Affirmative Immunity: A Litigation-Based Approach to Curb Appellate Courts’ Raising Qualified Immunity Sua Sponte

By Michael E. Beyda

Qualified immunity, to put it simply, provides public officials with immunity from civil lawsuits if they have violated an individual’s constitutional rights under their official authority and those rights were not “clearly established” at the time of the official’s actions. The doctrine has evolved into an elaborate framework that has plagued civil rights plaintiffs, as well as courts, for decades. Qualified immunity is an affirmative defense, and affirmative defenses are waived if not raised appropriately by the defendant. Moreover, issues that are not properly raised before the trial court, including affirmative defenses, are generally not considered for the first time on appeal. Nevertheless, courts have a long history of defying this general rule, and qualified immunity is no exception. This Note examines the historical development of and rationales for the qualified immunity doctrine, the purposes of affirmative defenses, and the reasons for the general rule that appellate courts do not consider issues for the first time on appeal. Additionally, this Note summarizes an inconsistent trend among appellate courts, some of which raise qualified immunity sua sponte, while others hold that qualified immunity is waived if not raised at the trial court appropriately. After recognizing that the original goal of qualified immunity was to prevent public officials from enduring the burdens of litigation and that appellate courts generally have discretion to consider issues for the first time on appeal, this Note proposes a two-part solution to balance these values. This Note’s proposed framework returns qualified immunity to its original purpose and resolves the current inconsistency among appellate courts, while allowing appellate courts to raise issues for the first time on appeal when they consider it appropriate. The framework also prevents appellate courts from raising qualified immunity sua sponte inappropriately, which can unduly burden civil rights plaintiffs and make it harder for them to recover damages if their constitutional rights have been violated.