Protests ignited by the killing of George Floyd put a spotlight on the legal doctrine of qualified immunity. To successfully sue a police officer for excessive or abusive conduct, or to sue some other government official for violating your civil rights, a Plaintiff must demonstrate the offending public employee knew or should have known their alleged misconduct violated established law. “The doctrine of qualified immunity protects government officials from civil damages liability when their actions could reasonably have been believed to be legal.” Morgan v. Swanson, 659 F.3d 359, 370–71 (5th Cir. 2011). Officials are entitled to qualified immunity “unless (1) they violated a federal statutory or constitutional right, and (2) the unlawfulness of their conduct was ‘clearly established at the time.’” District of Columbia v. Wesby, 138 S. Ct. 577, 589 (2018) (quoting Reichle v. Howards, 566 U.S. 658, 664 (2012)).

The purpose of qualified immunity is to “balance two important interests – 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). Whether an official is covered by qualified immunity is a matter of law to be decided by a court, “preferably on a properly supported motion for summary judgment or dismissal.” Wildoner v. Borough of Ramsey, 162 N.J. 375, 387 (2000).

The overly broad and vexing protections afforded rogue public actors by qualified immunity was well framed by Fifth Circuit Judge Don R. Willett in his concurring opinion in Zadeh v. Robinson, 928 F. 3d 457 (5th Cir. 2018):

“To some observers, qualified immunity smacks of unqualified impunity, letting public officials duck consequences for bad behavior—no matter how palpably unreasonable—as  long as they were the first to behave badly. Merely proving a constitutional deprivation doesn’t cut it; plaintiffs must cite functionally identical precedent that places the legal question “beyond debate” to “every” reasonable officer. Put differently, it’s immaterial that someone acts unconstitutionally if no prior case held such misconduct unlawful.” Id. at 498.

The vehicle for bringing civil rights claims against public officials is found in the federal Civil Rights Act of 1871 at 42 U.S.C. § 1983. Section 1983 allows people to sue the government for civil rights violations. It applies when someone acting “under color of” state-level or local law has deprived a person of rights created by the U.S. Constitution or federal statutes. This means your rights must have been violated by a state or local official. Examples of civil rights violations are cruel and unusual punishment (e.g., excessive use of force), unreasonable search and seizures and abusive conduct by a public official. Unfortunately, a major obstacle to the pursuit of a Section 1983 civil rights claim is the qualified immunity doctrine. The quandary created by the collision of Section 1983 and qualified immunity was aptly described Circuit Judge Willett in another part of his concurrence in Zadeh:

“Section 1983 meets Catch-22. Plaintiffs must produce precedent even as fewer courts are producing precedent. Important constitutional questions go unanswered precisely because those questions are yet unanswered. Courts then rely on that judicial silence to conclude there’s no equivalent case on the books. No precedent = no clearly established law = no liability. An Escherian Stairwell. Heads defendants win, tails plaintiffs lose.” Id. at 499.  As many as a dozen cases are currently pending before the United States Supreme Court asking it to rein in the broad immunity currently afforded to government officials, however, the Court has thus far declined to hear them.

In New Jersey, state government officials are also shielded by qualified immunity. In Morillo v. Torres, 222 N.J. 104 (2015), the New Jersey Supreme Court held that state government officials were entitled to qualified immunity for civil rights claims arising under the New Jersey Civil Rights Act (NJCRA), N.J.S.A., 10:6-2 and 42 U.S.C. 1983. With respect to public employees, The NJCRA is modeled on the federal civil rights law which provides for a civil action for deprivation of civil rights and protects against the deprivation of any rights, privileges, or immunities secured by New Jersey’s Constitution and laws. NJCRA claims can be made must be made against a state official acting “under color of law.” This means that the official must have acted within his or her capacity as a law enforcement officer or other public role. Any deprivation, interference or attempt-to-interfere with your rights may provide for a private right of action against the public official. A prevailing plaintiff in a claim brought under the NJCRA is entitled to provable compensatory damages, punitive damages, and an award by the court of reasonable attorney’s fees and costs.

If you believe your civil rights have been violated, immediately call the attorneys at Mashel Law at (732) 536-6161 for help or fill out the contact form on this page for help Mashel Law located in Marlboro, New Jersey.  Mashel Law is dedicated exclusively to protecting the rights of employees.

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