On jury instructions and qualified immunity

In Willingham v. Crooke, the Fourth Circuit in an interesting opinion by Chief Judge Wilkins held that the trial court erred in instructing the jury on the legal question of whether, on the facts found by the jury, the defendant was entitled to qualified immunity in a case brought under 42 U.S.C. § 1983.

Earlier, the District Court had granted the defendant's motion for summary judgment based on qualified immunity, and the court of appeals reversed, concluding that there was a question of fact as to whether the plaintiff had obstructed the defendant officers in their search. The plaintiff was charged with obstruction of justice, which is sometimes the catch-all statute in the Commonwealth for being a wise guy to the police. On remand, the trial court in its instructions gave the entirety of the qualified immunity issue to the jury, asking not only for the jury to determine what happened, but also for the jury to determine under those facts whether the defendants' conduct was reasonable "in light of the legal rules clearly established at the time of the incident."

On appeal, the Court first rejected the plaintiff's argument that the defendants had no qualified immunity defense after the earlier decision on appeal. The Court explained that the jury was not required to view the facts in the light most favorable to the plaintiff, and the Court in its earlier decision had not decided whether a reasonable officer would have known that his actions were unlawful under any and all versions of the facts.

Secondly, the Court agreed with the plaintiff's argument that the trial court went to far in presenting the issue to the jury. The Court explained that the existence of factual disputes does not mean that the jury gets to decide the essentially legal question of qualified immunity. Rather, the task of the jury is to resolve the factual disputes, leaving to the trial court the decision as to whether on the facts found by the jury the defendant is entitled to qualified immunity.

Several years ago, in article on qualified immunity, I wrote: "Qualified immunity ought to be determined long before trial, but where it is not, it remains an issue at trial. The court must define what is the clearly-established law. The jury with proper instructions and interrogatories should do no more than to decide the necessary facts. After the jury has determined disputed facts, qualified immunity remains an issue of law for the court to decide."

Citing many cases, the Court wrote: "The issue having now come before us, we hold that the legal question of a defendant’s entitlement to qualified immunity under a particular set of facts should be decided by the court, not by the jury. See Littrell v. Franklin, 388 F.3d 578, 584-86 (8th Cir. 2004); Swain v. Spinney, 17 F.3d 1, 9-10 & n.3 (1st Cir. 1997); Cottrell v. Caldwell, 85 F.3d 1480, 1487-88 (11th Cir. 1996); Warlick v. Cross, 969 F.2d 303, 305 (7th Cir. 1992). But see Oliveira v. Mayer, 23 F.3d 642, 649-50 (2d Cir. 1994) (holding that the district court erred in failing to submit the question of reasonableness to the jury); but cf. Curley v. Klem, 298 F.3d 271, 278-79 (3d Cir. 2002) (holding that once disputed factual questions are resolved, the question of the reasonableness of an officer’s actions may be decided either by the jury or by the court); but cf. also Maestas v. Lujan, 351 F.3d 1001, 1008-10 (10th Cir. 2003) (holding that the jury may decide the question of reasonableness if disputed facts are dispositive of that question); Fisher v. City of Memphis, 234 F.3d 312, 317 (6th Cir. 2000) (similar); Snyder v. Trepagnier, 142 F.3d 791, 799-800 (5th Cir. 1998) (similar), cert. granted, 525 U.S. 1098 (1999), cert. dismissed, 526 U.S. 1083 (1999)."

An interesting question not discussed in this case is - who has the burden of proof as to what happened. The instruction given by the trial court seemed to indicate that the burden was on the plaintiff to show facts that would prove the defendants were not entitled to qualified immunity. The instruction read in part: "If after considering the scope of discretion and responsibility generally given to police officers in the performance of their duties and after considering all of the surrounding circumstances of the case as they would have reasonably appeared at the time of the arrest you find from a preponderance of the evidence that Ms. Willingham has proved that [Sergeant] Crooke knowingly violated the law regarding Ms. Willingham’s constitutional rights, you must find for Ms. Willingham."

I still think, notwithstanding the language of a number of Fourth Circuit opinions, that it is at least an open question as to whether the plaintiff and not the defendant has the burden of proof, as a number of other circuits have so held, at different times. See Garretson v. City of Madison Heights, 407 F.3d 789, 798 (6th Cir. 2005) ("Garretson bears the ultimate burden of proof to show that the individual officers are not entitled to qualified immunity"); Vinyard v. Wilson, 311 F.3d 1340, 1346 (11th Cir. 2002) ("Once the defendant establishes that he was acting within his discretionary authority, the burden shifts to the plaintiff to show that qualified immunity is not appropriate"); Bazan ex rel. Bazan v. Hidalgo County, 246 F.3d 481, 489 (5th Cir. 2001) ("The defendant official must initially plead his good faith and establish that he was acting within the scope of his discretionary authority. Once the defendant has done so, the burden shifts to the plaintiff to rebut this defense by establishing that the official's allegedly wrongful conduct violated clearly established law."); Erwin v. Daley, 92 F.3d 521, 525 (7th Cir. 1996) (“Once a public official raises the defense of qualified immunity, the plaintiff bears the burden of proof on the issue”); Lenz v. Dewey, 64 F.3d 547, 550 (10th Cir. 1995) (“Once a defendant asserts qualified immunity, the plaintiff bears the burden of proving that the defendants violated a law that was clearly established”).

The last time I checked, the Supreme Court had not squarely addressed the issue. See Gomez v. Toledo, 446 U.S. 635, 642 (1980) (Justice Rehnquist reads the opinion “to leave open the issue of the burden of persuasion, as opposed to the burden of pleading”); see also Davis v. Scherer, 468 U.S. 183, 190 (1984) (“defendants who violate constitutional rights enjoy a qualified immunity that protects them from liability for damages unless it is further demonstrated that their conduct was unreasonable under the applicable standard”).