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Can Qualified Immunity Strike the Balance with 42 U.S.C. § 1983's Chilling Effect on Public Safety?Victor A. Afanador

42 U.S.C. §1983, the Civil Rights Act, is the vehicle for championing civil rights. It is a means to protect individuals against constitutional violations by those acting under the color of law. See Monroe v. Pape, U.S. 167, 172 (1960). Now, some may say that it serves as the vehicle for chilling a police officer’s call to preserve the security of the public at large. Today, more than ever, there is a need to increase security, but at what cost to our civil rights? In a world full of racial animosity, threats of terrorism, increased police excessive force and civil rights filings, what will the future hold?

As a civil rights defense practitioner, I understand law enforcement’s hesitation to act pursuant to the color of law in fear of opening the door to a civil rights lawsuit. I also understand a litigant’s right to file a civil rights lawsuit if law enforcement engage in excessive force and violate the Fourth Amendment. The only way, however, to effectively level the playing field against the public impact these federal cases cause is with an early disposition of whether the officer or government official is entitled to qualified immunity through a Fed. R. Civ. Pro. 12(b)(6) motion.

The reality is that federal district courts frequently deny these early Fed. R. Civ. Pro. 12(b)(6) applications in favor of requiring a fleshing out of the factual record. This is notwithstanding the Supreme Court of the United States having “repeatedly stressed the importance of resolving immunity questions at the earliest possible stage in litigation.” Hunter v. Bryant, 502 U.S. 224, 227 (1991). Thus, when a defendant asserts the protection of qualified immunity, a ruling on that issue should be made early in the proceedings so that the taxpayer costs and expenses of trial are avoided where the defense is dispositive. See Saucier v. Katz, 533 U.S. 194 (2001).

Under the doctrine of qualified immunity, state actors performing discretionary functions “are shielded from liability for civil damages insofar as their conduct does not violate clearly established statutory or constitutional rights of which a reasonable person would have known.” Harlow v. Fitzgerald, 457 U.S. 800, 818 (1982). Qualified immunity is “an entitlement not to stand trial or face the other burdens of litigation.” Saucier, 533 U.S. at 199. This defense shields officers from liability when they erroneously, but reasonably believe their actions are lawful while allowing recovery against officers that knowingly violated the plaintiff's constitutional rights. See Curley v. Klem, 499 F.3d 199, 206-07 (3d Cir. 2007).

Qualified immunity still evaluates “the need to hold public officials accountable when they exercise power irresponsibly and the need to shield officials from harassment, distraction, and liability when they perform their duties reasonably.” Pearson v. Callahan, 555 U.S. 223, 231 (2009). However, it will apply irrespective of whether the official’s error is a “mistake of law, a mistake of fact, or a mistake based on mixed questions of law and fact.” Pearson, 555 U.S. at 231.


An early qualified immunity determination can certainly alleviate the taxpayers’ burden and assure law enforcement officials an expeditious resolution to a federal lawsuit if qualified immunity is granted. This instills confidence in the system so that officers and officials can perform their job duties and functions effectively and efficiently without hesitation. A delayed ruling increases legal fees through costly paper and electronic discovery, which in turn make it very difficult to settle a case. This will only dilute the effectiveness of valid 42 U.S.C. §1983 claims, since more cases clog the federal docket and languish within the system, thereby giving litigants hesitancy in pursuing these types of cases.