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A government official found liable could petition for indemnification and thereby escape financial liability. But if a government official engaged in illegal conduct he was liable without regard to his subjective good faith.

Indeed, the Supreme Court expressly rejected a good faith defense to liability under Section after it became law. The Court's conclusion in Pierson that a good faith immunity protected the defendant officers from liability is, as Robert Alschuler has argued, "inconsistent with the common law and many of the Court's own decisions. Moreover, even if one believed that the Court's decision in Pierson accurately reflected the common law, today's qualified immunity doctrine bears little resemblance to the protections announced in Pierson.

8.2 Suits Against Public Officials in Their Individual Capacity

Although qualified immunity was initially available to government officials who acted with a subjective, good faith belief that their conduct was lawful, the Supreme Court in Harlow eliminated consideration of officers' subjective intent and focused instead on whether officers' conduct was objectively unreasonable.

Even when a plaintiff can demonstrate that a defendant was acting in bad faith, that evidence is considered irrelevant to the qualified immunity analysis. The Court has repeatedly made clear that a plaintiff seeking to show that an officer's conduct was objectively unreasonable must find binding precedent or a consensus of cases so factually similar that every officer would know that their conduct was unlawful. And qualified immunity applies to all types of constitutional claims, not only claims for which an officer's good faith might otherwise be relevant.

None of these aspects of qualified immunity can be found in the common law when Section became law, or in Pierson. To its credit, the Supreme Court has long recognized that it cannot ground its qualified immunity jurisprudence in the common law.

On the Legal Front: Considering Supreme Court Nominee Neil Gorsuch’s Record on Employment Law

Indeed, thirty years ago, the Supreme Court acknowledged that it had "completely reformulated qualified immunity along principles not at all embodied in the common law. Tomorrow, I will show that qualified immunity is neither necessary nor particularly well-suited to achieve this goal. But Justice Thomas has raised a more fundamental critique of the Court's turn away from the common law.

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In Ziglar , Justice Thomas writes that qualified immunity should conform to the "common-law backdrop against which Congress enacted the Act," rather than "the sort of 'freewheeling policy choice[s]' that we have previously disclaimed the power to make. As this discussion makes clear, conforming qualified immunity doctrine to the common law in place in would require dramatically limiting qualified immunity doctrine or doing away with the defense altogether.

On the other hand, if five or more Justices do not mind that qualified immunity doctrine currently takes a form far different than the common law in , and do not mind that the doctrine has been structured by the Court to advance its interest in shielding government officials from burdens associated with being sued, then it becomes important to consider the extent to which the doctrine achieves its policy goals.

I turn to this topic tomorrow. Jacob Sullum 9.

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Jesse Walker 9. Billy Binion 9. Appointed as city planner in , the employee began working on a master plan for a project to develop a public greenway along a river. The project involved multiple phases of development, including the Meadow Project, the phase at issue here.

Although he acted as the point person between the city and private groups involved in the project in the other phases, for the Meadows Project, the city engineer was the point person. About two months later, the employee expressed these concerns to the mayor; less than a month later, the mayor informed the employee that he would not be reappointing him as city planner.

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Lower court proceedings. The employee subsequently sued the mayor in his individual and official capacities, asserting a First Amendment retaliation claim, and the mayor moved for summary judgment on qualified immunity.


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One tool that cities have used to continue providing services in a cost-effective and fiscally responsible manner is municipal outsourcing. Indeed, hundreds of cities in California contract out the position of city attorney to a private attorney or law firm. In addition to the financial considerations that drive outsourcing, cities long have retained private attorneys on a temporary basis for a variety of reasons, including:.

Recognizing, however, that the investigating conduct violated no clearly established law, the Ninth Circuit granted qualified immunity to all the individuals involved in conducting the investigation — except the private attorney retained to assist the city. The Ninth Circuit denied qualified immunity to him solely because he was not a permanent, full-time city employee.

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But the case did not end there. Aided by a lone friend-of-the-court brief from the League and the California State Association of Counties, the private attorney convinced the U. Supreme Court to hear his case. Unanimously reversing the Ninth Circuit, the Supreme Court issued a decision that was very favorable for cities. Writing for the court, Chief Justice Roberts found no justification for distinguishing between government employees and private individuals temporarily retained by the government to carry out its work. Even more important, the court concluded that the public policies underlying qualified immunity strongly favor immunity for private contractors performing government services.