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[Provide Instruction 1.10 on burden of proof, modified (if necessary) as discussed in the Comment below.]
COMMENT The plaintiff bears the burden of proof on the elements of a Section 1983 claim. See, e.g., Groman v. Township of Manalapan, 47 F.3d 628, 638 (3d Cir. 1995). The court can use Instruction 1.10 to apprise the jury of this burden.
Where there is a jury question on the issue of qualified immunity, some additional instruction on burdens may occasionally be necessary.
Although the defendant has the burden of pleading the defense of qualified immunity, see Gomez v. Toledo, 446 U.S. 635, 640 (1980); Thomas v. Independence Tp., 463 F.3d 285, 293 (3d Cir. 2006),9 the Supreme Court has not definitively established who bears the burden of proof with respect to that defense, see, e.g., Gomez, 446 U.S. at 642 (Rehnquist, J., concurring) (construing the opinion of the Court “to leave open the issue of the burden of persuasion, as opposed to the burden of pleading, with respect to a defense of qualified immunity”).
The Third Circuit has stated that the defendant bears the burden of proof on qualified immunity. See, e.g., Burns v. PA Dep’t of Corrections, 642 F.3d 163, 176 (3d Cir. 2011) (defendant has burden to establish entitlement to qualified immunity); Kopec v. Tate, 361 F.3d 772, 776 (3d Cir. 2004) (same); Beers Capitol v. Whetzel, 256 F.3d 120, 142 n.15 (3d Cir. 2001) (same); Karnes v. Skrutski, 62 F.3d 485, 491 (3d Cir. 1995) (same); Stoneking v. Bradford Area Sch. Dist., 882 F.2d 720, 726 (3d Cir. 1989) (same); Ryan v. Burlington County, N.J., 860 F.2d 1199, 1204 n.9 (3d Cir. 1988) (same). However, some other Third Circuit opinions suggest that the burden of proof regarding qualified immunity may vary with the element in question.10 For example, the court has stated that “[w]here a defendant asserts a qualified immunity defense in a motion for summary judgment, the plaintiff bears the initial burden of showing that the defendant's conduct violated some clearly established statutory or constitutional right.... Only if the plaintiff carries this initial burden must the defendant then demonstrate that no genuine issue of material fact remains as to the ‘objective reasonableness’ of the defendant's belief in the lawfulness of his actions.” Sherwood v. Mulvihill, 113 F.3d 396, 399 (3d Cir. 1997); see also Hynson By and Through Hynson v. City of Chester, 827 F.2d 932, 935 (3d Cir. 1987) (“Although the officials claiming qualified immunity have the burden of pleading and proof... , a plaintiff who seeks damages for violation of constitutional rights may overcome the defendant official's qualified immunity only by showing that those rights were clearly established at the time of the conduct at issue.”).
A distinction between the burden of proof as to the constitutional violation and the burden of proof as to objective reasonableness makes sense in the light of the structure of Section 1983 litigation. To prove her claim, the plaintiff must prove the existence of a constitutional violation; qualified immunity becomes relevant only if the plaintiff carries that burden. Accordingly, the plaintiff should bear the burden of proving the existence of a constitutional violation in connection with the qualified immunity issue as well. However, it would accord with decisions such as Kopec (and it would not contravene decisions such as Sherwood) to place the burden on the defendant to prove that a reasonable officer would not have known, under the circumstances, that the conduct was illegal.11
As noted in Comment 4.7.2, a jury question concerning qualified immunity will arise only when there are material questions of historical fact. The court should submit the questions of historical fact to the jury by means of special interrogatories; the court can then resolve the question of qualified immunity by reference to the jury’s determination of the historical facts. Many questions of historical fact may be relevant both to the existence of a constitutional violation and to the question of objective reasonableness; as to those questions, the court should instruct the jury that the plaintiff has the burden of proof. Other questions of historical fact, however, may be relevant only to the question of objective reasonableness; as to those questions, if any, the court should instruct the jury that the defendant has the burden of proof.
(Last Updated July 2019)
9 See Sharp v. Johnson, 669 F.3d 144, 158-59 (3d Cir. 2012) (noting “that parties should generally assert affirmative defenses early in the litigation,” but finding no abuse of discretion in trial court’s permission to assert qualified immunity defense at trial where the defense had been pleaded and where the failure to present the defense by motion prior to trial made sense – due to the need for fact development – and did not prejudice the plaintiff).
10 As discussed below (see Comment 4.7.2), the qualified immunity analysis poses three questions: (1) whether the defendant violated a constitutional right; (2) whether the right was clearly established; and (3) whether it would have been clear to a reasonable official, under the circumstances, that the conduct was unlawful. The issue of evidentiary burdens of proof implicates only the first and third questions.
11 There is language in Estate of Smith v. Marasco, 430 F.3d 140 (3d Cir. 2005), which may be perceived as being in tension with Kopec’s statement that the defendant has the burden of proof on qualified immunity. In Marasco the Court of Appeals held the defendants were entitled to qualified immunity on the plaintiffs’ state-created danger claim because the court “conclude[d] that the Smiths cannot show that a reasonable officer would have recognized that his conduct was ‘conscience shocking.’” Id. at 156. While this language can be read as contemplating that the plaintiffs have a burden of persuasion, it should be noted that the court was not focusing on a factual dispute but rather on the clarity of the caselaw at the time of the relevant events. See id. at 154 (stressing that the relevant question was “whether the law, as it existed in 1999, gave the troopers ‘fair warning’ that their actions were unconstitutional”) (quoting Hope v. Pelzer, 536 U.S. 730, 741 (2002)).