Is Qualified Immunity Still a Viable Defense?

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 are barred.2

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 their employment.”7

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 three.9

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 for now.

1 W. Va. Reg’l Jail & Corr. Facility Auth. v. A.B.,234 W.Va. 492, 766 S.E.2d 751 (2014).

Clark v. Dunn, 195 W.Va. 272, 465 S.E.2d 374 (1995).

3 137 S.Ct. 1843 (2017)

Id at 1870.

Id at 1872.

Mullinex v. Luna,136 S.Ct. 305 (2015;Kisela v. Hughes, 138 S.Ct. 1148 (2018)

A.B. at 520; 779.

8 93 Notre Dame L. Rev. 1887

Id at 1887 - 1889




comments powered by Disqus

This blog contains opinions of the authors. Nothing contained in the blog should be construed to be legal advice, and your use of this blog does not constitute the provision of legal advice from us to you. Nor does your use of this blog establish an attorney-client relationship with Anspach Meeks Ellenberger, LLP or any of its attorneys. By accessing and using this blog, you agree to each of these terms of use.

Latest comments