The Qualified Immunity Trap

A police officer pulls somebody over for speeding.  He encounters the driver, and realizes that the driver is recording the officer with a camera.  The officer seizes the camera, and calls a prosecutor for advice on whether the officer can arrest the driver for violating the state’s Wiretap statute.  The prosecutor says yes.  Later, the prosecutor’s advice turns out to be completely wrong.  Can the victim sue the cop for arresting him?  What about the municipality that the officer works for?  How about the prosecutor?

The answer to the first and second questions are no, according to the Third Circuit.  Because the officer reasonably relied on the advice of the prosecutor, the officer was entitled to Qualified Immunity for arresting the Plaintiff.  Furthermore, because the Plaintiff couldn’t establish municipal liability under Monell v. Dep’t of Social Services, he was up a proverbial creek without sufficient means of locomotion.

In order to beat Qualified Immunity, you have to show that a government official (1) violated a constitutional right, and (2) the right was clearly established.  Attendant to number (2) is the idea that a constitutional right must be so well established that a “reasonable officer under the circumstances” would know they were violating the law.

Erstwhile, in order to establish municipal liability for a government official’s conduct under § 1983, you have to show that the official’s conduct was the result of a pattern of conduct on the part of the municipality which would cause government officials to violate someone’s constitutional rights.  One of the most common ways to do this is by showing that the municipality failed to train its officers effectively.  Another way to do it is by showing that the municipality regularly ignores legal violations by its officers.  If you can’t do this, you probably won’t be able to sue the municipality under § 1983.

The Plaintiff in the case above wasn’t able to do either of these things.  He couldn’t beat Qualified Immunity even though his rights were clearly violated, and the law was clearly established.  Even when your rights are clearly established, according to the court, government officials are allowed to be bad at their jobs:

[A]lthough “[P]olice officers generally have a duty to know the basic elements of the laws they enforce,” id., in circumstances when a police officer “neither knew nor should have known of the relevant legal standard,” qualified immunity may still be granted. Harlow, 457 U.S. at 818-19. In other words, there are circumstances wherein a police officer’s violation of a law may be within the bounds of reason, even though the law in question can be said, from the comfort of an armchair, to be “clearly established.” See, e.g., Amore, 624 F.3d at 535 (2d Cir. 2010) (“‘The statement in Harlow that reasonably competent public officials know clearly established law[] is a legal fiction.’ Qualified immunity is appropriate in ‘those situations in which the legal fiction does not make sense and applying that fiction would create problems that qualified immunity is intended to avert.’” (citation omitted) (quoting Lawrence v. Reed, 406 F.3d 1224, 1237 (10th Cir. 2005) (Hartz, J., dissenting)))

In other words, police are allowed to violate clearly established constitutional rights so long as the police are “reasonably” ignorant of the legal standards that govern their jobs.  Wonderful.  But if the police are protected, surely somebody can be held responsible for the Plaintiff’s Constitutional injury.  What about the prosecutor?  Can he be held responsible for his erroneous legal advice?  Like a private attorney would be under similar circumstances?

Nope.  Prosecutors have absolute immunity from civil suit under Imbler v. Pachtman.  There is a small chink in the prosecutor’s armor, clarified by Burns v. Reed, which allows prosecutors to be sued for actions taken during the “investigative” stage of criminal prosecution, but not for actions taken during the “judicial” stage of the prosecution.  Later, the Supreme Court clarified in Kalina v. Fletcher that prosecutors must be “acting as lawyers” rather than “complaining witnesses” in order to be granted absolute immunity.

In this case, the prosecutor was certainly acting as a lawyer.  He was giving legal advice to a police officer.  However, his advice was arguably given during the investigative stage of a criminal proceeding.  But here’s the catch: the prosecutor was essentially signing the Plaintiff’s arrest warrant.  This means that the prosecutor is likely off the hook, since in Kalina v. Fletcher, the court granted the prosecutor immunity for statements made in a motion for an arrest warrant.  She was denied immunity for a certification that accompanied the motion—but nothing analogous to a certification was made here.

And so once again, the Plaintiffs in a § 1983 action are left without a remedy for a clear violation of their constitutional rights.  To be sure, the results of this case were not all bad for the Plaintiff—if you read the opinion, you’ll discover that the officer made the mistake of seizing the Plaintiff’s camera before calling the prosecutor for advice, so the court held that the officer could not claim qualified immunity for the seizure itself.

But what about the arrest?  Can the Plaintiff sue for being thrown in a jail cell for 27 hours?  Can he sue for the humiliating, fear-inducing experience of being arrested and manhandled by a government agent with a badge and a gun?  Can he sue for the indignity of being herded into a prison cell like human cattle?  Of being paraded through the station house with handcuffs on?  Of having his face exposed to the degrading public shame of being placed in the back of a police car?

Nope.  He can’t sue the cop.  He can’t sue the municipality.  And he very likely can’t sue the prosecutor.  Another victim of illegal government conduct gets caught in the Qualified Immunity trap.

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