NCJ Number
98864
Journal
FBI Law Enforcement Bulletin Volume: 54 Issue: 5 Dated: (May 1985) Pages: 25-31
Date Published
1985
Length
7 pages
Annotation
In this second of two parts analyzing the U.S. Supreme Court's revision of the qualified immunity defense in Harlow v. Fitzgerald, litigation tactics are described which officers can use to mitigate or counter the adverse impact of being named as a defendant in a constitutional tort civil action.
Abstract
The key issue in asserting the qualified immunity defense is whether the law purportedly violated was clearly established at the time of the incident giving rise to the action. In< addition, the Court held that liability would not be imposed if the officer claims extraordinary circumstances and can prove that he neither knew nor should have known of the relevant legal standard. One application of this defense is in cases involving extremely recent changes in law. In a 1979 suit filed against a newly elected governor, the court held that following official legal advice in the course of one's duties was an exceptional circumstance sufficient to avoid liability for a constitutional tort. Two cases have examined the liability of constitutional violations by persons acting on the instructions of a superior. In the first, a court held that an official court transcriber was immunized from liability arising from following the instructions of the judge presiding in the case. In the second, FBI agents participating in a counterintelligence operation were not held to be immune, although they were following an approved organizational policy. Additional procedures which may prove useful in countering the filing or continued prosecution of groundless and/or frivolous actions include the use of counterclaims for battery or defamation, attempting to have attorneys' fees assessed against the plaintiff, and attempts to have sanctions imposed against the plaintiff's attorney.