David N. STANLEY, Plaintiff-Appellee, v. Donald GALLEGOS, individually and in his official capacity as District Attorney, Eighth Judicial District, State of New Mexico, Defendant-Appellant. and Ed Olona, Defendant.
No. 15-2156
United States Court of Appeals, Tenth Circuit.
Filed March 17, 2017
852 F.3d 1210
John P. Hays (Faith Kalman Reyes, The Simons Firm, LLP, Santa Fe, New Mexico, with him on the brief), Cassutt, Hays & Friedman, P.A., Santa Fe, New Mexico, for Plaintiff-Appellee.
Before HARTZ, HOLMES, and MATHESON, Circuit Judges.
HARTZ, Circuit Judge.
The federal civil-rights statute,
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.
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
I. BACKGROUND
Plaintiff owns property traversed by Red Hill Road, which has been used by the public to access White Peak, a popular hunting and wildlife area in northern New Mexico. Believing the road to be private, Plaintiff installed a cattle guard, locked gate, and barbed-wire fence to prevent access to his land. Believing the road to be a public right-of-way, Defendant wrote to Plaintiff on August 3, 2011, demanding that the gate be removed. The next week Plaintiff filed a still-pending quiet-title action in state court to determine whether the road is private or public. After three weeks with no response from Plaintiff, Defendant took matters into his own hands. Accompanied by a former president of the New Mexico Wildlife Federation, four deputy sheriffs, and 18 private persons, Defendant cut the lock on the gate and, with the help of others, removed the barbed wire and T-posts from the road. When Defendant learned a few weeks later that Plaintiff had locked the gate a second time, Defendant directed the local sheriff to cut the lock and chain on the gate.
In December 2011, Plaintiff brought this suit under
II. JURISDICTION AND STANDARD OF REVIEW
Under
The federal civil-rights statute appears to be categorical in stating that “[e]very person who, under color of [law] subjects ... any ... person ... to the deprivation of any rights ... secured by the Constitution and laws, shall be liable to the party injured in an action at law....”
The starting point for the analysis is ordinarily the common law of 1871. See id. An analysis of the law and practice at that time is sometimes nearly dispositive, as in Filarsky, which noted how common it was then for public officials to be only part-time. See id. at 1662-65. In this case, however, the principal guidance must come from more recent Supreme Court decisions addressing qualified immunity. This is for two reasons. First, in my view, Supreme Court opinions virtually compel the conclusion that a scope-of-authority exception to qualified immunity would, if adopted, need to be limited to actions that were clearly established by state law to be beyond the official‘s authority. This court would be remiss in its duty as a lower court if it rejected the reasoning of the Supreme Court based on a contrary understanding of history. Second, the early cases are not relevant to the peculiar issue before us. None that I have found presented the interplay between the laws of two sovereigns—the law of one sovereign governing the elements of liability and the law of a different sovereign governing the scope of the defendant‘s official authority. When that interplay arose before the Supreme Court in Davis v. Scherer, 468 U.S. 183, 104 S.Ct. 3012, 82 L.Ed.2d 139 (1984) (violation of state regulation did not deprive state official of protection of qualified immunity in action under
I therefore turn to the policy reasons that support and limit the doctrine of qualified immunity. The foremost reason for the doctrine is the concern that fear of litigation would deter and distract public officials from “the unflinching discharge of their duties.” Harlow v. Fitzgerald, 457 U.S. 800, 814, 102 S.Ct. 2727, 73 L.Ed.2d 396 (1982) (internal quotation marks omitted); see Pearson v. Callahan, 555 U.S. 223, 231, 129 S.Ct. 808, 172 L.Ed.2d 565 (2009) (“Qualified immunity balances two important interests—the need to hold public officials accountable when they exercise power irresponsibly and the need to shield officials from harassment, distraction, and liability when they perform their duties reasonably.“); Wyatt v. Cole, 504 U.S. 158, 167, 112 S.Ct. 1827, 118 L.Ed.2d 504 (1992) (“Qualified immunity strikes a balance between compensating those who have been injured by official conduct and protecting government‘s ability to perform its traditional functions.“). As initially developed,
One recurring issue has been how to apply this doctrine when a state employee was apparently acting outside of his or her authority under state law. When the employee is so acting, the rationale for qualified immunity may not seem to apply. Qualified immunity shields officials from the distractions of frivolous litigation, allowing them to effectively discharge their duties for the public good. But why worry about causing the employee to flinch when the employee‘s actions do not come within the job description? One could conclude that when officials are no longer acting with official authority, they are just like private citizens, so the doctrine of qualified immunity should not apply. See Harbert Int‘l., Inc. v. James, 157 F.3d 1271, 1281 (11th Cir. 1998). After all, the Supreme Court has declared that some private persons liable under
On the other hand, the focus of
No binding precedent of this court has adopted the scope-of-authority exception to qualified immunity. Despite the apparent endorsement of the exception by most other circuits, I think we should be quite circumspect before embracing it. To begin with, it is unclear how to draw the line between conduct that violates state law (which Davis said is irrelevant to qualified immunity) and conduct that is unauthorized by state law (which is the purview of the scope-of-authority exception). The federal appellate cases invoking a “scope of authority” exception do not define the term. Nor does it appear to be a commonly used term of art in other contexts. As a matter of English usage, one might say that a state official acts beyond the scope of authority if he fires an employee without first giving him the opportunity to respond in writing, as required by state law. But Davis held that this misconduct was just a violation of state law that did not deprive the official of the protection of qualified immunity. See id. at 188. This suggests that an official‘s scope of authority should be interpreted broadly. For example, the Arizona Court of Appeals stated in a
Further, when the Supreme Court rejected qualified immunity for certain private parties (acting under color of state law), it emphasized essential differences between private citizens and government officials that apply regardless of whether the official was acting within the scope of authority. First, it said, “private parties hold no office requiring them to exercise discretion; nor are they principally concerned with enhancing the public good. Accordingly, extending Harlow qualified immunity to private parties would have no bearing on whether public officials are able to act forcefully and decisively in their jobs or on whether qualified applicants enter public service.” Wyatt, 504 U.S. at 168. Second, “unlike with government officials performing discretionary functions, the public interest will not be unduly impaired if private individuals are required to proceed to trial to resolve their legal disputes.” Id. Both differences suggest that the type of dispute before us be treated as one involving a government official. Even if Defendant was exceeding his authority, the action was on a matter of public interest, not a purely personal concern. And this litigation will distract Defendant from performing official duties regardless of the grounds for the claims and defenses.
An additional concern raised in Davis also has purchase here. One reason the Court rejected consideration of state-law violations in determining whether an official enjoyed qualified immunity was that the federal court might then need to determine “the meaning or purpose of [state law], questions that federal judges often may be unable to resolve on summary judgment.” Davis, 468 U.S. at 195. As Judge Luttig wrote for half the active members of the Fourth Circuit in arguing against adoption of the scope-of-authority exception: “The federal courts ... will now be obliged to conduct what will essentially be mini-trials on the question of whether the defendant was acting within the scope of his state law duties, a responsibility which will require these federal officers to immerse themselves in the intricacies of state [law].” In re Allen (Allen II), 119 F.3d 1129, 1137 (4th Cir. 1997) (Luttig, J., dissenting from denial of rehearing en banc).
Taking into account all these concerns about the scope-of-authority exception, I conclude that if the exception were to be adopted, it should be limited to cases in which there was clearly established state law that the government official‘s actions exceeded the scope of authority. Any less stringent standard would pose too great a risk of deterring public officials from vigorously performing their duties, embroil them in excessive litigation that would distract them from their duties, and overly complicate and delay litigation by requiring federal courts to become expert in state law. See Allen I, 106 F.3d at 592-93 (adopting clearly-established-law requirement for scope-of-authority exception). So limiting the possible scope-of-authority exception is as far as this court need go to resolve the appeal before us, because New Mexico law did not clearly establish that Defendant exceeded his authority as district attorney.
IV. Authority of District Attorney
Plaintiff contends that the law was clearly established that Defendant‘s actions were beyond the scope of his authority. He concedes that preventing obstructions to roads is a legitimate function of a district attorney but argues that the means used by Defendant were inappropriate because a district attorney can properly act only through legal process, not by taking matters into his own hands.
Because there is little New Mexico law on point, I begin with legal background from other sources. In the federal courts it is widely accepted that prosecutors possess investigative and police-like power, even though this is not quasi-judicial power for which prosecutors have absolute immunity. When civil-rights claims are brought against prosecutors based on investigative or police-like actions, courts allow the prosecutors to invoke qualified immunity—without any suggestion that a prosecutor has no business engaging in police-like actions.
There are at least two such opinions from this circuit. In Rex v. Teeples, 753 F.2d 840 (10th Cir. 1985), a district attorney was sued for allegedly extracting an involuntary confession while the plaintiff was in a confused mental state. See id. at 841-42. The court rejected a claim of absolute prosecutorial immunity, which depends largely on whether the prosecutor is engaged in advocacy, see id. at 843, because “giving Miranda warnings to a general suspect and participating in his interrogation is ‘police-related’ work and does not fall within the category of a prosecutor‘s quasi-judicial functions,” id. at 844. But it held that “a prosecutor acting as an investigator has ... qualified immunity.” id. at 843. Similarly, in a case involving an alleged false arrest, this court acknowledged that a prosecutor has both a “quasi-judicial capacity” and an “investigative or police-related role.” Atkins v. Lanning, 556 F.2d 485, 488 (10th Cir. 1977) (internal quotation marks omitted). Other circuits have expressed a similar view. See Rowe v. City of Fort Lauderdale, 279 F.3d 1271, 1280 (11th Cir. 2002) (“When a prosecutor steps out of the role of advocate and into the role of investigator, for example by participating in a search, he is performing a discretionary governmental function, and thus may be entitled to qualified immunity.“); Day v. Morgenthau, 909 F.2d 75, 77 (2d Cir. 1990) (“When a prosecutor is engaged in administrative or investigative activities, he is entitled only to qualified immunity, which requires a showing that his acts were objectively reasonable.“).
Most notably, the Supreme Court, too, has recognized that prosecutors may have police-like functions. In Buckley v. Fitzsimmons, 509 U.S. 259, 113 S.Ct. 2606, 125 L.Ed.2d 209 (1993), the Court acknowledged that prosecutors may “perform[ ] the investigative functions normally performed by a detective or police officer,” such as “plan[ning] and execut[ing] a raid on a suspected weapons cache,” for which they are entitled only to qualified immunity. Id. at 273-74. Given these judicial statements, I cannot presume that the authority of district attorneys in New Mexico is as restricted as Plaintiff contends. He must point to clear support for his view if he is to prevail,1 but he has failed to do so. If anything, the law in New Mexico suggests Plaintiff is wrong.
To be sure, Plaintiff is correct that New Mexico positive law does not explicitly convey the authority to do what Defendant did. The New Mexico Constitution says only that each district attorney is “the law officer of the state and of the counties
In light of the above authority, I cannot say that Defendant‘s conduct was beyond the scope of his authority under clearly established New Mexico law. His actions must be considered in context. Plaintiff asserts that Defendant needed court authority to halt a blockade of a road. But if someone were intentionally blocking an interstate highway, surely the district attorney could instruct law-enforcement officers to remove the obstruction without first waiting for a court order. Although Plaintiff argues that there was no emergency here, this does not go to Defendant‘s scope
Plaintiff argues in his appellate brief that even if his scope-of-authority argument fails, he has shown that Defendant is not entitled to qualified immunity because Defendant‘s acts violated clearly established constitutional law. But because the district court has not addressed the issue, this court should follow its general practice of having such matters first resolved by the district court. See Trans-Western Petroleum, Inc. v. United States Gypsum Co., 830 F.3d 1171, 1175 (10th Cir. 2016) (“As a general rule, a federal appellate court does not consider an issue not passed upon below.” (internal quotation marks omitted)).
V. CONCLUSION
We REVERSE the district court‘s denial of summary judgment and REMAND for further proceedings to determine whether Defendant violated clearly established federal law.
HOLMES, Circuit Judge, concurring in the judgment
I concur but only in the judgment. I respectfully disagree with the Lead Opinion‘s (i.e., the opinion of Judge Hartz) decision to apply a variant of the “scope-of-authority exception to qualified immunity,” L. Op. at 1211, in resolving this case.1 The Supreme Court and our court have consistently engaged in a two-pronged inquiry centered on federal law when a defendant asserts a qualified-immunity defense: specifically, we ordinarily ask (in substance) whether the plaintiff can demonstrate (1) that the defendant violated his federal constitutional rights, and (2) that the rights in question were clearly established under federal law at the time of the defendant‘s conduct. This two-pronged inquiry constitutes settled law, and it does not contemplate—and, indeed, makes no room for—an antecedent, potentially dispositive examination of whether the defendant acted within the scope of his authority, as de-
In sum, I respectfully disagree with the Lead Opinion‘s decision to apply a scope-of-authority exception here. For the reasons explicated below, however, I nevertheless concur in the judgment.
I
A
By way of overview, under the scope-of-authority exception applied by the Lead Opinion, we must first consider in qualified-immunity cases whether the government official exceeded the scope of his authority under clearly established state law. See L. Op. at 1216 (noting “that if the exception were to be adopted, it should be limited to cases in which there was clearly established state law that the government official‘s actions exceeded the scope of authority” (emphasis added)). If the official did exceed it, he has effectively forfeited his right to be heard on the merits of his federal qualified-immunity defense. In other words, he has lost his right to have a federal court determine—under the settled two-pronged test that the Supreme Court has articulated and our precedent has faithfully applied—whether he violated clearly established federal law. If he has not exceeded the scope of his authority, the federal court ordinarily must proceed to resolve the merits of the official‘s qualified-immunity defense under the two-pronged test.
Applying this framework, the Lead Opinion determines that Defendant Donald Gallegos (“DA Gallegos“) survives the antecedent (i.e., threshold) scope-of-authority inquiry and that the district court should assay and resolve the merits of his qualified-immunity defense. More specifically,
I concur but only in the judgment. In my view, the scope-of-authority exception that the Lead Opinion applies upends our federally focused qualified-immunity standard, by erroneously grafting onto it an antecedent state-law inquiry that becomes “always relevant and often dispositive of a[n] [official‘s] federal right to qualified immunity.” In re Allen (Allen II), 119 F.3d 1129, 1135 (4th Cir. 1997) (third emphasis added) (Luttig, J., dissenting from the denial of rehearing en banc).3 Like my colleagues, I would reverse the district court‘s summary-judgment order—hence, my concurrence in the result. But my reason is more fundamental: the district court should never have applied a scope-of-authority exception in the first place. I would remand for the district court to address DA Gallegos‘s entitlement to qualified immunity under the established two-pronged qualified-immunity decisional framework.
B
1
[e]very person who, under color of any statute, ordinance, regulation, custom, or usage, of any State or Territory or the District of Columbia, subjects, or causes to be subjected, any citizen of the United States or other person within the jurisdiction thereof to the deprivation of any rights, privileges, or immunities secured by the Constitution and laws, shall be liable to the party injured in an action at law, suit in equity, or other proper proceeding for redress....
In Harlow, for example, the Supreme Court held that “government officials performing discretionary functions generally are shielded from liability for civil damages insofar as their conduct does not violate clearly established [federal] statutory or constitutional rights of which a reasonable person would have known.” 457 U.S. at 818. The Court underscored that the proper focus was on “the objective reasonableness of an official‘s conduct, as measured by reference to clearly established [federal] law.” Id.; see, e.g., Messerschmidt v. Millender, 565 U.S. 535, 546, 132 S.Ct. 1235, 182 L.Ed.2d 47 (2012) (“[W]hether an official protected by qualified immunity may be held personally liable for an allegedly unlawful official action generally turns on the ‘objective legal reasonableness’ of the action, assessed in light of the legal rules that were ‘clearly established’ at the time it was taken.” (quoting Anderson v. Creighton, 483 U.S. 635, 639, 107 S.Ct. 3034, 97 L.Ed.2d 523 (1987))). More recently, in Mullenix v. Luna, 577 U.S. 7, 136 S.Ct. 305, 193 L.Ed.2d 255 (2015), the Supreme Court reaffirmed the same principle,4 stating that “[t]he doctrine of qualified immunity shields officials from civil liability so long as their conduct ‘does not violate clearly established [federal] statutory or constitutional rights of which a reasonable person would have known.‘” Id. at 308 (quoting Pearson v. Callahan, 555 U.S. 223, 231, 129 S.Ct. 808, 172 L.Ed.2d 565 (2009)). Notably, in the qualified-immunity context, the Court has made clear that Harlow‘s objective-reasonableness inquiry is the only germane one: “No other ‘circumstances’ are relevant to the issue of qualified immunity.” Davis v. Scherer, 468 U.S.
2
More specifically, following Harlow, the Court considered in Davis whether “a state official loses his qualified immunity from suit for deprivation of federal constitutional rights” if the official “violated the clear command of a state administrative regulation.” 468 U.S. at 185, 104 S.Ct. 3012. Significantly, the party arguing for an affirmative answer to this inquiry—Plaintiff-Appellee—“ma[de] no claim that the appellants’ violation of the state regulation either is itself actionable under
Nevertheless, Plaintiff-Appellee argued that an official‘s “fail[ure] to comply with a clear state regulation,” “although not itself the basis of suit, should deprive the official of qualified immunity from damages for violation of other statutory or constitutional provisions.” Id. (emphases added). In effect, Plaintiff-Appellee contended that, “because officials fairly may be expected to conform their conduct to [the] legal norms,” id. found in state statutes and regulations, their violation of a clear state statute or regulation should be dispositive “in deciding claims of qualified immunity,” see id. at 195. See also id. at 191 (noting that, contrary to the Court‘s “prior cases,” the district court adopted the view that even “absent a violation of clearly established constitutional rights, appellants’ violation of the state administrative regulation—although irrelevant to the merits of appellee‘s underlying constitutional claim—was decisive of the qualified immunity question” (emphasis added)).
Significantly for present purposes, the Davis Court rejected Plaintiff-Appellee‘s argument in full. It underscored that Harlow‘s objective-reasonableness inquiry makes an official‘s liability under
would disrupt the balance that our cases strike between the interests in vindication of citizens’ constitutional rights and in public officials’ effective performance of their duties. The qualified immunity doctrine recognizes that officials can act without fear of harassing litigation only if they reasonably can anticipate when their conduct may give rise to liability for damages and only if unjustified lawsuits are quickly terminated. Yet, under appellee‘s submission, officials would be liable in an indeterminate amount for violation of any constitutional right—one that was not clearly defined or perhaps not even foreshadowed at the time of the alleged violation—merely because their official conduct also violated some statute or regulation.
Id. at 195 (citations omitted). The Court unequivocally declined to go down this path with Plaintiff-Appellee:
In my view, Davis makes clear that the Lead Opinion‘s application of the scope-of-authority exception is wrong-headed. Akin to Plaintiff-Appellee in Davis, the Lead Opinion erroneously permits an additional “circumstance[ ]” to inform the qualified-immunity calculus—viz., a threshold scope-of-authority exception and makes it, in many instances, “decisive of the qualified immunity question.” Davis, 468 U.S. at 191, 104 S.Ct. 3012 (emphasis added). That is, if an official acts outside of his scope of authority, as defined by clearly established state law, he “forfeits” his right to have a federal court in a
Acknowledging Davis, the Lead Opinion ruminates regarding its impact on a scope-of-authority exception (if adopted) and, in this regard, it asks some interesting and thoughtful questions. See L. Op. at 1214 (“Why should qualified immunity under [§ 1983] depend on whether the government employee complied with state law?“); id. at 1215 (noting that “it is unclear how to draw the line between conduct that violates state law (which Davis said is irrelevant to qualified immunity) and conduct that is unauthorized by state law (which is the purview of the scope-of-authority exception)“). But, tellingly, the Lead Opinion offers no answers that can reconcile in a principled and persuasive manner a threshold scope-of-authority rubric with the holding and reasoning of Davis, and I cannot conceive of any. Rather than “pause before adopting a doctrine of such uncertain scope that is so in tension with controlling Supreme Court authority,” L. Op. at 1215-16, the Lead Opinion should reject the scope-of-authority exception outright and conclude not only that it is “in tension with” that authority, but also contrary to it.
In sum, under Harlow and Davis, an official should be granted qualified immunity so long as he “did not violate clearly established federal constitutional or statutory rights[;] [n]othing else is required for entitlement to the defense and nothing else need be shown.” Allen II, 119 F.3d at 1135 (Luttig, J., dissenting from the denial of rehearing en banc). Despite this established decisional framework, the Lead
C
Guided by Supreme Court precedent, we have repeatedly and unfailingly reviewed qualified-immunity assertions under a two-part analysis, considering “(1) [whether] the official violated a [federal] statutory or constitutional right, and (2) [whether] the right was ‘clearly established’ at the time of the challenged conduct.” Quinn v. Young, 780 F.3d 998, 1004 (10th Cir. 2015) (quoting Ashcroft v. al-Kidd, 563 U.S. 731, 735, 131 S.Ct. 2074, 179 L.Ed.2d 1149 (2011)); see e.g., Cox, 800 F.3d at 1245 (“[B]y asserting the qualified-immunity defense, Sheriff Glanz triggered a well-set-
tled twofold burden that Ms. Cox was compelled to shoulder: not only did she need to rebut the Sheriff‘s no-constitutional-violation arguments, but she also had to demonstrate that any constitutional violation was grounded in then-extant clearly established law.“). We have never even intimated that this inquiry into federal law should be preceded by a potentially dispositive examination of state law; yet, that is precisely what the Lead Opinion‘s application of the scope-of-authority exception would require.
Indeed, the Lead Opinion candidly acknowledges that its proposed exception has no footing in our controlling caselaw. L. Op. at 1215 (“No binding precedent of this court has adopted the scope-of-authority exception to qualified immunity.“). And, in my view, we would be deviating without authority from our precedent—which endorses and applies the two-part qualified-immunity framework outlined supra—if we adopt this exception here. See, e.g., In re Smith, 10 F.3d 723, 724 (10th Cir. 1993) (“We are bound by the precedent of prior panels absent en banc reconsideration or a superseding contrary decision by the Supreme Court.“); see also United States v. Meyers, 200 F.3d 715, 720 (10th Cir. 2000) (“Under the doctrine of stare decisis, this panel cannot overturn the decision of another panel of this court.“).7
For example, in Robbin, a police officer brought a
On appeal, the Robbin panel articulated the following statement of the relevant
Notably, the panel referenced the police chief‘s authority in the context of discussing whether his conduct violated clearly established federal law, such that he would not be entitled to qualified immunity, see id. at 864-65—that is, in addressing the second prong of the established qualified-immunity standard. Robbin did not, as the Lead Opinion‘s approach would require, assay the scope of the police captain‘s authority as part of a threshold inquiry into whether he was even eligible to seek the protection of the qualified-immunity defense. To be sure, the Robbin court did refer to the scope-of-authority exception that some of “our sister circuits” have allegedly adopted under which “qualified immunity also may be inappropriate.” Id. at 864 (emphasis added). However, this reference is patently dicta under the circumstances of Robbin since the court never purported to apply any such scope-of-authority exception. Therefore, this element of Robbin‘s analysis gives me no pause. In short, any reliance that the Lead Opinion places on Robbin is misplaced.
Similarly, in Cox, a private Utah beekeeper brought a
Accordingly, neither Robbin nor Cox—the two nonprecedential Tenth Circuit decisions that the Lead Opinion cites to bolster its cause—advance the Lead Opinion‘s analysis. And, by the Lead Opinion‘s own admission, there is nothing in our controlling precedent that supports this exception. Indeed, as with Davis and its Supreme Court progeny, I actually believe that our controlling Tenth Circuit precedent is to the contrary.
II
For the foregoing reasons, I disagree with the Lead Opinion‘s analysis, in particular, its application of the scope-of-authority exception. I would explicitly reject this exception as contrary to Supreme Court
MATHESON, Circuit Judge, concurring in the result.
I concur in the result. I commend my colleagues on their thoughtful opinions. I agree we must remand for the district court to consider Mr. Gallegos‘s qualified immunity defense. Like Judge Hartz, I would defer deciding whether this court should adopt a scope-of-authority test for cases brought under
Seven other circuits have adopted some version of the scope-of-authority test.1 In this case, the district court applied the test from In re Allen, 106 F.3d 582 (4th Cir. 1997): “an official may claim qualified immunity as long as his actions are not clearly established to be beyond the boundaries of his discretionary authority.” Id. at 593. We have not adopted the Allen test as circuit precedent, but both parties use it to make their arguments on appeal.
Considering the parties’ arguments based on the Allen test and without opining whether this court should adopt it, I think the district court erred.2 As Judge Hartz shows, New Mexico law did not clearly establish Mr. Gallegos‘s actions exceeded his authority as district attorney. We must therefore remand for the district court to consider the qualified immunity issue.
Notes
Each district attorney shall:
(1) prosecute and defend for the state in all courts of record of the counties of his district all cases, criminal and civil, in which the state or any county in his district may be a party or may be interested;
(2) represent the county before the board of county commissioners of any county in his district in all matters before the board whenever requested to do so by the board, and he may appear before the board when sitting as a board of equalization without request;
(3) advise all county and state officers whenever requested; and
(4) represent any county in his district in all civil cases in which the county may be concerned in the supreme court or court of appeals, but not in suits brought in the name of the state. The Lead Opinion‘s vacillation is puzzling. It suggests a belief that we are painting on a blank canvas in defining the appropriate analytic rubric for deciding whether defendants are entitled to qualified immunity in lawsuits under
Davis, in short, concerned ... this entirely discrete question: Is qualified immunity defeated where a defendant violates any clearly established duty, including one under state law, or must the clearly established right be the federal right on which the claim for relief is based? The Court held the latter.
510 U.S. at 515, 114 S.Ct. 1019 (second emphasis added). With that explanation of Davis‘s holding, the Elder Court stressed that an official‘s entitlement to “qualified immunity from [a § 1983] suit” depends on whether the official violated a clearly established “federal right,” not whether the official violated some clearly established duty under state law. Id. at 516, 114 S.Ct. 1019 (emphasis added).