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Hope for civil rights: plaintiffs are starting to feel the effects of the Supreme Court's ruling in Hope v. Pelzer as courts reexamine qualified immunity.

Article Excerpt
Trial lawyers who prosecute negligence claims often experience culture shock when they venture into the unfamiliar terrain of federal civil rights litigation. It is difficult enough to meet the intent requirement necessary to support a claim for the violation of most constitutional guarantees, (1) but even if plaintiffs do prove that they were intentionally deprived of their rights, they still must overcome the defendant's qualified immunity defense.

Simply put, even a government official who has willfully and capriciously violated your client's civil rights will escape liability for monetary damages unless the official's conduct violates clearly established constitutional principles that a reasonable official should have known. (2)

The judge-made doctrine of qualified immunity has emerged in areas where the law does not provide clear guidance. (3) The doctrine attempts to balance the need to vindicate constitutional deprivations--which often can be done only through substantial monetary awards--against the need to insulate officials from fear of personal liability and the burdens of litigation when performing their duties. (4)

Plaintiffs usually must sue the individual official as well as the government entity because there is no respondeat superior liability under 42 U.S.C. [section] 1983. Since the government defendant will be liable only if its official customs or policies were the moving force behind the constitutional violation, it is difficult to prove the entity liable.

However, most government agencies insure or indemnify their employees against [section] 1983 claims. To demonstrate that a government official violated "clearly established" law and is not entitled to immunity, a plaintiff must show that the rights at stake were sufficiently "apparent" or "obvious" to give the reasonable official "fair warning" of what the law required. (5)

Under the analysis the U.S. Supreme Court prescribed, the qualified immunity inquiry involves two steps: First, the court must determine whether the facts alleged, taken in the light most favorable to the plaintiff, show that the official's conduct violated a constitutional right; second, if a violation can be made out, the court must ask whether the right was clearly established. (6)

Since the doctrine of qualified immunity was first introduced by the Supreme Court in 1967, (7) its application has varied widely from case to case and court to court. The anomalous result is that the Constitution means one thing in Alabama and another in California, at least in the context of whether victims of abusive government officials are entitled to recover damages. (8)

Qualified immunity reexamined

Occasionally the Supreme Court has the opportunity to clarify the law of qualified immunity and to promote uniformity of interpretation, which it did most recently in Hope v. Pelzer. (9) Alabama inmate Larry Hope...

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