qualified immunity in Vermont

2025Qualified immunity only applies if officials are “(1) acting during the course of their employment and acting, or reasonably believing they are acting, within the scope of their authority; (2) acting in good faith; and (3) performing discretionary, as opposed to ministerial, acts.” Czechorowski at ¶ 10 (quoting Murray v. White, 155 Vt. 621 , 626- 27).

2024Qualified immunity applies to “the conduct of lower level public officials so long as they are: ‘(1) acting during the course of their employment and acting, or reasonably believing they are acting, within the scope of their authority; (2) acting in good faith; and (3) performing discretionary, as opposed to ministerial, acts.’” Czechorowski v. State, 2005 VT 40, ¶ 10 , 178 Vt. 524 (quoting Murray v. White, 155 Vt. 621, 627 (1991).

2026“Qualified immunity shields federal and state officials from money damages unless a plaintiff pleads facts showing (1) that the official violated a statutory or constitutional right, and (2) that the right was ‘clearly established’ at the time of the challenged conduct.” Ashcroft v. al-Kidd, 563 U.S. 731 , 735 (2011) (quoting Harlow v. Fitzgerald, 457 U.S. 800, 818 (1982)).

2013The court begins with the second element. 5 As Mr. Leopold points out, prior to the Supreme Court’s decision in Harlow v. Fitzgerald, the qualified immunity defense had both an “objective” and a “subjective” aspect. 457 U.S. 800, 815 (1982).

2011See Hudson v. Town of East Montpelier, 161 Vt. 168, 175 , 638 A.2d 561, 565-66 (1993) (advocating case-by-case analysis of whether act is discretionary under doctrine of qualified immunity, and recognizing that even if some discretion is required, actions may not be discretionary for purposes of qualified immunity); see also Johnson v. State, 165 Vt. 588, 589-90 , 682 A.2d 961 , 963 (1996) (mem.) (reiterating use of case-by-case analysis and rejecting literal definitional approach in analyzing whether act is discretionary or ministerial). “[P]laintiffs role in a motion for summary judgment is

2011See Hudson v. Town of East Montpelier, 161 Vt. 168, 175 , 638 A.2d 561, 565-66 (1993) (advocating case-by-case analysis of whether act is discretionary under doctrine of qualified immunity, and recognizing that even if some discretion is required, actions may not be discretionary for purposes of qualified immunity); see also Johnson v. State, 165 Vt. 588, 589-90 , 682 A.2d 961 , 963 (1996) (mem.) (reiterating use of case-by-case analysis and rejecting literal definitional approach in analyzing whether act is discretionary or ministerial). “[P]laintiffs role in a motion for summary judgment is

2007See, e.g., Carter v. City of New York, No. 02 Civ. 8755, 2004 WL 193142 , at *1 (S.D.N.Y. 2004) (unreported mem.) (holding that qualified privilege applied to reporter’s observations of events at public demonstration while recognizing that nature of the information sought “is a factor to be considered in determining whether the privilege has been overcome”); State v. Salsbury, 924 P.2d 208, 213 (Idaho 1996) (applying balancing test under Branzburg to hold that disclosure of videotape of a “public event which was readily viewable to anyone present” would not result in chilling effect on newsgat

2005The court of appeals rejected the respondents’ claims that a qualified privilege, recognized in some civil cases in the circuit, gave the reporters the right to First Amendment protection of their confidential sources in a criminal case, finding no meaningful distinction between the case before the court and Branzburg. 397 F.2d at 972; see also United States v. Smith, 135 F.3d 963, 969-71 (5th Cir. 1998) (holding that there is no qualified privilege to withhold nonconfidential information related to criminal case); In re Shain, 978 F.2d 850, 852 (4th Cir. 1992) (holding that reporters have no

1996The court also held that the individual defendants were protected from suit by the doctrine of qualified immunity. “[L]ower-level government employees are immune from tort liability when they perform discretionary acts in good faith during the course of their employment and within the scope of their authority.” Hudson v. Town of East Montpelier, 161 Vt. 168, 171 , 638 A.2d 561, 563 (1993); see also Libercent v. Aldrich, 149 Vt. 76, 81 , 539 A.2d 981, 984 (1987) (discussing doctrine of qualified immunity).

1996The court also held that the individual defendants were protected from suit by the doctrine of qualified immunity. “[L]ower-level government employees are immune from tort liability when they perform discretionary acts in good faith during the course of their employment and within the scope of their authority.” Hudson v. Town of East Montpelier, 161 Vt. 168, 171 , 638 A.2d 561, 563 (1993); see also Libercent v. Aldrich, 149 Vt. 76, 81 , 539 A.2d 981, 984 (1987) (discussing doctrine of qualified immunity).

2024See Cook v. Nelson, 167 Vt. 505 , 509–10 (1998).

2019See Cook v. Nelson , 167 Vt. 505 , 509-10, 712 A.2d 382 , 384 (1998).

2013Serv., 160 Vt. 60, 65 (1993)(“Qualified immunity . . . protects lower level officials, employees and agents…”)(emphasis added). “[I]f the official’s conduct does not violate clearly-established [law] of which a reasonable person would have known, the official is protected by qualified immunity from tort liability.” Id.

2013Serv., 160 Vt. 60, 65 (1993)(“Qualified immunity . . . protects lower level officials, employees and agents…”)(emphasis added). “[I]f the official’s conduct does not violate clearly-established [law] of which a reasonable person would have known, the official is protected by qualified immunity from tort liability.” Id.

2004The doctrine of qualified immunity “protects lower-level government employees from tort liability when they perform discretionary acts in good faith during the course of their employment and within the scope of their authority.” Winfield v. State, 172 Vt. 591, 593 , 779 A.2d 649, 652 (2001) (mem.).

2004The doctrine of qualified immunity “protects lower-level government employees from tort liability when they perform discretionary acts in good faith during the course of their employment and within the scope of their authority.” Winfield v. State, 172 Vt. 591, 593 , 779 A.2d 649, 652 (2001) (mem.).

2012Morway v. Trombly, 173 Vt. 266, 272 , 789 A.2d 965, 970 (2001) (quotation omitted). ¶ 58.

2012Morway v. Trombly, 173 Vt. 266, 272 , 789 A.2d 965, 970 (2001) (quotation omitted). ¶ 58.

2012Id.; see Harlow v. Fitzgerald, 457 U.S. 800, 807 (1982) (observing that “[f]or executive officials in general . . . qualified immunity represents the norm” in § 1983 actions); Butz v. Economou, 438 U.S. 478, 508 (1978) (explaining that “a qualified immunity from damages liability should be the general rule for executive officials charged with constitutional violations”); Scheuer, 416 U.S. at 247-48 (holding that governor and aides sued under Civil Rights Act could receive adequate protection from liability through qualified immunity). ¶ 14.

1989See, e.g., Scheuer v. Rhodes, 416 U.S. 232, 247 (1974) (governor and other state executive officials had qualified immunity varying with “the scope of discretion and responsibilities of the office and all the circumstances as they reasonably appeared at the time of the action”); Wood v. Strickland, 420 U.S. 308, 322 (1975) (school officials not liable for imposing disciplinary penalties if could not reasonably have known that actions violated clearly established constitutional rights and they acted without malice).

2012Id.; see Harlow v. Fitzgerald, 457 U.S. 800, 807 (1982) (observing that “[f]or executive officials in general . . . qualified immunity represents the norm” in § 1983 actions); Butz v. Economou, 438 U.S. 478, 508 (1978) (explaining that “a qualified immunity from damages liability should be the general rule for executive officials charged with constitutional violations”); Scheuer, 416 U.S. at 247-48 (holding that governor and aides sued under Civil Rights Act could receive adequate protection from liability through qualified immunity). ¶ 14.

2003The United States Supreme Court’s subsequent determination that federal executive officials exercising discretion are entitled to qualified immunity in “suit[s] for damages arising from unconstitutional action,” id. at 507 (emphasis added), did not suggest that the standard for qualified immunity be adjusted according to the constitutional right allegedly violated.

2007See, e.g., Carter v. City of New York, No. 02 Civ. 8755, 2004 WL 193142 , at *1 (S.D.N.Y.2004) (unreported mem.) (holding that qualified privilege applied to reporter's observations of events at public demonstration while recognizing that nature of the information sought "is a factor to be considered in determining whether the privilege has been overcome"); State v. Salsbury, 129 Idaho 307 , 924 P.2d 208, 213 (1996) (applying balancing test under Branzburg to hold that disclosure of videotape of a "public event which was readily viewable to anyone present" would not result in chilling effect o

2007See, e.g., Carter v. City of New York, No. 02 Civ. 8755, 2004 WL 193142 , at *1 (S.D.N.Y. 2004) (unreported mem.) (holding that qualified privilege applied to reporter’s observations of events at public demonstration while recognizing that nature of the information sought “is a factor to be considered in determining whether the privilege has been overcome”); State v. Salsbury, 924 P.2d 208, 213 (Idaho 1996) (applying balancing test under Branzburg to hold that disclosure of videotape of a “public event which was readily viewable to anyone present” would not result in chilling effect on newsgat

1996Qualified immunity protects “all but the plainly incompetent or those who knowingly violate the law.” Malley v. Briggs, 475 U.S. 335, 341 (1986).

1992“As the qualified immunity defense has evolved, it provides ample protection to all but the plainly incompetent or those who knowingly violate the law.” Motley v. Briggs, 475 U.S. 335, 341 (1986).

1998Citing Levinsky v. Diamond, defendant contends that an objective standard applies to his motives and, therefore, that the qualified immunity defense is available to him. 151 Vt. 178, 190-91 , 559 A.2d 1078, 1081-82 (1989).

1993Qualified immunity, however, protects lower level officers, employees and agents “(1) acting during their employment and acting, or reasonably believing they are acting, within the scope of their authority; (2) acting in good faith; and (3) performing discretionary, as opposed to ministerial acts.” Levinsky, 151 Vt. at 185 , 559 A.2d at 1078 .

2025“In contrast to a qualified privilege, an absolute privilege cannot be overcome by a showing of malice: it ‘provides a complete shield against defamation actions’ even where the statements at issue were knowingly false and the defendant’s motives in making them were malicious.” Talandar v. Manchester-Murphy, 2024 VT 86, ¶ 13 , 331 A.3d 1093 (quoting Couture v. Trainer, 2017 VT 73, ¶ 10 , 205 Vt. 319 ); see also Couture, 2017 VT 73, ¶¶ 10-15 ; Restatement (Second) of Torts § 588 (1977).

2025“In contrast to a qualified privilege, an absolute privilege cannot be overcome by a showing of malice: it ‘provides a complete shield against defamation actions’ even where the statements at issue were knowingly false and the defendant’s motives in making them were malicious.” Talandar v. Manchester-Murphy, 2024 VT 86, ¶ 13 , 331 A.3d 1093 (quoting Couture v. Trainer, 2017 VT 73, ¶ 10 , 205 Vt. 319 ); see also Couture, 2017 VT 73, ¶¶ 10-15 ; Restatement (Second) of Torts § 588 (1977).

2013See Long v. L’Esperance, 166 Vt. 566, 571 (1997) (recognizing that law enforcement officer making warrantless arrest acts in good faith “if the officer had an objectively reasonable belief that probable cause to arrest existed”); see also Cervantes v. Jones, 188 F.3d 805, 811 (7th Cir. 1999), overruled on other grounds by Newsome v. McCabe, 256 F.3d 747 (7th Cir. 2001) (“[W]hen facts sufficient to create probable cause are undisputed, probable cause is a question of law.”).

2013See Long v. L’Esperance, 166 Vt. 566, 571 (1997) (recognizing that law enforcement officer making warrantless arrest acts in good faith “if the officer had an objectively reasonable belief that probable cause to arrest existed”); see also Cervantes v. Jones, 188 F.3d 805, 811 (7th Cir. 1999), overruled on other grounds by Newsome v. McCabe, 256 F.3d 747 (7th Cir. 2001) (“[W]hen facts sufficient to create probable cause are undisputed, probable cause is a question of law.”).

2011See Hudson v. Town of East Montpelier, 161 Vt. 168, 175 , 638 A.2d 561, 565-66 (1993) (advocating case-by-case analysis of whether act is discretionary under doctrine of qualified immunity, and recognizing that even if some discretion is required, actions may not be discretionary for purposes of qualified immunity); see also Johnson v. State, 165 Vt. 588, 589-90 , 682 A.2d 961 , 963 (1996) (mem.) (reiterating use of case-by-case analysis and rejecting literal definitional approach in analyzing whether act is discretionary or ministerial). “[P]laintiffs role in a motion for summary judgment is

2011See Hudson v. Town of East Montpelier, 161 Vt. 168, 175 , 638 A.2d 561, 565-66 (1993) (advocating case-by-case analysis of whether act is discretionary under doctrine of qualified immunity, and recognizing that even if some discretion is required, actions may not be discretionary for purposes of qualified immunity); see also Johnson v. State, 165 Vt. 588, 589-90 , 682 A.2d 961 , 963 (1996) (mem.) (reiterating use of case-by-case analysis and rejecting literal definitional approach in analyzing whether act is discretionary or ministerial). “[P]laintiffs role in a motion for summary judgment is

2026Mich. 1983) (holding that, “where the same factual basis is used to make both defamation and negligent infliction of emotional distress claims, and where a qualified privilege applies to the publication, as a matter of law Plaintiffs’ negligence claim cannot survive. ”); Akarah v. Ohio Dep’t of Rehab. & Corr., 253 N.E.3d 712, 720-21 (Ohio Ct. App. 2024) (same); Wagner v. Allen Media Broad., 3 N.W.3d 758 , 784–85 (Wis. Ct. App. 2024) (same).

2026The “the mere performance of a governmental function” does not necessarily entitle a private party susceptible to section 1983 liability to qualified immunity, “especially for a private person who performs a job without government supervision or direction.” Richardson, 521 U.S. at 408-09 (citation omitted).

2024See O’Connor v. Donovan, 2012 VT 27, ¶ 12 , 191 Vt. 412 .

2024See O’Connor v. Donovan, 2012 VT 27, ¶ 12 , 191 Vt. 412 .

2024Courts adopting this minority rule weigh the same public-policy considerations that led others to apply the qualified privilege, but arrive at a different result— reasoning that “requiring alleged crime victims to rely on the defense of qualified immunity in defamation actions would have detrimental consequences, including potentially permitting criminal defendants to harass and intimidate victims and witnesses who would testify in court,” and “[t]he mere possibility of retaliatory defamation claims would also tend to discourage free and unfettered reporting to law enforcement authorities to a