Everyone makes mistakes — even the most careful municipal officials. Although municipal officials and the municipalities that employ them are frequently the targets of civil lawsuits, there are several legal defenses under New Hampshire and federal law that may protect them from liability.
Official immunity and qualified immunity are two such legal doctrines that protect public officials from civil lawsuits for honest mistakes made within the scope of their employment. Used properly, official immunity and qualified immunity may block civil proceedings from advancing beyond the early stages of litigation, sparing municipalities and their employees from devoting massive amounts of time, energy, and resources defending these lawsuits at trial.
Under New Hampshire law, official immunity shields state and municipal officials from liability for common law torts. The goal of official immunity is to “protect public officials from the fear of personal liability, which might deter independent action and impair effective performance of their duties.” Everitt v. General Electric Co., 156 N.H. 202, 214 (2007). Although official immunity limits common law civil recourse for certain individuals who may be injured by errant decisions of government officials, the New Hampshire Supreme Court has held that it is more important for government officials to fulfill their responsibilities “without constant dread of retaliation” because it benefits the “welfare of the citizenry at large.” Id. at 219 (quotation omitted).
Under official immunity, government officials are entitled to immunity for decisions, acts, or omissions that are:
(1) made within the scope of their official duties while in the course of their employment;
(2) discretionary, rather than ministerial; and
(3) not made in a wanton and reckless manner. Id.
Determining whether a government official’s conduct falls within the scope of official immunity requires an understanding of the official’s duties and his or her scope of employment. A police officer arresting an individual suspected of committing domestic violence, for example, is an activity that clearly falls within the scope of the police officer’s official duties because police officers are required and authorized to arrest people who are suspected of committing crimes.
A government official’s conduct is protected by official immunity only if the conduct is discretionary, meaning that it “involves the exercise of personal deliberation and individual professional judgment.” Id. at 219. Official immunity does not protect ministerial actions that are “absolute, certain and imperative, involving merely execution of a specific duty arising from fixed and designated facts.” Id. at 220. A police officer’s arrest of an individual would almost certainly be considered a discretionary act because the officer had to use her “individual professional judgment” to determine whether the individual committed a crime requiring arrest based on her understanding of the law and her observations of the crime scene. In contrast, the preparation of voting ballots by a municipal employee likely would be considered a ministerial act not entitled to official immunity’s protection because it involves “merely [the] execution of a specific duty.” Restatement (Second) of Torts § 895D cmt. h (Am. Law Inst. 1979).
A government official must also have a “reasonable belief” that his or her conduct was lawful. This term is something of a misnomer: reasonableness is typically “associated with the absence of negligence,” but in the context of official immunity, a government official who had a “reasonable belief” in the lawfulness of his or her conduct means that the official did not act in a reckless and wanton manner — a significantly higher standard than negligence. Farrelly v. City of Concord, 168 N.H. 430, 445–46 (2015). If not for this higher standard of culpability, official immunity would provide no protection at all—a government official who is found to have acted negligently not only may be found to have committed the underlying tort, but also would be found to have forfeited the protection of official immunity. Therefore, even if a government official acted negligently, he or she still may be entitled to official immunity if he or she did not act in a reckless or wanton manner.
Analyzing whether a governmental official did not have a “reasonable belief,” requires an analysis of the subjective reasonableness and the objective reasonableness of the official’s conduct. Subjective reasonableness means, essentially, that the government official actually believed that his or her conduct was lawful. Objective reasonableness requires an analysis of a reasonable government official “standing in the defendant’s shoes.” Id. at 446. It is not evaluated from the perspective of a person who is disconnected from the situation. Therefore, when evaluating objective reasonableness, the court must consider the context in which the municipal official’s conduct occurred, and cannot use “the near perfect” vision of hindsight to question the government official’s actions. Id. at 449.
Even though official immunity requires an analysis of the subjective and objective reasonableness of a government official’s conduct, it applies to both negligent and intentional torts. Therefore, when confronted with a negligence claim, an intentional tort claim (such as false imprisonment), or a combination thereof, the standard for whether official immunity applies is substantially the same.
Official immunity shields not only individually-named government officials, but also may shield the government entity that employs them. Official immunity that flows upstream from the protected government official to also protect the government entity that employs him or her is called “vicarious official immunity.” A municipality is protected by vicarious official immunity if the policies underlying individual official immunity would otherwise be undermined — that is, if exposing the municipality to liability would focus “stifling attention” on a government official’s job, thereby inhibiting effective performance of his or her official duties. Everitt, 156 N.H. at 221–22.
Official immunity is a bar to a lawsuit, and if it is not raised before trial, its protection is effectively lost. Notably, “bare allegations of malice” are insufficient to defeat official immunity at the summary judgment phase; there must be a genuine issue of material fact that the government officials acted recklessly and wantonly. Farrelly, 168 N.H. at 448.
Qualified immunity was the inspiration for official immunity in New Hampshire, and, as such, the two legal doctrines share many similarities.
Under federal law, qualified immunity shields federal, state, and municipal officials from damages claims arising out of discretionary acts made within the scope of their government employment. Harlow v. Fitzgerald, 457 U.S. 800 (1982). Qualified immunity protects government officials from certain constitutional violations, such as claims brought under 42 U.S.C. § 1983 including Fourth Amendment claims for unconstitutional arrests and illegal searches or seizures.
Qualified immunity is designed to protect government officials who have made mistakes that are reasonable and made in good faith. Government officials are entitled to qualified immunity unless (1) they violated a federal statutory or constitutional right, and (2) the unlawfulness of their conduct was clearly established at the time. Dist. of Columbia v. Wesby, 138 S. Ct. 577, 589 (2018). An official is not entitled to qualified immunity if a reasonable official would understand what he or she is doing was unlawful at the time, i.e., the legal principle violated was “settled law” and the unlawfulness of the conduct was “beyond debate.” Id. (quoting Ashcroft v. al-Kidd, 563 U.S. 731, 741 (2011)). Qualified immunity is a “demanding standard” that protects all but the “plainly incompetent” or those who “knowingly violate the law.” Malley v. Briggs, 475 U.S. 335, 341 (1986).
Whether a government official is afforded qualified immunity requires an analysis of objective reasonableness only. Similar to official immunity, objective reasonableness in the context of qualified immunity requires that the official’s conduct be evaluated in the particular factual context of the case. In practice, this means that in cases where there is no obvious misconduct, the government official’s actions are deemed reasonable. See Wesby, 138 S. Ct. at 589.
Qualified immunity, like official immunity, can and should be raised early in defending actions brought under 42 U.S.C. § 1983. Doing so may result in such lawsuits getting dismissed before significant amounts of time, energy, and money have been expended in discovery and trial preparation. As such, qualified immunity, along with official immunity, should be raised as a defense whenever possible.
When a municipal official makes a mistake in course of employment, all is not lost. If the mistake was not reckless or malicious, it is probable that the government official and the government entity that employs him or her will be afforded protection from the lawsuit pursuant to the doctrines of official immunity (for common law torts under New Hampshire law) or qualified immunity (for 42 U.S.C. § 1983 actions under federal law).
But remember — these protections are most effective if raised early in litigation. Otherwise, defending an honest-to-goodness mistake could become an honest-to-goodness headache.
* Attorney Burrows is licensed to practice in New Hampshire and Massachusetts. Attorney Sager is licensed to practice in New Hampshire and New York.