The opinion of the court was delivered by: BARRY
This action, brought pursuant to 42 U.S.C. § 1983, arises from an altercation between plaintiffs Marcos Skevofilax and Michael Michaels and various Edison Township police officers. The court is confronted, in this pretrial setting, with the question of whether the defendant policemen's claims of qualified immunity should be decided by the court or by the jury. This issue has become pertinent because of the change in the standard for qualified immunity in § 1983 actions that was wrought by Harlow v. Fitzgerald, 457 U.S. 800, 73 L. Ed. 2d 396, 102 S. Ct. 2727 (1982). For the reasons set forth below, I hold that the question of whether a public official may use the shield of qualified immunity is ordinarily wholly one of law, to be decided by the court before the commencement of trial, and that under the circumstances of this case, the defendants are not entitled to invoke that defense.
The concept of qualified or "good faith" immunity under 42 U.S.C. § 1983 is of rather recent origin. Section 1983 was largely dormant
from its inception in the Civil Rights Act of 1866 and the Ku Klux Klan Act of 1871 until the Supreme Court's decision in Monroe v. Pape, 365 U.S. 167, 5 L. Ed. 2d 492, 81 S. Ct. 473 (1961).
Concommitantly, absolute immunity from suit under § 1983 for legislators was not recognized until Tenney v. Brandhove, 341 U.S. 367, 95 L. Ed. 1019, 71 S. Ct. 783 (1951) and for judges not until Pierson v. Ray, 386 U.S. 547, 18 L. Ed. 2d 288, 87 S. Ct. 1213 (1967), which also held that "the defense of good faith" to a § 1983 action is available to policemen. Id. at 555.
The contours of a qualified immunity standard were first set out in Scheuer v. Rhodes, 416 U.S. 232, 40 L. Ed. 2d 90, 94 S. Ct. 1683 (1974), an action against Ohio's governor and other officials claiming violations of the civil rights of three students killed at Kent State University. Holding that the officials would not be absolutely, but only qualifiedly, immunized for executive acts, the Court stated that "It is the existence of reasonable grounds for the belief formed at the time and in light of all the circumstances, coupled with good faith belief, that affords a basis for qualified immunity of executive officers for acts performed in the course of official conduct." Id. at 247-248. The officials' reasonableness was to be determined by analyzing the functions of his particular office. Id. at 243, 247.
In Wood v. Strickland, 420 U.S. 308, 43 L. Ed. 2d 214, 95 S. Ct. 992 (1975), a suit against school board members by parents of high school students expelled for drinking at school or at school activities, the Court noted general agreement as to the existence of "good faith" immunity, but recognized that lower courts were confused over whether to employ an "objective" or "subjective" standard for determining that immunity. The Court concluded that:
. . . the appropriate standard necessarily contains elements of both. The official himself must be acting sincerely and with a belief that he is doing right, but an act violating a student's constitutional rights can be no more justified by ignorance or disregard of settled, indisputable law on the part of one entrusted with supervision of students' daily lives than by the presence of actual malice. 420 U.S. at 321
To lose the shield of immunity it was, therefore, necessary that only one of the two elements be present:
Wood shifted the focus from the functions of the office to the person committing the complained of acts. See Comment, Immunity: Eliminating the Subjective Element from the Qualified Immunity Standard in Actions Brought Against Government Officials, 22 Washburn L. Rev. 577, 583 n. 46 (Spring 1983). The use of the phrase "knew or should have known" rather than the "reasonably knew" standard previously applied, see Scheuer, supra at 247-248; Pierson v. Ray, supra at 557, thus expanded the potential for liability by overlaying the pre-existing objective "reasonable person" standard with a subjective standard keyed to the actual knowledge of the defendant. This expansion, coupled with the Court's emphasis on the equality of the subjective and objective as bases for rejecting a qualified immunity defense, resulted in the creation of an almost insuperable obstacle to summary judgment. Judge Gesell, concurring in Halperin v. Kissinger, 196 U.S. App. D.C. 285, 606 F.2d 1192, 1214 (D.C.Cir. 1979), aff'd, 452 U.S. 713, 69 L. Ed. 2d 367, 101 S. Ct. 3132 (1981), discussed this phenomenon:
As I see it, this means that if a plaintiff can establish a genuine material issue of fact as to any element of the immunity defense the case will have to proceed to trial. In my view this approach substantially undermines, if not destroys, the immunity doctrine.
We should not close our eyes to the fact that with increasing frequency in this jurisdiction and throughout the country plaintiffs are filing suits seeking damage awards against high government officials in their personal capacities based on alleged constitutional torts. Each such suit almost invariably results in these officials and their colleagues being subjected to extensive discovery into traditionally protected areas, such as deliberations preparatory to the formulation of government policy and their intimate thought processes and communications at the presidential and cabinet levels. Such discover (sic) is wide-ranging, time-consuming, and not without considerable costs to the officials involved. It is not difficult for ingenious plaintiff's counsel to create a material issue of fact on some element of the immunity defense where subtle questions of constitutional law and a decisionmaker's mental processes are involved. A sentence from a casual document or a difference in recollection with regard to a particular policy conversation held long ago would usually, under the normal summary judgment standards, be sufficient. In short, if these standards are those to be followed in these cases, trial judges will almost automatically have to send such cases to full trial on the merits.
In Butz v. Economou, 438 U.S. 478, 507-508, 57 L. Ed. 2d 895, 98 S. Ct. 2894 (1978), the Court, in authorizing qualified immunity for members of the federal executive branch who commit constitutional transgressions while performing their discretionary functions,
emphasized that it had
The harassment, however, continued, and Harlow v. Fitzgerald, supra, provided not merely one more articulation by the court of its dissatisfaction and impatience with this harassment, but the teeth which the district courts required to respond to it. Harlow was a § 1983 suit by a former Air Force executive who the government claimed had been dismissed because of a departmental reorganization and reduction in force, but who asserted that he was fired in retaliation for his Congressional testimony concerning cost overruns on the C-5A transport plane. With respect to defendants Harlow and Butterfield, two aides to former President Nixon who purportedly were part of a conspiracy to discharge Fitzgerald, the Court held that qualified and not absolute immunity applied. While absolute immunity is improper for most public officers because often only a damage action will vindicate one whose constitutional rights have been violated, Justice Powell, writing for the majority, averred that
"(It) cannot be disputed seriously that claims frequently run against the innocent as well as the guilty - at a cost not only to defendant officials, but to the society as a whole. These social costs include the expenses of litigation, the diversion of official energy from pressing public issues, and the deterrence of able citizens from acceptance of public office. Finally, there is the danger that fear of being sued will 'dampen the ardor of all but the most resolute, or the most irresponsible [public officials], in the unflinching discharge of their duties.' "
457 U.S. at 814 (footnote and citation omitted). In order to advance the ability of courts to dismiss insubstantial lawsuits without trial and thus safeguard the interests of deserving officials and of the public, the Harlow Court set ...