QUALIFIED IMMUNITY

Reduced to its most basic terms, qualified immunity shields officials 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, 102 S.Ct. 2727, 2738 (1982).  The determination of weather a public official "is entitled to qualified immunity involves three inquiries (1) the identification of the specific right allegedly violated;  (2) the determination of whether that right was so "clearly established" as to alert a reasonable officer to its constitutional parameters;  and (3) the ultimate determination of whether a reasonable officer could have believed lawful the particular conduct at issue. Romero v. Kitsap County, 931 F.2d 624, 627 (9th Cir.1991);  Acosta v. City and County of San Francisco, 83 F.3d 1143, 1147 (9th Cir. 1996);  Shoshone-Bannock Tribes v. Fish & Game Com'n, Idaho, 42 F.3d 1278, 1285 (9th Cir. 1994).   Reliance on advise of counsel does not satisfy the defendant's burden in reference to qualified immunity.  Lucero v. Hart, 915 F.2d 1367, 1371 (9th Cir. 1990).

The determination of whether a public official "is entitled to qualified immunity involves three inquiries (1) the identification of the specific right allegedly violated; (2) the determination of whether that right was so "clearly established" as to alert a reasonable officer to its constitutional parameters; and (3) the ultimate determination of whether a reasonable officer could have believed lawful the particular conduct at issue. Romero v. Kitsap County, 931 F.2d 624, 627 (9th Cir.1991); Acosta v. City and County of San Francisco , 83 F.3d 1143, 1147 (9th Cir. 1996); Shoshone-Bannock Tribes v. Fish & Game Com'n, Idaho, 42 F.3d 1278, 1285 (9th Cir. 1994).

1. Clearly Established Law Does Not Require Identical Circumstances - The Law Should Not Be Defined Narrowly.

In making the clearly established determination, appellate review is not limited to those cases cited at the trial level or relied upon by the trial court. Elder v. Holloway, 114 S.Ct. 1019, 1021 (1994); Lewis v. Sacramento County, 98 F.3d 434, 443 (9th Cir. 1996). In the absence of binding precedent, courts "look to all available decisional law, including the law of other circuits and district courts, to determine whether the right was clearly established. Osolinski v. Kane, 92 F.3d 934, 936 (9th Cir. 1996); Robinson v. City of Seattle, 119 Wn.2d 34, 67, 830 P.2d 318 (1992). "Generally, courts do not look to post-incident cases to determine whether the law was clearly established at the time of the incident." Osolinski, supra.

"The operation of the 'clearly established' standard, depends substantially upon the level of generality at which the relevant 'legal rule' is to be identified." Camarillo v. McCarthy, 998 F.2d 638, 640 (9th Cir. 1993). "To define the law in question too narrowly would be to allow defendants 'to define away all potential claims." Jackson v. McIntose, 81 F.3d 112, 113 (9th Cir. 1996). To defeat qualified immunity, plaintiff must establish that the contours of the right violated are "sufficiently clear that a reason-able official would understand that what he is doing violates that right." Anderson v. Creighton, 483 U.S. 635, 640, 107 S.Ct. 3034, 3039, 97 L.Ed.2d 523 (1987). The specific action in question need not previously have been held unlawful, but the unlawfulness must be apparent in light of preexisting law. Id.; Altshuler v. City of Seattle, Mun. Corp., 63 Wn. App. 389, 395, 819 P.2d 393 (1991)(quoting Anderson); Robinson , supra at 66. "The qualified immunity regime of clearly established law should not be held to allow Section 1983 defendants to interpose lawyerly distinctions that defy common sense in order to distinguish away clearly established law." Wood v. Ostrander, 851 F.2d 1212, 1218 (9th Cir. Wash. 1988). "Common sense is relevant to the inquiry as to whether the contours of the right at issue were clearly established." Lewis v. Sacramento County, 98 F.3d at 444 (emphasis added); Mitchell v. Forsyth , 105 S.Ct. 2806, 2820 n.12 (1985)("We do not intend to suggest that an official is always immune from liability or suit for a warrantless search merely because the warrant requirement has never explicitly been held to apply to a search conducted in identical circumstances."); Germany v. Vance, 868 F.2d 916 (1st Cir. 1989)(It is not necessary for plaintiff to cite cases Œin which specific conduct complained of was found to be unconstitutional); Eastwood v. Department of Corrections, 846 F.2d 627, 630 (10th Cir. 1988)(No strict factual correspondence between cases is necessary, "it is incumbent upon officials 'to relate established law to analogous factual setting.'"); Brady v. Bebbie, 859 F.2d 1543, 1557 (9th Cir. 1988)("Specific binding precedent is not required to show that a right is clearly established.").

The responsibility for keeping abreast of constitutional developments in criminal law rests squarely on the shoulders of law enforcement officials. "Given the power of such officials over our liberty, and sometimes even our lives, this placement of responsibility is entirely proper. Law enforcement officials must be cognizant not only of how far their authority extends, but also of the point at which their authority ends." Ward v. County of San Diego, 791 F.2d 1329, 1332 (9th Cir. 1986). See also Tribble v. Gardner , 860 F.2d 321, 324 (9th Cir. Wash. 1988)(Government officials are charged with knowledge of constitutional developments, including all available decisional law); Melton v. City of Oklahoma, 879 F.2d 706 (10th Cir. 1989)(Officials are presumed to know and abide by the law, qualified immunity will fail even when the official spoke with counsel before taking action).

2. Qualified Immunity is Contrary to the Public Interest and Should Receive a Narrow Construction to Preserve the  Quality of Constitutional Rights.

The most formidable obstacle to the enforcement of constitutional rights is the doctrine of qualified immunity.  Qualified immunity is viewed not as a mere defense to liability, but rather as immunity from suit. Mitchell v. Forsyth, 472 U.S. 511, 526,105 S.Ct. 2806, 2815 (1985). Government officials will almost always attempt to have a claim dismissed substantially in advance of trial by way of summary judgment. Qualified immunity has become so broad that it threatens to swallow the cause of action.

Because liability is defined in terms of what an objectively reasonable public official would know, the government has an incentive to argue that ignorance of constitutional rights is objectively reasonable. This incentive is simply not in the public interest. In a different context, the lack of knowledge defended by government attorneys as reasonable would often be an insult to the intelligence of any self respecting public official.

Ignorance of the law is  no  excuse to a criminal violation, and citizens of Washington are convicted of felonies and serve time in prison despite  their  ignorance  of clearly established law.  State v. Smith, 111 Wn.2d 1, 6,  759 P.2d 372 (1988)("well-settled  maxim  that ‘ignorance  of  the law excuses no one"').  Public officials have a greater duty than ordinary citizens to be knowledgeable of the law, and this Court should be less tolerant of their ignorance of constitutional rights, not more.

        Generally, state officials know something of the individual's basic legal rights.  If they do not, they should, for they assume         that duty when they assume their office.  Ignorance of the law is no excuse for men in general.  It is less an excuse for men         whose special duty is to apply it, and therefore to know and observe it.

Screws v. United States, 325 U.S. 91, 129 (1945) (Rutledge, J., concurring) (emphasis added).

The enlightened way to avoid constitutional litigation is to prevent the constitutional violations that give rise to litigation. This requires that public officials be highly aware of constitutional rights and that they know the limits of their lawful authority. Exposure to civil liability promotes that awareness and knowledge. Qualified immunity militates against it. It is not in the public interest to sacrifice the quality of constitutional freedoms in the name of protecting the government from civil liability. See generally Mandery, Evan J., Qualified Immunity or Absolute Impunity? The Moral Hazards of Extending Qualified Immunity to Lower-Level Public Officials, Harvard Journal of Law and Public Policy, 479-519, Spring, 1994.