In the latest edition of The Defense Trial Counsel of WV
Defender Newsletter, Partner M. Andrew Brison discusses the
qualified immunity defense.
To view the full copy of The DTCWV Defender Winter Edition
2019 please follow this link. M. Andrew
Brison's article shown below, appears on page 12.
For those unfamiliar with the qualified immunity defense, it
might seem like a waste of space to dedicate an article to a
defense available only to certain defendants in a
limited category of civil litigation. That is to say, the
defense is only available to government officials sued for damages
and cannot be raised as a defense to injunctive relief. In West
Virginia, state officials and employees can avoid civil liability
for their acts or omissions in the performance of “discretionary
functions” unless the plaintiff has demonstrated that such acts or
omissions were in violation of clearly established statutory or
constitutional rights or laws of which a reasonable person would
have known or are other wise fraudulent, malicious, or
oppressive.1 Accordingly, claims of mere negligence
against public officers acting within the scope of their employment
However, recently we have seen an uptick in criticism of the
qualified immunity defense, not just by legal scholars but also by
justices of the Supreme Court of the United States (“US Supreme
Court”). In Ziglar v. Abbassi,3 a June 2017
decision, Justice Thomas noted his “growing concern with our
qualified immunity jurisprudence”4 and suggested that
“in an appropriate case, we should reconsider our qualified
immunity jurisprudence.”5 Similarly, in 2015 and 2018,
Justice Sotomayor expressed concern that the Court’s qualified
immunity decisions contribute to a culture of police
violence.6 And Supreme Court of Appeals of West Virginia
(“WV Supreme Court”) Justice Davis’ dissent in the A.B.
decision concluded that “the majority opinion recast our law on
qualified immunity in such a manner as to make it virtually
impossible for any state agency. . . to ever be held accountable
for tortious conduct committed by employees within the scope of
In light of the increased criticism of and judicial commentary
about the qualified immunity doctrine, is it still a viable
defense? Karen Blum, Professor Emerita, Suffolk University Law
school, noted in a 2018 Notre Dame Law Review article that
“if messages sent by the [US] Supreme Court to the lower federal
courts were in the form of tweets, there would be a slew of them
under #welovequalifiedimmunity.”8 Professor Blum went on
to note that since 1982, the US Supreme Court has addressed
qualified immunity in more than thirty cases in which the plaintiff
prevailed only twice. In eight of the cases - five of which were
unanimous - the Court reversed denials of qualified immunity in
per curiam, summary dispositions. Of the four of the cases
in which the Supreme Court granted certiorari, vacated,
and remanded for reconsideration of the qualified immunity
determination, the lower court thereafter granted immunity in
The WV Supreme Court has also shown an affinity toward the
qualified immunity doctrine. Since 2016, seven reported opinions
have directly addressed qualified immunity. Four resulted in
reversal of the lower courts’ denial qualified immunity, two
reversed the granting of qualified immunity, and one found that
qualified immunity was applicable and remanded for a proper
analysis. During that same period, eight Memorandum Decisions
addressed qualified immunity, with seven affirming the lower
courts’ dismissal based on qualified immunity and one reversing the
lower court’s denial of qualified immunity and remanding for entry
of a dismissal order.
So in answer to the question of whether qualified immunity is
still a viable defense; yes, Virginia, there is a Santa Claus and
yes, government officials, qualified immunity survives – at least
1 W. Va. Reg’l Jail & Corr. Facility Auth. v.
A.B.,234 W.Va. 492, 766 S.E.2d 751 (2014).
2 Clark v. Dunn, 195 W.Va. 272, 465 S.E.2d 374
3 137 S.Ct. 1843 (2017)
4 Id at 1870.
5 Id at 1872.
6 Mullinex v. Luna,136 S.Ct. 305 (2015;Kisela v.
Hughes, 138 S.Ct. 1148 (2018)
7 A.B. at 520; 779.
8 93 Notre Dame L. Rev. 1887
9 Id at 1887 - 1889