May 05, 2011

Qualified immunity from civil lawsuits

Qualified immunity from civil lawsuits 
Doninger v. Niehoff, USCA, Second Circuit, Docket Nos. 09–1452–cv (L), 09–1601–cv (XAP), 09–2261–cv (CON) 

Avery Doninger, a high school student, claimed that school administrators violated her First Amendment rights to free speech by (1) preventing her from running for Senior Class Secretary as a direct consequence of her off-campus internet speech, and (2) prohibiting her from wearing a homemade printed t-shirt at a subsequent school assembly.

The United States Court of Appeal, Second Circuit, said that in adjudicating Doninger’s claims it had to determine if the school administrators involved were entitled to qualified immunity.* 

Concluding that the First Amendment claimed by Doninger was not clearly established, the Second Circuit affirmed Federal District court's decision that administrators were entitled to qualified immunity.

Addressing Doninger’s First Amendment claims at issue with respect to the defense based on the “doctrine of qualified immunity” advanced by the school administrators, the court said the in deciding whether to grant a government official's motion for summary judgment on qualified immunity grounds, a court conducts a two-part inquiry.

The first test: considering “the facts" in the light most favorable to the plaintiff, do they show that the [official's] conduct violated a constitutional right.”

If the plaintiff’s cause survives that test, the court then applies a second test: whether the right at issue was ‘clearly established’ at the time of [the official's] alleged misconduct.”

If the court finds that the public officer’s conduct did not violate a clearly established constitutional right, or if it was objectively reasonable for the officer to believe that his or her conduct did not violate such a right, then the official is protected by qualified immunity.

In determining if a right is clearly established, the Second Circuit said that it looks to whether (1) it was defined with reasonable clarity, (2) the Supreme Court or the Second Circuit has confirmed the existence of the right, and (3) a reasonable defendant would have understood that his conduct was unlawful. Significantly, the court said that “The question is not what a lawyer would learn or intuit from researching case law, but what a reasonable person in [the official’s] position should know about the constitutionality of the conduct.”

Further, said the court, “when faced with a qualified immunity defense, a court should consider the specific scope and nature of a defendant's qualified immunity claim. That is, a determination of whether the right at issue was ‘clearly established’ must be undertaken in light of the specific context of the case, not as a broad general proposition.”

Citing Harlow v. Fitzgerald, 457 U.S. 800, the Second Circuit concluded that “it would gravely distort the doctrine of qualified immunity to hold that a school official should fairly be said to ‘know’ that the law forb[ids] conduct not previously identified as unlawful.” In Harlow the U.S. Supreme Court held that “government officials performing discretionary functions are generally shielded from liability for civil damages insofar as their conduct does not violate clearly established statutory or constitutional rights of which a reasonable person would have known."

Another area in which a qualified privilege may be asserted involves communication. For example, an employee's conduct or behavior may be the subject of oral or written communications between administrators or administrators and employees. If the employee objects to the content of such communications, he or she may sue the employer and the individuals involved for defamation, claiming the contents of the communications concerning his or her behavior constitutes slander [if oral] or libel [if written].

The individuals being sued for defamation in such cases will often respond that the statements they made in such communications are privileged and thus they are immune from liability for their actions.

In Herlihy v Metropolitan Museum of Art, 214 A.D.2d 250, the Appellate Division considered such a case.

Summarized below are the views of the Appellate Division, First Department, concerning an administrators' or an employees' claim that their statements are privileged or that they are protected by some form of immunity in making such statements.

The issue arose when a number of individuals serving as volunteers with the Metropolitan Museum of Art complained that their supervisor, Cecile Herlihy, directed racial or ethnic epithets towards them. Herlihy denied the charges.

After what the Appellate Division characterized as "some sort of investigation," Herlihy was directed to "apologize for her remarks."

Ultimately Herlihy was dismissed by the Museum. She sued, claiming, among other allegations, that she had been slandered when charged with directing racial or ethnic epithets towards the volunteers making the complaint.

The defendants, on the other hand, argued that their statements were protected by an absolute or qualified immunity for the following reasons:

1. State and federal human rights laws gave them absolute immunity from retaliation for filing complaints alleging unlawful discrimination.

2. A "common-law privilege absolutely protected them from defamation suits" based on their communicating these allegations to Museum officials.

3. The statements that made concerning Herlihy were protected by a qualified privilege.

A state Supreme Court justice dismissed the action filed by Herlihy against the Museum but denied the volunteers' motion to dismiss Herlihy's action against them in its entirety. The volunteers appealed the Supreme Court's decision. The Appellate Division addressed each of their arguments in turn, holding that the following guidelines apply:

1. Statutory provisions prohibiting retaliation for filing civil rights complaints do not protect "bad faith complainants making false discriminatory related charges" from defamation actions that might arise following the filing of such complaints.

2. Common-law provides absolute immunity from defamation actions "only to those individuals participating in a judicial, legislative or executive function and is based on the personal position of status of the speaker."

3. Under New York law, a "qualified privilege" or a "qualified immunity" applies only in situations involving "good faith communications by a party having an interest in a subject, or a moral or societal duty to speak, ... made to [another] party having a corresponding interest."

With respect to claims of absolute immunity under common-law, the Appellate Division noted a ruling by the Court of Appeals concluded that a private citizen speaking at a public hearing "was not conferred with absolute privilege because, unlike members of the ... Board, the [individual] had no office at the hearing [see 600 West 115th St. Corp. v Von Gutfeld, 80 NY2d 130].

The Appellate Division ruled that the defendants in this action did not enjoy absolute immunity under common-law because "they did not make their statements in an official capacity while discharging a governmental duty, nor were the statements made during, or for, a judicial, quasi-judicial or administrative hearings."

In considering the defendant's claim to a qualified privilege, the Appellate Division said that "the underlying rationale behind a qualified privilege is that so long as the privilege is not abused, the flow of information between parties sharing a common interest should not be impeded." A qualified privilege will be lost, however, if the statements claimed to be defamatory were "published with malice or with knowledge of their falsity or reckless disregard as to their truth or falsity...." 

The decision indicates that "common interest warranting a qualified privilege" has been found to exist between employees of an organization [Loughry v Lincoln First Bank, 67 NY2d 369], members of a faculty tenure committee [Stukuls v State of New York, 42 NY2d 272], and employees of a board of education [Green v Kinsella, 36 AD2d 677].

How did the Appellate Division resolve this case? First it upheld the lower court's ruling dismissing Herlihy's action against the Museum for "emotional distress." It then held that "it would be inconsistent to deny an action for emotional distress caused by [being charged] with the use of ethnic slurs while allowing one for being falsely labeled as a user of such slurs." Accordingly, the Appellate Division concluded that Herlihy's action for slander should be dismissed as well.

The Court said that although the racial or ethnic epithets attributed to Herlihy were "deplorable and ... evidence of a certain narrow-mindedness and mean-spiritedness ... [it] ... does not rise to the level of outrage required to recover under a cause of action that is limited to only the most egregious acts." In other words, the allegations of the defendants were not so egregious as to be sufficient to allow Herlihy to recover for being falsely labeled a user of such slurs.

* In contrast to the Doctrine of Qualified Immunity,” the Doctrine of Absolute Immunity insulates certain public officials from civil lawsuits involving the performance of their official duties. Included among those protected by “absolute immunity” are legislators in connection with their legislative duties and judicial and quasi-judicial officers performing judicial or quasi-judicial functions. 

The Doninger decision is posted on the Internet at: 

The Herlihy decision is posted on the Internet at: 


Subsequent court and administrative rulings, or changes to laws, rules and regulations may have modified or clarified or vacated or reversed the decisions summarized here. Accordingly, these summaries should be Shepardized® or otherwise checked to make certain that the most recent information is being considered by the reader.
New York Public Personnel Law Blog Editor Harvey Randall served as Principal Attorney, New York State Department of Civil Service; Director of Personnel, SUNY Central Administration; Director of Research, Governor’s Office of Employee Relations; and Staff Judge Advocate General, New York Guard. Consistent with the Declaration of Principles jointly adopted by a Committee of the American Bar Association and a Committee of Publishers and Associations, the material posted to this blog is presented with the understanding that neither the publisher nor NYPPL and, or, its staff and contributors are providing legal advice to the reader and in the event legal or other expert assistance is needed, the reader is urged to seek such advice from a knowledgeable professional.
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