You will be suing the Officers in their
INDIVIDUAL AND OFFICIAL CAPACITY.
This will allow Court to decide liability of Employer as well as Police. You MUST state this is your intent.
Your CASE CAPTION and listing of PARTIES may define this.
http://federalpracticemanual.org/node/48
Suits against public officials in their individual capacity
Besides authorizing official capacity suits against state and local officials for structural injunctive relief, 42 U.S.C. § 1983 authorizes claims against those officials in their individual capacity for compensatory and punitive damages. Although, as discussed above, the Eleventh Amendment limits official capacity claims against state officials to prospective injunctive relief, it does not affect damage claims against those officials in their individual capacity./1/
Absolute Immunity
By its terms, Section 1983 imposes liability without defense on state and local officials who, acting under color of law in their individual capacity, deprive plaintiffs of rights created by the Constitution and federal law. Nevertheless, the Supreme Court, drawing on common law, created absolute immunity from liability for some government officials and qualified immunity for others. Absolute and qualified immunity were developed to protect officials from lawsuits for actions relating to their official duties. The Court explained the underlying rationale for immunity:
[T]he public interest requires decisions and actions to enforce laws for the protection of the public . . . . Public officials, whether governors, mayors or police, legislators or judges, who fail to make decisions when they are needed or who do not act to implement decisions when they are made do not fully and faithfully perform the duties of their offices. Implicit in the idea that officials have some immunity— absolute or qualified —for their acts, is a recognition that they may err. The concept of immunity assumes this and goes on to assume that it is better to risk some error and possible injury from such error than not to decide or act at all./2/
Absolute immunity bars any action against officials in the conduct of their office even for actions taken maliciously or in bad faith. Absolute immunity focuses on the governmental function being performed and the nature of the responsibilities of the official, not on the specific action taken./3/ In deciding whether officials performing a particular function are entitled to absolute immunity, courts generally look for a historical or common-law basis for the immunity in question./4/ With one exception, absolute immunity is restricted to those persons performing judicial or legislative functions.
Judicial Immunity
The Supreme Court held in Stump v. Sparkman that judges have absolute immunity from Section 1983 damage actions for their “judicial” acts./5/ The Court permitted liability only for acts taken “in the clear absence of all jurisdiction.”/6/ Drawing from the common-law immunity of judges, the Court held that judicial immunity protects judges even when their judicial acts:
- exceed their jurisdiction,/7/
- are done maliciously or corruptly,/8/ or
- are flawed by grave procedural error./9/
8.2.B. Qualified Immunity: Executive Officials
The U.S. president enjoys absolute immunity from suits for damages arising from his conduct as president./79/But every other executive official, from cabinet officials and governors, legislators, and judges performing administrative functions, to the tens of thousands of public employees exercising state and local authority such as law enforcement officers and schoolteachers, enjoy only qualified immunity from suit./80/ A private individual temporarily retained by the government to carry out its work is also entitled to seek qualified immunity from suit under § 1983./81/
Drawn from analogous common-law defenses available to public officials, qualified immunity protects public officials from personal liability unless their conduct violates then clearly established constitutional law. The defense rests upon two mutually dependent rationales: (1) the injustice, particularly in the absence of bad faith, of subjecting to liability an officer who is required, by the legal obligations of his position, to exercise discretion; (2) the danger that the threat of such liability would deter his willingness to execute his office with the decisiveness and the judgment required by the public good./82/
Qualified immunity is an affirmative defense. Early cases required a public employee to establish both that he did not violate clearly established law and that he acted without malicious intent./83/ Because proof of subjective good faith was incompatible with summary judgment, the Supreme Court modified the defense to shield public employees performing discretionary government functions “insofar as their conduct does not violate clearly established statutory or constitutional rights of which a reasonable person would have known.”/84/ Apart from special needs and administrative search cases, the Court has cautioned against examination of subjective intent./85/ Because public employees/86/ almost always perform discretionary functions,/87/ qualified immunity really turns on two issues: (1) whether the action in question violated a constitutional right and (2) whether that action violated clearly established law./88/ Although the former question may involve disputed facts, the latter is a question of law subject to early resolution. This involves a historical inquiry into whether the law was clearly established when the defendant acted.
Saucier v. Katz held that lower courts must decide qualified immunity defenses using that two step analysis in that sequence./89/ In Pearson v. Callahan the Court in 2009 relaxed the analysis, holding that the Saucierprocedure was not mandatory and that courts should have the flexibility to decide the question in either order./90/ The Court observed that it is sometimes easier to determine whether a constitutional right was clearly established than whether there is such a right./91/
8.2.B.1. Clearly Established Law
Whether qualified immunity applies critically depends on the level of generality at which a court assesses whether the law is clearly established. In a series of cases, the Supreme Court sketched out the approach to be taken. Anderson v. Creighton refined the meaning of “clearly established law” in a law enforcement officer’s qualified immunity defense against a claim that he conducted a warrantless search without probable cause or exigent circumstances./92/ The plaintiff argued that no officer could reasonably believe that he could conduct an unreasonable search as the Fourth Amendment itself clearly established the prohibition against unreasonable searches. The Court, rejecting the argument, held that it stated the legal inquiry too generally; because probable cause determinations are fact dependent, the relevant question was “the objective (albeit fact-specific) question whether a reasonable officer could have believed Anderson’s warrantless search to be lawful, in light of clearly established law and the information the searching officers possessed.”/93/ Although identifying a case in which “the very action in question has previously been held unlawful” is not necessary, it is essential that “in the light of pre-existing law, the unlawfulness must be apparent.”/94/ Thus, to be "clearly established a right must be sufficiently clear 'that every reasonable official would [have understood] that what he is doing violates that right.'"/95/
Because both the Fourth Amendment and qualified immunity incorporate an inquiry into reasonableness, theAnderson plaintiff argued that one could not both violate the Fourth Amendment by acting unreasonably and enjoy qualified immunity for having acted reasonably. The Court rejected that argument, holding that the two inquiries into reasonableness incorporated a different focus. The Fourth Amendment inquiry asks whether the officer reasonably, even if mistakenly, appraised the facts in assessing the appropriate level of force. Such facts would include the “severity of the crime at issue, whether the suspect poses an immediate threat to the safety of the officers or others, and whether he is actively resisting arrest or attempting to evade arrest by flight.”/96/ In contrast, the qualified immunity inquiry asks whether, based on the then current state of the law, the officer reasonably might have misappraised the law’s application even when all facts are perceived correctly./97/ The Court subsequently applied the same rule to a Fourth Amendment excessive force claim in Brosseau v. Haugen. In that case, the Court held that qualified immunity protected an officer, absent fair warning from past cases that it would violate the Fourth Amendment “to shoot a disturbed felon, set on avoiding capture through vehicular flight, when persons in the immediate area are at risk from that flight.”/98/
In the wake of Anderson, the Eleventh Circuit has repeatedly held that a plaintiff could defeat qualified immunity only by identifying a previous case deciding the same issue on materially similar facts—a standard that virtually converted qualified immunity into absolute immunity. Thus, when prison guards punished a member of a chain gang for misconduct by handcuffing him to a hitching post shirtless with his arms above his shoulders for seven hours in the hot sun without food or a bathroom break, the Eleventh Circuit held that his Eighth Amendment claim was barred by qualified immunity because there was no previous case decided on materially similar facts./99/ The Supreme Court subsequently rejected this view and reversed the Eleventh Circuit./100/
The Court said that “[t]his rigid gloss on the qualified immunity standard, though supported by Circuit precedent, is not consistent with our cases.”/101/ Rather, the Court held that qualified immunity served to protect defendants from liability absent “fair notice” that their conduct was unlawful. The Court noted that it previously held that in prosecutions under 18 U.S.C. § 242, the criminal counterpart to Section 1983, due process required only that the accused be given fair warning that his conduct was unlawful./102/ Furthermore, the Court had on several occasions “upheld convictions under § 241 or § 242 despite notable factual distinctions between the precedents relied on and the cases then before the Court, so long as the prior decisions gave reasonable warning that the conduct then at issue violated constitutional rights.” /103/ Seeing no reason to require a greater warning in civil litigation, the Court held:
Although earlier cases involving “fundamentally similar” facts can provide especially strong support for a conclusion that the law is clearly established they are not necessary to such a finding. The same is true of cases with “materially similar” facts. Accordingly, pursuant to Lanier, the salient question that the Court of Appeals ought to have asked is whether the state of the law in 1995 gave respondents fair warning that their alleged treatment of Hope was unconstitutional./104/
Hope v. Pelzer answered that question and concluded that Supreme Court and circuit cases were sufficient to give the required fair warning that the use of a hitching post as punishment violated the Eighth Amendment. Hopereiterated that "general statements of the law are not inherently incapable of giving fair and clear warning" and noted that "a constitutional rule already identified in the decisional law may apply with obvious clarity to the specific conduct in question, even thought the very action in question has [not] previously been held unlawful."/105 /
Reasoning similarly, the Court subsequently held in Groh v. Ramirez that a search warrant that failed to describe either the person or things to be seized was facially invalid under the Fourth Amendment, foreclosing the officer who prepared and executed the warrant from asserting qualified immunity even though the warrant application described the things to be seized and the search was confined to the scope of the warrant application./106/ The Court, however, recently distinguished Groh in Messerschmidt v. Millender/107/. There, an officer investigating a domestic assault by an apparent gang member with a particular weapon, sought and received a search warrant from a magistrate permitting a search in a house of all weapons and gang paraphernalia. The warrant application was reviewed and approved by the officer's supervisor and an assistant district attorney. The Court observed that issuance of a warrant by a neutral magistrate is a clear indication of the officer's "objective good faith."/108/ Yet, the Court has also recognized an exception when "it is obvious that no reasonably competent officer would have concluded that a warrant should issue."/109/ Although the warrant in Messerschmidt was defective, given the particular facts presented, the Court found that the officer was not "plainly incompetent" for relying upon it, particularly given the approvals of superiors./110/
Although public officials routinely assert qualified immunity, Hope’s “fair warning” standard has made the defense somewhat easier to overcome; the courts of appeal no longer insist that plaintiffs conduct “a scavenger hunt for prior cases with precisely the same facts”/111/ to avoid defeat. Because broad statements of principle can clearly establish law, the courts of appeals frequently have denied qualified immunity even without a case decided on materially similar facts./112/
8.2.B.2. The Reasonable Official and Scope of Discretion
The question of whether a reasonable official should have believed that the conduct in question violated clearly established law is largely a function of whether the law in question was clearly established. In that sense, the determination of whether the official’s belief that his conduct was reasonable is redundant; it is reasonable whenever the law is not clearly established./113/ The existence of reasonable grounds for the belief formed at the time of the action and in light of all the circumstances then present is what affords a basis for qualified immunity.
Early qualified immunity cases also suggested that the scope of qualified immunity varied with the scope of discretion and responsibility of the defendant’s position; the language first appeared in Scheuer v. Rhodes and was last mentioned in Nixon v. Fitzgerald. The courts of appeal have not relied on it since 1982./114/ With the rise of objective reasonableness as the standard for qualified immunity, the inquiry into the scope of discretion would seem relevant only to whether the official may raise the defense; an official who acts outside the scope of his discretionary authority and who violates the Constitution cannot assert qualified immunity even if his conduct did not violate then clearly established law./115/
Given the Court’s expansive interpretation of qualified immunity, you should allege the facts that defeat qualified immunity in detail when suing a public official for damages. Advocates should refrain from suing officials for damages in the absence of evidentiary support that will allow a claim to overcome qualified immunity.
8.2.B.3. Qualified Immunity, Intentional Discrimination, and Retaliation
Conventional claims of unlawful discrimination and retaliation rest upon conduct whose legality depends upon the motive for rather than the character of the conduct. The Constitution does not prohibit firing public employees, but it does prohibit firing them because of their race or in retaliation for protected speech. To avoid summary judgment on the merits of the underlying constitutional claim, the plaintiff must produce sufficient evidence, usually circumstantial, from which a reasonable jury can infer that the defendant intentionallydiscriminated or retaliated; without that evidence, the plaintiff cannot establish unconstitutional conduct./116/With no evidence of unconstitutional conduct, the defendant will prevail without reaching the question of qualified immunity. But if the plaintiff has sufficient evidence of unconstitutional motive to avoid summary judgment, qualified immunity generally will not benefit a defendant because the constitutional prohibition against intentional discrimination or retaliation has long been clearly established law./117/
The question of how to adapt qualified immunity to state-of-mind claims reached the Supreme Court when a prisoner alleged that a prison official intentionally misdelivered legal papers in retaliation for the filing of a lawsuit./118/ The Court noted a potentially serious problem:
Because an official’s state of mind is “easy to allege and hard to disprove,” insubstantial claims that turn on improper intent may be less amenable to summary disposition ... [and] therefore implicate obvious concerns with the social costs of subjecting public officials to discovery and trial, as well as liability for damages. /119/
Despite its concern, the Court rejected the imposition of a heightened clear and convincing evidentiary burden in claims against public officials. To preserve a place for qualified immunity in state of mind litigation, the Court suggested that trial courts address the defense within the existing framework of the rules of civil procedure by requiring, when appropriate, that plaintiffs plead further in response to the defense and by imposing careful controls on discovery./120/
That framework was changed significantly in Ashcroft v. Iqbal./121/ While insisting that it was not imposing a heightened pleading standard, the Court's requirement that the complaint "plausibly" suggest intentional discrimination effectively does so. Plausibility pleading makes state of mind cases substantially more difficult to proceed past the motion to dismiss stage.
8.2.B.4. Qualified Immunity Practice and Procedure
Qualified immunity protects public officials from the burden of litigation as well as from judgments./122/Therefore, the issue should be resolved early and, when possible, before discovery./123/ Because defendants are virtually certain to raise qualified immunity, either through a motion to dismiss or answer or motion for summary judgment, you must anticipate it in drafting the complaint with the plausibility pleading requirements of Iqbal in mind.
Should the court deny the motion to dismiss or for summary judgment, the defendant is entitled to an immediate interlocutory appeal/124/ and, should he take one, there is a stay of further proceedings in the district court pending adjudication of the appeal./125 / The defense of qualified immunity immediately tests whether the plaintiff alleged sufficient facts to establish that a reasonable officer would have believed the conduct in question to have been unlawful under clearly established law. If resolution of the defense turns on pure issues of law, an interlocutory appeal is permitted. It is not available if the trial court determines that application of the defense raises questions of disputed fact./126/ A defendant who unsuccessfully appeals from an order denying a motion to dismiss on qualified immunity may appeal a second time from an order denying summary judgment on qualified immunity, again staying proceedings below./127 / Thus, claims for damages against a defendant who can raise the defense of qualified immunity can take years to come to trial even when the defense is unsuccessful. Accordingly, you must discuss with your clients the advantages and disadvantages of suing public officials for damages so that they can make an informed decision on whether the claim is worth pursuing in the face of almost certain delay.
If the plaintiff alleges specific facts showing a violation of clearly established law, but the defendant accompanies a summary judgment motion with affidavits contesting plaintiff’s factual allegations and supporting qualified immunity, then discovery is proper./128/ A plaintiff who is served with such a motion for summary judgment should consider making a Rule 56(d) motion for discovery in addition to or instead of responding to the motion for summary judgment. Should the court again deny summary judgment following discovery, the defendant may take a second interlocutory appeal./129/ If the defendant does not seek summary judgment, or if the district court denies the motion(s), the plaintiff may finally undertake full discovery.
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