Sugarman News & Articles

As a society, we want to encourage public service.  We want to encourage the best to devote a significant portion of their lives for the greater good, serving the public.  Unfortunately, that exposes the public servant to personal liability during that service, when they are required to make decisions as to how to act in their public service.  This challenge confronts public servants all too often when the official is doing what he or she was mandated to do.  The action often results in someone claiming their constitutional rights were violated. The public servant’s good faith action now becomes the subject of a lawsuit.  Often these challenges and personal liability exposure discourage public service.  The public servant’s best defense to this daily challenge is the concept of qualified immunity.


Qualified immunity is an affirmative defense, which shields officials from personal liability for civil damages so long as their conduct does not violate clearly established statutory or constitutional rights of which a reasonable person would have known.  The constitutional right is established law, if the law on the subject action was defined at the time of the official action with reasonable clarity, or it is clearly shown to be law in rulings of the U.S. Supreme Court, or in the Appellate Circuit in the area of the municipality (for example in New York, the Second Circuit Court of Appeals) so that the official should have understood that his/her conduct was unlawful. This is not to say that an official is always protected by qualified immunity.  The Court will look to see if the very action in question has previously been held unlawful.  Also, a Court will consider in light of the existing law, the unlawfulness must be apparent. The Courts’ most often used phrase to conclude this analysis is the statement that qualified immunity provides protection to all but the plainly incompetent, or those who knowingly violate the law.


The analysis of whether a public servant is entitled to this immunity requires a municipal lawyer to conduct a detailed study of the official’s actions and a study of the existing law when the official acted.  Then one must decide when to ask the Court for relief from the suit.  Courts tell us that the issue of qualified immunity should be resolved at the earliest possible stage of the litigation.  The challenge, however, is to convince a Court to grant such relief.  I repeatedly argue at the earliest stage possible that even if one accepts the party’s claims as true, the law at the time of the action was not clearly settled and there is also no evidence that the official knowingly violated the law.  The public official will benefit from a detailed look at the actions he or she took and the application to the law.  Courts must then decide whether the public official needs to be forced to continue in the litigation and possibly be held personally liable.  This argument should be successful if proper case law is presented showing that the law is simply not settled and the official cannot be shown to have knowingly violated the law. It is often my favorite argument before a Court, that if the parties’ lawyers cannot agree what the law is in this case (lawyers rarely agree on controlling laws), how can a public official working on the municipal level be able to determine what is settled law? 


In today’s lawsuits, parties are quick to attack officials.  These lawsuits need to be addressed by experienced lawyers who confront these issues on a regular basis.  The lawyers at Sugarman Law Firm, LLP have successfully defended officials in all levels of government all across the State of New York.  Please contact Paul V. Mullin, Esq. for more information on defending public officials in our federal and state courts.

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