COMMENT
“[G]overnment officials performing discretionary functions generally are 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.” Harlow v. Fitzgerald, 457 U.S. 800, 818 (1982). They “are entitled to qualified immunity under § 1983 unless (1) they violated a federal statutory or constitutional right, and (2) the unlawfulness of their conduct was clearly established at the time.” District of Columbia v. Wesby, 138 S. Ct. 577, 589 (2018) (internal quotation marks and citation omitted).97Thus to prevail, a plaintiff must show both that the officer violated a federal right, and that such federal right was clearly established at the time the officer acted. A defendant, by contrast, can prevail by winning on either ground. For example, “[e]ven without inquiring as to whether the right [plaintiffs] identify here is clearly established, the failure to establish a factual basis for the purported constitutional violation is an independently sufficient ground on which to affirm the grant of summary judgment in favor of the individual officers.” Karns v. Shanahan, 879 F.3d 504, 521 (3d Cir. 2018). And a “court may not deny a summary judgment motion premised on qualified immunity without deciding that the right in question was clearly established at the time of the alleged wrongdoing.” Spady v. Bethlehem Area Sch. Dist., 800 F.3d 633, 637 n.4 (3d Cir. 2015).
For a time, the Supreme Court required that lower courts decide whether an officer violated the constitution, even if they were ruling in favor of the defendant because the claimed constitutional right was not clearly established at the time the officer acted. Saucier v. Katz, 533 U.S. 194, 201 (2001). The point of this requirement was to enable continued development of the law. Id. (“This is the process for the law’s elaboration from case to case, and it is one reason for our insisting upon turning to the existence or nonexistence of a constitutional right as the first inquiry. The law might be deprived of this explanation were a court simply to skip ahead to the question whether the law clearly established that the officer's conduct was unlawful in the circumstances of the case.”).
But the Court later lifted this requirement, allowing lower courts to exercise their discretion in this regard. Pearson v. Callahan, 555 U.S. 223, 243 (2009); Reichle v. Howards, 132 S. Ct. 2088, 2093 (2012) (stating that Pearson “held that courts may grant qualified immunity on the ground that a purported right was not ‘clearly established’ by prior case law, without resolving the often more difficult question whether the purported right exists at all”). More recently, the Court has “stress[ed] that lower courts ‘should think hard, and then think hard again,’ before addressing both qualified immunity and the merits of an underlying constitutional claim.” Wesby, 138 S. Ct. at 589 (2018) (quoting Camreta v. Greene, 563 U.S. 692, 707 (2011)). As the Court explained in Camreta, “In general, courts should think hard, and then think hard again, before turning small cases into large ones. But it remains true that following the two-step sequence — defining constitutional rights and only then conferring immunity — is sometimes beneficial to clarify the legal standards governing public officials.” 563 U.S. at 707.98
To be clearly established, not only must a legal principle “have a sufficiently clear foundation in then-existing precedent,” but its “contours must be so well defined that it is clear to a reasonable officer that his conduct was unlawful in the situation he confronted.” Wesby, 138 S. Ct. at 589–90 (internal quotation marks and citation omitted). “The contours of the right must be sufficiently clear that a reasonable official would understand that what he is doing violates that right. This is not to say that an official action is protected by qualified immunity unless the very action in question has previously been held unlawful... ; but it is to say that in the light of pre existing law the unlawfulness must be apparent.” Anderson v. Creighton, 483 U.S. 635, 640 (1987). “[T]he salient question... is whether the state of the law [at the time of the conduct] gave respondents fair warning that their [conduct] was unconstitutional.” Hope v. Pelzer, 536 U.S. 730, 741 (2002). See also Brosseau v. Haugen, 543 U.S. 194, 198 (2004) (per curiam) (emphasizing the need for attention to context in judging whether application of a general principle was clear under the circumstances). The court of appeals has explained that “[t]o determine whether a new scenario is sufficiently analogous to previously established law to warn an official that his/her conduct is unconstitutional, we ‘inquir[e] into the general legal principles governing analogous factual situations... and... determin[e] whether the official should have related this established law to the instant situation.’ ’”” Burns v. PA Dep’t of Corrections, 642 F.3d 163, 177 (3d Cir. 2011) (quoting Hicks v. Feeney, 770 F.2d 375, 380 (3d Cir. 1985)).
Unlawfulness can be apparent “even in novel factual circumstances.” Hope v. Pelzer, 536 U.S. 730, 741 (2002); Groh v. Ramirez, 540 U.S. 551, 564 (2004) (“No reasonable officer could claim to be unaware of the basic rule, well established by our cases, that, absent consent or exigency, a warrantless search of the home is presumptively unconstitutional.”); Thomas v. Tice, 948 F.3d 133, 141 (3d Cir. 2020) (denying qualified immunity because defendants “failed to present evidence of any continuing penological interest” in keeping a prisoner in a dry cell (a cell that lacks any water) to discover suspected swallowed contraband after four days and twelve bowel movements had produced no evidence of contraband); Halsey v. Pfeiffer, 750 F.3d 273, 296 (3d Cir. 2014) (holding that even though it had not previously decided on the viability of a stand-alone claim for fabrication of evidence, reasonable officers should have known that “they certainly could not fabricate inculpatory evidence”); Schneyder v. Smith, 653 F.3d 313, 330 (3d Cir. 2011) (holding that a prosecutor’s alleged failure to inform a judge of the continuance of a trial for which the judge had ordered a material witness detained presented “one of those exceedingly rare cases in which the existence of the plaintiff's constitutional right is so manifest that it is clearly established by broad rules and general principles”); Abbott v. Latshaw, 164 F.3d 141, 148 (3d Cir. 1998) (denying qualified immunity and noting that “it is the domain of the courts,” not law enforcement officers, “to decide who is entitled to possession of property,” that “citizens are to have a meaningful opportunity to be heard as to their rights before they are finally deprived of possession of property,” and that the officer’s “curbside courtroom, in which he decided who was entitled to possession, is precisely the situation and deprivation of rights to be avoided”); cf. Estate of Lagano v. Bergen Cnty. Prosecutor's Office, 769 F.3d 850, 859 (3d Cir. 2014) (vacating grant of qualified immunity because plaintiff can overcome qualified immunity “without proving that we have previously issued a binding decision recognizing a state-created danger in the context of the disclosure of a confidential informant's status”); L.R. v. School District of Philadelphia, 836 F.3d 235, 249 (3d Cir. 2016) (holding that a teacher who allowed a kindergarten student to leave the classroom with a stranger violated the clearly established right “to not be removed from a safe environment and placed into one in which it is clear that harm is likely to occur, particularly when the individual may, due to youth or other factors, be especially vulnerable to the risk of harm”); Kedra v. Schroeter, 876 F.3d 424, 450 (3d Cir. 2017) (holding that, under prior precedent, “no reasonable officer who was aware of the lethal risk involved in demonstrating the use of deadly force on another person and who proceeded to conduct the demonstration in a manner directly contrary to known safety protocols could think his conduct was lawful”). See also District of Columbia v. Wesby, 138 S. Ct. 577, 590 (2018) (noting that there can be “the rare ‘obvious case,’ where the unlawfulness of the officer’s conduct is sufficiently clear even though existing precedent does not address similar circumstances, [b]ut ‘a body of relevant case law’ is usually necessary” to overcome qualified immunity when probable cause is at issue) (citation omitted); E. D. v. Sharkey, 928 F.3d 299, 308 (3d Cir. 2019) (noting that Sharkey “committed institutional sexual assault in violation of” a Pennsylvania statute that “forbids an employee of a residential facility serving children and youth from having sexual intercourse with a detainee, regardless of whether the detainee gave consent,” and stating “[t]hat Sharkey’s conduct was illegal renders E.D.’s right to be free from sexual assault so obvious that it could be deemed clearly established even without materially similar cases”) (citations and internal quotation marks omitted); Russell v. Richardson, 905 F.3d 239, 252 (3d Cir. 2018) (finding an “obvious case” where marshal used deadly force against a minor as he exited his bedroom wearing only underwear, and there was no indication the minor “was then engaged in any misconduct beyond disobeying his mother”); Kane v. Barger, 902 F.3d 185 (3d Cir. 2018) (relying on some analogous cases in rejecting qualified immunity for a police officer who touched the victim of a sexual assault and photographed her intimate areas with his personal cell phone for personal gratification rather than investigate ends, but also stating, “given the egregiousness of Barger’s violation of Kane’s personal security and bodily integrity, the right here is so ‘obvious’ that it could be deemed clearly established even without materially similar cases”).
Courts should not “define clearly established law at a high level of generality” and should not “cherry-pick[]” the aspects of Supreme Court opinions that would weigh in favor of the conclusion that a right was clearly established while ignoring reasons to think the right was not clearly established. Ashcroft v. Al-Kidd, 131 S. Ct. 2074, 2084-85 (2011); Ziglar v. Abbasi, 137 S. Ct. 1843 (2017) (“When courts are divided on an issue so central to the cause of action alleged, a reasonable official lacks the notice required before imposing liability.”); Kisela v. Hughes, 138 S. Ct. 1148 (2018) (noting that even if controlling circuit precedent could constitute clearly established law, the most analogous precedent favored the officer); Safford Unified School Dist. No. 1 v. Redding, 129 S. Ct. 2633, 2644 (2009) (“[T]he cases viewing school strip searches differently from the way we see them are numerous enough, with well reasoned majority and dissenting opinions, to counsel doubt that we were sufficiently clear in the prior statement of law.”); Stanton v. Sims, 134 S. Ct. 3 (2013) (summarily reversing for failure to recognize qualified immunity and stating that it is “especially troubling” that the court of appeals “would conclude that [the officer] was plainly incompetent – and subject to personal liability in damages – based on actions that were lawful according to courts in the jurisdiction where he acted”); James v. New Jersey State Police, 957 F.3d 165 (3d Cir. 2020) (holding that officer was protected by qualified immunity because case was most similar to Kisela, officer knew that the man he shot (1) had violated a restraining order; (2) possessed a firearm that he had brandished within the last hour; and (3) was reportedly mentally ill and may have been off his medication, and distinguishing Bennett v. Murphy, 274 F.3d 133 (3d Cir. 2002), in part because of this knowledge); Davenport v. Borough of Homestead, 870 F.3d 273, 282 (3d Cir. 2017) (holding that police officers were protected by qualified immunity because of the “near absence of cases” dealing with the rights of a passenger involved in a dangerous vehicle pursuit); Fields v. City of Philadelphia, 862 F.3d 353, 361-62 (3d Cir. 2017) (because other cases recognizing a first amendment right to photograph the police were arguably distinguishable, they did not establish that right clearly enough to overcome qualified immunity); Ray v. Township of Warren, 626 F.3d 170, 177 (3d Cir. 2010) (holding that the inapplicability of the community caretaking doctrine to warrantless entries into homes was not clearly established in light of, inter alia, “the conflicting precedents on this issue from other Circuits); Marcavage v. National Park Serv., 666 F.3d 856, 857, 859-60 (3d Cir. 2012) (holding that plaintiff’s conviction for misdemeanors stemming from events at issue supported qualified immunity defense of arresting officer and his supervisor, even though conviction was later reversed). See also City of Escondido v. Emmons, 139 S. Ct. 500, 502, 504 (2019) (holding that the formulation of the clearly established right by the court of appeals—the “right to be free of excessive force”—“was far too general”); White v. Pauly, 137 S. Ct. 548, 552 (2017) (reiterating the need to avoid a high level of generality and stating that the factual uniqueness of the case “alone should have been an important indication” that the defendant did not violate clearly established law); Mann v. Palmerton Area School District, 872 F.3d 165, 174 (3d Cir. 2017) (holding that “it was not so plainly obvious that requiring a student-athlete, fully clothed in protective gear, to continue to participate in practice after sustaining a violent hit and exhibiting concussion symptoms implicated the student athlete’s constitutional rights”); Barna v. Board of School Directors of the Panther Valley School District, 877 F.3d 136, 144 (3d Cir. 2017) (observing that “there was, at best, disagreement in the Courts of Appeals as to the existence of a clearly established right to participate in school board meetings despite engaging in a pattern of threatening and disruptive behavior”). Cf. Williams v. City of York, 967 F.3d 252 (3d Cir. 2020) (holding that defendants alleged to have made arrest without probable were protected by qualified immunity because of uncertainty in state law).
Courts should also be cautious about concluding that the law is clearly established based only on one or two opinions from their own circuit. Taylor v. Barkes, 135 S. Ct. 2042 (2015) (summarily reversing Court of Appeals for the Third Circuit); Carroll v. Carman, 135 S. Ct. 348 (2014) (same). See also District of Columbia v. Wesby, 138 S. Ct. 577, 591 n.8 (2018) (noting that the Court has not yet decided what precedents, other than its own, qualify as controlling authority for purposes of qualified immunity); Baloga v. Pittston Area Sch. Dist., 927 F.3d 742, 763 (3d Cir. 2019) (concluding, based on a robust consensus in the courts of appeals, that the “right not to face retaliation for [one’s] leadership role in a public union was clearly established at the relevant time”); United States v. Baroni, 909 F.3d 550, 588 (3d Cir. 2018) (applying qualified immunity precedents in a case arising under 18 U.S.C. §§ 241 and 242, and holding that “although four circuits (including our own) have found some form of a constitutional right to intrastate travel, there is hardly a ‘robust consensus’ that the right exists, let alone clarity as to its contours,” and therefore, even though a prior circuit decision “is both clear and binding in our jurisdiction,” that decision did not provide “fair warning” that the “conduct was illegal, especially in view of the state of the law in our sister circuits”), rev’d on other grounds, Kelly v. United States, 140 S. Ct. 1565 (2020); Barna v. Bd. of Sch. Directors of Panther Valley Sch. Dist., 877 F.3d 136, 144–45 (3d Cir. 2017) (“Even if a right can be clearly established by circuit precedent despite disagreement in the courts of appeals, there does not appear to be any such consensus — much less the robust consensus — that we require”) (internal quotation marks and citation omitted); Mammaro v. New Jersey Div. of Child Prot. & Permanency, 814 F.3d 164, 171 (3d Cir. 2016) (distinguishing its one prior decision, putting aside the question of whether one such case would be sufficient, and noting that the district court was wrong to rely on an unpublished district court decision that postdated the events in the case). But see Sauers v. Borough of Nesquehoning, 905 F.3d 711, 715, 723 (3d Cir. Oct. 2, 2018) (acknowledging circuit split, while stating, “We hope... to establish the law clearly now,” and “our opinion today should resolve any ambiguity.... within this Circuit.”). Cf. Bryan v. United States, 913 F.3d 356, 363 (3d Cir. 2019) (“For purposes of qualified immunity, a legal principle does not become ‘clearly established’ the day we announce a decision, or even one or two days later.”).
It is nonetheless possible for a principle of law to be clearly established, even if a member of the court does not believe that principle to be a correct statement of the law at all. In Mack v. Warden Loretto FCI, 839 F.3d 286 (3d Cir. 2016), overruled on other grounds, Mack v. Yost, 986 F.3d 311 (3d Cir. 2020), while acknowledging that it had never before held that a prisoner’s oral grievance was constitutionally protected, the court nevertheless denied qualified immunity, holding that the right of a prisoner to be free from retaliatory termination of his job for exercising his right to petition was clearly established, over a dissent that would have held that, in the context of a prisoner’s retaliation claim, “oral complaints should not be considered protected conduct under the First Amendment.” Id. at 306. See also Groh v. Ramirez, 540 U.S. 551 (2004) (denying qualified immunity in a Fourth Amendment search case, over a dissent that found no constitutional violation).
Explaining its focus on reasonableness under the circumstances, the Court stated in Saucier that “[b]ecause ‘police officers are often forced to make split second judgments – in circumstances that are tense, uncertain, and rapidly evolving – about the amount of force that is necessary in a particular situation,’... the reasonableness of the officer's belief as to the appropriate level of force should be judged from that on scene perspective.” Saucier, 533 U.S. at 205 (quoting Graham v. Connor, 490 U.S. 386, 397 (1989)). See also Bland v. City of Newark, 900 F.3d 77 (3d Cir. 2018) (upholding qualified immunity for officers who shot driver of car after it crashed and was entangled in scaffolding because Bland threatened to kill the officers, the officers had reason to believe Bland was armed, and the officers had seen Bland extricate the car he was driving from an earlier crash and continue to flee); Mammaro v. New Jersey Div. of Child Prot. & Permanency, 814 F.3d 164, 171 (3d Cir. 2016) (finding child protection caseworkers protected by qualified immunity and noting “that the failure to act quickly and decisively in these situations may have devastating consequences for vulnerable children”). Conversely, the court of appeals has suggested that qualified immunity analysis can take into account the fact that a defendant had time to deliberate before acting. See Reedy v. Evanson, 615 F.3d 197, 224 n.37 (3d Cir. 2010) (in the course of holding that summary judgment on qualified-immunity grounds was inappropriate, noting that “[t]here were no ‘split second’ decisions made in this case”).
Even in a context where the underlying constitutional violation requires a showing of objective unreasonableness, the issue of qualified immunity presents a distinct question. As the Court explained in Saucier,
[t]he concern of the immunity inquiry is to acknowledge that reasonable mistakes can be made as to the legal constraints on particular police conduct. It is sometimes difficult for an officer to determine how the relevant legal doctrine, here excessive force, will apply to the factual situation the officer confronts. An officer might correctly perceive all of the relevant facts but have a mistaken understanding as to whether a particular amount of force is legal in those circumstances. If the officer's mistake as to what the law requires is reasonable, however, the officer is entitled to the immunity defense.Saucier, 533 U.S. at 205.99
Questions relating to qualified immunity should not be put to the jury “routinely”; rather, “[i]mmunity ordinarily should be decided by the court long before trial.” Hunter v. Bryant, 502 U.S. 224, 228 (1991) (per curiam). If there are no disputes concerning the relevant historical facts, then qualified immunity presents a question of law to be resolved by the court.
However, “a decision on qualified immunity will be premature when there are unresolved disputes of historical fact relevant to the immunity analysis.” Curley v. Klem, 298 F.3d 271, 278 (3d Cir. 2002) (“Curley I”); see also Reitz v. County of Bucks, 125 F.3d 139, 147 (3d Cir. 1997). Material disputes of historical fact must be resolved by the jury at trial.100 The question will then arise whether the jury should decide only the questions of historical fact, or whether the jury should also decide the question of objective reasonableness. See Curley I, 298 F.3d at 278 (noting that “the federal courts of appeals are divided on the question of whether the judge or jury should decide the ultimate question of objective reasonableness once all the relevant factual issues have been resolved”). Some Third Circuit decisions have suggested that it can be appropriate to permit the jury to decide objective reasonableness as well as the underlying questions of historical fact. See, e.g., Sharrar v. Felsing, 128 F.3d 810, 830-31 (3d Cir. 1997) (noting with apparent approval that the court in Karnes v. Skrutski, 62 F.3d 485 (3d Cir.1995), “held that a factual dispute relating to qualified immunity must be sent to the jury, and suggested that, at the same time, the jury would decide the issue of objective reasonableness”). On the other hand, the Third Circuit has also noted that the court can “decide the objective reasonableness issue once all the historical facts are no longer in dispute. A judge may use special jury interrogatories, for instance, to permit the jury to resolve the disputed facts upon which the court can then determine, as a matter of law, the ultimate question of qualified immunity.” Curley I, 298 F.3d at 279. And, more recently, the court has suggested that this ultimate question must be reserved for the court, not the jury. See Carswell v. Borough of Homestead, 381 F.3d 235, 242 (3d Cir. 2004) (“The jury... determines disputed historical facts material to the qualified immunity question.... District Courts may use special interrogatories to allow juries to perform this function.... The court must make the ultimate determination on the availability of qualified immunity as a matter of law.”).101 Most recently, the court has stated that submitting the ultimate question of qualified immunity to the jury constitutes reversible error: “[W]hether an officer made a reasonable mistake of law and is thus entitled to qualified immunity is a question of law that is properly answered by the court, not a jury.... When a district court submits that question of law to a jury, it commits reversible error.” Curley v. Klem, 499 F.3d 199, 211 (3d Cir. 2007) (“Curley II”).102
The court, then, should not instruct the jury on qualified immunity.103 Rather, the court should determine (in consultation with counsel) what the disputed issues of historical fact are. The court should submit interrogatories to the jury on those questions of historical fact. Often, questions of historical fact will be relevant both to the existence of a constitutional violation and to the question of objective reasonableness; as to such questions, the court should instruct the jury that the plaintiff has the burden of proof.104 (The court may wish to include those interrogatories in the section of the verdict form that concerns the existence of a constitutional violation.) Other questions of historical fact, however, may be relevant only to the question of objective reasonableness; as to those questions, if any, the court should instruct the jury that the defendant has the burden of proof. (The court may wish to include those interrogatories in a separate section of the verdict form, after the sections concerning the prima facie case, and may wish to submit those questions to the jury only if the jury finds for the plaintiff on liability.)
One question that may sometimes arise is whether jury findings on the defendant’s subjective intent are relevant to the issue of qualified immunity. Decisions applying Harlow and Harlow’s progeny emphasize that the test for qualified immunity is an objective one, and that the defendant’s actual knowledge concerning the legality of the conduct is irrelevant.105 Admittedly, the reasons given in Harlow for rejecting the subjective test carry considerably less weight in the context of a court’s immunity decision based on a jury’s findings than they do at earlier points in the litigation: The Court stressed its concerns that permitting a subjective test would doom officials to intrusive discovery, see Harlow, 457 U.S. at 817 (noting that “[j]udicial inquiry into subjective motivation therefore may entail broad ranging discovery and the deposing of numerous persons, including an official's professional colleagues”), and would impede the use of summary judgment to dismiss claims on qualified immunity grounds, see id. at 818 (noting that “[r]eliance on the objective reasonableness of an official's conduct, as measured by reference to clearly established law, should avoid excessive disruption of government and permit the resolution of many insubstantial claims on summary judgment”). Obviously, once a claim has reached a jury trial, concerns about discovery and summary judgment are moot. In order to reach the trial stage, the plaintiff must have successfully resisted summary judgment on qualified immunity grounds, based on the application of the objective reasonableness test. And the plaintiff must have done so without the benefit of discovery focused on the official’s subjective view of the legality of the conduct. If, at trial, the jury finds that the defendant actually knew the conduct to be illegal, it arguably would not contravene the policies stressed in Harlow if the court were to reject qualified immunity based on such a finding. Nonetheless, the courts’ continuing emphasis on the notion that the qualified immunity test excludes any element of subjective intent106 raises the possibility that reliance on the defendant’s actual knowledge could be held to be erroneous. As the Court has explained, “a defense of qualified immunity may not be rebutted by evidence that the defendant's conduct was malicious or otherwise improperly motivated. Evidence concerning the defendant's subjective intent is simply irrelevant to that defense.” Crawford El v. Britton, 523 U.S. 574, 588 (1998).
In some cases, however, the defendant’s motivation may be relevant to the plaintiff’s claim. See id. In such cases, the circumstances relevant to the qualified immunity determination may include the defendant’s subjective intent. For example, in a First Amendment retaliation case argued and decided after Crawford-El, the Third Circuit explained:
The qualified immunity analysis requires a determination as to whether reasonable officials could believe that their conduct was not unlawful even if it was in fact unlawful.... In the context of a First Amendment retaliation claim, that determination turns on an inquiry into whether officials reasonably could believe that their motivations were proper even when their motivations were in fact retaliatory. Even assuming that this could be demonstrated under a certain set of facts, it is an inquiry that cannot be conducted without factual determinations as to the officials' subjective beliefs and motivations....Larsen v. Senate of Com. of Pa., 154 F.3d 82, 94 (3d Cir. 1998); see also Monteiro v. City of Elizabeth, 436 F.3d 397, 404 (3d Cir. 2006) (“In cases in which a constitutional violation depends on evidence of a specific intent, ‘it can never be objectively reasonable for a government official to act with the intent that is prohibited by law’”) (quoting Locurto v. Safir, 264 F.3d 154, 169 (2d Cir. 2001)). In some cases where the plaintiff must meet a stringent test (on the merits) concerning the defendant’s state of mind, the jury’s finding that the defendant had that state of mind forecloses a defense of qualified immunity.107 In those cases, the jury’s decision on the defendant’s state of mind will also determine the qualified immunity question.108
Not all Section 1983 defendants will be entitled to assert a qualified immunity defense. See, e.g., Richardson v. McKnight, 521 U.S. 399, 401 (1997) (holding that “prison guards who are employees of a private prison management firm” are not “entitled to a qualified immunity from suit by prisoners charging a violation of 42 U.S.C. § 1983”); Wyatt v. Cole, 504 U.S. 158, 159 (1992) (holding that “private defendants charged with 42 U.S.C. § 1983 liability for invoking state replevin, garnishment, and attachment statutes later declared unconstitutional” cannot claim qualified immunity); Owen v. City of Independence, Mo., 445 U.S. 622, 657 (1980) (holding that “municipalities have no immunity from damages liability flowing from their constitutional violations”). But see Filarsky v. Delia, 132 S. Ct. 1657, 1665, 1667-68 (2012) (reasoning that “immunity under § 1983 should not vary depending on whether an individual working for the government does so as a full-time employee, or on some other basis,” and holding that a private attorney hired by a municipality to help conduct an administrative investigation was entitled to assert qualified immunity).
The Court has left undecided whether private defendants who cannot claim qualified immunity should be able to claim “good faith” immunity. See Wyatt, 504 U.S. at 169 (“[W]e do not foreclose the possibility that private defendants faced with § 1983 liability... could be entitled to an affirmative defense based on good faith and/or probable cause or that § 1983 suits against private, rather than governmental, parties could require plaintiffs to carry additional burdens.”); id. at 169-75 (Kennedy, J., joined by Scalia, J., concurring) (arguing in favor of a good faith defense); Richardson, 521 U.S. at 413 (declining to determine “whether or not... private defendants... might assert, not immunity, but a special ‘good faith’ defense”). Taking up the issue thus left open in Wyatt, the Third Circuit has held that “private actors are entitled to a defense of subjective good faith.” Jordan v. Fox, Rothschild, O'Brien & Frankel, 20 F.3d 1250, 1277 (3d Cir. 1994). The discussion in Jordan focused on the question in the context of a due process claim arising from a creditor’s execution on a judgment. See id. at 1276 (explaining that “a creditor's subjective appreciation that its act deprives the debtor of his constitutional right to due process” would show an absence of good faith).
