Municipality's motion for summary judgment based its claim of qualified immunity rejected by United States Circuit Court of Appeals, Second Circuit

In this appeal before the Second Circuit Court of Appeals, the Municipal Defendants [Defendants] ask the Appellate court to "exercise pendent jurisdiction" over the matter and reverse the district court’s denial of Defendant's motion for summary judgment on Plaintiff's state law claims of false arrest, malicious prosecution, intentional infliction of emotional distress, and indemnification, claiming that the Defendants were entitled to "qualified immunity."

The Circuit Court said that public officials performing discretionary functions are entitled to qualified immunity barring §1983 claims unless such officials “violated a statutory or constitutional right” and that right “was ‘clearly established’ at the time of the challenged conduct, citing Ricciuti v. Gyzenis, 834 F.3d 162.

The Circuit Court said it had jurisdiction to review an "interlocutory order denying qualified immunity so long as defendants pursue the appeal ‘on stipulated facts, or on the facts that the plaintiff alleges are true, or on the facts favorable to the plaintiff that the trial judge concluded the jury might find.’” In contrast, the Circuit Court said it did not have jurisdiction to review a denial of qualified immunity to the extent it was based on a district court’s finding that there is enough evidence in the record to create a genuine issue as to factual questions that are material to the resolution of the Defendants' qualified immunity claim.

In this instance the Circuit Court held that it lacked jurisdiction to consider the federal law claims at issue here because the Defendant police officers’ qualified immunity defense turns on disputed fact and the Defendants have not shown that they would be entitled to qualified immunity as a matter of law under Plaintiff’s version of the facts.

Rejecting  Defendants' argument that the Defendant's police officers were entitled to qualified immunity on Plaintiff's false arrest claim and her equal protection claim, the court said that the resolution of these claims turn on the sufficiency of such claims to create an issue for the jury, "a contention that ... cannot[be] entertain on interlocutory review."

The Circuit Court of Appeals then explained that having concluded that it lacked jurisdiction to consider the question of qualified immunity as to Plaintiff's federal law claims, it also lack any basis to exercise pendent jurisdiction over Plaintiff's state law claims.

Click HERE to access the text of the Second Circuit Court of Appeals' decision.

Governmental immunity as a defense in the event a government entity or a government officer or employee is named as a defendant in litigation

Governmental immunity as a defense in the event a government entity or a government officer or employee is named as a defendant in litigation

Waterman v City of Rochester, 2017 NY Slip Op 07048, Appellate Division, Fourth Department

The City of Rochester [Rochester*] moved for summary judgment dismissing the action brought by Henry J. Waterman, claiming "government immunity." Supreme Court denied Rochester's  motion. Rochester appealed but the Appellate Division sustained the Supreme Court's ruling.

The Appellate Division said that the lower court had "properly denied" Rochester's motion for summary judgment dismissing the complaint as the Rochester defendants were not entitled to "governmental immunity." Governmental immunity, explained the court, is not triggered when a public employee, acting in the course of his or her employment, "commits an ordinary tort that anyone else might commit — for example, when the employee is negligent in driving [a vehicle]."

In contrast, public officers and employees,** may claim "qualified immunity," or, in some instances, absolute immunity, when named as a defendant in litigation alleging acts or omissions involving or related to the performance of their official duties.

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 Doctrine of Qualified Immunity may be an available defense when public officers and employees are being sued unless it can be shown that “clearly established” law which a reasonable official or employee in his or her position would have, or should have, known was violated.***

As to a public employee claiming "qualified immunity" as a defense in the course of litigation, the claim of "Qualified Immunity” is typically subjected to a "two prong test applied to determine if a public official or employee is entitled to "qualified immunity" when he or she is sued."

The first prong of the test addresses the question: Has the petitioner “stated a cause of action.” If the answer is yes the court turns to the second prong of the test.

The second prong of the test asks did the “[g]overnment official’s conduct violates clearly established law when, at the time of the challenged conduct, the contours of a right are sufficiently clear that every reasonable official would have understood that what he [or she] is doing violates that right.”

* David J. Bagley, II, an employee of the City of Rochester, was named as a co-defendant in this action.

** Although not all public employees are public officers, except in rare situations all public officers are public employees.

***  Under certain circumstances an attorney in private practice employed by public entity for certain purposes may be eligible to claim a qualified immunity [see NYPPL at: 
https://publicpersonnellaw.blogspot.com/2010/09/attorney-in-private-practice-employed.html].


The decision is posted on the Internet at:

http://www.nycourts.gov/reporter/3dseries/2017/2017_07048.htm

Tests used by court to determine if a public officer or employee is entitled to “qualified immunity” when he or she is being sued for damages in a civil action

Tests used by court to determine if a public officer or employee is entitled to “qualified immunity” when he or she is being sued for damages in a civil action

Lawson v. Hilderbrand et al, USCA, 2^nd Circuit, 15-653-cv [Summary Order*]

Timothy Hilderbrand and his co-defendants appealed a United States District Court’s denial of their motion for summary judgment on their theory that they were entitled to qualified immunity on “Lawson’s search and seizure claims” in the first count of his complaint.** 

The Second Circuit Court of Appeals, citing Harlow v Fitzgerald, 457 US 800, said that qualified immunity may be claimed by public officers and employees in civil suits seeking damages “insofar as their conduct does not violate clearly established statutory or constitutional rights of which a reasonable person would have known.”

The court then explained that although an appeal of a denial of a motion for summary judgment typically is not permitted as that decision is not a “final judgment,” the collateral order doctrine permits an immediate appeal of a denial of a motion for summary judgment on the issue of qualified immunity “where the district court denied the motion as a matter of law.”*** However, such an appeal is available to defendants only the defendants “accept as true [the] plaintiff’s version of the facts for purposes of the appeal.”

According to the decision, police entered Duncan Lawson’s home with his consent. When that consent was revoked, the Second Circuit said that “it was objectively reasonable” for the police officers to believe that “exigent circumstances made their continued presence in the house, and their confinement of the residents to the living room, lawful.”

The Second Circuit said that “When a government official charged with violating federal constitutional rights seeks summary judgment on the ground of qualified immunity, the Court may first consider whether there was a “violation of clearly established law before turning to the more difficult question whether the relevant facts make out a constitutional question at all.”

In this instance the court concluded that “the lack of clearly established law” barring the actions the police officers involved entitles them to qualified immunity for their actions.

In contrast, certain public officials are entitled to “absolute immunity.” Absolute immunity is typically limited to judges, prosecutors, legislators, and the highest executive officials when acting within their authority. Absolute immunity also has been granted to lawyers in some situations.

* Rulings by summary order do not have precedential effect. Citation to a summary order filed on or after January 1, 2007, is permitted and is governed by federal rule of appellate procedure 32.1 and the 2^nd Circuit’s Local Rule 32.1.1. When citing a summary order in a document filed with the Second Circuit, a party must cite either the federal appendix or an electronic database (with the notation “summary order”). A party citing a summary order must serve a copy of it on any party not represented by counsel.

** Lawson v. Hilderbrand, 88 F. Supp. 3d 84

*** The doctrine allows appeals from interlocutory rulings (i.e., rulings preceding a final judgment) so long as those rulings conclusively decide an issue separate from the merits of the case [See Cohen v Beneficial Industrial Loan Corp., 337 U.S. 541].

The 2^nd Circuit’s decision is posted on the Internet at:

http://www.ca2.uscourts.gov/decisions/isysquery/93cb634e-f589-4ce9-99c2-1d5c59846bb/16/doc/15-653_so.pdf#xml=http://www.ca2.uscourts.gov/decisions/isysquery/93cb634e-f589-4ce9-99c2-81d5c59846bb/16/hilite/

Qualified immunity of public officials in litigation

Qualified immunity of public officials in litigation

Sonnleitner v York, et al, 304 F.3d 704

Sometimes public officials are named as respondents in a lawsuit. The Sonnleitner case considers a qualified immunity defense available to such officials in connection with their being sued in either an official capacity, or in a personal capacity, or both.

Harold Sonnleitner served as a supervising nurse at the Winnebago Mental Health Institute, a state-run psychiatric facility in Wisconsin. Sonnleitner was charged with a number of work rule infractions. A predisciplinary hearing was held. Shortly thereafter Sonnleitner was demoted to a non-supervisory position.

Sonnleitner appealed to the Wisconsin Personnel Commission. The Commission determined that there was only evidence to support one work rule violation and that a five-day suspension without pay was the appropriate discipline.

The Institute implemented the five-day suspension without pay but did not reinstate Sonnleitner to his former supervisory position. Sonnleitner commenced an action in State Court in Wisconsin (1) to enforce the Commission's ruling and (2) for damages pursuant to 42 USC 1983, alleging the violation of his procedural due process rights under the Fourteenth Amendment. The State had the lawsuit transferred to federal court.

When the federal district court granted the State's motion for summary judgment, Sonnleitner appealed.

One of the issues addressed by the Circuit Court of Appeals was the defense of "qualified immunity" raised by the individually named defendants, Stanley York and the other administrators, with respect to their being sued in their "personal capacity."

The court said that there were two tests that had to be met to determine whether or not the individual was entitled to claim qualified immunity with respect to being sued in a personal capacity.

The first test: did the official violate the individual's right to administrative due process.

The second test: did the plaintiff individual clearly establish his or her right to due process at the time of the alleged violation.

As Sonnleitner could not satisfy his burden of establishing the existence of any clearly established constitutional right to due process -- Sonnleitner conceded that he had not satisfied the procedural requirement to maintain his action in State Court -- the Circuit Court concluded that the individually named State defendants were entitled to qualified immunity with respect to their being sued in a personal capacity.

A second immunity issue presented for review by the Circuit Court: Could Sonnleitner maintain his lawsuit against the individually named defendants in their official capacity in order to obtain a federal court order to compel his reinstatement to his former supervisory position?

The court said that the Eleventh Amendment provides that:

The Judicial power of the United States shall not be construed to extend to any suit in law or equity, commenced or prosecuted against one of the United States by Citizens of another State, or by Citizens of any Foreign State.

This means, said the Circuit Court, the Eleventh Amendment generally bars federal courts from taking jurisdiction over lawsuits against state officials acting in their official capacities when the state is the real party at interest.

The decision notes that there are three specific exceptions to a state's Eleventh Amendment immunity to lawsuits in federal court:

1. When Congress has abrogated the state's immunity from suit through an unequivocal expression of its intent to do so through a valid exercise of its legislative power;

2. When a state "has properly waived its immunity and consented to suit in federal court"; and

3. When the plaintiff "seek[s] prospective equitable relief for ongoing violations of federal law."

Sonnleitner's complaint, said the court, asserts that the defendants, in their official capacity, are "depriving him of his right to return to a position as supervisor."

Concluding that Sonnleitner failed to respond to the State's arguments concerning the first two exceptions to state immunity, the court said it had no basis to conclude that either Congress has abrogated Wisconsin's Eleventh Amendment immunity or that Wisconsin has authorized this lawsuit through an act of waiver or consent.*

Turning to the third exception to a state's Eleventh Amendment immunity, the court said that Sonnleitner's complaint and reply brief arguably made allegations that are at least consistent with meeting this test. However, the Circuit Court decided that the complaint did not allege an ongoing violation of federal law or sought any relief properly characterized as prospective.

In summary, the court concluded that Sonnleitner's Fourteenth Amendment right to procedural due process might have been violated when he was demoted to a staff level nursing position.

The Circuit Court said that the resolution of this question ultimately hinges on material facts that are not in the record. However, it ruled that a remand for a trial on the merits was unnecessary in this instance.

Why not remand the case back to the district court for a trial? Because, said the court, the individual defendants being sued in their official capacity are entitled to qualified immunity since Sonnleitner did not satisfy his burden of demonstrating the existence of a clearly established constitutional right to a pre-demotion hearing with respect to all of the relevant charges.

Further, the court ruled that Sonnleitner's official capacity claims also failed because he did not alleged any ongoing violation of federal law.

The decision also reports that Institute officials rejected Sonnleitner's request to become a Unit Director, "reasoning that his pre-demotion position of Nurse Manager no longer existed and that it had no obligation to place him in another position." It said that it would be "full compliance with the Commission order by permitting Sonnleitner to remain in his current position at the Institute, where he was actually paid more money than in his former job." Sonnleitner had shielded himself from the adverse economic effect of his demotion by requesting a transfer to the night shift, where he earned a pay premium.

* The court said it "flatly" refused to undertake its own examination of Wisconsin and federal law to see if such a basis exists as it is not the court's responsibility to research and construct the parties' arguments.

Qualified immunity is available as a defense where there is “no clearly established law” concerning the alleged act or omission

Qualified immunity is available as a defense where there is “no clearly established law” concerning the alleged act or omission

DiStico v Cook, et al, USCA, 2^nd Circuit, Docket #10-4304-cv

The Circuit Court of Appeals for the Second Circuit reversed, in part, a United States District Court’s denial of motions by a school principal and two teachers for summary judgment dismissing the action against them based on their claim that they were entitled to a “qualified immunity.”

Although the court sustained the district court’s ruling denying qualified immunity status with respect to allegations that the teachers “were deliberately indifferent to racial name-calling by kindergarten students, which in one instance may have been accompanied by a physical assault,”* the court said that the doctrine of qualified immunity**was applicable with respect to claims that the educators were deliberately indifferent to certain other allegedly racially motivated physical misbehavior by kindergarten and first-grade students.

This was so, explained the court, because there was no clearly established law permitted a finding that the educators had actual knowledge that commonplace physical misbehavior by children of this age was racially motivated.

In the words of the court, “To date, no Supreme Court or Second Circuit law clearly establishes that evidence of prior racial name-calling by unidentified kindergarten or first-grade students suffices to demonstrate that any subsequent physical misbehavior directed at the same classmate is also racially [motivated]. Indeed, we conclude that something more is necessary to support an inference that a teacher or school official actually knew such subsequent misconduct was racially motivated.”

In addition, said the court, the first-grade teacher was entitled to qualified immunity on this claim because her transmittal of parental complaints of physical misbehavior to the principal for investigation could not be deemed "clearly unreasonable" as a matter of law.

* The two teaches not entitled to qualified immunity with respect to these allegations “because there are disputed questions of fact for which the district court identified sufficient record evidence to support a verdict in favor of [DiStico].”

** Qualified immunity may be claimed by government officials as a defense to liability in an action for civil damages insofar as the act or omission involved did not violate clearly established statutory or constitutional rights that a reasonable person would have known [Harlow v. Fitzgerald, 457 U.S. 800].

The decision is posted on the Internet at:

http://www.ca2.uscourts.gov/decisions/isysquery/a4ad1d49-9be3-40ae-af85-f81b7075cc76/1/doc/10-4304comp_opn.pdf#xml=http://www.ca2.uscourts.gov/decisions/isysquery/a4ad1d49-9be3-40ae-af85-f81b7075cc76/1/hilite/

Claiming qualified immunity after denying an individual access to school district property

The petitioner [Plaintiff] appealed the dismissal of her 42 U.S.C. §1983 claims against the Central School District [District] and the District's Superintendent [Superintendent] by a federal district court.

Plaintiff had contended that her First Amendment and due process rights were violated when the Superintendent required her to obtain prior written permission to visit school property and that the Superintendent "expanded the scope of the restriction in retaliation for her objection to this requirement," and that these alleged violations occurred pursuant to a District custom or policy.

The United States Court of Appeal, Second Circuit, affirmed the federal district court's dismissal of Plaintiff's complaint, rejecting her arguments that:

(1) the limitations on her access to school property were not reasonable because no reasonable person could have believed that she was attempting to evade the school’s security procedures or that she otherwise presented a risk of disruption; and 

(2) in the absence of such a justification and because [the Superintendent] imputed a “negative” opinion of the school to her, a reasonable factfinder could conclude that the restrictions placed on her also were not viewpoint-neutral."

The court explained that the district court’s grant of qualified immunity to the District and Superintendent was premised on its conclusion that the parties did not dispute that the restriction “was a content-neutral response to [Plaintiff's] attempt to circumvent the school’s security protocol.”

In the words of the Circuit Court, “Qualified immunity insulates public officials from claims for damages where their conduct does not violate clearly established statutory or constitutional rights of which a reasonable person would have known.”

Addressing the doctrine of qualified immunity, the decisions notes that “[W]hen a defendant official invokes qualified immunity as a defense in order to support a motion for summary judgment, a court must consider two questions: 

(1) whether the evidence, viewed in the light most favorable to the plaintiff, makes out a violation of a statutory or constitutional right; and

(2) whether that right was clearly established at the time of the alleged violation”

and under the second prong, officials are “entitled to qualified immunity [when] their decision was reasonable, even if mistaken.”

Qualified immunity is an affirmative defense and the defendant bears the burden of proof. Plaintiff did not present any evidence that contradicted the Superintendent's testimony that he believed that Plaintiff was attempting to bypass the school’s security policy when he confronted her on the morning of the incident nor did Plaintiff ever argued that the initial restriction announced in the letter sent to her was "viewpoint-based."

Thus, said the court "[a]bsent a genuine dispute as to whether the restriction on [Plaintiff’s]  access to school property was viewpoint-based, [the Superintendent] is entitled to qualified immunity on [Plaintiff’s] First Amendment claim because the evidence, even construed in [Plaintiff's] favor, established that a reasonable official could have believed that (1) [Plaintiff] was attempting to circumvent school security procedures and (2) the notification restriction was a reasonable and constitutional response to her actions."

Further, said the court, "it was not clearly established that a permission requirement was an unconstitutional response to a parent’s attempt to evade a security restriction," noting  that based on its precedent, including its conclusions about the contours of parents’ clearly established First Amendment rights at the time of the underlying events, "a reasonable superintendent in [the Superintendent's] position could have concluded that a parent can lawfully be restricted from school activities based on a risk of disruption or safety concerns as long as those concerns are not a pretext for viewpoint discrimination, and that a requirement that a parent receive prior permission to enter school property is a minor and reasonable response to such concerns."

Addressing Plaintiff's argument that the District was liable for the alleged violations of her constitutional rights because it maintained a custom or policy of permitting the Superintendent to make unilateral decisions regarding the enforcement of the District visitor’s policy, in contravention of the written policy placing this authority with school principals, the Circuit Court stated that to establish liability against the District under 42 U.S.C. §1983 Plaintiff was required to show that an official custom or policy caused a violation of her constitutional rights.* Here, again in the words of Circuit Court, "the district court properly concluded that the cited custom did not cause a deprivation of [Plaintiff's] rights — a custom of delegating authority to enforce the District visitor’s policy to [the Superintendent] does not establish the existence of a custom of permitting [the Superintendent] to exercise that authority unlawfully."

Finding that the Plaintiff did not show the existence of a policy or custom of imposing unconstitutional restrictions on access to District property and noting that the Superintendent had restricted access to school property on only four other occasions in the more than ten years he served as Superintendent, and there is no evidence that these other restrictions were not reasonable responses to legitimate safety concerns, the Circuit Court held that the district court properly granted summary judgment to the District on Plaintiff’s Monell claim.

* See Monell v. Dep’t of Social Services of the City of N.Y., 436 U.S. 658.

The decision is posted on the Internet at https://www.leagle.com/decision/infco20201022076

 

Claim of qualified immunity not available to a public official when the law giving rise to the violation was clearly established at the time of the violation

Claim of qualified immunity not available to a public official when the law giving rise to the violation was clearly established at the time of the violation

Morse v Fusto, US Circuit Court of Appeals, Second Circuit, Docket 13-4074

Qualified immunity protects public officials from liability for civil damages as long as their conduct does not violate clearly established statutory or constitutional rights that a reasonable person would have known.

A grand jury indicted a dentist [Dentist], charging Dentist  with one count of Grand Larceny in the First Degree in violation of Penal Law §155.42 and eleven counts of Offering a False Instrument for Filing in violation of Penal Law §175.35.

These charges led to Dentist’s suspension from the New York Medicaid Program upon which his practice had depended; the liquidation of his dental practice as a consequence of such suspension; the loss of his teaching position at a New York hospital;* the public dissemination of the story of his indictment, including at least one press release issued by the Office of the Attorney General; and newspaper articles in various newspapers.

Upon his acquittal of all charges, Dentist brought an action against a Special Assistant Attorney General and an Audit-investigator [Defendants] in federal district court alleging that Defendants had deprived him of his constitutional right to a fair trial by intentionally manipulating certain information on spreadsheet summary charts before they were presented to the grand jury in order to create the false impression that Dentist billed Medicaid for dental services that he did not provide.

Essentially, Dentist contended that Defendants, acting as government officials in an investigative capacity, knowingly created false or misleading evidence.

Defendants, in rebuttal, claimed “qualified immunity,” and asked the federal district to grant them summary judgment dismissing Dentist’s complaint.

The district court denied Defendants’ motion and the jury returned a verdict in favor of Dentist based on its finding that Defendants “knowingly created false or fraudulently altered documents” to the grand jury.

Defendants appealed the district court’s denial of their motion for summary judgment, contending that “their conduct was not clearly prohibited by the Constitution and that they were therefore entitled to qualified immunity as a matter of law.”

The U.S. Circuit Court of Appeals affirmed the district court’s ruling, denying Defendant's motion for summary judgment stating that it had concluded that the Defendants were not entitled to qualified immunity. The court said that Dentist’s Constitutional rights had been violated and “the law giving rise to the violation was clearly established at the time of the violation.”

Further, the Circuit Court also concluded that “the district court did not err by declining to order a new trial despite its conclusion that one of the factual assertions upon which the verdict was based was insufficiently supported by the evidence.”

* Dentist regained his teaching position following his acquittal.

The decision is posted on the Internet at:

http://www.ca2.uscourts.gov/decisions/isysquery/09dd697f-b0ed-464a-9fbc-07c4e98c7a23/12/doc/14-1993_opn.pdf#xml=http://www.ca2.uscourts.gov/decisions/isysquery/09dd697f-b0ed-464a-9fbc-07c4e98c7a23/12/hilite/

Claiming absolute privilege or qualified privilege as a defense in litigation involving alleged defamatory statements

The relevant facts in this action were not in dispute. Monroe County terminated Plaintiff from his position and on the same day the Monroe County Executive issued statements to the press that were published in local newspapers. Contending that three of the statements made by the County Executive were defamatory, Plaintiff sued Monroe County, among other named defendants [herein after collectively "Defendants"]. 

Defendants moved for summary judgment dismissing the Plaintiff's cause of action for alleged defamation, claiming an absolute or, in the alternative, a qualified privilege. Supreme Court denied Defendant's motion and the court's ruling was appealed. 

Citing Clark v McGee, 49 NY2d 613, the Appellate Division said that Defendants' statements to which Plaintiff objected "were absolutely privileged" noting that if an absolute privilege defense prevails it affords complete immunity from liability for alleged defamation to "an official [who] is a principal executive of State or local government ... with respect to statements made during the discharge of those responsibilities about matters which come within the ambit of those duties."

Courts typically apply a two-prong test in order to determine if an absolute privilege defense is available to the official based on [1] the status of the individual alleged to have utter the defamatory statement and [2] the subject matter of the statement in terms of it being consistent with the speaker's public duties. In some cases the forum in which the statement was uttered may be a consideration as well.

In this instance the Appellate Division conclude that absolute privilege applied because the speaker was the Monroe County Executive and her statements with respect to Plaintiff's termination concerned matters involving her official duties.*

In alternative, had a defense of absolute privilege not been available to Defendants, the Defendants might have advanced a claim that qualified privilege applied with respect to the County Executive's statements to the press as its defense.**

The qualified privilege defense, explained the Appellate Division "is available when a statement [not within the ambit of absolute privilege] is fairly made by a person in the discharge of some public or private duty, legal or moral, or in the conduct of his [or her] own affairs, in a matter where his [or her] interest is concerned."

Were a qualified privilege defense relied upon in this action, Defendant initially would have had to demonstrate that the County Executive made the  statements object to by Plaintiff  in her role as the Monroe County Executive in the course of discharging her duties and responsibility in order to keep the public informed regarding a sensitive issue that had obtained extensive media attention.

Once this was done, the burden of going forward would have been shifted to Plaintiff, who would have then been required to demonstrate a triable issue of fact existed as to whether the statements of the County Executive were motivated solely by malice.

Another area that may result in litigation is one in which Employee A alleges that he or she was defamed in an internal communications between administrators, or between another employee, Employee B, and an administrator concerning Employee A. 

Murphy v Herfort, 428 NY2d 117, is an example of litigation resulting from statements contained in communications between administrators; Missek-Falkoff v Keller, 153 AD2d 841, is an example of a case where Employee 1 sued another employee, Employee 2, because of the contents of a memorandum from Employee 2 to a superior concerning a “problem” with Employee 1.

As alternatives to claiming absolute immunity or qualified immunity, a public officer or employee involved in a judicial or quasi-judicial proceeding or in an administrative hearing may advance a claim of use immunity or transaction immunity as a defense, while from time to time a governmental entity may cite the Doctrine of Governmental Function Immunity*** as a defense, founded on the principle of the separation of powers and which is intended to ensure that public servants are free to exercise their decision-making authority [see Marbury v Madison, 5 U.S. 137;  Valdez v City of New York, 18 NY3d 69]. 

* The court further opined that because the investigation and the underlying actions of Plaintiff became a matter of public attention and controversy, the form of communication, e.g., statements to the press, was warranted, citing Kilcoin v Wolansky, 75 AD2d 1, affd 52 NY2d 995.

** In Tulloch v Coughlin, 50 F.3d 114, the US Circuit Court of Appeals, Second Circuit, considered the differences between “absolute immunity” and “qualified immunity.”

*** Although New York State has waived Sovereign Immunity as a defense on behalf of itself and its municipal subdivisions, the common-law doctrine of governmental immunity continues to shield public entities from liability for discretionary actions taken during the performance of governmental functions. 

The decision is posted on the Internet at:

http://www.nycourts.gov/reporter/3dseries/2019/2019_00747.htm

School officials were entitled to qualified immunity from former teacher’s claim of biased investigation into alleged sexual abuse of student

School officials were entitled to qualified immunity from former teacher’s claim of biased investigation into alleged sexual abuse of student
Source: Adjunct Law Prof Blog; http://lawprofessors.typepad.com/adjunctprofs/
Reproduced with permission. Copyright © 2010, Mitchell H. Rubinstein, Esq., Adjunct Professor of Law, St. Johns Law School and New York Law School, All rights reserved.

Purvis v. Oest, ___F.3d____(7th Cir. Aug. 2, 2010), is an interesting case.

The Seventh Circuit held that three school officials who conducted an investigation into allegations that a teacher had sexually abused one of her students were entitled to qualified immunity from the former teacher’s suit that the biased nature of the investigation corrupted the subsequent criminal investigation in violation of her due process rights.

The court also ruled that the chief of police was entitled to qualified immunity from the teacher’s claim of false arrest because he had probable cause to make the arrest.

The teacher had resigned from her employment in exchange for a cash settlement. In finding that the individual defendants were entitled to qualified immunity, the court applied the two-step immunity test:

(1) whether the plaintiff showed a that the defendant had violated a constitutional right; and

(2) whether that right was clearly established at the time the violation occurred.

Mitchell H. Rubinstein

A government official performing a discretionary function is entitled to qualified immunity unless violative of an individual's statutory or constitutional rights
Cavanaugh v Doherty, Appellate Division, 243 A.D.2d 92

Erin Cavanaugh, an Assistant Public Relations Aide employed by the State Department of Correctional Services and Thomas Doherty, Appointment Secretary in the Executive Department, became involved in a political argument at a restaurant. Their oral exchanges culminated in Cavanaugh calling Doherty an “explicitve deleted.” Doherty allegedly responded that “he would 'have her job in the morning'“.

Forty-eight hours later Cavanaugh was unemployed.

Cavanaugh sued, claiming a breach of her employment contract; abusive discharge; violation of her civil rights and other wrongdoings by Doherty, James Flateau, her immediate supervisor and John Patterson, a Correctional Services’ deputy commissioner who allegedly ordered Flateau to fire Cavanaugh because of her retort during her off-duty argument with Doherty.

Although at this stage of the proceeding the appeal essentially concerned challenges by the parties to the Supreme Court’s allowing certain claims and defenses to survive and dismissing others, the Appellate Division addressed a number of significant issues in the course of reviewing the matter.

One is of particular importance, addressing the concept of a public official’s “qualified immunity.”

The court said that a government official performing a discretionary function is entitled to qualified immunity provided his or her conduct does not violate [an individual’s] clearly established statutory or constitutional rights of which a reasonable person would have know....”

Commenting that the official has the burden of demonstrating that his or her acts enjoy a qualified immunity, the Appellate Division said that although Flateau was acting within the ambit of his official duties, as he was instructed to terminate Cavanaugh, “none of the defendants has established that they had an objectively reasonable belief that their actions did not violate clearly established rights of [Cavanaugh], particularly as it appears that [Cavanaugh’s] termination was retributive in nature for the personal affront to Doherty ... and because each was aware of or should have been aware of [Cavanaugh’s] First Amendment rights.”

The court concluded that “the defendants have not established entitlement to qualified immunity,” and reinstated Cavanaugh’s civil rights violation claims.

In contrast, the Appellate Division said that while Cavanaugh’s allegations that her employment was intentionally terminated without justification and she suffered damages as a result was sufficient to allege a prima facie tort against Doherty and Patterson, this claim against Flateau should be dismissed because, said the court, “he was acting within the ambit of his official duties.”

The opinion also notes that pubic policy prohibits the maintenance of a suit against the State or, by extension, an official acting in his or her official capacity for prima facie tort.”

The Appellate Division pointed out that two of Cavanaugh’s claims were brought against the defendants in their “official capacity.” These consisted of an alleged breach of her employment contract and an alleged violation of Section 201-d of the Labor Law. The court said that the Supreme Court properly ruled that it did not have jurisdiction over these causes of action and that they should have been filed with the Court of Claims.

A two prong test is applied in determining if a public official is entitled to "qualfied immunity" when he or she is sued

A two prong test is applied in determining if a public official is entitled to "qualfied immunity" when he or she is sued
Coollick v. Hughes, USCA, 2nd Circuit, 10-5248-cv

The US Circuit Court of Appeals ruled that the Superintendent of the Connecticut Technical High School System was entitled to qualified immunity in a §1983 action in which she was alleged to have deprived the plaintiff of “sufficient notice” before the elimination of her position as a guidance coordinator at a high school.

The Circuit Court of Appeals ruled that in this instance the Superintendent’s conduct, “even when viewed in the light most favorable to [the plaintiff], did not violate the plaintiff’s clearly established rights."

The court explained that “Qualified immunity protects federal and state officials from money damages and 'unnecessary and burdensome discovery or trial proceedings.'” It, however, is an affirmative defense and the federal or state officials being sued “have the burden of raising in their answer and establishing at trial or on a motion for summary judgment.”

In determining if an official is entitled to a claimed right to “qualified immunity” the courts apply the two-prong test set out in Pearson v. Callahan, 129 S. Ct. 808.

The first prong addresses the question of whether the petitioner “stated a cause of action.”

The second prong of the test asks did the “[g]overnment official’s conduct violates clearly established law when, at the time of the challenged conduct, the contours of a right are sufficiently clear that every reasonable official would have understood that what he [or she] is doing violates that right.”

In this instance the Circuit Court concluded that the Superintendent’s action “were not objectively unreasonable in light of the law that existed at the time of her conduct.”

Further, the Second Circuit said that it has held that when a plaintiff is subject to a collective bargaining agreement that provides adequate post-deprivation procedures, “such post-deprivation procedures . . . are sufficient to satisfy due process” citing Harhay v. Town of Ellington Bd. of Educ., 323 F.3d 206

The plaintiff , said the court, “utilized the grievance procedures provided for in the collective bargaining agreement and received a favorable decision" restoring her to the status she had prior to the Superintendent’s actions and awarding her back pay and benefits.*

In any event, the court held that there was nothing “objectively illegal, in a constitutional sense,” in the Superintendent’s action and although she may have been incorrect in deciding that the plaintiff did not have certain rights under the collective bargaining agreement, the plaintiff was able to avoid any harm through the very grievance procedures in place to remedy any such deprivation.

Deciding that there was no constitutional bright lines transgressed by the Superintendent in the course of her handling the plaintiff’s termination, the Circuit Court ruled that the Superintendent was entitled to qualified immunity.

* The Circuit Court observed notwithstanding her prevailing in the grievance she filed, the plaintiff “persists with this lawsuit for additional recovery of punitive damages and reimbursement of attorneys’ fees and costs.”

The decision is posted on the Internet at:

http://www.ca2.uscourts.gov/decisions/isysquery/f1968e72-dc4f-4691-a240-38fa0d574732/5/doc/10-5248_opn.pdf#xml=http://www.ca2.uscourts.gov/decisions/isysquery/f1968e72-dc4f-4691-a240-38fa0d574732/5/hilite/

Defamatory statements made on "Facebook" and on another Internet website alleged by candidate for elective office

Plaintiff [Candidate], a County Officer* was running for elective office alleged that another county officer  [County Sheriff] running for the same elective office, made two defamatory statements concerning Candidate, one of which was published on Respondent's campaign Facebook site and a second published on another Internet website. Supreme Court denied Respondent's motion for summary judgment and, as relevant here, Respondent's motion seeking dismissal of the complaint with respect to the Facebook and Internet postings alleged by Candidate to be defamatory.

After addressing a number of procedural issues, the Appellate Division rejected Respondent's contention that he was "shielded from liability due to absolute immunity." Absolute immunity,** explained the court, protects government officials, such as Respondent, "with respect to statements made during the discharge of those responsibilities about matters which come within the ambit of those duties," citing Clark v McGee, 49 NY2d 613.

The court noted that Candidate could not maintain a defamation claim against the County Sheriff based upon statements "emanating from official reports and communications." Here, however, the Appellate Division said that the documentary evidence in the record established that the statements challenged by Candidate were not posted on the County Sheriff's official website but were posted on County Sheriff's campaign Facebook page and another Internet website. Under these circumstances, opined the Appellate Division, County Sheriff "cannot rely on absolute immunity" as a defense.

Turning to the Facebook posting, Candidate alleged that the Facebook posting stated, "this 'is' definitely about politics, and greed which often go hand in hand. Making over $200,000 a year and pilfering free gas from taxpayers, it's unacceptable and as an elected official I'm going to call it as I see it." The County Sheriff, in rebuttal argued that this Facebook posting was "nonactionable opinion because it was supported by facts and was in response to [Candidate's] attack on his credibility."

The Appellate Division disagreed, opining that "[t]he statement that [Candidate] was 'pilfering free gas from taxpayers' is 'susceptible to a defamatory meaning, inasmuch as [it] convey[s], at a minimum, serious impropriety and, at worst, criminal behavior.'" Further, the court observed that "such statement also 'has a precise meaning that is capable of being proven true or false,'" and as such, "Supreme Court correctly concluded that this statement was actionable."

County Sheriff also contended that Candidate "failed to establish actual malice." On this point the Appellate Division, citing Kipper v NYP Holdings Co., Inc., 12 NY3d 348. said that "[a]s a public figure, [Candidate] must prove by clear and convincing evidence that [County Sheriff] made the alleged defamatory statements with actual malice — i.e., 'with knowledge that [they were] false or with reckless disregard of whether [they were] false or not.'"

Candidate's complaint, said the court, alleged that County Sheriff published the false statements and that the statements "were made in bad faith, with reckless disregard for the truth" and "tend[ed] to subject [Candidate] to public contempt, ridicule, aversion, and disgrace." The Appellate Division said that in view of these allegations, as well as the specific statements at issue, it was satisfied that Candidate had sufficiently pleaded malice and that "under the circumstances of this case, discovery is necessary to allow [Candidate] to explore [County Sheriff's] knowledge and motivation for making the alleged defamatory statements.

* Although not all public employees are public officers, all public officers are public employees.

** In addition to a public officer or employee claiming "absolute immunity", under appropriate circumstances the individual might claim Sovereign Immunity, Qualified Immunity, Use Immunity, Transaction Immunity, Derivative Immunity or  Qualified Privilege in the course of litigation and, or, an administrative hearing. In addition, in Filarsky v. Delia, 132 S.Ct. 1657, the United States Supreme Court held that a private attorney retained by a public entity to assist in conducting an official investigation into potential wrong­doing was entitled to seek the protection of qualified immunity as the common law does not draw any distinction between a public employee and a private attorney in this regard.

The decision is posted on the Internet at:

http://www.nycourts.gov/reporter/3dseries/2019/2019_05733.htm

Candidate for election to a public office alleges he was the target of defamatory statements made on "Facebook" and on another Internet website by a competitor seeking election to the same office

Plaintiff [Candidate], a County Officer* was running for elective office alleged that another county officer  [County Sheriff] running for the same elective office, made two defamatory statements concerning Candidate, one of which was published on Respondent's campaign Facebook site and a second published on another Internet website. Supreme Court denied Respondent's motion for summary judgment and, as relevant here, Respondent's motion seeking dismissal of the complaint with respect to the Facebook and Internet postings alleged by Candidate to be defamatory.

After addressing a number of procedural issues, the Appellate Division rejected Respondent's contention that he was "shielded from liability due to absolute immunity." Absolute immunity,** explained the court, protects government officials, such as Respondent, "with respect to statements made during the discharge of those responsibilities about matters which come within the ambit of those duties," citing Clark v McGee, 49 NY2d 613.

The court noted that Candidate could not maintain a defamation claim against the County Sheriff based upon statements "emanating from official reports and communications." Here, however, the Appellate Division said that the documentary evidence in the record established that the statements challenged by Candidate were not posted on the County Sheriff's official website but were posted on County Sheriff's campaign Facebook page and another Internet website. Under these circumstances, opined the Appellate Division, County Sheriff "cannot rely on absolute immunity" as a defense.

Turning to the Facebook posting, Candidate alleged that the Facebook posting stated, "this 'is' definitely about politics, and greed which often go hand in hand. Making over $200,000 a year and pilfering free gas from taxpayers, it's unacceptable and as an elected official I'm going to call it as I see it." The County Sheriff, in rebuttal argued that this Facebook posting was "nonactionable opinion because it was supported by facts and was in response to [Candidate's] attack on his credibility."

The Appellate Division disagreed, opining that "[t]he statement that [Candidate] was 'pilfering free gas from taxpayers' is 'susceptible to a defamatory meaning, inasmuch as [it] convey[s], at a minimum, serious impropriety and, at worst, criminal behavior.'" Further, the court observed that "such statement also 'has a precise meaning that is capable of being proven true or false,'" and as such, "Supreme Court correctly concluded that this statement was actionable."

County Sheriff also contended that Candidate "failed to establish actual malice." On this point the Appellate Division, citing Kipper v NYP Holdings Co., Inc., 12 NY3d 348. said that "[a]s a public figure, [Candidate] must prove by clear and convincing evidence that [County Sheriff] made the alleged defamatory statements with actual malice — i.e., 'with knowledge that [they were] false or with reckless disregard of whether [they were] false or not.'"

Candidate's complaint, said the court, alleged that County Sheriff published the false statements and that the statements "were made in bad faith, with reckless disregard for the truth" and "tend[ed] to subject [Candidate] to public contempt, ridicule, aversion, and disgrace." The Appellate Division said that in view of these allegations, as well as the specific statements at issue, it was satisfied that Candidate had sufficiently pleaded malice and that "under the circumstances of this case, discovery is necessary to allow [Candidate] to explore [County Sheriff's] knowledge and motivation for making the alleged defamatory statements.

* Although not all public employees are public officers, all public officers are public employees.

** In addition to a public officer or employee claiming "absolute immunity", under appropriate circumstances the individual might claim Sovereign Immunity, Qualified Immunity, Use Immunity, Transaction Immunity, Derivative Immunity or  Qualified Privilege in the course of litigation and, or, an administrative hearing. In addition, in Filarsky v. Delia, 132 S.Ct. 1657, the United States Supreme Court held that a private attorney retained by a public entity to assist in conducting an official investigation into potential wrong­doing was entitled to seek the protection of qualified immunity as the common law does not draw any distinction between a public employee and a private attorney in this regard.

The decision is posted on the Internet at:

http://www.nycourts.gov/reporter/3dseries/2019/2019_05733.htm

Claiming the protections of the Doctrine of Legislative Immunity in the course of litigation

The Doctrine of Legislative Immunity may be invoked by members of a legislative body being sued for alleged acts or omissions made in the course of their serving in their official capacity as a legislator.*

In this action certain members of a school board [Members] were subpoenaed to give depositions in the course of litigation initiated by the Plaintiffs in federal district court against the school district. The Members resisted, contending that they could not be forced to appear for such depositions because they were entitled to legislative immunity.

The United States District Court, Southern District of New York, affirming an order of the magistrate judge, rejected the Members' claim that they were entitled to legislative immunity that protects them against being called as witnesses at depositions regardless of whether they are parties in the action and directed the Members to appear for their depositions. The Members appealed the district court's ruling to the United States Court of Appeals, Second Circuit.

The Circuit Court rejected the arguments advanced by the Members that they entitled to legislative immunity explaining that "because the Board Members are not parties to this action and have not raised a colorable claim of official immunity," they are not within the ambit of the Doctrine.

Citing Mitchell v Forsyth, 472 U.S. 511, in which the Mitchell court described such “immunity from suit” as “entitlement not to stand trial or face the other burdens of litigation,” the Circuit Court said that the Members’ claim that their status as legislators shields them from serving as witnesses at depositions "sounds in evidentiary privilege,** and, as non-party witnesses seeking to challenge an order compelling them to appear for depositions, they have not presented a question of their entitlement to immunity."

Further, the Circuit Court opined that although the Members attempted to cloak  their claims under color of seeking the protection of legislative immunity, in fact the Members "in this case have sought to exercise an evidentiary privilege to avoid attending a deposition."

As the Members’ claims were founded on an evidentiary privilege, the Circuit Court concluded that it lacked jurisdiction over the appeal of the order compelling their attendance at the depositions as “[a]n order compelling testimony in an ordinary civil or criminal action is neither a final order ... nor an interlocutory order granting an injunction ... and it is not appealable.”

In contrast, the Circuit Court pointed out that to obtain such appellate review, the subpoenaed person ordinarily "must defy the district court’s enforcement order, be held in contempt, and then appeal the contempt order" which is regarded as a final order.

Indicating that this requirement applies whether the individual subpoenaed “is a party to the litigation or a non-party witness,” the Circuit Court granted the Plaintiffs' motion to dismiss the Members' appeal seeking to vacate the lower court's decision.

* The Doctrine of Legislative Immunity does not protect legislators from criminal prosecution, nor does it relieve them from responsibility for their actions unrelated to their office. See also https://publicpersonnellaw.blogspot.com/2018/02/sovereign-immunity-absolute-immunity_12.html addressing Sovereign Immunity, Absolute Immunity, Qualified Immunity, Use Immunity, Transaction Immunity and Qualified Privilege claims that may be advanced by public officers and employees involved in litigation and, or, administrative hearings.

** Privileged evidence refers to evidence that is exempt from production to an opposing party.

The decision is posted on the Internet at:

http://www.ca2.uscourts.gov/decisions/isysquery/378b60c7-cb2c-418e-890b-35a203574789/4/doc/18-3481_so.pdf#xml=http://www.ca2.uscourts.gov/decisions/isysquery/378b60c7-cb2c-418e-890b-35a203574789/4/hilite/

Where available, the Doctrine of Absolute Privilege defeats a plaintiff's defamation claim

Where available, the Doctrine of Absolute Privilege defeats a plaintiff's defamation claim
Murphy v City of New York, 2008 NY Slip Op 31926(U), Supreme Court, New York County, Docket Number: 0106059/2006, Judge: Karen Smith [Not selected for publication in the Official Reports.]

Judge Smith said that “the privilege of absolute immunity is bestowed upon an official who is ‘a principal executive of State or local government or is entrusted by law with administrative or executive policy-making responsibilities of considerable dimension,'" and that this privilege “extends to those of subordinate rank who exercise delegated powers,” citing Firth v State of New York, 12 AD3d 907, lv to appeal denied, 4NY3d 709 and Ward Telecom. & Computer Services v State of New York, 42 NY2d 289.

In Firth, the New York Office the State Inspector General ”) was found to be cloaked with absolute immunity, where it had conducted an investigation of the Department of Environmental Conservation’s Law Enforcement Division and its subsequent report, allegedly containing defamatory statements about the Division’s former director, was later published on the Internet.

Among the most common situations where the issue of privilege is raised are those involving the employee alleging that internal communications between administrators or between an employee and an administrator concerning the worker contains defamatory statements. Murphy v Herfort, 428 NYS2d 117, is an example of litigation resulting from communications between administrators; Missek-Falkoff v Keller, 153 AD2d 841, is an example of a case where one employee sued another because of the contents of a memorandum from the second employee to a superior concerning a "problem" with the coworker.

This issue may also arise in connection with an employee's former employer supplying information to a prospective employer of the individual in response to a request for "references" (see Buxton v Plant City, 57 LW 2649). Unless malice is shown, the courts usually dispose of such a case by applying the doctrine of "qualified immunity."

In Tulloch v Coughlin, 50 F.3d 114, the US Circuit Court of Appeals, Second Circuit, considered the differences between “absolute immunity” and “qualified immunity.”

The difference is significant. Absolute immunity completely insulates an individual from civil law suits. In contrast, a qualified immunity protects the individual from liability only where the individual did not violate a person’s "clearly established" right.