Qualified Immunity for Officers’ Reasonable Reliance on Lawyers’ Advice

An officer is entitled to qualified immunity when a reasonable officer would not have known that her conduct violated clearly established law. Courts disagree over whether and how an officer’s receipt of legal advice before acting supports the qualified immunity defense by showing that, based on the advice, a reasonable officer would have thought that her conduct would not violate clearly established law. This Article argues that legal advice should support the qualified immunity defense. It argues that when an officer asserts reliance on legal advice as supporting qualified immunity, a court should consider whether in the circumstances the officer was reasonable to rely on that legal advice, rather than analyzing the issue under a narrow “extraordinary circumstances” exception.

It further proposes a detailed framework for assessing reasonableness, based on a synthesis of various circuits’ divergent approaches to this specific question, the Supreme Court’s evolving approach to qualified immunity, and the policies that drive the qualified immunity doctrine. This detailed framework for a searching reasonableness analysis is the best way to balance the imposition of liability for officers who violate clear law against the recognition that often the best course for a reasonable officer will be to seek and rely on a legal opinion about a difficult legal question.