This chapter is being reviewed in light of comments solicited by the Committee from the public.
9.26 QUALIFIED IMMUNITY
The Committee has not formulated any instructions concerning qualified immunity because most issues of qualified immunity are resolved before trial, or the ultimate question of qualified immunity is reserved for the judge to be decided based on the jury’s resolution of the disputed facts through a special verdict.
The qualified immunity analysis consists of two steps: (1) whether the facts the plaintiff alleges make out a violation of a constitutional right; and (2) whether that right was clearly established at the time the defendant acted. Pearson v. Callahan, 555 U.S. 223, 232 (2009); Mattos v. Agarano, 661 F.3d 433, 440 (9th Cir.2011). Whether a right is clearly established turns on "whether it would be clear to a reasonable officer that his conduct was unlawful in the situation he confronted." Conner v. Heiman, 672 F.3d 1126, 1132 (9th Cir.2012) (quoting Saucier v. Katz, 533 U.S. 194, 202 (2001)).
Qualified immunity is a question of law, not a question of fact. Torres v. City of L.A., 548 F.3d 1197, 1210 (9thCir.2008). "Immunity ordinarily should be decided by the court long before trial." Hunter v. Bryant, 502 U.S. 224, 227 (1991). Only when "historical facts material to the qualified immunity determination are in dispute" should the district court submit the factual issue to a jury. Torres, 548 F.3d at 1211. If the only material dispute concerns what inferences properly may be drawn from the historical facts, a district court should decide the issue of qualified immunity. Conner, 672 F.3d at 1131 n.2 ("[W]hile determining the facts is the jury’s job (where the facts are in dispute), determining what objectively reasonable inferences may be drawn from such facts may be determined by the court as a matter of logic and law.").
A defendant is only entitled to qualified immunity as a matter of law if, taking the facts in the light most favorable to the nonmoving party, he or she violated no clearly established constitutional right. Torres, 548 F.3d at 1210.If reasonable jurors could believe that the defendant violated the plaintiff’s constitutional right, and the right at issue was clearly established, the case should proceed to trial. Id.; see also Lalonde v. Cnty. of Riverside, 204 F.3d 947, 953 (9th Cir.2000) ("If … there is a material dispute as to the facts regarding what the officer or the plaintiff actually did, the case must proceed to trial, before a jury if requested."). "Though we may excuse the reasonable officer for … a mistake, it sometimes proves necessary for a jury to determine first whether the mistake, was, in fact, reasonable." Johnson v. Bay Area Rapid Transit. Dist., 724 F.3d 1159, 1168 (9thCir.2013) (citations omitted); Wilkins v. City of Oakland, 350 F.3d 949, 955 (9th Cir.2003) (explaining that if determining reasonableness of officer’s action depends on disputed issues of fact, i.e., which version of facts is accepted by jury, this is question of fact best resolved by jury). When a case proceeds to trial, qualified immunity is no longer an "immunity from suit"; rather, it effectively becomes a defense. Torres, 548 F.3d at 1211 n. 9.
When a court submits factual issues that are material to the jury by special verdicts because qualified immunity cannot be decided on a motion for summary judgment given disputed facts relevant to the inquiry, the court reserves to itself the determination of the immunity defense in light of the jury’s responses to the special verdicts, which can be addressed by the court in the context of a motion for new trial or motion for judgment notwithstanding the verdict. Tortu v. Las Vegas Metro. Police Dep’t, 556 F.3d 1075 (9th Cir.2009). It is the litigant’s responsibility, however, to ensure the issue is brought on a Rule 50(a) motion at the close of evidence. Id. ("When a qualified immunity claim cannot be resolved before trial due to a factual conflict, it is a litigant’s responsibility to preserve the legal issue for determination after the jury resolves the factual conflict."); see also A.D. v. Calif. Highway Patrol, 712 F.3d 446, 452 n.2 (9th Cir.2013) (noting that defendant preserved his position on qualified immunity–renewed in Rule 50(b) motion after trial–by bringing Rule 50(a) motion for JMOL before case was submitted to jury).
In a general verdict with special interrogatories to the jury, a jury makes a finding as to the ultimate legal and factual question at issue in the case. Floyd, 926 F.2d 1390, 1395 (9th Cir.1991). In a special verdict, a jury only makes factual findings, and the court then applies the law to those findings. Id. As a general rule, the court has complete discretion over whether to have the jury return a special verdict or a general verdict. Id.
For a discussion of when a law enforcement officer is entitled to rely on the judgment of a government agency for purposes of the second prong of the qualified immunity analysis, see Sjurset v. Button, 810 F.3d 609 (9th Cir.2015).