Vanderbilt Law Review

First Page



The Harlow Court both altered the substantive law of qualified immunity and established a procedural goal for implementing the defense. This Note will focus primarily on the procedural aspects of the decision. In the three years that have elapsed since Harlow, lower courts have struggled to carry out the Supreme Court's directive to resolve the qualified immunity issue, if possible, on summary judgment. As a consequence, three distinct but First, what are the outer bounds of the ban on factual inquiry into an official's subjective state of mind? Second, which party, plaintiff or defendant, should bear the burden of proof on the issue of qualified immunity? Last, if the district court denies summary judgment to officials claiming qualified immunity, should officials be able to appeal the adverse decision immediately?

In addressing these areas of uncertainty, this Note will focus on Harlow's stated goal of the quick termination of insubstantial claims. This Note will emphasize that this procedural goal is not merely a logical consequence of Harlow's substantive holding, but also a means to maintain a fair balance between Harlow's competing substantive policies of (1) providing for the vindication of meritorious constitutional claims and (2) protecting governmental and judicial efficiency.

In part 2 this Note will present in greater detail the key holdings of the Harlow opinion and its overall policy orientation. Part III will identify the ways in which lower courts have differed in their reading of Harlow on these three procedural questions; it will reexamine the questions in light of the policies underlying both the Harlow opinion and the relevant procedural vehicles-summary judgment, discovery, burdens of proof, and appeal ability of decisions. Part III, section A will focus on the scope of subjective discovery permissible before summary judgment," section B on the allocation of the burden of proof, and section C on the appeal ability of summary judgment denial.' The Note also will analyze the effect of the recent Mitchell v. Forsyth decision not only on appeal ability but also on the interdependent issues of discovery and burden of proof.' In conclusion, this Note will propose that the federal courts can best implement the balance of policies inherent in Harlow v. Fitzgerald by a coordinated approach of (1) permitting limited and sometimes supervised discovery before summary judgment, (2) placing upon plaintiffs the burden of proving that the law protecting their rights was clearly established at the time of the asserted violation, and (3) limiting the use of automatic immediate appeal by defendants denied summary judgment, but permitting them enhanced use of certified interlocutory appeal.