Qualified Immunity and Its Kentucky Counterpart: A Comparison
For many reasons, 2020 was a strange and uneasy time. The specter of COVID-19—with its uncertain origins, severity, and outcomes—left the world reeling in ambiguity and fear. In response to the pandemic, daily life came to an abrupt halt. Many high school seniors never walked the stage, some businesses survived by a thread, and others opened their doors in defiance of stay-at-home orders.
Moreover, amid that upheaval came a different kind of unrest. The deaths of Breonna Taylor, Rayshard Brooks, Daniel Prude, George Floyd, and others drew intense national scrutiny and ignited debates that cut across political and cultural lines.1
As those names became etched into public consciousness, the legal doctrine of qualified immunity—an affirmative defense shielding government officials from civil liability unless they violated clearly established statutory or constitutional rights—suddenly entered the mainstream conversation. Yet, like so many legal doctrines that make their way into the public arena, qualified immunity was quickly misunderstood. Most observers formed opinions about it before they understood what it actually was, and a caricature of the doctrine took hold of the national discourse faster than you could say “Jack Robinson.”
Bottom Line:
“While it understandably doesn’t get the sort of national attention that qualified immunity receives, Kentucky’s doctrine of qualified official immunity—which shields public officials from liability in tort for discretionary acts performed in good faith within the scope of their authority—is prone to misunderstandings. Despite their similar names, these doctrines differ significantly in origin, scope, and application. Understanding them is critical because they shape the contours of government accountability at both federal and state levels.”
Attorneys on the national stage have amplified these misunderstandings.2 One jurist even characterized the doctrine as “a judicial doctrine, not a law,” as if to impugn it merely because of its common law origins.3
He further described the doctrine as “nebulous” and asserted that it “holds that police can’t be sued for excessive force if victims can’t find a nearly identical case to theirs that previously resulted in prosecution.”4 Such facile and conclusory statements from sources that should be reliable only deepen public misconceptions of the law.
Indeed, these popular portrayals stand in stark contrast to empirical findings. In her scholarly work, Professor Schwartz reported that in a survey of 1,183 cases asserting claims under 42 U.S.C. § 1983, only seven were dismissed on qualified immunity grounds before discovery, and just thirty-one were dismissed at summary judgment.5 These data-driven conclusions contradict Professor Schwartz’s more provocative popular-level work, where she asserts suing the police is “nearly impossible.”6
While it understandably doesn’t get the sort of national attention that qualified immunity receives, Kentucky’s doctrine of qualified official immunity—which shields public officials from liability in tort for discretionary acts performed in good faith within the scope of their authority—is prone to the same misunderstandings. Indeed, qualified official immunity has proven vexing even to legal professionals.7
Despite their similar names, these doctrines differ significantly in origin, scope, and application. Understanding them is critical because they shape the contours of government accountability at both federal and state levels. While they are perhaps not robust topics in most law schools, these doctrines needn’t remain esoteric concepts reserved for scholars and the most venerable practitioners. This article is intended as a primer on the tests for both qualified immunity under federal law and Kentucky qualified official immunity. After introducing each concept, it will provide a brief exposition on the differences between them in both analysis and application.
QUALIFIED IMMUNITY.
Origins of the doctrine.
Qualified immunity traces its roots to the doctrine of sovereign immunity, derived from English common law principles and adopted by American courts after the nation’s founding.8 However, it was not until Pierson v. Ray where the United States Supreme Court first articulated that police officers “should not be held liable if they acted in good faith and with probable cause . . . .” 9 The Court explained the doctrine by observing that an officer should not have to choose between being accused of dereliction of duty for failing to arrest when probable cause exists or being sued for damages for making the arrest.10 In essence, the Court recognized that “damned if you do, damned if you don’t” is a poor maxim by which to bind government officials.
Another interesting, though infrequently explored facet of qualified immunity is its basis in the separation of powers.11 It is in this context that qualified immunity is most logically evident. At both the state and federal level, the legislative and judicial branches enjoy their own “brand” of immunity.12 It is unsurprising then that when the executive branch engages in its constitutional duties, it likewise must be free to exercise its policymaking powers, since, as Justice Jackson rightly noted, “it is not a tort for government to govern.”13
Elements of qualified immunity.
The modern doctrine of qualified immunity was established in Saucier v. Katz, where the Supreme Court of the United States articulated a two-part test: (1) whether a plaintiff’s alleged facts “make out a violation of a constitutional right,” and, if so, (2) “whether the right at issue was ‘clearly established at the time of the defendant’s misconduct.’”14
Qualified immunity is a particularly robust defense because it provides “an immunity from suit,” not merely a defense to liability.15 The rationale for this immunity from suit is that the protections of qualified immunity are “effectively lost if a case is erroneously permitted to go to trial.”16 For this reason, a denial of qualified immunity is one of the rare interlocutory orders that may be appealed immediately.17
Plaintiff’s burden.
A distinctive feature of qualified immunity is that, unlike most affirmative defenses, once it is asserted by a defendant, the plaintiff bears the burden of demonstrating that the defendant is not entitled to immunity.18 Thus, at the pleadings stage, the plaintiff must allege facts that plausibly show both a violation of a constitutional right and that the right was clearly established at the time of the alleged misconduct.19
Courts may address the two elements of qualified immunity in either order, but failure to establish either prong is fatal to a plaintiff’s claim.20 This article does not discuss the first element (whether a constitutional right was violated), as that inquiry depends on the facts of each case and whether the right at issue has been properly pled and articulated. To determine whether a right is “clearly established,” courts first look to controlling authority, such as decisions from the Supreme Court of the United States and the applicable Court of Appeals. If such authority is lacking, courts may look to their own circuit courts and the highest court of the forum state.21 In very limited circumstances, courts may also consider persuasive authority from other federal circuits.22
Contrary to claims like those in Mr. Henderson’s article, supra, a plaintiff does not need to find a “nearly identical case” to overcome qualified immunity.23 Instead, the plaintiff must demonstrate that existing precedent has “placed the constitutional question beyond debate.”24 In the Sixth Circuit, courts are specifically cautioned against being too stringent: “just as a court can generalize too much, it can generalize too little. If it defeats the qualified-immunity analysis to define the right too broadly, it defeats the purpose of § 1983 to define the right too narrowly.”25
Qualified Official Immunity.
Like federal qualified immunity, Kentucky’s doctrine of qualified official immunity arises from constitutional principles and reflects a distinctive balance between accountability and the separation of powers. The doctrine shields public officers and employees from tort liability for the negligent performance of discretionary functions when those functions are within the scope of their authority and undertaken in good faith.26
Doctrinal origins and rationale.
Qualified official immunity as it exists today traces principally to Yanero v. Davis, in which the Supreme Court of Kentucky synthesized decades of precedent and anchored the doctrine in the structural separation of powers embodied in Sections 27 and 28 of the Kentucky Constitution. The Court reasoned that public officers must be free “to exercise judgment and discretion without fear of judicial second-guessing,” and that exposure to liability for discretionary decisions would “inhibit the fearless, vigorous, and effective administration of policies of government.”27
Thus, Kentucky’s doctrine of qualified official immunity serves not merely as a personal defense for individual officers but as a structural safeguard preserving the independence and proper functioning of the executive branch. As the Supreme Court of Kentucky reaffirmed in Patton v. Bickford, courts are not the proper forum for evaluating the wisdom of policy decisions made by coordinate branches of government.28 Tort actions, the Court explained, furnish “an inadequate crucible for testing the merits of social, political, or economic policy.”29
Thus, Yanero and Patton clearly indicate that, like its federal counterpart, qualified official immunity is rooted in the separation of powers. As the Supreme Court of Kentucky said in Patton, “courts should not be called upon to pass judgment on policy decisions made by members of coordinate branches of government in the context of tort actions.”30 The conclusion that qualified official immunity is a close cousin to the doctrine of separation of powers—and therefore should be more closely scrutinized before it is denied—becomes more apparent when considering that, like an intrusion by one co-equal branch into the realm of another, there is no adequate remedy for a denial of immunity and immediate judicial review is available.31
Elements and burden-shifting framework.
The elements of qualified official immunity under Kentucky law are well-settled. A public officer or employee is immune from tort liability when the challenged conduct constitutes: (1) a discretionary act or function; (2) performed in good faith; and (3) within the scope of the officer’s or employee’s authority.32 Whether a defendant is entitled to official immunity is a question of law for the court.33
Unlike its federal counterpart, qualified official immunity does not impose the burden solely on the plaintiff. Instead, it uses a burden-shifting framework. When the defense is invoked, the burden first lies with the defendant to demonstrate that the allegedly wrongful act was discretionary in nature and performed within the scope of her authority. Once that prima facie showing is made, the burden shifts to the plaintiff to present affirmative evidence of bad faith.34 Qualified official immunity attaches only when all three elements are satisfied. When immunity attaches, it is absolute as to negligence claims in that even if the plaintiff could otherwise establish duty, breach, and causation, the claim is barred.
Discretionary versus ministerial acts.
The threshold inquiry in any qualified official immunity analysis is whether the challenged conduct was discretionary or ministerial. This distinction does not turn on the title or rank of the employee, but on the nature of the function performed.35 Of all the things that haunt the law, there are few ghosts as troubling as this ministerial/discretionary distinction. As the Supreme Court of Kentucky has recognized, few acts are purely discretionary or purely ministerial,36 which complicates matters for courts. Courts define “ministerial acts” as those that are “absolute, certain, and imperative, involving merely execution of a specific act arising from fixed and designated facts.”37
Such acts require obedience to the orders of others and leave the officer “no choice but to do the act.”38 While some factual assessment or limited discretion in method may accompany ministerial tasks, they are nonetheless characterized by the absence of personal judgment as to whether the act should be done. Examples of ministerial duties include a teacher’s duty to report “all bullying behaviors . . . for investigation,”39 and the duty to safely control a police cruiser.40
By contrast, discretionary acts involve “the exercise of discretion and judgment, or personal deliberation, decision, and judgment.”41 They often entail policy implementation, allocation of resources, or on-the-spot decision-making in legally uncertain or fluid situations. Discretionary functions “are protected to ensure that courts do not intrude upon the executive decision-making process” or impose liability for honest judgment calls made in good faith.41 Examples of discretionary acts include failure to promulgate rules as in Yanero,42 and supervision of prisoners on a jail’s work crew as in Sloas.43
Whether the act was authorized.
The second element—whether an official acted within her authority—is not often discussed, and when it is, it usually arises in the context of a rebuke to the claimant for not addressing it.45 When it does arise, violations of this element are usually obvious and beyond dispute.46
Since it is the defendant’s burden to show an act was within his authority, defense practitioners should marshal evidence to show the scope of a defendant’s authority and ensure it is clearly presented to the court. This can often be done by obtaining the policies and procedures of the entity for whom the defendant works, or by reference to the Kentucky Constitution, statutes, or administrative regulations.
The good faith requirement and the meaning of “bad faith.”
If a defendant can demonstrate that an alleged action was a discretionary act and within her authority, the burden then shifts to the plaintiff to rebut the presumption of good faith. But while courts often describe the plaintiff’s burden as proving the absence of good faith, it is perhaps more precise to say a plaintiff must show “bad faith.” As the Kentucky Court of Appeals explained, “[t] he term ‘good faith’ is somewhat of a misnomer, as the proof is really of ‘bad faith.’”47
Bad faith encompasses both a subjective and an objective component.48 The subjective prong is met where the officer willfully or maliciously intended to harm the plaintiff or acted with a corrupt motive. A plaintiff makes the objective showing by demonstrating a defendant’s actions violated a clearly established right of which a reasonable public official would have known, which Kentucky courts describe as objective unreasonableness.49
More recent cases have refined the inquiry but maintained the same two-part structure. In Wilson v. England, the Kentucky Court of Appeals held that bad faith may be shown where the public official “acted with willful or malicious intent to harm, or at least constructive knowledge that his actions violated the plaintiff’s clearly established rights.”50 Absent such evidence, good faith is presumed.51
Comparison
Both the federal and Kentucky doctrines share common roots in the separation of powers and the need to protect public officials from personal liability arising out of their discretionary functions. The doctrines both arise from a recognition that officials must be free to exercise judgment in carrying out their duties without fear of constant litigation, which could chill effective government decision-making. Additionally, these doctrines both apply only to discretionary acts. No immunity is afforded officials who violate their ministerial duties. Each doctrine also limits protection to officials acting within the scope of their lawful authority and in good faith, excluding those who act maliciously, in bad faith, or outside the bounds of their official role. At bottom, both reflect a balance between accountability and governmental autonomy, preserving the independence of executive decision-making while still allowing recourse for clear abuses of power. Both doctrines protect government officials not just from liability, but from suit, and a ruling denying immunity is immediately appealable. However, despite their shared foundations, federal qualified immunity and Kentucky’s qualified official immunity differ in several key respects.
Application.
First, the federal doctrine applies primarily to federal constitutional claims, such as claims made under 42 U.S.C. § 1983. Under Kentucky law, there is no private right of action to recover damages for violations of the Kentucky Constitution.52 Instead, Kentucky’s doctrine shields officials only from suit for negligence. If a plaintiff’s claim asserts a claim that an official acts willfully or with malice it is a defeater per se of a qualified official immunity defense.53
Burden.
Next, each doctrine has different applicable burdens of proof. For federal qualified immunity, the plaintiff carries the burden, which is sensible considering the plausibility pleadings standard applicable to federal claims.54 Imposing the burden on the defendant asserting qualified immunity would negate a plaintiff’s duty to plead sufficient facts to show a plausible claim.
However, Kentucky does not employ a plausibility standard for pleadings. Instead, Kentucky employs a notice pleadings approach, “where the ‘central purpose of pleadings remains notice of claims and defenses.’”55 If a defendant hopes to avoid suit, she must carry the initial burden and demonstrate that her actions were within her discretionary authority. If the defendant makes this showing, it is presumed that she acted in good faith, and the burden shifts to the plaintiff, who must rebut that presumption.
Analysis.
The analysis of the doctrines also differs. Federal qualified immunity employs a two-step inquiry that considers (1) whether a constitutional right was violated and (2) whether that right was clearly established at the time. The federal test is concerned with both the violative act and actual harm, and the test is purely objective, even as to the “good faith” inquiry.56 Thus, to defeat qualified immunity, a plaintiff in federal court must show the government official in fact violated her rights and that an objectively reasonable official would have known the conduct was constitutionally impermissible.
In contrast, the test under Kentucky law has both objective and subjective components. To show qualified official immunity is clearly distinguishable because it considers (1) the nature of the alleged act (e.g., ministerial or discretionary), (2) whether the defendant was authorized to act, and (3) whether the defendant acted in good faith. While the first two elements are objective, the third element includes both an objective and subjective component: “objectively, a court must ask whether the behavior demonstrates a presumptive knowledge of and respect for basic, unquestioned constitutional rights, but subjectively, the court’s inquiry is whether the official has behaved with permissible intentions.”57
Finally, the most notable distinction between Kentucky’s doctrine and its federal counterpart are perhaps that the veracity of the underlying tort claim is immaterial to the immunity analysis. Federal qualified immunity clearly requires that harm actually occurs; it’s the first element of the inquiry. But Kentucky has affirmatively rejected such considerations, holding that in an interlocutory appeal, the elements of immunity are the only matters that an appeals court will consider, and no additional proof is required or permitted.58
Practical and procedural considerations.
Both qualified immunity and qualified official immunity share a procedural posture that makes them uniquely powerful: they are immunities from suit, not merely defenses to liability.59 This distinction has significant procedural consequences. Because the very purpose of these doctrines is to spare officials the burdens of litigation, questions of immunity must be resolved at the earliest possible stage.
In federal practice, qualified immunity is raised either in a Rule 12(b)(6) motion to dismiss or a Rule 56 motion for summary judgment. In the Sixth Circuit, there is a general preference that questions of qualified immunity be determined on summary judgment.60 However, it is “beyond doubt... that a district court may base a motion to dismiss on an affirmative defense.”61 Accordingly, “there is no reason not to grant a motion to dismiss where the undisputed facts conclusively establish an affirmative defense as a matter of law.”62
Defense counsel must decide when to raise immunity with careful attention to the pleadings. The plaintiff bears the burden on qualified immunity, so under Iqbal the complaint must plead sufficient facts that, if true, show qualified immunity is not warranted. Thus, whether a defendant asserts immunity at the pleadings stage or on summary judgment will depend on whether “the complaint establishes the defense.”63 In any event, remember that a denial of qualified immunity is immediately appealable.64
In Kentucky practice, the procedural mechanisms differ, and a motion to dismiss asserting qualified official immunity will seldom be granted for two reasons. First, courts generally do not consider matters outside the pleadings when ruling on motions to dismiss.65 If courts do consider such matters, the motion effectively converts into one for summary judgment.66 Second, the defendant bears the burden of demonstrating that she acted within the scope of her discretionary authority. It is unlikely at the pleadings stage that the record will contain sufficient facts to establish the scope of a defendant’s authority or the discretionary nature of a negligent act. However, if those facts are easily ascertained, an early summary-judgment motion may be a viable option. The method by which defense counsel proceeds will be case-specific, and early opportunities to dispose of a case should be carefully evaluated.
Because immunity determinations often turn on nuanced factual characterizations—particularly the distinction between discretionary and ministerial acts—counsel should ensure that the record is adequately developed before interlocutory review. Federal courts ordinarily produce adequate findings of fact and conclusions of law to permit meaningful appellate review. However, Kentucky courts are not required to issue written findings of fact or conclusions of law when ruling on motions for summary judgment.67 Nevertheless, to ensure an adequate record on appeal, it may be advisable for defense practitioners to formally request written findings of fact and conclusions of law. While courts review a denial of qualified official immunity de novo, the Supreme Court of Kentucky has held that trial courts must still make factual findings “complete enough to enable adequate appellate review,” while remaining confined to the narrow issues relevant to the qualified official immunity analysis.68 Those findings should include determinations of: (1) whether the defendant is a government official; (2) whether the act was discretionary or ministerial; (3) whether negligence occurred in performing a ministerial act; and (4) whether the official acted in good faith when performing a discretionary act.69 An incomplete factual record may lead an appellate court to conclude that genuine issues of material fact preclude immunity, thereby defeating the very purpose of the doctrine. It is therefore incumbent on the diligent practitioner to ensure the record is sufficient.
Jonathan M. Gifford is a member in Sturgill Turner’s government group, handling federal and state civil litigation, including prison and jail cases, first responder defense, employment law, municipal law, and estate planning and probate. He is a member of the Kentucky Defense Counsel, the Defense Research Institute, and the Kentucky and Fayette County Bar Associations. He is admitted to practice in Kentucky, the U.S. District Courts for the Eastern and Western Districts of Kentucky, and the Sixth Circuit.
This article was originally published in Common Defense, a publication of the Kentucky Defense Counsel, Inc.
