CA10: QI isn’t determined by violation of state law; has to be violation of federal law

In a fractured panel decision, the Tenth Circuit holds that federal law governs qualified immunity, not state law. Here, defendant violated clearly established state law, but the district court didn’t decide whether it violated clearly established federal law. Remanded. Stanley v. Gallegos, 2017 U.S. App. LEXIS 4816 (10th Cir. March 17, 2017):

The federal civil-rights statute, 42 U.S.C. § 1983, authorizes suits against persons acting under color of state law for violations of rights granted by federal law. But under modern doctrine the defendant is not personally liable in damages for every violation of such rights. Wary of the damage to public welfare if government officers were deterred and distracted from vigorous performance of their duties by excessive exposure to litigation, the courts have provided them qualified immunity from suit despite their violations of federal law unless the unlawfulness of their actions has been clearly established by the time they act. This much is settled law.

The appeal before us raises a related issue that is not settled in this circuit. Say the violation of federal law was not clearly established, but under state law the action was unauthorized. Does a public officer lose the protection of qualified immunity when he acts outside the scope of his authority? Is there any justification for granting immunity in that context? The answer is not an easy one, as suggested by the division within this panel. Judge Holmes would not recognize a scope-of-authority exception to qualified immunity. Judge Matheson would not address whether the exception should be recognized or, if it were recognized, what the scope of the exception should be, because, in his view, the parties agree that the exception should apply and that the defendant’s lack of authority must be clearly established. The author likewise would not decide whether to recognize or reject a scope-of-authority exception but would hold that were this court to recognize a scope-of-authority exception to qualified immunity, the lack of authority under state law would have to be clearly established at the time of the challenged action.

In this case the district court endorsed the scope-of-authority exception to qualified immunity and ruled that Defendant Donald Gallegos, a district attorney, had clearly acted without state-law authority in forcibly removing a barrier that Plaintiff David Stanley had placed on a road to prevent traffic through his property. It therefore held that Defendant could not invoke the protection of qualified immunity. Exercising jurisdiction under 28 U.S.C. § 1291, the panel reverses and remands to the district court for further consideration of whether Defendant violated clearly established federal law or is instead entitled to qualified immunity.

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