessing whether the plaintiff stated a constitutional claim for postarrest,

prehearing use of excessive force, the availability of qualified immunity was determined by

the law clearly established at the time, which was the substantive due process standard);

Austin v. Hamilton, 945 F.2d 1155, 1162 (10th Cir. 1991) ("[F]ourth amendment standards

govern the evaluation of defendants' qualified immunity defense for conduct in connection

with plaintiffs' initial arrest, while substantive due process principles control the issue as

to any excessive force employed thereafter."); Hannula v. City of Lakewood, 907 F.2d

129, 131 (10th Cir. 1990) ("While Graham sets forth the test for determining whether

excessive force has occurred, it does not necessarily state the proper test for determining

a defendant's qualified immunity from a claim of excessive force.") The test, for qualified

immunity purposes, was under substantive due process standard in effect at time of challenged

conduct. Id.

164. See, e.g., King v. Chide, 974 F.2d 653, 657 (5th Cir. 1992) ("Although the

standard for determining reasonableness in excessive use of force cases has evolved con-

siderably since the date of conduct in question, objective reasonableness of challenged

conduct must be judged by the standard that existed at time of conduct in question.");

Fraire v. City of Arlington, 957 F.2d 1268, 1274 (5th Cir. 1992) (affirming qualified

immunity, measuring the objective reasonableness of the defendant's conduct against excessive

force standards in existence at the time in the Fifth Circuit); Finnegan v. Fountain, 915

F.2d 817, 821 (2d Cir. 1990) (holding that even if a jury finds the defendant to have used

constitutionally excessive force, it is for the court to determine whether the unlawfulness

of his conduct should have been apparent to defendant at the time).



1993] QUALIFIED IMMUNITY 223

defense, it must be pleaded by the defendant or it may be waived. 165 A
defendant may invoke qualified immunity to avoid the burdens of dis-
covery by making a motion to dismiss under Federal Rule of Civil

Procedure 12(b)(6). 166 When the defendant raises the qualified immunity
defense by way of a motion to dismiss, the Court of Appeals for the
Eleventh Circuit has noted:

At this early stage in the proceedings, the Rule 12(b)(6) defense

and the qualified-immunity defense become intertwined. Under

Rule 12(b)(6), defendants can defeat plaintiffs' cause of action

if the complaint * fails to state a claim upon which relief can be
granted.' . . . Under the qualified-immunity defense, defendants

are immune from liability and even from trial if plaintiffs' com-
plaint fails to state a violation of 'clearly established statutory

or constitutional rights of which a reasonable person would have

known.' . . . And as the Supreme Court has stated, '[a] necessary
concomitant to the determination of whether the constitutional

right asserted by a plaintiff is 'clearly established' at the time

the defendant acted is the determination of whether the plaintiff

has asserted a violation of a constitutional right at all.' 167

If the complaint fails Siegert's threshold inquiry in the qualified

immunity analysis and does not allege the violation of a constitutional

right under current law, then the complaint should be dismissed and

165. Siegert v. Gilley, 111 S. Ct. 1789, 1793 (1991); Harlow v. Fitzgerald, 457 U.S.

800, 815 (1982); Gomez v. Toledo, 446 U.S. 635, 640-41 (1980). See also Buenrostro v.
Collazo, 973 F.2d 39, 44 (1st Cir. 1992) ("Qualified immunity is ... an affirmative defense,

and the 'right' to have it determined in an intermediate appeal can be waived if it is not

properly asserted below."); Kennedy v. City of Cleveland, 797 F.2d 297, 300 (6th Cir.

1986) ("Since immunity must be affirmatively pleaded, it follows that failure to do so can

work a waiver of the defense."), cert, denied, 479 U.S. 1103 (1987).

Fed. R. Civ. P. 8(c) (1987) requires that any matter "constituting an avoidance or

affirmative defense" be set forth affirmatively in a responsive pleading.

166. See, e.g., D.R. v. Middle Bucks Area Vocational Technical Sen., 972 F.2d 1364,

1368 n.7 (3d Cir. 1992) (en banc):

This court stated in Black v. Bayer, 672 F.2d 309 (3d Cir. 1982), that the

affirmative defense of qualified immunity could not be successfully asserted

through a 12(b)(6) motion since it must be developed by affidavits at the summary
judgment stage or at trial . . . We think that subsequent Supreme Court rulings
have so undermined the rule enunciated in that case, that it is no longer viable.;

Jordan v. Fox, Rothschild, O'Brien & Frankel, 787 F. Supp. 471, 480 (E.D. Pa. 1992)
("Where, as here, a defendant contends that under the facts alleged in the complaint he

is entitled to qualified immunity, there is no practical reason not to permit him to proceed

by way of a motion to dismiss.").

167. Oladeinde v. City of Birmingham, 963 F.2d 1481, 1485 (11th Cir. 1992) (citing

Siegert, 111 S. Ct. 1789 (1991)).



224 INDIANA LAW REVIEW [Vol. 26:187

judgment entered for the defendant on the merits. A dismissal at this
stage on the basis that the plaintiff has not alleged the violation of a
constitutional right at all should not be treated as an order merely granting

qualified immunity, from which no appeal can be taken, but should be

viewed as a 12(b)(6) dismissal on the merits from which final judgment

the plaintiff may appeal.
If the complaint passes the Siegert threshold, the defendant may still

avoid the burdens of discovery if the complaint does not allege the

violation of a constitutional right that was clearly established at the time

of the conduct giving rise to the cause of action. Anderson demands

that the contours of the right be framed with sufficient clarity so that

a reasonable official would have understood the unlawfulness of her

conduct. The court, in most cases, will be able to answer the question

of whether the right was clearly established prior to any discovery. If

no such right was clearly established, then the defendant should prevail

on the motion to dismiss on qualified immunity grounds. 168

In some cases, limited discovery may be needed on the qualified
immunity issue in order to properly establish the contours of the right

in question. A court may defer its decision on the immunity question,
allow limited discovery to achieve the requisite factual development, and

decide the immunity issue on summary judgment. 169

At the summary judgment stage, the plaintiff must clear three hurdles.
First, the plaintiff must satisfy Siegerfs threshold requirement and allege

the violation of a constitutional right under current law. Second, plaintiff

must prove that the contours of the right allegedly violated were clearly

established at the time of the challenged conduct. Third, the plaintiff

must set forth specific facts and evidence from which the court can

conclude that a reasonable official, given the information possessed by

the defendant at the time, would have understood the alleged conduct

violated plaintiffs clearly established right.

It is at the third step in the summary judgment inquiry that factual
disputes most often occur. These disputes often revolve around the cir-

cumstances, the facts known by the officer at the time, and the conduct
of the officer. If, even accepting plaintiffs version of the facts, the court

would still conclude that a reasonable officer could have believed his

conduct lawful, then there is no issue of material fact and summary
judgment should be entered.

168. Depending on what other claims or parties are involved in the case, this dismissal

may result in final judgment from which a plaintiff's appeal would lie.
169. See, e.g., Mee v. Ortega, 967 F.2d 423, 430 (10th Cir. 1992) (factual disputes

required more development before the district court could rule on qualified immunity);

Lewis v. City of Ft. Collins, 903 F.2d 752, 758 (10th Cir. 1990).



1993] QUALIFIED IMMUNITY 225

The more common scenario exists when, given plaintiffs version of
the facts, there would be no qualified immunity, while under defendant's

version of the facts, qualified immunity would be available. Under this

scenario, genuine issues of material fact exist. Assuming plaintiff has

carried his or her burden of coming forward with * 'the minimum quantum
of proof" needed to defeat the motion for summary judgment, the court
should look at the facts in the light most favorable to the plaintiff (the

nonmoving party), deny summary judgment on qualified immunity
grounds, and let the case go to trial.

At this point the defendant has lost his or her immunity from suit,

and an interlocutory appeal under Forsyth will be available. Given the

approach outlined above, a district court's denial of a qualified immunity

summary judgment motion must embrace the following conclusions of
law:

(1) The plaintiff has asserted a valid constitutional claim upon

which relief may be granted;
(2) The constitutional right defendant allegedly violated was

clearly established at the time of the challenged conduct;

(3) When the facts are undisputed, a reasonable officer, given
the facts and circumstances confronting this officer at the

time, would have understood her conduct to have violated

plaintiffs clearly established right;

(4) When the facts are in dispute:
(a) looking at the facts in the light most favorable to the

plaintiff, a reasonable officer would have understood her

conduct to have violated plaintiffs clearly established

constitutional rights or
(b) even accepting the defendant's version of the facts, a

reasonable officer would have understood her conduct to

have violated plaintiff's clearly established constitutional

rights.

These legal conclusions, inherent in any denial of qualified immunity

on a motion for summary judgment, are the questions of law to be
reviewed on a Forsyth appeal. Even when a court's only articulated reason
for denying summary judgment is because there are material issues of
fact in dispute, the assumption must be that these questions have been

answered affirmatively. The question of law on which the denial of

immunity turns is whether the facts in dispute are material to the issue

of qualified immunity. The facts in dispute are material only if accepting

plaintiffs version of the facts would result in the denial of qualified

immunity. 170

170. See Cartier v. Lussier, 955 F.2d 841, 845 (2d Cir. 1992).



226 INDIANA LAW REVIEW [Vol. 26:187

A reversal on any one issue will result in judgment for the defendant.
If the appellate court decides that the district court erred in reaching the

first conclusion (that the plaintiff asserted a valid constitutional claim),

then there should be a judgment for defendant on the merits. A reversal
on any other basis should result in a grant of immunity from suit for

that officer.

Finally, it must be remembered that a pre-trial denial of qualified

immunity, even if affirmed on appeal, or even if no appeal is pursued,

does not mean that the officer has lost his qualified immunity from
liability.

171 The qualified immunity defense may still be raised at trial by
way of a motion for a directed verdict, or after trial by way of a motion
for a judgment notwithstanding the verdict. 172 Furthermore, special in-

terrogatories may be put to the jury on the issues of fact determinative
of the qualified immunity issue, allowing the judge to decide the ultimate

legal question of whether, given the facts as decided by the jury, qualified

immunity from liability is available to the official. 173

171. See, e.g., Apostol v. Gallion, 870 F.2d 1335, 1339 (7th Cir. 1989) ("[T]he right

not to pay damages and the right to avoid trial are distinct aspects of immunity, and the

former may be raised on appeal at the end of the case even if defendants bypass their
right to appeal under Forsyth before trial."); Pesek v. City of Brunswick, 794 F. Supp.

768, 792 (N.D. Ohio 1992):

The defense of qualified immunity thus allows a government official to invoke

the 'historic right' to be free from liability for money damages, as well as from

litigation itself. Consequently, where the trial court rejects the defense on the

motions, the § 1983 defendant remains free to raise it again as a defense to

liability.

172. See, e.g., Sims v. Metropolitan Dade County, 972 F.2d 1230, 1234 (11th Cir.

1992):

Implicit in the district court's order [denying qualified immunity without prejudice]

is a conclusion that, although [plaintiff's] allegations suffice to survive a motion

for summary judgment, he may be unable to adduce sufficient evidence to survive

a motion for a directed verdict based on qualified immunity. [I]f the district

court had been correct in denying the Defendants' motion for summary judgment,

it would not have been error to allow the Defendants to reassert the qualified

immunity contention during the trial.

See also Feliciano-Angulo v. Rivera-Cruz, 858 F.2d 40, 48 (1st Cir. 1988) ("We emphasize

. . . that while we uphold the denial of qualified immunity at this stage in the proceedings,

this does not prevent the qualified immunity defense from being further considered . . .

when the record is more complete.").

173. See, e.g., Adams v. St. Lucie County Sheriff's Dep't, 962 F.2d 1563, 1579 n.8
(Edmondson, J., dissenting) ("[A]part from finding qualified immunity on a directed verdict

or a JNOV, the judge can and, when needed, should use special verdicts or written
interrogatories to the jury to resolve disputed facts before the judge rules on the qualified-

immunity question.").