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9 Nev. L.J. 185 (2008-2009)
The Fall and Rise of Qualified Immunity: From Hope to Harris

handle is hein.journals/nevlj9 and id is 191 raw text is: THE FALL AND RISE OF QUALIFIED IMMUNITY: FROM HOPE TO HARRIS Mark R. Brown* ABSTRACT In Mitchell v. Forsyth (1985) the Court ruled that interlocutory appeals can be taken by government officials from denials of motions for summary judgment based on qualified immunity. Johnson v. Jones (1995) ruled that these interlocutory appeals are limited to legal questions, not matters of fact. This limited the effect of the Court's holding in Anderson v. Creighton (1987) that some measure of factual similarity between prior reported cases and governmental wrongdoing is necessary to overcome qualified immunity. Hope v. Pelzer (2002)further cabined Anderson by rejecting the Eleventh Circuit's conclusion that government wrongdoing must be materially similar to conduct previously declared unconstitutional to support liability. Qualified immunity's success rate fell precipitously in the Eleventh Circuit fol- lowing Hope, a decline that was attributable, in large part, to synergy between Hope and Johnson v. Jones. Hope allowed § 1983 plaintiffs to plead facts that more easily withstood qualified immunity. Johnson precluded the Eleventh Circuit from ques- tioning these factual allegations. Together these developments made it difficult for appellate courts to award qualified immunity-at least at the interlocutory stage. The Supreme Court recently in Scott v. Harris (2007) cast doubt over whether Johnson v. Jones remains sound-and whether qualified immunity will continue its post-Hope wane. In the course of holding that police officers' intentionally ramming a suspect's car did not violate the Fourth Amendment, the Court in Harris implicitly authorized interlocutory fact-finding by appellate courts in § 1983 cases. Specifi- cally, the Court in Harris relied on a videotape of the officers' actions to conclude that their force was reasonable. Because the same videotape was found to be incon- clusive by both the district court and the Eleventh Circuit, Harris can only mean that interlocutory appellate fact-finding is sometimes permissible. With this increased appellate scrutiny, qualified immunity rates are likely to increase-especially in the Eleventh Circuit. Executive officials-be they state or federal-performing discretionary functions are personally liable for violating only clearly established statutory or constitutional rights of which a reasonable person would have known.' Put another way, these executive officials are immune from liability for violating constitutional principles that they could not have reasonably known. Quali- fied immunity, as this is known, consists of two distinct inquiries. The first is * Newton D. Baker/Baker & Hostetler Chair, Capital University Law School. I thank the law faculties at Capital University and Florida State University for participating in workshops on this article. Special thanks to Capital University for its research grant. All errors remain my own. Bums v. Reed, 500 U.S. 478, 494 n.8 (1991) (quoting Harlow v. Fitzgerald, 457 U.S. 800, 818 (1982)); see also Crawford-El v. Britton, 523 U.S. 574, 587-88 (1998). 185

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