qualified immunity in South Dakota

2017Harlow v. Fitzgerald, 457 U.S. 800, 818 , 102 S.Ct. 2727, 2738 , 73 L.Ed. 2d 396, 410 (1982).

2017Harlow v. Fitzgerald, 457 U.S. 800, 818 , 102 S.Ct. 2727, 2738 , 73 L.Ed. 2d 396, 410 (1982).

1998“Qualified immunity is a legal question to be decided by the court, it is particularly amenable to summary judgment.” Horne v. Crozier, 1997 SD 65 , 565 N.W.2d 50 (citing Hunter v. Bryant, 502 U.S. 224, 227 , 112 5.Ct. 534, 536, 116 L.Ed.2d 589, 595 (1991)(per curiam)).

1998“Qualified immunity is a legal question to be decided by the court, it is particularly amenable to summary judgment.” Horne v. Crozier, 1997 SD 65 , 565 N.W.2d 50 (citing Hunter v. Bryant, 502 U.S. 224, 227 , 112 5.Ct. 534, 536, 116 L.Ed.2d 589, 595 (1991)(per curiam)).

2021“Qualified immunity shields a government official from liability and the burdens of litigation in a § 1983 action for damages unless the official’s conduct violated a clearly established constitutional or statutory right of which a reasonable official would have known.” Chambers v. Pennycook, 641 F.3d 898, 904 (8th Cir. 2011); accord Pearson v. Callahan, 555 U.S. 223, 231 , 129 S. Ct. 808, 815 , 172 L.

2021“Qualified immunity shields a government official from liability and the burdens of litigation in a § 1983 action for damages unless the official’s conduct violated a clearly established constitutional or statutory right of which a reasonable official would have known.” Chambers v. Pennycook, 641 F.3d 898, 904 (8th Cir. 2011); accord Pearson v. Callahan, 555 U.S. 223, 231 , 129 S. Ct. 808, 815 , 172 L.

2003Hart, 2000 SD 53 at 14 , 609 N.W.2d at 143 ; citing Gainor v. Rogers, 973 F.2d 1379, 1382 (8thCir.l992) (“This [qualified immunity analysis] allows ample room for a good faith mistake by the officer since his conduct must be measured in terms of the belief of a reasonable officer based upon the facts then available to the offi cer”); Spenner v. City of Sioux Falls, 1998 SD 56 at 27 , 580 N.W.2d 606, 612 .

1998See also Gainor v. Rogers, 973 F.2d 1379, 1382 (8th Cir.l992)(“This [qualified immunity analysis] allows ample room for a good faith mistake by the officer since his conduct must be measured in terms of the belief of a reasonable officer based upon the facts then available to the officer”). [¶ 28.] Under the factual scenario presented in this case, we must answer two questions in order to determine whether the circuit court correctly determined that defendants were entitled to a qualified immunity *613 determination.

1987See, e.g., Uken v. Sloat, 296 N.W.2d 540, 542-543 (S.D.1980), which recognized the existence of a qualified privilege, made without malice, in an action by a former superintendent of schools against certain school district patrons for alleged defamation and slander.

1985In Uken v. Sloat, 296 N.W.2d 540 (S.D.1980), we approved the grant of summary judgment under a qualified privilege, SDCL 20-11-5(3) communication between interested individuals.

1997Peterson, 499 N.W.2d at 916 ; Janklow, 459 N.W.2d at 421 . [¶ 22.] Kiesers failed to offer any evidence of malice sufficient to overcome the qualified privilege granted by SDCL 20-11-5(3).

1996Therefore, this matter should be tried to the jury, on proper instructions, based on qualified privilege as there is a genuine issue of material fact as to malice, i.e., whether the false statement was made “with knowledge of its falsity or a reckless disregard for the truth.” Janklow v. Viking Press, 459 N.W.2d 415, 419 (S.D.1990) (citing Harte-Hanks, Communications, Inc. v. Connaughton, 491 U.S. 657 , 109 S.Ct. 2678 , 105 L.Ed.2d 562 (1989)). .

1997See also Sparagon, 1996 SD 3 at ¶ 27 , 542 N.W.2d at 132 ; Tibke v. McDougall, 479 N.W.2d 898, 905 (S.D.1992). [¶ 15.] The privilege created by SDCL 20-11-5(3) is a qualified privilege in that a “communication is only ‘privileged’ if it is made ‘without malice.’” Peterson, 499 N.W.2d at 915 (citing McLean, 42 S.D. at 399 , 175 N.W. at 880 ).

1997Peterson, 499 N.W.2d at 916 ; Janklow, 459 N.W.2d at 421 . [¶ 22.] Kiesers failed to offer any evidence of malice sufficient to overcome the qualified privilege granted by SDCL 20-11-5(3).

2021See also Ziglar, __ U.S. at __, 137 S. Ct. at 1867 (“[I]f a reasonable officer might not have known for certain that the conduct was unlawful—then the officer is immune from liability.”). [¶38.] Further, courts “should be permitted to exercise their sound discretion in deciding which of the two prongs of the qualified immunity analysis should be addressed first in light of the circumstances in the particular case at hand.” Pearson, 555 U.S. at 236 , 129 S. Ct. at 818 .

2021“Qualified immunity shields a government official from liability and the burdens of litigation in a § 1983 action for damages unless the official’s conduct violated a clearly established constitutional or statutory right of which a reasonable official would have known.” Chambers v. Pennycook, 641 F.3d 898, 904 (8th Cir. 2011); accord Pearson v. Callahan, 555 U.S. 223, 231 , 129 S. Ct. 808, 815 , 172 L.

2021“Qualified immunity protects [g]overnment officials performing discretionary functions.” Rush v. Perryman, 579 F.3d 908, 913 (8th Cir. 2009) (alteration in original).

2021See Bauer v. Norris, 713 F.2d 408, 413 (8th Cir. 1983) (concluding that the use of force in arresting the suspects was excessive even though they were “argumentative, vituperative, and threatened legal action” because there was no evidence of physical resistance or physical threats). [¶36.] The defendants further claim, however, that even if Nichole “can satisfy the first prong of the qualified immunity analysis, the officers are still -17- #29249 entitled to qualified immunity because it was not clearly established that their actions were unlawful.” As support, they direct this Court to Kelsa

2021“In assessing a claim of qualified immunity, we . . . ask whether the plaintiff’s allegations establish a violation of the Constitution.” Sherbrooke v. City of Pelican Rapids, 513 F.3d 809, 813 (8th Cir. 2008).

2021See Bauer v. Norris, 713 F.2d 408, 413 (8th Cir. 1983) (concluding that the use of force in arresting the suspects was excessive even though they were “argumentative, vituperative, and threatened legal action” because there was no evidence of physical resistance or physical threats). [¶36.] The defendants further claim, however, that even if Nichole “can satisfy the first prong of the qualified immunity analysis, the officers are still -17- #29249 entitled to qualified immunity because it was not clearly established that their actions were unlawful.” As support, they direct this Court to Kelsa

2021See Bauer v. Norris, 713 F.2d 408, 413 (8th Cir. 1983) (concluding that the use of force in arresting the suspects was excessive even though they were “argumentative, vituperative, and threatened legal action” because there was no evidence of physical resistance or physical threats). [¶36.] The defendants further claim, however, that even if Nichole “can satisfy the first prong of the qualified immunity analysis, the officers are still -17- #29249 entitled to qualified immunity because it was not clearly established that their actions were unlawful.” As support, they direct this Court to Kelsa

2021See Bauer v. Norris, 713 F.2d 408, 413 (8th Cir. 1983) (concluding that the use of force in arresting the suspects was excessive even though they were “argumentative, vituperative, and threatened legal action” because there was no evidence of physical resistance or physical threats). [¶36.] The defendants further claim, however, that even if Nichole “can satisfy the first prong of the qualified immunity analysis, the officers are still -17- #29249 entitled to qualified immunity because it was not clearly established that their actions were unlawful.” As support, they direct this Court to Kelsa

2021See Bauer v. Norris, 713 F.2d 408, 413 (8th Cir. 1983) (concluding that the use of force in arresting the suspects was excessive even though they were “argumentative, vituperative, and threatened legal action” because there was no evidence of physical resistance or physical threats). [¶36.] The defendants further claim, however, that even if Nichole “can satisfy the first prong of the qualified immunity analysis, the officers are still -17- #29249 entitled to qualified immunity because it was not clearly established that their actions were unlawful.” As support, they direct this Court to Kelsa

2005A court must ask the following questions: (1) “ ‘Taken in the light most favorable to the party asserting the injury, do the facts alleged show the officer’s conduct violated a constitutional right?’ ” Brosseau, — U.S.-, 125 S.Ct. at 598 , 160 L.Ed.2d 583 (citing Saucier v. Katz, 533 U.S. 194 , 201, 121 S.Ct. 2151 , 2156, 150 L.Ed.2d 272 , 281 (2001)); and (2) “if so, the next, sequential step is to re *531 solve the qualified-immunity claim by asking whether the right was clearly established.” Bunting v. Mellen, 541 U.S. 1019 , 124 S.Ct. 1750, 1753 , 158 L.Ed.2d 636 , 639 (2004) (Justice Scal

2005A court must ask the following questions: (1) “ ‘Taken in the light most favorable to the party asserting the injury, do the facts alleged show the officer’s conduct violated a constitutional right?’ ” Brosseau, — U.S.-, 125 S.Ct. at 598 , 160 L.Ed.2d 583 (citing Saucier v. Katz, 533 U.S. 194 , 201, 121 S.Ct. 2151 , 2156, 150 L.Ed.2d 272 , 281 (2001)); and (2) “if so, the next, sequential step is to re *531 solve the qualified-immunity claim by asking whether the right was clearly established.” Bunting v. Mellen, 541 U.S. 1019 , 124 S.Ct. 1750, 1753 , 158 L.Ed.2d 636 , 639 (2004) (Justice Scal

2005This practice allows the jury to make any requisite factual findings that the district court may then rely upon to make its own qualified immunity ruling. “[S]peeial interrogatories related to [the qualified immunity] defense [are] not improper per se,” Lampkins v. Thompson, 337 F.3d 1009, 1014 (8th Cir.2003), but they must be carefully crafted so that “[t]he fact-finder’s role is limited to determining whether the underlying facts are as the plaintiff has alleged or proved.” McIntosh, 810 F.2d at 1431 n. 8; accord Peterson, 60 F.3d at 476 (granting new trial where district court submitted qua