As the Supreme Court has repeatedly emphasized, qualified immunity is an issue that should be decided at the earliest opportunity. Typically this means the issue is raised at the motion to dismiss stage if it can be argued based on the allegations in the complaint, and/or at the summary judgment stage when evidence can be presented to show the officers would not have been on notice that their conduct was unlawful or unconstitutional. Qualified immunity has two prongs: sometimes the qualified immunity analysis is based on showing the officers’ conduct was reasonable and lawful, and other times it may be that the law changed and the officers were not on notice that their conduct was unlawful.
But what if the court denies a motion seeking judgment based on qualified immunity? If there are material factual disputes, the court may not be able to determine if the officers are entitled to qualified immunity.
The issue of qualified immunity is considered a legal issue and not a factual one. For this reason, and because the issue should be resolved early in a case, the Ninth Circuit has declined to offer model jury instructions for trial on the issue.
Despite the lack of model jury instructions on this theory, in some trials, the courts have permitted attorneys to submit factual interrogatories (questions for the jurors to answer). After the jurors agree on certain underlying facts, the judge can then determine based on their factual findings whether qualified immunity should apply. If so, a directed verdict would be entered by the judge.
In the case of Morales v. Fry, an unlawful arrest and excessive force action, arising from a May Day protest in Seattle, the Ninth Circuit recently decided it was erroneous for the district court to allow the jury to decide the legal question of whether a particular constitutional right was clearly established. The appellate court reversed the jury’s verdict, holding that the legal issues of qualified immunity must be decided by a judge.
This is an important reminder to parties that while a jury can decide disputed factual issues, a judge must decide whether the right was clearly established once the factual issues are resolved.