Anderson v. Creighton: QUALIFIED IMMUNITY-Is GOOD FAITH
ALL THAT
I.
Is
REQUIRED 9
INTRODUCTION
Eighteen years ago the United States Supreme Court rendered its decision in Bivens v. Six Unknown Agents of the Federal Bureau of Narcotics,' which gave individuals an action
against federal officials for civil damages under the fourth
amendment.2 The Court, in fact, created a remedy for the victims of an unreasonable search and seizure. s As the civil liability
of officials became well recognized, both courts and public officials became concerned with officials' increased exposure to personal liability and the detrimental effect it has on their perform1. 403 U.S. 388 (1971). The Bivens Court provided the petitioner a civil remedy for
damages from Federal Bureau of Narcotics agents for a warrantless search and seizure
made without probable cause. Id. at 397. A Bivens action is a lawsuit alleging a constitutional violation perpetrated by a federal official. Similar actions are available, pursuant
to 42 U.S.C. § 1983 against state officials. See Monroe v. Pape, 365 U.S. 167 (1961) (Chicago police officers made a warrantless search of petitioner's home). A Bivens action,
against a federal official, and a Monroe claim, against a state official, are analogous for
purposes of qualified immunity. Butz v. Economou, 438 U.S. 478, 504 (1978). There is no
distinction for purposes of immunity between suits against state officials under § 1983
and suits against federal officials under the Constitution. Id. Accord Malley v. Briggs,
475 U.S. 335, 340 n.2 (1986).
2. Bivens, 403 U.S. at 389. The fourth amendment provides:
The right of the people to be secure in their persons, houses, papers, and effects against unreasonable searches and seizures, shall not be violated, and no
Warrants shall issue, but upon probable cause, supported by oath or affirmation, and particularly describing the place to be searched, and the persons or
things to be seized.
U.S. CONST. amend. IV
3. Bivens, 403 U.S. at 395-96. The Court noted that it was not novel reasoning that
a victim could sue a government official for damages for other violations of constitutional
rights. Id. For examples of suits on statutory discrimination by a state regarding election
of judges, see Nixon v. Condon, 286 U.S. 73 (1932); Nixon v. Herndon, 273 U.S. 536
(1927); Swafford v. Templeton, 185 U.S. 487 (1902); Wiley v. Sinkler, 179 U.S. 58 (1900).
Justice Brennan stated that "where federally protected rights have been invaded, it has
been the rule from the beginning that courts will be alert to adjust their remedies so as
to grant the necessary relief." Bivens, 403 U.S. at 392 (quoting Bell v. Hood, 327 U.S.
678, 684 (1946)). The Court in Bivens found it proper, even though there was no federal
statute similar to 42 U.S.C. § 1983, to enable a victim to sue a federal agent for a constitutional infraction; the victim's right to sue that federal agent stems directly from the
Constitution. Id. at 397.
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ance.4 Courts were equally aware of the time-consuming effect
these actions would have on judicial efficiency 5 Although the
Bivens Court created a new action for damages, it failed to establish a long-lasting test for deciding when a public official
should or should not be held civilly liable to an alleged victim.'
This Comment will explore the recent history and pertinent
decisions on the qualified, or good faith, immunity doctrine for
alleged misconduct by public officials. Specifically, it will focus
on the recent Supreme Court decision in Anderson v. Creighton. 7 Finally, the Comment will analyze the ramifications Ander4. See Pierson v. Ray, 386 U.S. 547 (1967). The Pierson Court took notice of a law
enforcement officer's predicament regarding exposure to liability. Id. at 555. In Pierson,
police officers arrested white and black clergy for disturbing the peace. Id. at 549. The
Court, affording policemen a good faith defense at trial, explained that "[a] policeman's
lot is not so unhappy that he must choose between being charged with deriliction of duty
if he does not arrest when he has probable cause, and being mulcted in damages if he
does." Id. at 555.
5. Bivens, 403 U.S. at 428 (Black, J., dissenting). Justice Black predicted the increased volume of Bivens-type cases in federal court. Id. In his dissent, Justice Black
warned:
Unfortunately, there have also been a growing number of frivolous lawsuits,
My felparticularly actions for damages against law enforcement officers.
low Justices on this Court and our brethren throughout the federal judiciary
know only too well the time-consuming task of pouring over hundreds of
thousands of pages of factual allegations of misconduct by police, judicial, and
corrections officials.
Id. (emphasis added).
Justice Blackman, who also dissented in Bivens, likewise felt the majority's opinion
"opens the door for another avalanche of new federal cases." Id. at 430 (Blackmun, J.,
dissenting).
See also Note, Quick Termination of InsubstantialCivil Rights Claims: Qualified
Immunity and ProceduralFairness, 38 VAND. L. REV. 1543, 1544 n.3 (1985) (Monroe and
Bivens actions filed from 1961 to 1983 have drastically increased from 500 to nearly
27,000 suits); Edwards, The Rising Work Load and Perceived "Bureaucracy" of the
Federal Courts: A Causation-BasedApproach to the Search for Appropriate Remedies,
68 IOWA L. REV. 871, 906-07 (1983) (Supreme Court's movement from a subjective to
objective standard of qualified immunity is a judicial reaction to increasing case load
problem). But see Eisberg, Section 1983: Doctrinal Foundations and Empirical Study,
67 CORNELL L. REV. 482 (1982) (study suggests that § 1983 cases are not swamping the
federal courts as much as imagined and that most litigated cases are not frivolous);
Whitman, Constitutional Tort, 79 MIcH. L. REV. 5, 28 (1980) (case load concerns should
be secondary to the "vindication" of a constitutional wrong); Project, Suing the Police in
Federal Court, 88 YALE L.J. 781, 809-15 (1979) (suits against police officers do not substantially affect officers' behavior because the majority are indemnified by their
municipalities).
6. Bivens, 403 U.S. at 395-98 (the question of immunity was not dealt with, only
money damages).
7. 107 S. Ct. 3034 (1987).
1989]
QUALIFIED IMMUNITY
son will have on the qualified immunity doctrine.
II.
BACKGROUND
Two forms of immunity are afforded government officials:
absolute immunity8 and qualified immunity 9 Only certain officials are entitled to absolute immunity 10 If the official acted
within the scope of official authority, absolute immunity bars
the civil action. 1 In contrast, the majority of officials" are provided only qualified immunity 13 An official who is granted quali8. See, e.g., Malley v. Briggs, 475 U.S. 335, 339-45 (1986) (analysis of privilege of
absolute immunity shows that it is grounded in common law and public policy); Butz v.
Economou, 438 U.S. 478, 506 (1978) (federal officials seeking exemption from liability for
unconstitutional conduct through absolute immunity must show "public policy requires
an exemption of that scope").
9. See Scheuer v. Rhodes, 416 U.S. 232, 247 (1974) (qualified immunity is available
to executive officers depending on their discretionary function and circumstances).
10. Harlow v. Fitzgerald, 457 U.S. 800, 807 (1982). Officials who perform judicial,
legislative or prosecutorial functions are generally provided absolute immunity. Id. See,
e.g., Nixon v. Fitzgerald, 457 U.S. 731 (1982) (President afforded absolute immunity);
Stump v. Sparkman, 435 U.S. 349 (1978) (judges afforded absolute immunity); Butz, 438
U.S. at 513-16 (some agency officials in functions analogous to prosecutor afforded absolute immunity); Imbler v. Pachtman, 424 U.S. 409 (1976) (prosecutors afforded absolute
immunity); Eastland v. United States Serviceman's Fund, 421 U.S. 491 (1975) (legislators afforded absolute immunity).
An official is immune from suit if the alleged act was committed within his official
capacity. See, e.g., Bradley v. Fisher, 80 U.S. (13 Wall.) 335 (1872) (longstanding recognition of absolute immunity for judges' acts done within their judicial duties). In addition,
absolute immunity remains a defense even if the alleged act or conduct was done maliciously or corruptly. Pierson v. Ray, 386 U.S. 547, 553-54 (1967).
For articles discussing absolute immunity, see, e.g., Comment, Constitutional
Law-PresidentialImmunity-The President is Absolutely Immune From Civil Damages Liability for Acts Done Within The "Outer Perimeter" Of His Official Capacity, 14
ST.MARY'S L.J. 1145 (1983) (presidential immunity); Comment, Nixon v. Fitzgerald:Recognition of Absolute Immunity From Personal Damage Liability for PresidentialActs,
10 PEPPERDINE L.R. 661 (1983) (same); Comment, Prosecutorial Immunity Under §
1983: Taylor v. Kavanaugh, 1640 F.2d 450 (2d Cir. 1981), 5 AM. J. OF TRIAL ADVOC.
(1981) (prosecutorial immunity); Comment, District and Prosecuting Attorneys: Absolute Immunity Granted to Prosecutorsis Limited to Quasi-JudictalActs, 20 WASHBURN
L.J. 630 (1981) (same); Note, JudicialImmunity: Developments In Federal Law, 33 BAYLOR L. REv. 351 (1981) (judicial immunity).
11. See, e.g., Scheuer, 416 U.S. at 238-39; Wood v. Strickland, 420 U.S. 308, 320-22
(1975).
12. Harlow, 457 U.S. at 807 (1982). In Harlow, the Supreme Court made it clear
that it is generally recognized that, for executive officials, "qualified immunity represents
the norm." Id.
13. Id. (officials who exercise discretionary functions which are less complex than
those exercised by officials granted absolute immunity are provided qualified immunity).
Other officials who have been clothed with qualified immunity include: Butz, 438 U.S. at
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fled immunity is immune from suit for constitutional violations
14
if he or she acted in an objectively reasonable manner.
Qualified immunity attempts to strike a delicate balance between two conflicting concerns. On the one hand, sufficient
consideration must be given to a citizen whose constitutional
right has been violated. 6 On the other hand, an official needs
some form of protection to shield him from undue threats of liability and to allow him to anticipate the legal consequences of
his decisions." These competing policies, which will be discussed
further, are the underlying foundation of the qualified immunity
doctrine.
507 (federal executive officials); Wood, 420 U.S. at 322 (public school board members);
Scheuer, 416 U.S. at 247-48 (state officials). But see Owen v. City of Independence, 445
U.S. 622, 624 (1980) (municipalities). See also Comment, Degree of Immunity Applicable to Senior Aides of the President of the United States in Civil Actions Arising Under
the Constitution: Harlow v. Fitzgerald, 1983 B.Y.U. REV. (1983) (senior aides to the
President).
14. See, e.g., Malley v. Briggs, 475 U.S. 335, 341 (1986); Harlow, 457 U.S. at 819;
Wood, 420 U.S. at 322.
15. See, e.g., Harlow, 457 U.S. at 13-14; Butz, 438 U.S. at 507-08; Scheuer, 416 U.S.
at 245-48.
16. Harlow, 457 U.S. at 814 (damages action may be only realistic avenue for vindication of constitutional violation); Butz, 438 U.S. at 505 (if officials were immune from
constitutional wrongs, there would be no available recourse for injured citizen); Bivens v.
Six Unknown Agents of the Federal Bureau of Narcotics, 403 U.S. 388, 410 (Harlan, J.,
concurring) ("[flor people in [victims'] shoes, it's damages or nothing"). See also, Note,
Executive Immunity for Constitutional Torts after Butz v. Economou, 20 SANTA CLARA
L. REV. 453, 488 (1980) (an official's fear of liability should not justify immunity).
17. See Comment, Immunity: Eliminating the Subjective Element from the Qualified Immunity Standard in Actions Brought Against Government Officials, 22 WASHBURN L.J. 577 (1983) (quoting Pearson v. Reed, 6 Cal. App. 2d 277, 287, 44 P.2d 592, 597
(1935)). In Pearson,the Court recognized that:
The doctrine of immunity is not for the benefit of a few who might otherwise
be compelled to respond to damages. It is for the benefit of all to whom it
applies, that they may be free to act in the exercise of honest judgment, uninfluenced by fear of consequence personal to themselves. This again is not for
their personal advantage or benefit. It is only that they may be enabled to
render a better public service.
Id.
See, e.g., Harlow, 457 U.S. at 814 (there are not only personal costs to officials, but social
costs such as litigation, diversion of official time and energy, and deterrence from accepting public office); Scheuer, 416 U.S. at 6242 (immunity encompasses fact that officials "err", but "it is better to risk some error and possible injury from such error than
not to decide or act at all"). See also G. Pratt & M. Schwartz, Section 1983 Civil Rights
Litigation and Attorneys' Fees 1986-Developments and Problems 23 (1986) (factors
distinguishing adjudicatory from executive functions include the need to assure an official that he can perform his duties without harassment or intimidation).
19891
A.
QUALIFIED IMMUNITY
The Objective and Subjective Tests
The idea that an official should have some immunity from
civil damages had for some time been recognized, but no test
had been adequately articulated. The Supreme Court in Wood v.
8 finally set forth a specific two-prong test to identify
Strickland"
when an official should be entitled to good faith immunity from
a civil suit.' 9 Prior to Wood, two cases, Pierson v. Ray20 and
Scheuer v. Rhodes,2 laid the groundwork, yet left unclear the
standard ultimately to be applied.2 2
In Wood, expelled high school students alleged that their
constitutional right to due process had been violated by the local
school board.2 3 Deciding that the school board officials were en18. 420 U.S. 308 (1975).
19. Harlow v. Fitzgerald, 457 U.S. 800, 815 (1982). The Wood standard is considered the first articulation of the "objective reasonableness" standard. Comment, Police
Immunity From Civil Suit-Malley v. Briggs, 20 CREIGHTON L. REV. 193, 200 n.72 (1986)
(author recognizes Wood Court's use of objective prong as first articulation of objective
reasonableness test).
20. 386 U.S. 547 (1967). In Pierson, police officers were entitled to the defense of
good faith and probable cause at trial if the officers reasonably believed in good faith
that the arrest was constitutional, notwithstanding that the arrest, in fact, was unconstitutional. Id. at 555. Chief Justice Warren introduced the idea of a good faith defense at
trial but failed to clearly define it. Id. at 555-57. Pierson did, however, establish the
subjective portion of the test used in Wood. Id. Specifically, if the officers acted in good
faith and without malice, the complaint against the officers must be dropped. Id. at 557.
21. 416 U.S. 232 (1974). In Scheuer, the estates of three students sought damages
from the Governor of Ohio and other officials for the deployment of National Guardsmen
on Kent State University's campus. Id. at 234-35. Whether the executive officials should
receive qualified immunity depended on "the existence of reasonable grounds for the
belief formed at the time and in light of all the circumstances, coupled with a good faith
belief." Id. at 247-48. The Court remanded the case to district court for lack of factual
evidence. Id. at 250. The Scheuer analysis, although vague, called for a fact-specific determination of qualified immunity. Id.
22. Compare Boscarmno v. Nelson, 518 F.2d 879, 882 (7th Cir. 1975) (asks whether
police officers reasonably believe in good faith that probable cause existed) with Knell v.
Bensinger, 522 F.2d 720, 727 (7th Cir. 1975) (defendant's actions did not disregard plaintiff's constitutional rights to the extent of bad faith). See also Friedman, Developments
In Constitutional Law-The Good Faith Defense In ConstitutionalLitigation, 5 HOFSTRA L. REV, 501, 511 (the Court in Scheuer failed to define whether "good faith" meant
that officials acted without malice or if they believed they were acting within the parameters of the law); Note, Developments In The Law-Section 1983 And Federalism, 90
HARv. L. REV. 1133, 1212 (1977) [hereinafter Developments in Section 1983] (Scheuer
left unanswered a number of questions regarding "good faith"; specifically, it appears to
take on a more "objective" or "subjective" interpretation depending on the lower court
applying the doctrine).
23. Wood v. Strickland, 420 U.S. 308, 308-12 (1975). The girls were expelled for
violating a school regulation forbidding the use or possession of intoxicating beverages at
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titled to assert the defense of qualified immunity, the United
States Supreme Court embraced this opportunity to flesh out
the standard which had, until now, confused the lower courts.2 4
The trial court had employed a subjective standard whereby the
defendant officials could be held liable only if they acted with
malice.2 5 The appellate court, reversing, applied an objective test
which would impose liability only if, "in light of all the circumstances," the members of the school board failed to act in good
faith."6
The Wood Court ruled that "good faith" is a combination of
both subjective and objective standards.2 7 An official's immunity
could, therefore, now be lost on two grounds. First, the objective
element questions whether the official knew or should reasonably have known that his action would violate a person's settled,
unquestioned constitutional rights.2 8 Second, the subjective element questions whether the official intentionally acted with malice to cause a deprivation of constitutional rights to the person
affected. 9 A careful examination of Wood makes it clear that
the good faith doctrine relies heavily on the discovery of facts to
determine both the official's intent and the reasonableness of his
conduct and intent.8 0
school or at school-related functions. Id.
24. Id. at 315 n.7 (see cases cited therein). In deciding to grant school board members qualified immunity, the Court determined that they "function at different times in
the nature of legislators and adjudicators in the school disciplinary process. Each of
these functions necessarily involves the exercise of discretion, the weighing of many factors, and the formulation of long-term policy." Id. at 319.
25. Id. at 313-14.
26. Id.
27. Wood, 420 U.S. at 322. The official must not only act sincerely and with the
belief he is doing right, but he must also not violate any settled constitutional right. Id.
The Wood test reduced the protection of a government official seeking qualified immunity since, under it, the plaintiff need only show either malice or negligence. Id.
28. Id. According to the Court, this standard does not place a burden on a public
official in light of the value placed on civil rights in our legal system Id. An official is not
"charged with predicting the future course of constitutional law." Pierson v. Ray, 386
U.S. 547, 557 (1967). The official is, however, held to an understanding of a "[person's]
clearly established constitutional rights." Wood, 420 U.S. at 322. Justice Powell, dissenting in Wood, explained that the objective standard puts officials at the "peril" of a judge
or jury for a good faith, but mistaken, belief in the law. Id. at 328-29 (Powell, J.,
dissenting).
29. Wood, 420 U.S. at 322. The subjective good faith determination calls for an
analysis of whether the official acted "sincerely and with a belief that he is doing right."
Id. at 321.
30. Id.
1989]
B.
QUALIFIED IMMUNITY
The Harlow Standard-ObjectiveReasonableness
1 redefined the Wood two-prong analyHarlow v. Fitzgerald"
sis of good faith by eliminating the subjective prong of malice.32
Harlow involved an Air Force employee who sought civil damages under the Bivens doctrine.33 The employee alleged a conspiracy between two United States presidential aides for wrongfully discharging him, thereby violating his constitutional
rights. 4 The aides were entitled to the defense of qualified,
rather than absolute, immunity s1 More importantly, the Harlow
defense by reviewing its underCourt reexamined the good faith
36
lying policies and procedures.
Justice Powell, writing for the majority, stated that the subjective test of malice runs afoul of the policies which the court
previously set. 7 Like Wood, the competing policies were the
need for a viable remedy for individuals harmed by the unconstitutional acts of a governmental official 38 and the need to protect the official from frivolous lawsuits arising out of the discharge of his duties.3 9 As a solution to balancing the "evils
31. 457 U.S. 800 (1982).
32. Id. at 815-18. See also Comment, supra note 17, at 577 (author recognizes that
Supreme Court eliminates subjective aspect of qualified immunity).
33. See supra note 1 for an explanation of the Bivens doctrine.
34. Harlow, 457 U.S. at 802-07.
35. Id. at 809.
36. Id. at 805-19. See infra notes 37-42 and accompanying text for a discussion of
policies and procedures.
37. Id. at 815-16. The Harlow Court, referring to Butz, decided that "bare allegations of malice" should not be sufficient to expose government officials to the costs of
either discovery or trial. Id. at 817-18. The Court was influenced by the fact that officials
performing discretionary functions receive qualified immunity: Id. at 816. Consequently,
a court's subjective analysis, as in Wood, tapers an official's discretionary job activities
for fear of liability. Id. A tapering occurs since an official's discretionary actions are inevitably influenced by his "experiences, values, and emotions." Id. Also, thought processes,
which are, of course, subjective, can rarely be decided on a motion for summary judgment. Landrum v. Moats, 576 F.2d 1320, 1329 (8th Cir.) (good faith is dependent on
motivation and is ordinarily a question for the jury), cert. denied, 439 U.S. 412 (1978).
38. Harlow, 957 U.S. at 814 (damages may be the only form of relief).
39. Id. Claims against officials cost not only officials, but society. Id. These social
costs include the cost of litigation, the diversion of an official from work, and the deterrence of qualified individuals seeking government employment. Id. Further, an official's
"fear of being sued will 'dampen the ardor of all but the most resolute, or the most
indispensable [public officials], in the unflinching discharge of their duties.'" Id. (quoting Gregoire v. Biddle, 177 F.2d 579, 581 (2d Cir. 1949), cert. denied, 339 U.S. 949
(1950)).
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inevitable in [either] alternative,"4 ° the Court decided that good
faith should depend on an entirely objective standard.41
Additionally, the Court explained that the subjective analysis previously adopted had proved incompatible with the notion
that insubstantial claims should not advance to trial.4 2 The determination of malice is a factual issue which usually can be resolved only after discovery or trial. 43 Too many frivolous suits
proceeded to trial or lengthy discovery on groundless allegations
of malice on the part of the public official." Furthermore, since
good faith may entail questions of fact,45 dismissal of such
claims on summary judgment is improper.4" Resolving the
threshold issue of qualified immunity on summary judgment
poprior to lengthy discovery considerably decreases an official's
41
discovery
pretrial
long
for
least,
at
or,
tential for liability
C.
The Harlow Approach To Immunity
The Harlow approach to qualified immunity calls for an
analysis of the "objective reasonableness of an official's conduct"
which is "measured by [reference to] clearly established law "48
40. Harlow, 457 U.S. at 813-14. The word "alternative" refers to a balance between
two extremes: at one extreme, an official shielded with absolute immunity would promote
violations of the Constitution; at the other extreme, effective government would be impaired if government officials had no immunity defense. Note, supra note 5, at 1550-51.
41. Harlow, 457 U.S. at 818.
42. Id. at 815-16. See also Butz v. Economou, 438 U.S. 478, 507-08 (1978) (insubstantial lawsuits should not survive a motion to dismiss).
43. Harlow, 457 U.S. at 816-17.
44. Id.
45. Id. at 816. See also Pierson v. Ray, 386 U.S. 547, 557 (1967) (jury decided
whether arresting officers believed arrest was, in good faith, constitutional). Qualified
immunity based upon both the circumstances and motivations of the government official's actions is not proper on a FED. R. Civ. P 12 (b)(6) motion to dismiss. Note, Developments inSection 1983, supra note 22, at 1209 n.19. A court must await further development of the facts. Id.
46. Harlow, 457 U.S. at 816. See also FED. R. Civ. P 56(c), which provides, in pertithen the moving
nent part, that if "there is no genuine issue as to any material fact
party is entitled to a judgment as a matter of law."
47. Harlow, 457 U.S. at 817 n.29. See also Comment, supra note 19, at 205 n.118.
More suits are allowed before the court based on subjective good faith than under an
objective, good faith test. Id. Also, using the objective standard permits the judge, when
proper, to decide a suit on a motion for summary judgment without the "costly aid of a
jury." Id.
48. Harlow, 457 U.S. at 818. Accord Butz v. Economou, 438 U.S. at 478, 498 (1978)
(reasonable belief in light of circumstances and good faith belief afford basis for qualified
immunity); Scheuer v. Rhodes, 416 U.S. 232, 247-48 (1974) (reasonable belief at time of
19891
QUALIFIED IMMUNITY
On a motion for summary judgment by a defendant official, the
judge will decide whether the "law was clearly established at the
time the action occurred."4' 9 If the judge finds that the law was
not clearly established, the public official will be immunized
from suit.5 0 Conversely, if the law was clearly established, an official will not be granted immunity "since a reasonably competent public official should know the law governing his conduct."5 1 Consistent with its procedural policy to rid itself of
frivolous suits on summary judgment, a court will not allow further discovery until the immunity issue is resolved. 52 Alternatively, immunity will also be granted if an official pleads a defense of extraordinary circumstances and can prove that he
neither knew, nor should have known, the relevant legal
standard. 53
In sum, after Harlow a trial court must make the immunity
determination prior to discovery by initially resolving whether
the law the official allegedly violated was "clearly established."5' 4
Although the Harlow Court tried, like its predecessor in Wood,
to clarify the defense of qualified immunity, it left the meaning
of the phrase "clearly established law" unclear. 55 The lower
courts, with little guidance, have struggled to apply this phrase
56
in the context of the qualified immunity test.
action coupled with good faith belief).
49. Harlow, 457 U.S. at 818. The law, at the time the action occurred, must be
"clearly established." Id. Thus a government official cannot reasonably be held to know
of subsequent legal developments. Id. Moreover, it is unfair to hold that official to conduct which had "not previously been identified as unlawful." Id.
50. Id. The officer will have protection. Id.
51. Id. at 818-19.
52. Id. (until the threshold question of immunity is resolved, discovery should not
commence).
53. Harlow, 457 U.S. at 819.
54. Id. at 818.
55. Id. See also Hixon v. Durbin, 560 F Supp. 654, 664-65 (E.D. Pa. 1983). In
Hixon, the court questioned the meaning of "clearly established" law. Id. In addition, it
asked, "Is the defense intended to establish a 'one bite' rule for government officials so
that they will be protected from liability for damages until another official has been held
to have violated the Constitution in a case involving identical factual circumstances?" Id.
at 665. See infra note 71 (Mitchell Court answers "no" to the question posed in Hixon).
See also Harlow, 457 U.S. at 818. The guidance the Harlow majority gave was that a
government official could not "be said to 'know' that the law forbade conduct not previously identified as unlawful." Id. To determine what an official did "know" may result in
discovery itself. Id. at 821 (Brennan, J., concurring).
56. Comment, Harlow v. Fitzgerald:The Lower Courts Implement The New Stan-
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D.
[Vol. 10:255
Subsequent Decisions
Following Harlow, lower courts have essentially reached two
different conclusions on the application of the objective standard in light of clearly established law.57 Lower courts have differed in their interpretations as to whether the law that is allegedly violated by a public official is to be construed in a narrow
sense or in a broad sense.5 9 Interwoven with this problem is the
question of how the particular facts of a case should be
treated. 0 Harlow has created a plethora of case law Fortunately, three recent Supreme Court cases specifically pertaining
to Anderson shed some light on the Harlow test.
Davis v. Scherer 1 posed the question of whether state offidard For Qualified Immunity Under Section 1983, 132 U. PA. L. REV. 901 (1984). Lower
courts have categorized the authorities they may look to to find clearly established law.
Id. Compare Crowder v. Lash, 687 F.2d 996, 1002-03 (7th Cir. 1982) (Supreme Court,
appellate court, and district court cases considered in determining whether law was
clearly established) with Johnson ex. rel. Johnson v. Brelje, 701 F.2d 1201, 1210-11 (7th
Cir. 1983) (only one Supreme Court case was considered in deciding whether the law was
clearly established). Id.
Some courts have taken the absence of case law to mean that the law applicable to
the issue involved is not "clearly established," even though the issue or statute involved
is arguably clear. Comment, supra, at 901. See, e.g., Estes-El v. New York, 552 F Supp.
885, 888 (S.D.N.Y. 1982) (absent any court interpretation of the status of environmental
conservation officers, the officers arguably acted in good faith); Heslip v. Lobbs, 554 F
Supp. 694, 702 (E.D. Ark. 1982) (the meaning of "public place" had been dealt with in
one case and was not considered "clearly established").
57. See infra notes 58-59 for an explanation of the differences.
58. See LeSavage v. White, 755 F.2d 814, 821 (11th Cir. 1985) (qualified immunity
is determined by whether a reasonable person in the defendant's position would have
known he was violating the plaintiff's constitutional rights). See also Zook v. Brown, 748
F.2d 1161, 1165 (7th Cir. 1984) (sheriff disciplining deputy sheriff for letter criticizing
department was reasonable); Evers v. County of Custer, 745 F.2d 1196, 1203 (9th Cir.
1984) (commissioners' actions were reasonable even though actions were unconstitutional); Bilbrey v. Brown, 738 F.2d 1462, 1466-67 (9th Cir. 1984) (school principal's and
teacher's search of students was settled, but issue of reasonableness was jury question);
Bailey v. Turner, 736 F.2d 963, 969-72 (4th Cir. 1984) (prison official may not have
known nor reasonably should have known his actions violated prisoner's constitutional
rights).
59. See Trejo v. Perez, 693 F.2d 482, 488 n.10 (5th Cir. 1982) (a fourth amendment
violation by a warrantless arrest without probable cause "is, objectively speaking, a violation of clearly established law"). See also Bass v. Wallenstein, 769 F.2d 1173, 1186 (7th
Cir. 1985) (question of "clearly established" law is one for court, not for jury); Fujiwara
v. Clark, 730 F.2d 357, 361 (9th Cir. 1983) (law was clearly established, thus qualified
immunity defense was lost).
60. Compare National Black Police Ass'n v. Velde, 712 F.2d 576 (D.C. Cir. 1983)
with Williams v. Bennett, 689 F.2d 1370, 1381-82 (11th Cir. 1982).
61. 468 U.S. 813, reh'g denied, 468 U.S. 1226 (1984).
1989]
QUALIFIED IMMUNITY
cials' failure to provide an employee with a post-termination
hearing violated that employee's "clearly established" constitutional right to due process under the fourteenth amendment.2
The officials were granted immunity pursuant to Harlow."s The
Court noted that the legal standard, at the time of the termination, was only that "some kind of hearing" was required before
discharging an employee; 64 moreover, the type of hearing required depends on a balance of state and individual interests.6 5
Since, prior to Davis, courts had not specified the necessary procedures for the termination of employment, it was reasonable for
the officials to conclude that the employee's fundamental due
process rights had been provided. 6 The importance of Davis is
the notion that although there is a generally established constitutional right to due process, an official cannot be held to that
fundamental right in the employee discharge context absent particularly applicable case law.
Similarly, in Mitchell v. Forsyth, 7 the plaintiff claimed that
former Attorney General Mitchell authorized a warrantless wiretap on the plaintiffs telephone conversations in violation of the
fourth amendment.6 8 Mitchell's immunity hinged on whether
the law regarding a warrantless wiretap, in the context of a domestic threat to national security, was clearly established at the
time of the alleged act.6 9 The Court concluded that Mitchell
62. Id. at 187.
63. Id. at 190-96.
64. Id. at 192 n.10. See also Board of Regents v. Roth, 408 U.S. 564, 570 n.7 (1972)
(Court explained that a hearing is required, but it did not explain what kind of hearing).
65. Davis, 468 U.S. at 192 n.10. See also Mathews v. Eldridge, 424 U.S. 319, 335
(1976) (determination of hearing depends upon balance between employee's interests
and state's interests).
66. Davis, 468 U.S. at 192-93. Under the Court's reasoning, it was not unreasonable
for the senior official to discharge the employee of the Florida Highway Patrol since the
employee was (1) informed several times of the department's objections to his part-time
employment, (2) allowed more than once to respond to these charges, and (3) Florida law
provided for a full termination hearing. Id.
67. 472 U.S. 511 (1985).
68. Id. at 515. The purpose of the wiretap authorized by Attorney General Mitchell
was to intercept the communications of the radical anti-war group, East Coast Conspiracy to Save Lives. Id. The group made plans to blow up the tunnels of several federal
office buildings in Washington, D.C. and to kidnap National Security Advisor Henry Kissinger. Id.
69. Id. at 535. The state of the law regarding the warrantless wiretap was unclear.
Id. at 530. See Olmstead v. United States, 277 U.S. 438, 465-66 (1928) (wiretap without
physical trepass not unconstitutional under fourth amendment); Katz v. United States,
BRIDGEPORT LAW REVIEW
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could not reasonably have known that the wiretap was unconstitutional because the legality of a warrantless wiretap in the domestic security context was an "open question" at the time.70
One year later, the type of wiretap Mitchell authorized was
found to be clearly unlawful under the fourth amendment. 7 1 Despite the later clarity in the law, Mitchell was still granted im72
munity from a civil lawsuit.
Finally, in Malley v. Briggs,7 s the plaintiffs alleged that the
defendant, a police officer, violated the fourth amendment by
applying without probable cause for an arrest warrant which led
to the plaintiffs' unlawful arrest. 74 The Court phrased the ques389 U.S. 347, 358 n.23 (1967) (unclear whether President and Attorney General have
right to authorize warrantless wiretaps for national security purposes). See also Pierson
v. Ray, 386 U.S. 547, 557 (1967) (an official is "not charged with predicting the course of
constitutional law).
70. Mitchell, 472 U.S. at 535. See also United States v. United States District
Court, 407 U.S. 297 (1972) (warrantless wiretap for national security held illegal). An
often cited quote from Mitchell reads:
We do not intend to suggest that an official is always immune from liability or
suit for a warrantless search merely because the warrant requirement has never
explicitly been held to apply to a search conducted in identical circumstances.
But in cases where there is a legitimate question whether an exception to the
warrant requirement exists, it cannot be said that a warrantless search violates
clearly established law.
Mitchell, 472 U.S. at 535 n.12.
71. United States District Court, 407 U.S. at 324. In 1972 the Supreme Court
barred wiretaps like those Mitchell conducted in 1970-71. Id.
72. Mitchell, 472 U.S. at 535. See also Thorne v. Jones, 765 F.2d 1270 (5th Cir.
1985) (law unclear on strip-searching a visitor in prison), cert. denied, 475 U.S. 1016
(1986); Pembaur v. City of Cincinnati, 746 F.2d 337 (6th Cir. 1984) (law on warrantless
entry to make arrest was unclear), rev'd, 475 U.S. 469 (1986); O'Hagan v. Soto, 725 F.2d
878 (2d Cir. 1984) (law unclear when right to counsel attaches); Wallace v. King, 626
F.2d 1157 (4th Cir. 1980) (law unclear on entering third party's home to make an arrest),
cert. denied, 451 U.S. 969 (1981). See also Raffone v. Robinson, 607 F.2d 1058 (2d Cir.
1979) (law unclear whether prison transfers require due process).
Not all laws are unclear; some changes in the law may already have been instituted
or change may be foreseen. See Benson v. Scott, 734 F.2d 1181 (7th Cir.) (right of freedom from retaliatory firing for first amendment exercise of speech by employee clearly
established), cert. denied, 469 U.S. 1019 (1984); McCann v. Coughlin, 698 F.2d 112 (2d
Cir. 1983) (prisoner's due process rights prior to disciplinary action are clearly established by Second Circuit law). For further cases, see G. Pratt & M. Schwartz, supra note
17, at 228-31.
73. 475 U.S. 335 (1986).
74. Id. at 338. The defendant, a Rhode Island state trooper, after monitoring two
of plaintiffs' phone calls, determined they concerned drug use. Id. at 337. The trooper
applied for an arrest warrant for each plaintiff, accompanied by supporting affidavits
describing the two intercepted calls. Id. at 338. The judge signed the warrants and the
plaintiffs were arrested. Id. The charges against the plaintiffs were subsequently
QUALIFIED IMMUNITY
19891
tion of qualified immunity in an objective fashion, asking
whether a reasonably well-trained police officer in the defendant's position would have known that his affidavit for arrest
failed to establish probable cause.7" Thus, even though the officer caused an unlawful arrest because the warrant lacked probable cause, he may still be immune from suit if a reasonable officer, in light of the circumstances, would have thought there
was sufficient cause to issue a warrant. 7
III.
A.
THE DECISION
The Facts
Plaintiffs, the Creighton family, alleged that the defendant,
Federal Bureau of Investigation agent Anderson, conducted a
warrantless search of their home in violation of the fourth
amendment." Anderson sought a fugitive, the brother of Mrs.
Creighton, who was suspected of committing an armed robbery
earlier that day 78 The fugitive was not found at the Creighton
home. 79 The Creightons claimed damages for an unreasonable
dropped, and plaintiffs brought suit under § 1983 for violation of the fourth and fourteenth amendments. Id. The defendant trooper was charged with requesting an arrest
warrant which lacked probable cause, resulting in the arrest of each plaintiff. Id.
75. Id. at 345. The Court found its inquiry based upon the objective reasonableness
standard analogous to that it made in United States v. Leon, 468 U.S. 897, 922 n.2
(fourth amendment exclusionary rule of evidence should not prohibit probative evidence
from being introduced if officer's obtainment of warrant was objectively reasonable in
light of circumstances), reh'g denied, 468 U.S. 1250 (1984). In Leon, the "objectively
ascertainable question [was] whether a reasonably well trained [sic] officer would have
known that the search was illegal despite the magistrate's authorization" of a warrant.
Id.
76. Malley, 475 U.S. at 345. An officer's affidavit request is not per se objectively
reasonable when the officer believes the facts in the affidavit and complaint to be true,
and the magistrate has already issued the warrant. Id. The determination to be made is
whether a reasonable officer would have requested the warrant which led to a constitutional violation, regardless of whether or not he believed his affidavit to be true, and the
judge signed the warrant application. Id. at 346 n.9. If, however, the magistrate mistakenly issued the warrant within his range of professional competence, the officer cannot
be held liable. Id. The officer can reasonably be held to an officer's level of competence,
but not to a magistrate's level of competence. Id. This standard applies to both arrest
and search warrants. Id. at 344.
77. Anderson v. Creighton, 107 S. Ct. 3037-38 (1987).
78. Id. at 3037.
79. Id. The facts confronting the appellate court are the following. On the night of
the search, November 11, 1983, Mr. and Mrs. Creighton were spending the evening at
home with their three daughters. Creighton v. City of St. Paul, 766 F.2d 1269, 1270 (8th
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search under the fourth amendment pursuant to the Bivens doctrine.80 Anderson moved for summary judgment based on the
Harlow standard of qualified, or good faith, immunity "
Before any significant discovery commenced, the district
court granted Anderson's summary judgment.8 2 The court determined that Anderson had the requisite probable cause to search
the Creightons' home and that his failure to procure a warrant
was justified by exigent circumstances. 83 The Court of Appeals
Cir. 1985). Several uniformed and plain-clothed officers, all white, approached the home
of the Creightons, all black, with shotguns. Id. According to Mr. Creighton, none of the
officers presented a search warrant, nor did they tell him the purpose of their search. Id.
During the search, one of the officers asked Mr. Creighton about his car, suspected to be
the fugitive's car used in a robbery committed earlier that day. Id. at 1270-71. While
leading the officers to the garage to show them the car, an officer hit Mr. Creighton in
the face. Id. at 1271. The officer claimed Mr. Creighton attempted to grab his shotgun.
Id. Mr. Creighton alleged, however, that he merely tried to move past the officer to open
the garage door when the officer, panicking, struck him. Id.
One of the Creightons' daughters, Shaunda, witnessed the confrontation with her
father and screamed for her mother's help. Id. Shaunda claimed that after she screamed,
an officer hit her. Id. Shaunda, along with her two sisters, then ran to a neighbor's house
for safety. Id. The children reached the neighbor's house, and, according to the neighbor,
an officer who had chased them grabbed and shook Shaunda. Id. Mrs. Creighton, trying
to get help by calling her mother, was allegedly kicked by an officer, who also grabbed
the phone from her to hang it up. Id. A little later, Mrs. Creighton claimed, she again
asked Anderson for a search warrant. Id. Mrs. Creighton alleged that Anderson said he
did not need a warrant when searching for a fugitive. Id. None of the officers mentioned
the fugitive's name or why they were searching the Creightons' home. Id. Vadaain Dixon,
the fugitive, is Mrs. Creighton's brother, who was suspected of committing a bank robbery several hours earlier that afternoon. Id.
80. Anderson, 107 S. Ct. at 3037.
81. Id. The Creightons, in compliance with FED. R. Civ. P 56(e), opposed Anderson's affidavits and exhibits with their own affidavits and exhibits. Id.
82. Anderson, 107 S. Ct. at 3037-38.
83. Id. A warrantless entry into the home of another is presumptively or per se
unreasonable unless probable cause and exigent circumstances exist. Welsh v. Wisconsin,
466 U.S. 740, 749 (1984). See also Michigan v. Clifford, 464 U.S. 287, 296-97 (1984) (warrantless post-fire search unreasonable unless it meets exigent circumstances test); Steagald v. United States, 451 U.S. 204, 211-12 (1981) (absent exigent circumstances, there
can be no entrance to a home without a warrant); Coolidge v. New Hampshire, 403 U.S.
443, 474-75 (search or seizure is per se unreasonable unless it fits within exception based
on presence of exigent circumstances), reh'g. denied, 404 U.S. 874 (1971).
Probable cause to search exists if:
[The] facts and circumstances within the officer's knowledge and of which he
had reasonably trustworthy information are sufficient in themselves to warrant
a man of reasonable caution to believe that the property to be seized [or subject of an arrest warrant] will be found in a particular place or on a particular
person.
Creighton v. City of St. Paul, 766 F.2d 1269, 1273 (8th Cir. 1985) (citing United
States v. Taylor, 428 F.2d 515, 517 (8th Cir. 1970), cert. denied, 401 U.S. 983 (1971)).
1989]
QUALIFIED IMMUNITY
for the Eighth Circuit reversed, holding that there were factual
disputes as to whether the warrantless search was supported by
probable cause and exigent circumstances; therefore, according
to the court, it would be inappropriate as a matter of law to resolve those issues on a motion for summary judgment. 4 Anderson was also denied qualified immunity since the circuit court
Accord Beck v. Ohio, 379 U.S. 89, 91 (1964). See also Illinois v. Gates, 462 U.S. 213, 232
(probable cause turns "on the assessment of probabilities in particular factual contexts
not readily, or even usefully, reduced to a neat set of legal rules"), reh'g. denied, 463 U.S.
1237 (1983).
As with probable cause, the test for exigent circumstances turns on the facts known
to the officer. Lower courts have generally adopted the use of three standards to determine exigent circumstances. The Eighth Circuit has adopted the test promulgated in
Dorman v. United States, 435 F.2d 385 (D.C. Cir. 1970) (en banc). In Dorman, the court
established six factors to be considered in light of the circumstances of each case to
determine whether exigent circumstances exist. Id. at 392-93. The six factors are:
(1) whether it is a grave offense, particularly a crime of violence;
(2) whether the suspect is reasonably believed to be armed;
(3) whether there is a showing, beyond the minimum probable cause for a warrant,
to believe that the suspect committed the crime involved;
(4) whether there is a strong belief that the suspect is on the premises to be entered;
(5) the likelihood the suspect will escape if not quickly apprehended; and
(6) whether the entry, though not consented to, is made peaceably, unless special
circumstances show forcible entry was justified. Id. An additional factor that can be considered is the time of entry-day or night. Id. The six factors serve as a guide; not all the
factors necessarily need to be present for a judge to find exigent circumstances. United
States v. Robinson, 533 F.2d 578, 583-84 (D.C. Cir. 1976) (en banc). For a look at the
circuits adopting this six-step approach, see United States v. Baldacchino, 762 F.2d 170,
176-77 (1st Cir. 1985); United States v. Martinez-Gonzales, 686 F.2d 93, 100-02 (2d Cir.
1982); United States v. Kulcsar, 586 F.2d 1283, 1287 (8th Cir. 1978); United States v.
Shye, 492 F.2d 886, 891-92 (6th Cir. 1974); Vance v. North Carolina, 432 F.2d 984, 990-91
(4th Cir. 1970).
Other circuits do not follow Dorman or, as it is sometimes deemed, the "checklist"
analysis. See, e.g., Llaguno v. Mingey, 763 F.2d 1560, 1564 (7th Cir.) (en banc) (the question is whether it was unreasonable not to get a warrant under the circumstances), cert.
dismissed, 107 S. Ct. 16 (1985). Still other courts look to the facts of the case to determine whether the warrantless search was imperative. See, e.g., United States v. Manfredi, 722 F.2d 519, 522 (9th Cir. 1983) (the exigent circumstances exception to the warrant is whether the government can show the warrantless entry was "imperative").
84. Anderson v. Creighton, 107 S. Ct. 3037, 3038 (1987). The appellate court, considering the facts in the light most favorable to the Creightons, could not, on a motion
for summary judgment, conclusively show that the facts and circumstances presented to
Anderson warrant a man of reasonable caution to believe Vadaarn Dixon would be at the
Creightons' home. Creighton v. City of St. Paul, 766 F.2d 1269, 1273 (8th Cir. 1985). Nor
did the appellate court find as a matter of law that Anderson met the Dorman test for
exigent circumstances. Id. at 1276-77. See supra note 83 for the Dorman factors. Both
probable cause and exigent circumstances, according to the court, require additional
fact-finding and decision by a jury. Creighton, 766 F.2d at 1275, 1277. See id. at 1273-77
for further detail of the court's reasoning.
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found the Creightons' fourth amendment right to be free from
searches without probable
cause or exigent circumstances was
8 5
established.
clearly
B.
The Opinion
1. The Majority
The issue before the Supreme Court in Anderson was
whether an officer who conducted an "unreasonable" search, violating the fourth amendment, may nevertheless be "reasonable"
in terms of that officer's protection under Harlow's qualified immunity defense.8 6 Writing for the majority, Justice Scalia affirmatively answered the awkward question which has long confused
the appellate and district courts.8 Implicit in the Anderson
holding was the concept that even though an officer has conducted an unreasonable search, his mistaken belief that probable cause and exigent circumstances existed may be reasonable
under the circumstances. 8
In this manner, the Court provided insight into the level of
generality necessary to assess the legal rules.8 9 The constitutional right allegedly violated by an official must be defined
fairly specifically, rather than generally 90 As an example, the
right to due process or free speech is "clearly established" by the
due process clause and the first amendment respectively 91 Justice Scalia noted that if the law is analyzed at that level of generality, however, it will almost always be considered clearly established for immunity purposes.9" As a consequence, if this
were the rule, plaintiffs could convert the qualified immunity
rule into a "rule of virtually unqualified liability by alleging [a]
violation of extremely abstract rights."'" Instead, the majority
85. Id. at 1275-77.
86. Anderson, 107 S. Ct. at 3038.
87. Id. at 3037 (Rehnquist, C.J., White, Blackmun, Powell and O'Connor, J.J.,
joining).
88. Id. at 3040. In other words, Anderson is entitled to summary judgment if the
trial court can find that a reasonable officer would have believed the warrantless search
to be lawful. Id.
89. Id. at 3038.
90. Anderson, 107 S. Ct. at 3038-39.
91. Id.
92. Id.
93. Id. at 3039. See also De Abadia v. Izquierdo Mora, 792 F.2d 1187, 1190 (1st Cir.
19891
QUALIFIED IMMUNITY
stated that the right that the official allegedly violated must
have been "clearly established" in a more particular sense; i.e.,
the right must be clear enough that a reasonable official could
understand that the actions he takes will violate that right."' As
a corollary, an official is not protected by qualified immunity
merely because his action has not previously been adjudged unlawful; 95 it must be apparent, in light of pre-existing law, that
96
his action is unlawful.
The Supreme Court held that the court of appeals misapplied the Harlow standard by refusing to consider that Anderson's particular situation may not have been "clearly established" in terms of probable cause and exigent circumstances. 7
The majority determined that even though warrantless home
searches without probable cause and exigent circumstances violate the fourth amendment, it does not necessarily follow that
Anderson's particular search was objectively legally unreasonable.98 An official in Anderson's position may "reasonably but
mistakenly"9 9 believe that there existed probable cause and exigent circumstances sufficient to conduct a warrantless search.10 0
In such a situation the official is not personally liable. 0 1 To de1986). The First Circuit recognized in De Abadia that the term "clearly established"
demands less than requiring the public official to show a law did not exist; if the latter
were the rule, few officials could ever succeed. Id.
94. Anderson, 107 S. Ct. at 3039.
95. Id. See supra note 70 (an action not previously adjudged unlawful does not
automatically initiate immunity).
96. Id. at 3039.
97. Id. According to the majority, the court of appeals merely found that the "general right" to be free from a warrantless search without probable cause and exigent circumstances was clearly established. Id.
98. Id. See Malley v. Briggs, 475 U.S. at 335, 344-45 (1986) (officer's warrant
caused an illegal search, but he is not liable unless his decision was unreasonable).
99. Anderson, 107 S. Ct. at 3039. Specifically, the Court said "it is inevitable that
law enforcement officials will in some cases reasonably but mistakenly conclude that
probable cause" and exigent circumstances are present. Id. (emphasis added). See
Scheuer v. Rhodes, 416 U.S. 232, 242 (1974) (implicit in absolute or qualified immunity
is that an official may "err"). See also Butz v. Economou, 438 U.S. 478, 506-07 (1978)
(federal officials are not liable for mere mistakes of judgment of fact or law); Wood v.
Strickland, 420 U.S. 308, 319-20 (1975) (liability for every mistake which violated a student's constitutional right would unfairly burden those who made mistakes in good
faith).
100. Anderson, 107 S. Ct. at 3039. See also Malley, 475 U.S. at 344-45 (police officer immune if an officer in his position can reasonably believe there was probable cause
for a warrant).
101. Anderson, 107 S. Ct. at 3039.
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termine the objective legal reasonableness of Anderson's action,
the facts must be analyzed at the time Anderson decided that
probable cause and exigent circumstances existed.'02 This does
not, however, include an analysis of Anderson's subjective intent
regarding the search that Harlow eliminated. 03s Thus, the majority's analysis of Anderson's good faith immunity "is the objecquestion whether a reasonable officer could have betive
warrantless search to be lawful in light of
Anderson's
lieved
clearly established law and the information the searching officer
possessed."'" 4
On remand the district court must decide whether the actions the Creightons allege Anderson to have taken are actions
that "a reasonable officer could have believed lawful.'
0
5
If the
actions are reasonable, Anderson is entitled to dismissal of the
suit under Harlow. 0 1 Naturally, however, if Anderson's and the
Creightons' account of Anderson's action differ, limited discovery relevant to the issue of Anderson's immunity must be made
before the motion for summary judgment can be resolved. 107
102.
Id. at 3040.
103. Id. The Court is not exploring the state of Anderson's mind for malice. Id.
Instead, it is looking for the information Anderson knew when making his decision to
proceed with the warrantless search. Id.
104. Id. Before concluding, Justice Scalia addressed certain arguments advanced
by the Creightons. Id. at 3041. First, the Creightons claimed that it is inconsistent with
fourth amendment analysis to allow an officer, who allegedly made an unreasonable
search or seizure, the protection of qualified immunity which was intended to protect
only reasonable official action. Id. The majority found this argument foreclosed since it
had previously extended qualified immunity to officials alleged to have violated the
fourth amendment. Id. See also supra notes 67-76 for a discussion of the Mitchell and
Malley cases which the Court cites for this proposition. Also, notwithstanding the fact
that the fourth amendment used the word "unreasonable," the majority would have
reached the same result. Id. Justice Scalia noted that "[hiad an equally serviceable term,
such as 'undue' searches and seizures been employed, what might be termed the 'reasonably unreasonable' argument against application of Harlow to the fourth amendment
"Id. Thus, the Court decided that a law enforcement officer's
would not be available.
determination whether a particular search or seizure complies with the fourth amendment is protected as long as it is objectively legally reasonable. Id. In the same vein, the
Court rejected the Creightons' argument that qualified immunity should never be extended to officials who conduct unlawful warrantless searches. Id.
105.
Anderson, 107 S. Ct. at 3042 n.6.
106.
Id.
107.
Id.
QUALIFIED IMMUNITY
1989]
2.
The Dissent
The dissent by Justice Stevens made two main points.10 8
First, Anderson should plead the affirmative defense of reasona0 9 Consistent with this theory,
ble good faith set forth in Bivens."
the dissenters believed that Anderson might not be exempt from
damages.1 10 Alternatively, assuming that the Harlow standard
for qualified immunity did apply, factual disputes regarding
probable cause and exigent circumstances would preclude sum108. Anderson, 107 S. Ct. at 3043 (Brennan and Marshall, J.J., joining).
109. Anderson, 107 S. Ct. at 3047. The dissent criticized the majority for incorrectly assuming that Malley, in particular, and Harlow, which established qualified immunity "across the board," apply in this situation. Id. at 3042. Justice Stevens disagreed
with the majority that law enforcement officers should categorically be protected with
the same level of immunity as senior government officials such as "a Cabinet officer or a
" Id. at 3050 (Stevens, J., dissentsenior aide to the President of the United States.
ing). He considered a law enforcement officer's testimony in court a part of his job and
believed that such participation in courtroom activities does not disrupt on officer's everyday duties as it does those of senior government officials. Id. at 3015. Justice Stevens
matter-of-factly concluded that "the political constraints that deter high government officials from violating the Constitution have only slight, if any, application to police officers and may actually lead to a more, rather than less, vigorous enforcement activity. It
is thus quite wrong simply to assume that the considerations that justified the decision
in Harlow v. Fitzgeraldjustify an equally broad rule of immunity for police officers." Id.
He also mentioned that the majority's decision has a broad, sweeping effect on the law of
immunity since it is used in § 1983 suits against state officials as well as in actions
against federal officials. Id. at 3047. See supra note 1 for a comparison of § 1983 actions
and Bivens suits.
Justice Stevens then turned back to Harlow and said that its reasoning does not
extend to this type of a situation. Id. at 3045. Specifically, he did not think that Harlow
reached this case because "both the constitutional command and an exception to the rule
for conduct that responds to a narrowly defined category of factual situations are clearly
established, and the dispute is whether the situation that the officer confronted fits
within the category." Id. at 3045 n.3. He also criticized the majority for interpreting
Harlow as focusing on the "characterof the [officals's] conduct" instead of on the
"characterof the plaintiff's legal claim" to determine whether the law was clearly established. Id. at 3045 (emphasis in original).
110. Id. See Bivens v. Six Unknown Named Agents of the Federal Bureau of Narcotics, 456 F.2d 1339, 1347-48 (2d Cir. 1972). The federal agent "need not allege and
prove probable cause in the constitutional sense" but need only prove "that he believed,
in good faith, that his conduct was lawful, [and] that his belief was reasonable." Id. This
defense was available at trial, not on a motion for summary judgment. According to Justice Stevens, the good faith defense should vary with the evidence about the facts found
which the officer relied on to make the search or arrest. Anderson, 107 S. Ct. at 3046
(Stevens, J., dissenting).
Justice Stevens did not clarify whether this approach would restore at trial the issue
of the officer's subjective intent that Harlow sought to avoid at summary judgment. He
does, however, suggest that it might be permissible at trial, although not on summary
judgment. Id. at 3045.
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mary judgment.'
According to the dissent, Anderson's claim,
put simply, was that a reasonable officer faced with similar facts
might have believed that probable cause and exigent circumstances existed.' 1 2 Since this encompassed an analysis of the
facts and circumstances known to Anderson, and since these
facts were in dispute, Justice Stevens believed that the Creightons should be allowed discovery 113
Second, the dissent criticized and rejected what it deemed
to be a double standard used by the majority "4 Justice Stevens
pointed out that it is not logically consistent to assert that a
search can be "unreasonable" under the fourth amendment yet
"reasonable" in terms of immunity "1 In his view, such a standard affords an official "two layers of insulation." 6 As a conse111. Anderson, 107 S. Ct. at 3048. There are two types of cases where the Harlow
standard fails. Id. at 3048 n.12. The first is where the plaintiff can recover damages only
by showing the official's state of mind. See Allen v. Scribner, 812 F.2d 426, 436 (9th Cir.
1987) (the jury needs to decide motivation). The second is when an official's conduct "is
not susceptible" to the question of whether it violated clearly established law because it
is regulated by a general, entrenched norm. Anderson, 107 S. Ct. at 3048 n.12 (Stevens,
J., dissenting). Sometimes the general law is clearly established; however, whether the
official's conduct is illegal often cannot be determined without reference to facts that
may be in dispute between the parties. Id. See, e.g., Reardon v. Wroan, 811 F.2d 1025,
1028 (D.C. Cir. 1987) (a jury can draw contrary inferences from the facts known to the
officers and could find the warrantless search objectively unreasonable).
112. Anderson, 107 S. Ct at 3043 (Stevens, J., dissenting).
113. Id. at 3048. The dissent argued that the majority does not disagree that the
Creightons should have the opportunity to test the factual claims made by Anderson. Id.
at 3048-49. See supra note 104 (if Anderson alleges actions different from those alleged
by the Creightons, and his actions are ones a reasonable officer could have believed lawful, then additional discovery is necessary). The Creightons allege two factual disputes:
first, whether Anderson had probable cause to believe Vadaain Dixon, the fugitive, was
at the Creighton home the night of the search; and second, whether Anderson satisfied
the exigent circumstances analysis. Creighton v. City of St. Paul, 766 F.2d at 1269, 1273,
1275 (8th Cir. 1985).
114. Anderson, 107 S. Ct. at 3049 (Stevens, J., dissenting). Leon, however, allowed
a double standard in applying the exclusionary rule of evidence to searches made under
an invalid warrant. Id. For a discussion of the Leon case, see supra note 75. See also
United States v. Leon, 468 U.S. 897, 960 (1984) (Stevens, J., dissenting) (Justice Stevens
made similar argument in Leon).
115. Id. The majority found this argument unpersuasive. Id. at 3041. If the fourth
amendment used equally adaptable terminology such as "undue searches and seizures,"
the argument would be baseless. Id.
116. Id. at 3049 (Stevens, J., dissenting). At the first layer, officers are held to act
reasonably when searching a home for a fugitive if they enter a home when they have
"probable cause and exigent circumstances make it impracticable to obtain a warrant."
Id. at 3051. Justice Stevens disagreed with the idea that a second layer of protection
should be given to an officer who does not have probable cause and is in violation of the
QUALIFIED IMMUNITY
1989]
quence, the dissent feared that the majority's ruling would allow
federal agents to ignore the probable cause and exigent circumstance limitations needed for a warrantless search. 117 The dissent cautioned that although the probable cause analysis is
somewhat vague, the standard itself leaves room for mistakes. 18
By counting an officer's "interest twice and an individual's privacy interest only once," the dissent claimed that the majority
had lessened the importance of an innocent person's right to be
free from an unreasonable search. 1 9
IV
ANALYSIS
In general, a government official is held to a presumptive
knowledge of an individual's constitutional rights. 20 Conversely,
an official cannot reasonably be held to know the "grey areas" of
the law and how those areas will eventually be defined.' 2 ' An
official, likewise, cannot anticipate subsequent legal developments.'2 2 The latter categories, however, do not neatly fit many
cases. For example, in many instances an official's alleged conduct is governed by a general, rather than specific, "established"
principle.'2 3 The particular facts faced by an official in conjuncThis is the sitution with this principle of law may be unclear.'2 24
5
ation the Supreme Court faced in Anderson.
fourth amendment, but believed that he had probable cause. Id. at 3052.
117. Id. See supra note 83 for probable cause and exigent circumstance tests.
118. Anderson, 107 S. Ct. at 3050 (Stevens, J., dissenting). See Brinegar v. United
States, 338 U.S. 160, 176 (1949) (there is leeway within the probable cause standard itself
for reasonable mistakes).
119. Anderson, 107 S. Ct. at 3052 (Stevens, J., dissenting). Justice Stevens did not
see "why the family's interest in the security of its own home should be accorded a lesser
weight than the Government's interest in carrying out an invasion that was unlawful."
Id. at 3053. He felt that if the government thought it needed to encourage officers in
performing their duty in this manner, it should indemnify its officers instead. Id.
120. Harlow v. Fitzgerald, 457 U.S. at 800, 815 (1982). Accord Floyd v. Farrell, 765
F.2d 1, 4-5 (1st Cir. 1985) (an officer is held to the presumptive knowledge of constitutional standards).
121. See De Abadia v. Izquierdo Mora, 792 F.2d 1187, 1190 (it was not clearly established that an employee could not be terminated for political affiliations). See also
supra notes 61-66 (unclear what type of termination necessary in Davis).
122. Harlow, 457 U.S. at 818. See also supra notes 67-72 (law became clearly illegal
subsequent to official's action in Mitchell).
123. Anderson, 107 S. Ct. at 3038-39.
124. See id. at 3037-42. See also id. at 3045 n.3 (Stevens, J., dissenting) (factual
125.
Id. at 3037-42.
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A. Extension to Federal Law Officers
The Court's holding in Anderson is predicated mainly upon
the most recent interpretation of qualified immunity in Malley
v. Briggs."26 The Malley holding promulgates the standard that
a police officer is only liable for civil damages if a reasonable
officer, under identical circumstances, would have known his request for an arrest warrant lacked probable cause.1"7 This test
does not question the subjective intent of the particular officer;
instead it considers what a reasonable officer would have known
and done under similar circumstances. 128 Thus Malley further
extends the earlier, protective decision of Harlow which insulated high government officials from civil liability 129 Although
Malley exposes an officer to possible liability in the context of
obtaining a warrant, the case indirectly lends itself to a widening
of official protection in a warrantless search situation such as
that in Anderson. s0 Justice Scalia, relying on Malley, opens the
door of protection for federal law enforcement officers by applying the Harlow test for immunity in a warrantless search
situation.'
126. Malley v. Briggs, 475 U.S. 335, 341 (1986). The Malley Court stated that:
"[diefendants will not be immune if, on an objective basis, it is obvious that no reasonably competent officer would have concluded that a warrant should issue; but if officers of
reasonable competence could disagree on this issue, immunity should be recognized." Id.
It is important to note that Malley relied heavily on its predecessor, Leon. See supra
note 75 for a discussion of Leon.
127. Malley, 475 U.S. at 345.
128. Id.
129. See mnfra note 131 for the extension of Malley.
130. Anderson, 107 S. Ct. at 3040. The majority asserted that it was merely reaffirming the principles of qualified immunity. Id. On the other hand, the dissent believed
that the majority broadened the doctrine of qualified immunity. Id. at 3043-45 (Stevens,
J., dissenting). Anderson extends qualified immunity to federal law officers in a warrantless search situation, whereas Malley grants such immunity to a police officer whose warrant lacked probable cause. Compare Malley, supra notes 73-76, with Anderson, supra
notes 88-104. Justice Scalia felt that the rationale granting Harlow immunity to police
officers in Malley logically extended to federal law officers in Anderson. Anderson, 107 S.
Ct. at 3038. Justice Stevens, disagreeing, said that "[Malley] carefully avoided any comment on warrantless searches or the proper appliction of Harlow in cases in which the
claim of 'qualified immunity' could not be evaluated in advance of discovery." Id. at 3047
n.8 (Stevens, J., dissenting).
131. Interestingly, Justice Stevens joined in the 7-2 majority in Malley which extended Harlow immunity to police officers. Malley v. Briggs, 475 U.S. 335 (1986). Until
Malley, police officers were not entitled to qualified immunity on a motion for summary
judgment. Id. Police, instead, were limited to the defense of good faith and probable
cause at trial. See supra note 4 for a discussion of this defense. It is even more interest-
1989]
QUALIFIED IMMUNITY
While extending Harlow's protection to federal officers, the
Court, at the same time, reduces the chances of a victim recovering for a constitutional violation."3 2 Justice Scalia offers little explanation why victims of a law enforcement officer should go unremedied like those of a higher government official such as a
presidential aide or advisor.1 3 Justice Stevens, opposing such an
extension of immunity, claims that the majority made "new
law ",134 A compelling argument, one which is better than the Supreme Court making its own legislative judgment, is to allow the
legislature to indemnify law enforcement officers for reasonable,
yet unconstitutional conduct that the government does not want
ing that Justices Stevens, Brennan, and Marshall joined in the Malley majority, which
cited Pierson v. Ray for the proposition that the Court had "previously held that police
officers sued under § 1983 for false arrest are qualifiedly immune." Malley, 475 U.S. at
340. Pierson offered the police officers, however, the defense of good faith and probable
cause. Pierson v. Ray, 386 U.S. 547, 557 (1967).
132. See Harlow, 459 U.S. at 814 (damages action may be only avenue for indication of constitutional violation). See also Los Angeles Daly J., June 26, 1987, at 1, col. 2.
In this article Professor Joseph Daly commented that "the court's ruling extends the
mantle of immunity protection to 'government employees who, acting under authority of
their jobs, go out and violate someone's constitutional rights, even though everyone
agrees that what they did was wrong.'" Id. at 6, col. 1.
133. Anderson, 107 S. Ct. at 3040. Justice Scalia simply noted that:
we have been unwilling to complicate qualified immunity analysis by making
the scope or extent of immunity turn on the precise nature of various officials'
duties or the precise character of the particular rights alleged to have been
violated. An immunity that has as many variants as there are modes of official
action and types of right would not give conscientious officials that assurance
of protection that is the object of the doctrine to provide.
Id. See also Malley, 475 U.S. at 344-45 (qualified immunity for officer who requests warrant). But see infra note 134 where the Supreme Court seems to extend immunity based
on the "scope" or nature of the officials' duties.
134. Id. at 3051 (Stevens, J., dissenting). Justice Stevens found unconvincing the
majority's conclusion that law enforcement officers "should be given the same measure of
"
immunity as a Cabinet officer or a senior aide to the President of the United States.
Id. Harlow itself granted immunity only to high government officials. Harlow, 457 U.S.
at 807. The Harlow Court recognized that Scheuer "acknowledged that high officials
require greater protection than those with less complex discretionary responsibilities."
Id. (emphasis added). Scheuer distinguishes police officers from the type of "higher"
officers that receive qualified immunity. Scheuer v. Rhodes, 416 U.S. 232, 245-46 (1974).
In Scheuer the Court made the distinction clear: "[wihen a court evaluates police conduct relating to an arrest, its guideline is "good faith and probable cause" [at trial]. In
the case of higher officers of the executive branch, however, the inquiry is far more complex since the range of decisions and choices-whether the formulation of policy, of
budgets, or of day-to-day decisions-is virtually infinite." Id. (citation omitted) (emphasis added).
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[Vol. 10:255
to discourage."3 5
B.
Adequate Discovery
Assuming, arguendo, that probable cause and exigent circumstances are not "clearly established," the majority's use of
Malley in an Anderson-type scenario can pose a problem. The
existence of probable cause turns on the facts reasonably believed by officer Anderson at the time of the search." 6 As the
Creightons pointed out, these facts can be in dispute. ' 37 Thus it
is only fair that they have an opportunity to refute Anderson's
facts about the warrantless search prior to any ruling as to qualified immunity on summary judgment. Naturally, when such a
situation exists, further discovery should take place.' 8
The Anderson decision assumed that probable cause in a
warrant application (such as in Malley) also applies in a warrantless search. The majority goes on to find that probable cause
and exigent circumstances are too general, rather than too specific.13 9 By finding the law too general, the Court sidesteps the
Harlow question of whether the law itself was "clearly established. 1 40 Instead, the Supreme Court uses the Malley approach, where the inquiry is directed, in essence, at what the
officer did."" Once again, a court cannot frame an immunity
135. Id. at 3053. Justice Stevens preferred that the government train its law enforcement officers to prevent the Court having to "distinguish between the conduct that
a competent officer considers reasonable and the conduct that the Constitution deems
reasonable." Id. See also Project, supra note 5, at 809-15 (municipalities often indemnify
their officers).
136. Michigan v. DeFillippo, 443 U.S. 31, 36 (1979).
137. Creighton v. City of St. Paul, 766 F.2d at 1269, 1273-75 (1985). The Creightons raised questions about Anderson's knowledge in deciding to make the warrantless
search. Id. These include, in the context of probable cause, Anderson's reliance on a
probation officer's information and the color of the Creightons' automobile. Id. The
Creightons also questioned the exigent circumstance test applied to Anderson. Id. at
1275-77.
138. Anderson, 107 S. Ct. at 3042 n.6. The majority agreed that further discovery is
warranted if there is a dispute between the Creightons' and Anderson's versions of Anderson's "actions." Id. The term "action" leaves unclear whether the Creightons' allegations of what Anderson knew when deciding that there were sufficient probable cause
and exigent circumstances is also appropriate to be considered.
139. Anderson, 107 S. Ct. at 3038-39.
140. Harlow v. Fitzgerald, 457 U.S. at 800, 818 (1982).
141. Malley v. Briggs, 475 U.S. 335, 344 (1986). See also Anderson, 107 S. Ct. at
3045 (Stevens, J., dissenting). Justice Stevens criticized the majority for focusing on the
"characterof the [official's] conduct" instead of on the "characterof the plaintiff's legal
1989]
QUALIFIED IMMUNITY
question in this manner without adequate discovery Moreover,
probable cause, although vague, is clearly established and already affords an official room for reasonable mistakes in judgment. 4 ' An official is now allowed even greater deference in his
decisions regarding official acts.
C.
The Court's Guidance
Justice Scalia's decision, despite its shortcomings, gives
long-awaited guidance to lower courts in three areas: one, the
factual fit necessary between the present case law and the action
before the court; two, the level of specificity in order to determine whether a constitutional right is "clearly established"; and
three, the correct application of the Harlow test when the con'
stitutional right itself is defined in terms of reasonableness. 43
The Harlow Court's language, "clearly established law," becomes ambiguous in certain situations. 44 Harlow left unclear
whether a clearly established general principle of law or a clearly
established general principle applied to the facts at hand will
overcome an immunity claim. 45 Anderson finally answers this
question. Generally established principles of law, such as probable cause and exigent circumstances, cannot divest an official of
his immunity claim.'14 Relying on Malley, the Court noted that
the general principles of law must be incorporated with the defendant's own factual circumstances. 147 Only after an analysis of
this type can a court determine whether a warrantless search, as
a matter of law, was objectively legally unreasonable. 48 The relevant case law must be factually close to the official's alleged
action to make it "sufficiently clear that a reasonable official
would understand" that his conduct violates a constitutional
claim." Id. (emphasis in original).
142. See United States v. Cortez, 449 U.S. 411, 418 (1981), reh'g denied, 455
1008 (1982). The probable cause standard does not deal with certainties, but
probabilities. Id. The probabilities are factual and practical considerations on which
sonable and prudent men, not legal technicians, act. Brinegar v. United States, 338
160, 176 (1949).
143. New York L.J., Aug. 18, 1987, at 2, col. 2 (news article on Anderson).
144. Anderson, 107 S. Ct. at 3038-39.
145. See supra notes 89-96 for a discussion of the specificity requirement.
146. Anderson, 107 S. Ct. at 3038-39.
147. Id. at 3040.
148. Id.
U.S.
with
reaU.S.
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[Vol. 10:255
right.14 9 The holding does not go so far as to say that the alleged
conduct must be so specific that it has previously been found
'150
unlawful-only that the "unlawfulness must be apparent.
The Anderson Court gives long-awaited assurance to federal law
officers that their reasonable but mistaken actions will not result
in liability
151
V
CONCLUSION
The Anderson decision is a logical product of the Supreme
Court after Malley The Harlow Court deliberately shifted its
focus on qualified immunity away from the individual officer's
"conduct" to the "right" the officer allegedly violated. The purpose of Harlow was to question whether a right, here the fourth
amendment protection against unreasonable search and seizure,
was clear. Anderson shifts the focus onto the officer's actions.
The question is now whether an officer in the defendant's shoes
could reasonably have known that he violated a constitutional
right. This question, although based on Malley, is a departure
from the truly objective standard Harlow tried to set forth.
Moreover, by associating the law with more facts, an officer's potential immunity from suit is strengthened. Although Anderson
clarifies the qualified immunity standard to be applied, it decreases a victim's probability of recovering civil damages from a
federal law enforcement officer, especially in warrantless search
situations.
Edward W Mayer, Jr
149.
150.
151.
Id. at 3038-39.
Anderson, 107 S. Ct. at 3039.
See supra note 17 for officials' concerns.