2. Qualified immunity
Qualified immunity protects government officials from individual
liability under § 1983 for actions taken while performing
discretionary functions, unless their conduct violates clearly
established statutory or constitutional rights of which a reasonable
person would have known. Brokaw v. Mercer County, 235 F.3d 1000, 1021 (7th
Cir. 2000) (citing Harlow v. Fitzgerald, 457 U.S. 800, 818 (1982)).
Thus, before liability will attach, "[t]he contours of the right must be
sufficiently clear that a reasonable official would understand that what
he is doing violates that right." Id. (citing Anderson v. Creighton,
483 U.S. 635, 640 (1987)); see also United States v. Lanier, 520 U.S. 259,
270, 117 S.Ct. 1219 (1997). The object of the "clearly established law"
immunity standard is therefore akin to allowing officials fair warning
that their actions are unconstitutional. Lanier, 520 U.S. at 270.
As an initial matter, the court must first address Plaintiffs'
contention that the State Defendants waived their defense of qualified
immunity. The qualified immunity defense, like other affirmative defenses
upon which the defendants bear the burden of proof, can be waived if the
defendant either fails to raise the defense in a timely fashion or fails
to raise it with sufficient particularity. See, e.g. Walsh v. Mellas,
837 F.2d 789, 799 (7th Cir. 1988); McCardle v. Haddad, 131 F.3d 43, 51
(2nd Cir. 1997). According to Plaintiffs, the State Defendants have
waived their defense of qualified immunity because they failed to raise
it with precision. (Plaintiffs' Consolidated Memorandum in Opposition to
Defendants' Motions to Dismiss (hereinafter "Plaintiffs' Memo"), at 19.)
Specifically, Plaintiffs claim that the State Defendants have misstated
Plaintiffs' original complaint by saying that Plaintiffs challenge the
use of the credible evidence standard at the investigation stage. (Id. at
19-20.) Instead, Plaintiffs contend that they are challenging the uses to
which the State Defendants put a finding based on credible evidence:
disclosing the guilty finding to employers, stigmatizing indicated
persons and foreclosing them from current employment. (Id. at 20.)
Plaintiffs therefore contend that, though Defendants present a qualified
immunity defense, it is "not a defense that is even responsive to
[P]laintiffs' credible evidence claim because it misstates it."
The court finds no merit in this argument. Whether Defendants misstated
Plaintiffs' allegations, they clearly presented the defense of qualified
immunity to this court. Indeed, the cases cited by Plaintiff lend no
support to their argument that a defendant can waive the defense merely
by misstating part of a plaintiff's claim. In stead, the cases show that
qualified immunity is waived only in situations where Defendants did not
raise it either in a timely manner or did not clearly present the defense
to the court.
For example, in Walsh v. Mellas, 837 F.2d 789, 799 (7th Cir. 1988), the
Seventh Circuit found that Defendants waived the defense of immunity
because they raised the issue for the first time in the second appeal of
the case. Similarly, in McCardle v. Haddad, 131 F.3d 43, 51-52 (2nd Cir.
1997), the court found that defendant had waived the defense of qualified
immunity where the defendant could show no references to qualified
immunity in his pretrial memorandum to the court, made no motion for
summary judgment on the basis of qualified immunity, and made no mention
of qualified immunity in his proposed jury instructions. See also
Blissett v. Coughlin, 66 F.3d 531, 538 (2nd Cir. 1995) (where defendants
raised qualified immunity in their answer but did not move for summary
judgment on the ground of qualified immunity and qualified immunity was
not the subject of any other pretrial motions, discovery or pretrial
discussions with the court, the defense was waived); Buffington v.
Baltimore County, 913 F.2d 113, 120-21 (4th Cir. 1990) (finding that
defense of qualified immunity was waived where defendant's brief merely
stated that defendants were entitled to qualified immunity because, on
the merits, there was no constitutional violation). In this case, unlike
those where courts have found that the defense of qualified immunity was
waived, the State Defendants have raised the defense in their motion to
dismiss, thereby putting both the Plaintiffs and this court on notice of
the defense. There is no similarity between this case and those where
immunity was waived. The court will, therefore, address the merits of
b. The Credible Evidence Standard
As has already been explained, qualified immunity is extended to all
government officials performing discretionary functions as long as the
officials' conduct does not violate clearly established statutory or
constitutional rights of which a reasonable person would have known.
Harrell v. Cook, 169 F.3d 428, 431 (7th Cir. 1999) (citing Harlow v.
Fitzgerald, 457 U.S. 800, 818 (1982). In Brokaw v. Mercer County,
235 F.3d 1000 (7th Cir. 2000), the Seventh Circuit explained that to show
a "clearly established" right:
[A] plaintiff need not always identify a closely
analogous case; rather, he can establish a clearly
established constitutional right by showing that the
violation was so obvious that a reasonable person
would have known of the unconstitutionality of the
conduct at issue. Thus, binding precedent is not
necessary to clearly establish a right.
Id. at 1021.