When military officers have been tried for grave atrocities, from the Holocaust to the My Lai Massacre,1 some have claimed that they were “only following orders.”2 The “Nuremberg” defense or “superior orders defense”3 has its cousin in civil rights law through the “just following orders” defense, a strand of qualified immunity doctrine.4 Officers sued by plaintiffs seeking civil damages for the violation of their constitutional and statutory rights have raised this defense in many contexts. Police officers received immunity based on following orders5 when, responding to a 911 call and lacking a warrant, they entered the apartment of a woman with Down syndrome, seized her, and involuntarily held her in a psychiatric ward.6 Police officers who asked for a prosecutor’s advice before conducting searches7 and arrested suspects for violating statutes that had previously been declared unconstitutional8 similarly received qualified immunity under the “just following orders” defense.9 On the other hand, the D.C. Circuit rejected an argument from officers who helped execute COINTELPRO10 that they were merely implementing agency policy when surveilling plaintiffs.11 Courts also denied qualified immunity to officers who removed a child from his parents without reasonable suspicion of an imminent threat12 or barred an individual from public grounds without due process of law13 and claimed the “just following orders” defense.
The Supreme Court discussed the “just following orders” defense during oral argument in Trump v. United States,14 which addressed the scope of presidential immunity for criminal liability.15 Justices Alito and Sotomayor played with a hypothetical: What if the President ordered SEAL Team 6 (or other military officers) to assassinate a political rival?16 Justice Alito posited that this order “isn’t plausibly legal.”17 Justice Sotomayor agreed that, under the qualified immunity doctrine, it would not be reasonable to “order[] the assassination of a rival.”18 Both Justices resisted the idea of criminal or civil immunity for such an egregiously unlawful action.19
The “just following orders” defense has a bearing on the civil liability of officers implementing the specific orders of their superiors and engaging in any number of routine government functions. It derives from language in Harlow v. Fitzgerald20 related to “extraordinary circumstances”21 that warrant qualified immunity even where the law is clearly established and based on an officer’s good faith, in contrast to Harlow’s overwhelming emphasis on qualified immunity as a purely objective inquiry.22 One might anticipate the “just following orders” doctrine swallowing the modern, objective qualified immunity test because the defense, in practice, covers ordinary events for a government officer: following orders, instructions, laws, and policies.23 This is not so. Courts do not blindly credit the defense and instead inquire into the reasonableness of an officer’s decision to follow orders.24
This Essay outlines a descriptive typology of the “just following orders” defense, arguing that it takes four forms: Officers claim qualified immunity for following (1) the orders of a superior; (2) the advice of counsel; (3) the directive of a statute, ordinance, or policy; or (4) the orders of a court. In each instance, courts have rejected treating this wide-spanning defense as an exception to the objective qualified immunity inquiry, instead assessing an officer’s reliance on orders for reasonableness, the core tenet of qualified immunity.25
I. Origins of the “Just Following Orders” Defense
Qualified immunity protects government officers from suit in their individual capacity.26 Prior to Harlow, qualified immunity was a “good faith” standard with both objective and subjective elements.27 Qualified immunity was unavailable when an official “knew or reasonably should have known that the action he took within his sphere of official responsibility would violate the constitutional rights of the [plaintiff], or if he took the action with the malicious intention to cause a deprivation of constitutional rights or other injury.”28
Harlow “completely reformulated” the doctrine of qualified immunity, shifting from the subjective malice inquiry derived from common law to an objective reasonableness inquiry.29 Harlow held “that government officials performing discretionary functions generally are shielded from liability for civil damages insofar as their conduct does not violate clearly established statutory or constitutional rights of which a reasonable person would have known[,]” even if an official acted in bad faith.30 Still, Harlow preserved a vestige of the good faith defense that appeared to even further broaden the availability of qualified immunity:
If the law was clearly established, the immunity defense ordinarily should fail, since a reasonably competent public official should know the law governing his conduct. Nevertheless, if the official pleading the defense claims extraordinary circumstances and can prove that he neither knew nor should have known of the relevant legal standard, the defense should be sustained.31
Although the Court cited subjective considerations as a basis for qualified immunity, it reasserted that “the defense would turn primarily on objective factors.”32 Since Harlow, the Court has not used the phrase “extraordinary circumstances,” leading scholars to describe this aspect of qualified immunity as “mysterious”33 and “confusing.”34 Though qualified immunity is the subject of frequent critiques and empirical analyses,35 scholars rarely examine the extraordinary circumstances doctrine.36
This Essay presents several lines of case law that have developed under the extraordinary circumstances language of Harlow. Courts of appeals have held that officers should be granted qualified immunity for extraordinary circumstances if (1) following the orders of another officer;37 (2) following a statute, ordinance, regulation, or policy;38 (3) relying on the advice of counsel or a prosecutor;39 or (4) following a court order.40 Officers claim that the order, advice, or statute on which they relied prohibited them from knowing the relevant legal standard. In these four lines of case law, and particularly where an officer cites the advice of counsel, officers draw on Harlow’s extraordinary circumstances language to claim good faith immunity that is otherwise unavailable under Harlow.41 The orders or law at issue need not be painstakingly precise as to the action an officer must take, and officers may therefore claim the defense when they execute a variety of potential orders.
Although it might appear that the extraordinary circumstances language from Harlow broadens qualified immunity, courts resoundingly reject officers’ efforts to claim qualified immunity based on good faith. Courts will not grant qualified immunity when officers follow flagrantly unlawful policies, laws, orders, or advice.42 Rather, courts inquire into the objective reasonableness of the defendant’s reliance on the orders of another officer, law, or court.43 Courts are less deferential to officers following the advice of counsel.44 Overall, however, following orders is no basis for qualified immunity unless an officer’s reliance on those orders was reasonable, restricting the influence of the extraordinary circumstances language in Harlow.
II. Just Following Orders: Following the Orders of a Superior or Other Officer
Officers claim qualified immunity when they are sued for actions they took upon the orders of a superior or other officer.45 Courts reject a blanket qualified immunity defense for following orders but grant qualified immunity where the orders could reasonably support a constitutional basis for the action in light of the facts and circumstances.46
Almost every court of appeals — the First, Second, Fifth, Sixth, Seventh, Eighth, Ninth, Tenth, Eleventh, and D.C. Circuits — has rejected a blanket “just following orders” defense that an officer is automatically justified in relying on the legal conclusions of a superior.47 Still, all these courts, except the Seventh and D.C. Circuits, have held that “[p]lausible instructions” from another officer could warrant qualified immunity if they would lead a reasonable officer to determine that their actions are legally justified.48 Two circuits — the Third and Fourth — have not addressed the issue in detail,49 though the Third Circuit once granted qualified immunity in part due to an officer’s reliance on the instructions of another officer.50 The following overview addresses the D.C. Circuit first and then the remaining circuits in numerical order.
The D.C. Circuit has rejected a blanket “just following orders” defense, while district courts in the circuit join most circuits in granting qualified immunity when an officer’s reliance on a superior’s instructions was reasonable. In Hobson v. Wilson,51 the court rejected the defendants’ argument that compliance with agency policy was an “extraordinary circumstance” under Harlow: “In its most extreme form, this argument amounts to the contention that obedience to higher authority should excuse disobedience to law, no matter how central the law is to the preservation of citizens’ rights. We have no hesitation in rejecting this new argument.”52 The court’s reasoning as to following a policy logically applies with equal force to following the orders of a superior, though its holding that an officer may only receive qualified immunity for reasonably following orders was reversed on other grounds.53
The D.C. Circuit’s antipathy to the “just following orders” defense has been articulated in the criminal context as well.54 District court opinions in the D.C. Circuit have developed a multifactor test for the doctrine, including whether “a reasonable officer” would find the act to violate the Constitution, whether the officer “made any effort to obtain clarity” regarding the act’s legality, the officer’s experience, and their “familiarity with the circumstances.”55 Though the D.C. Circuit has never granted qualified immunity based on a “just following orders” defense, district courts in D.C. have granted qualified immunity where officers were following objectively reasonable orders that allowed the officers to conclude that an action had a lawful basis. For example, the court granted qualified immunity where an officer “was merely following his superior officer’s objectively reasonable order” and there was “no genuine dispute” as to the legal basis of the order.56
Other circuits have taken a similar approach to D.C. district courts, holding that no blanket “just following orders” defense exists but that officers may receive qualified immunity when their reliance on a superior’s orders was reasonable. In Bilida v. McCleod,57 the First Circuit granted qualified immunity to two officers who seized a raccoon at the direction of a superior officer, reasoning:
Plausible instructions from a superior or fellow officer support qualified immunity where, viewed objectively in light of the surrounding circumstances, they could lead a reasonable officer to conclude that the necessary legal justification for his actions exists (e.g. a warrant, probable cause, exigent circumstances). Here, there were no warning signs or bases for suspicion about the lawfulness of the order. On the contrary, [the officers] knew that the police and an animal control officer had recently been at the scene and that a raccoon — a target species for rabies — was there. Upon receiving an explicit order to go to the home and seize the animal, they had every reason to think that [their superior] had secured a warrant or concluded (possibly based on exigent circumstances unknown to [them]) that one was unnecessary.58
Bilida is an influential and much-cited opinion.59 While its approach permits qualified immunity for following orders, it requires courts to assess whether the orders followed were objectively reasonable.60
The Second Circuit has likewise held that qualified immunity may be appropriate when an officer follows orders that are not facially invalid or illegal. The key rule was articulated by then-Judge Sotomayor, who quoted the first sentence of the above quote from Bilida61 and whose opinion has been cited extensively.62 The Second Circuit has repeatedly denied qualified immunity where an officer followed orders that were not reasonable.63 The court has also granted qualified immunity due to an officer’s reliance on orders that were not facially invalid.64
The Third and Fourth Circuits have not addressed the issue in much detail. The Third Circuit has only once mentioned a “just following orders” defense.65 While the Fourth Circuit has not addressed the defense, district courts have rejected a blanket “just following orders” defense.66
All the remaining regional circuits have joined the First and Second Circuits in their approach to the “just following orders” defense. The Fifth Circuit has denied qualified immunity where the orders at issue were “facially outrageous.”67 The Sixth Circuit also takes this approach.68 That court has explained that, on the one hand, “an officer cannot benefit from qualified immunity’s shield simply by asserting that he was ‘following orders.’”69 On the other hand, however, “qualified immunity may be warranted when ‘reasonable officers could conclude that they have probable cause’ for their conduct ‘based on plausible instructions from a supervisor when viewed objectively in light of their own knowledge of the surrounding facts and circumstances.’”70
Like the D.C. Circuit, the Seventh Circuit has not articulated a reasonableness test for following orders but has applied similar principles. In a case decided prior to Harlow, the court rejected the idea “that an individual is relieved of personal responsibility for perpetrating unlawful acts against another simply because he is acting as an agent or subject to a superior’s orders.”71 However, the court still granted qualified immunity to a chief of police who unlawfully terminated a police officer at the mayor’s direction.72 While the chief believed such termination unlawfully denied the officer a pretermination hearing, the court held that “it is unreasonable to expect that [Chief] Bosman should have disobeyed the Mayor’s direct order because of this belief, when Bosman also believed he was required by law to obey the Mayor’s orders after informing the Mayor that he believed the orders to be unlawful, and when the Mayor’s orders were not outside the range of normal personnel actions.”73 After Harlow, the court continued to hold similarly.74
The Eighth,75 Ninth,76 Tenth, and Eleventh Circuits also apply the same rule. In Halley v. Huckaby,77 the Tenth Circuit granted qualified immunity to an officer who “merely relied on” directions to transport a minor child to a safe house “without knowing specifics,”78 and who therefore reasonably responded “to what he could have assumed to be an adequately supported child welfare investigation.”79 The court denied qualified immunity to another officer, noting that the “just following orders” defense “only holds ‘as long as the officer’s reliance was objectively reasonable,’” and since this officer “knew the facts surrounding [the child’s] case, it was not objectively reasonable for him to go along with DHS’s patently erroneous determination.”80 The Eleventh Circuit has joined the consensus.81 As the court explained, “since World War II, the ‘just following orders’ defense has not occupied a respected position in our jurisprudence, and officers in such cases may be held liable under § 1983 if there is a ‘reason why any of them should question the validity of that order.’”82
Whether officers cite the orders of a high-level superior or a direct supervisor, the weight of authority clearly demonstrates that courts do not accept a blanket “just following orders” defense. Officers may claim qualified immunity on this basis only when their reliance on a superior’s orders was reasonable.
III. Following a Statute, Ordinance, or Policy
Courts have taken a similar approach to qualified immunity claims based on reliance on statutes, policies, or ordinances. Courts hold that reliance on a statute, policy, ordinance, or regulation does not make an officer’s conduct per se reasonable. But so long as the statute, ordinance, or policy is not flagrantly unconstitutional, reliance serves as a factor supporting qualified immunity or creates a presumption in favor of qualified immunity. This doctrine operates similarly regardless of whether an officer follows a statute, a local ordinance, or an agency policy, with little difference in how courts analyze reliance on distinct sources of law.
1. Following a Statute. — In a seminal early qualified immunity case, the Supreme Court posited that “[a]lthough the matter is not entirely free from doubt,” a police officer should receive qualified immunity when “acting under a statute that he reasonably believed to be valid but that was later held unconstitutional, on its face or as applied.”83 The Court later reaffirmed that a legislature’s enactment of a law “forecloses speculation by enforcement officers concerning its constitutionality,” unless the law is “so grossly and flagrantly unconstitutional that any person of reasonable prudence would be bound to see its flaws.”84 Accordingly, “[u]nless a statute is clearly unconstitutional, an officer cannot be expected to question the judgment of the legislature that passed the law.”85
Each of the circuits has similarly held that officers receive qualified immunity in their efforts to follow the mandate of a statute that is not flagrantly unconstitutional. The Ninth Circuit gave a robust and influential treatment of the issue in Grossman v. City of Portland,86 granting qualified immunity for an officer’s arrest of a demonstrator who violated an ordinance requiring permits to use a public park.87 The court explained that “where a police officer has probable cause to arrest someone under a statute that a reasonable officer could believe is constitutional, the officer will be immune from liability even if the statute is later held to be unconstitutional,”88 specifying in a footnote that this holding did not apply to statutes in desuetude.89
Following Grossman, all circuits have similarly held that reliance on a statute supports the objective reasonableness of an officer’s conduct so long as the statute is not patently unconstitutional.90 This approach extends to officers’ reliance on ordinances91 and regulations.92
Courts recognize that there are limits to a “just following the law” defense, and such a defense will not apply where a policy or statute is facially invalid or enforced in an egregious or unconstitutional manner. The Ninth Circuit explained in Grossman that where a statute “is patently violative of fundamental constitutional principles, an officer who enforces that statute is not entitled to qualified immunity,”93 nor is an officer who “enforces an ordinance in a particularly egregious manner.”94 The Tenth Circuit applied Grossman to a derelict vehicle ordinance, holding that a sheriff should have known the ordinance was unconstitutional because it failed to provide notice or opportunity for a hearing before deprivation of property.95 Other circuits have also repeatedly denied qualified immunity for similar reasons.96
Even when a statute has been declared unconstitutional by a court, if it remains reasonable for an officer to believe that the statute is good law, reliance on that law can support qualified immunity. In Amore v. Novarro,97 the Second Circuit considered an arrest made pursuant to a statute that remained on the books and was amended several years after the New York Court of Appeals declared it unconstitutional.98 The court granted qualified immunity and explained that:
[T]he question for purposes of determining Novarro’s entitlement to qualified immunity is whether it was objectively reasonable for him to arrest Amore while failing to realize that the statute he was attempting to enforce had been held unconstitutional. . . . [W]e generally extend qualified immunity to an officer for an arrest made pursuant to a statute that is “on the books,” so long as the arrest was based on probable cause that the statute was violated.99
Similarly, the Second Circuit also granted qualified immunity when officers enforced a law despite a comparable law having been declared unconstitutional.100 The court relied on the well-settled idea that officers may presume statutes are valid and explained that the unconstitutional statute was sufficiently different “to muddy the waters . . . by casting doubt in the minds of reasonable officials.”101 Courts have also noted that ambiguous or conflicting statutes support qualified immunity.102 But erroneous understandings of clear statutes do not provide a basis for qualified immunity.103
2. Following a Policy. — Much like its approach to statutes, the Court has held in the qualified immunity context that officers’ reliance on policies, whether constitutional or not, supports the reasonableness of their actions when the law on the issue is unclear. In Wilson v. Layne,104 the Court granted qualified immunity to officers who brought a reporter and a photographer into petitioners’ home while executing an arrest warrant.105 While holding that media ride-alongs in private homes violate the Fourth Amendment, the Court granted qualified immunity and explained that “important to our conclusion was the reliance by the United States marshals in this case on a Marshals Service ride-along policy that explicitly contemplated that media who engaged in ride-alongs might enter private homes with their cameras as part of fugitive apprehension arrests.”106 While this policy “could not make reasonable a belief that was contrary to a decided body of case law,” the case law on the issue was “at best undeveloped,” so “it was not unreasonable for law enforcement officers to look and rely on their formal ride-along policies.”107 Qualified immunity was therefore appropriate because the policy was not flagrantly unconstitutional.108
Many courts of appeals have similarly held that reliance on a policy supports the objective reasonableness of an officer’s actions if the policy is not flagrantly unconstitutional.109 Clearly unconstitutional enforcement of a constitutional policy does not warrant qualified immunity.110 In sum, all courts of appeals agree that reliance on a statute, policy, ordinance, or regulation warrants qualified immunity if that statute, policy, ordinance, or regulation is not flagrantly unconstitutional.
IV. Following the Advice of Counsel
In the course of their duties, officers may seek advice on legal issues from prosecutors or other government lawyers. An official’s reliance on the advice of counsel has been considered the most commonly occurring example of an “extraordinary circumstance” under Harlow, and this line of case law also more often cites directly to Harlow’s language than the other strands.111 Typically, however, reliance on the advice of counsel receives less deference than when an officer relies on the orders of a superior or a statute, policy, or ordinance. In all but the Second and Third Circuits, advice of counsel is merely one among several factors influencing the court’s analysis of the reasonableness of an officer’s behavior.112 The D.C. Circuit has only addressed this issue once, but it appears to take the majority view.113 In the minority approach of the Third Circuit, consultation with counsel lends itself to a presumption of qualified immunity so long as the officer’s reliance was reasonable, the same standard as when officers rely on legal or factual conclusions of others or take an action pursuant to a statute, policy, or ordinance.114 The Second Circuit has no settled position on the issue.115 No circuit has held that the advice of counsel makes conduct per se reasonable.
While Harlow did away with the good faith inquiry and rooted qualified immunity in an objective inquiry,116 courts still occasionally note that consultation with counsel provides evidence of an officer’s good faith.117 The other strands of the “just following orders” doctrine more often frame qualified immunity as a purely objective inquiry.118
A. Majority Approach
Most courts explain that consultation with counsel is relevant to evaluating the reasonableness of an officer’s conduct for the purposes of qualified immunity, following related Supreme Court precedent. In Messerschmidt v. Millender,119 the Supreme Court assessed a challenge to the scope of a warrant and explained that “the fact that the officers sought and obtained approval of the warrant application from a superior and a deputy district attorney before submitting it . . . provides further support for the conclusion that an officer could reasonably have believed that the scope of the warrant was supported by probable cause.”120 Although the approval of the officers’ superior and the deputy district attorney “cannot be regarded as dispositive”121 because they are members of the prosecution team, “[t]he fact that the officers secured [their] approvals is certainly pertinent in assessing whether they could have held a reasonable belief that the warrant was supported by probable cause.”122 Relying on this and other bases, the Court reversed the lower court’s denial of qualified immunity.123 Three Justices rejected the majority view, noting the potential bias of superiors and prosecutors and the arbitrariness of sanctioning unconstitutional conduct because another officer approved it.124
Courts of appeals in the First, Fourth, Fifth, Sixth, Seventh, Eighth, Ninth, Tenth, and Eleventh Circuits have taken a similar approach to officer reliance on the advice of counsel, holding that it is not dispositive but typically probative of “extraordinary circumstances.”125 The D.C. Circuit adopted this reasoning in a pre-Harlow opinion but has not expounded on the issue more recently.126 And the Second Circuit has at times followed suit but has not settled the issue.127
In one of the most cited opinions explaining the majority position, the First Circuit highlighted the rationale for its ruling in the context of a prosecutor’s advice on probable cause:
[A] wave of the prosecutor’s wand cannot magically transform an unreasonable probable cause determination into a reasonable one. That is not to say, however, that a reviewing court must throw out the baby with the bath water. There is a middle ground: the fact of the consultation and the purport of the advice obtained should be factored into the totality of the circumstances and considered in determining the officer’s entitlement to qualified immunity. . . .
. . .
. . . It stands to reason that if an officer makes a full presentation of the known facts to a competent prosecutor and receives a green light, the officer would have stronger reason to believe that probable cause existed. And as a matter of policy, it makes eminently good sense, when time and circumstances permit, to encourage officers to obtain an informed opinion before charging ahead and making an arrest in uncertain circumstances.128
Per the court, while consultations are advisable, they alone are insufficient to claim qualified immunity under the extraordinary circumstances exception.129
Before and after Harlow, many other courts of appeals have reasoned similarly, holding that reliance on the advice of an officer is relevant to but not dispositive of qualified immunity.130 While the Eleventh Circuit has not published an opinion on this issue, it concurs,131 and limited doctrine in the D.C. Circuit suggests an approach in line with these circuits.132
The Sixth and Tenth Circuits follow the majority approach in holding that reliance on the advice of counsel is simply one factor in assessing qualified immunity, though each have emphasized that reliance on the advice of counsel should not generally be considered “extraordinary” under Harlow.133 The Sixth Circuit’s treatment is particularly extensive, and it often examines the facts to assess whether consultation with counsel was an extraordinary circumstance. In Silberstein v. City of Dayton,134 it cautioned that the advice of counsel defense should be limited to avoid pro forma efforts to consult with counsel by officers seeking to insulate their conduct from liability:
The Board Members cannot cloak themselves in immunity simply by delegating their termination procedure decisions to their legal department, as the availability of such a defense would invite all government actors to shield themselves from § 1983 suits by first seeking self-serving legal memoranda before taking action that may violate a constitutional right.135
The court further explained that relying on the advice of counsel does not qualify as an extraordinary circumstance in most cases: Even if an officer is not legally trained, “this fact alone cannot give rise to ‘extraordinary circumstances.’”136 While the Sixth Circuit takes a semantically unique approach in often emphasizing extraordinary circumstances,137 it and other circuits ultimately treat legal advice as merely one relevant factor for qualified immunity.138
The Tenth Circuit similarly employs the majority’s multifactor approach while placing rhetorical emphasis on whether the circumstances surrounding the advice of counsel were indeed extraordinary139 and therefore “so ‘prevented’ [the official] from knowing that his actions were unconstitutional that he should not be imputed with knowledge of a clearly established right.”140 The court concurred with the Sixth Circuit that “such reliance is not inherently extraordinary, for few things in government are more common than the receipt of legal advice.”141 A multifactor test developed in the Tenth Circuit presents four relevant criteria: the (1) unequivocal and tailored nature of the advice; (2) completeness of the information provided to the attorney giving the advice; (3) “prominence and competence of the attorney(s)”; and (4) time between the advice and the action.142 However, in a more recent case, the court added that the officer “must point to something in his consultation . . . that prevented him from knowing the law,” in this case, that a warrant, notice, and a hearing were required.143 Because the statute the officer relied on in that case was blatantly unconstitutional,144 perhaps the requisite competence was deemed lower.
While holding that consultation with counsel is relevant to qualified immunity, these courts of appeals recognize that it does not automatically warrant such immunity.145 Qualified immunity has been denied in a variety of cases despite an officer’s reliance on the advice of counsel.146 Officers must have actually sought the advice from the attorney and have sufficient basis to claim that the attorney blessed their actions.147 When officers seek the advice of counsel but provide false, misleading, or incomplete information, the fact of seeking advice no longer weighs in favor of qualified immunity. In Sornberger v. City of Knoxville,148 for example, the Seventh Circuit rejected a qualified immunity defense based on the advice of counsel where the officers gave information that was “incomplete and one-sided”149 and therefore not “good-faith seeking of legal advice” but rather “manipulat[ion of] the available evidence to mislead the state prosecutor into authorizing” the arrest.150 An attorney’s lack of adequate information similarly weighs against qualified immunity.151 Likewise, “when no reasonable officer would have sought out the warrant,” seeking the advice of a prosecutor before submitting a warrant application “could not overcome the extreme unreasonableness of the officer’s actions.”152 Failing to follow the advice of counsel likewise eliminates the possibility of relying on that advice to seek qualified immunity.153
B. The Third Circuit’s Presumption and the Second Circuit’s Split
The Second and Third Circuits depart from the majority in their rules on advice of counsel. The Second Circuit has not settled on whether the advice of counsel should have any impact on qualified immunity, while the Third Circuit takes a more deferential approach than most courts, reasoning that reliance on the advice of counsel warrants a presumption in favor of qualified immunity.
The Second Circuit has not resolved whether reliance on the advice of counsel supports qualified immunity. In re County of Erie154 explained that “‘clearly established’ . . . is an objective, not a subjective, test, and reliance upon advice of counsel therefore cannot be used to support the defense of qualified immunity” where officers do not claim a good faith defense.155 Another panel, however, followed the majority of circuits, reasoning that “the solicitation of legal advice informs the reasonableness inquiry,” though the panel declined to decide whether reliance on legal advice was an extraordinary circumstance that alone warrants qualified immunity.156 The circuit remains divided on the issue.157
The Third Circuit’s approach is unique in that it rejects the totality of circumstances approach of most circuits and holds instead that consultation with counsel leads to a presumption of qualified immunity so long as the reliance on counsel’s advice was reasonable. The Third Circuit has explained:
In our view, encouraging police to seek legal advice serves such a salutary purpose as to constitute a “thumb on the scale” in favor of qualified immunity. Accordingly, we hold that a police officer who relies in good faith on a prosecutor’s legal opinion that the arrest is warranted under the law is presumptively entitled to qualified immunity . . . . That reliance must itself be objectively reasonable . . . . Accordingly, a plaintiff may rebut this presumption by showing that, under all the factual and legal circumstances surrounding the arrest, a reasonable officer would not have relied on the prosecutor’s advice.158
While several circuits taking the majority approach have noted that consultation with counsel “goes far” to establish qualified immunity,159 the Third Circuit’s presumption is unique.
V. Following Court Orders
In the Second and Ninth Circuits, courts acknowledge that following a court order, including the order of a receiver, results in qualified immunity where officials could reasonably believe that doing so is constitutionally sufficient. On the other hand, several circuits and the district court in D.C. have held that officers are not entitled to qualified immunity when they violate a court order.
The Ninth Circuit has explained that, while “a court order does not give carte blanche to prison officials,” an officer who follows a reasonable court order should receive qualified immunity.160 In Hines v. Youseff,161 officials complied with orders from the court and the court-appointed receiver but not with other guidance and recommendations made.162 The court granted qualified immunity and explained that “[b]ecause the Receiver oversaw prison medical care . . . , state officials could have reasonably believed that their actions were constitutional so long as they complied with the orders from the Receiver and the . . . court.”163 In a case involving a prison official following a court order, the Second Circuit similarly explained that “[f]ollowing orders, no matter how invalid they are on their face, cannot be an absolute defense,” but granted qualified immunity because “a reasonable prison official might very well have properly followed the court order.”164 Both courts that have assessed the defense of following a court order applied the same reasonableness standard employed when officers seek qualified immunity on the basis of following the orders of a fellow officer, relying on factual knowledge of a colleague, or following a statute, policy, or ordinance.
Several courts have, however, held that officers and prosecutors are not entitled to qualified immunity when they violate a court order.165 A district court denied qualified immunity where defendants violated a court order by “summarily destroying” property without due process.166 The court explained that in addition to a “long line” of precedent on due process obligations prior to destruction of property, defendants acted in violation of a court order: “Plaintiffs’ preliminary-injunction request was denied on the assumption that Defendants would not engage in the kind of conduct Plaintiff alleges here — the summary destruction of his belongings without due process.”167 Thus, adherence to reasonable court orders supports qualified immunity, much like in the other contexts described above.
VI. Conclusion
Although the “just following orders” defense takes many forms and the circuits have ruled differently on certain nuances, the law is clear that officers have no per se claim to qualified immunity for following orders of another officer or a court, a statute, a policy, an ordinance, or the advice of counsel. Under three of the four lines of case law outlined above — following the legal conclusions of another officer; relying on a statute, policy, or ordinance; or following a court order — courts generally award qualified immunity when an officer’s reliance on orders was objectively reasonable. When officers claim qualified immunity after relying on the advice of counsel, as opposed to the order of another officer or a statute or policy, most courts will place less weight on the fact that an officer received legal advice, considering this as one among many relevant factors.
The “just following orders” defense in all its forms is closely linked to Harlow’s extraordinary circumstances language, yet the four categories described above are in no way extraordinary. Officers are trained to follow the directives of superiors and colleagues, as well as policies, ordinances, statutes, and court orders. Officers regularly seek legal advice before conducting searches or seizures or implementing more sophisticated programs, and indeed law enforcement officers must do so to perform numerous aspects of their roles. As the Court recently explained, “the machinery of criminal justice often works through multiple government officers. An officer who makes an arrest may do so based on his own judgment, orders from a superior, or . . . a warrant issued by a magistrate.”168 Whether allowing media to accompany officers during the execution of a search warrant pursuant to law enforcement policy, transporting a prisoner to a hospital for medical or mental health care, or seizing property, an officer’s reliance on relevant laws, policies, or the instructions or advice of other officers is in no way “extraordinary.” This Essay’s analysis of this relatively broad line of qualified immunity defense169 demonstrates courts’ resistance, in almost all contexts, to allowing officers to claim good faith immunity and affirms the scholarly consensus that Harlow did away with good faith immunity.
The extraordinary circumstances language from Harlow is of little consequence in practice, as “just following orders” does not unyoke officers from an objective inquiry into the reasonableness of their conduct. The “just following orders” defense might appear to shield officers from a greater scope of liability than when an officer takes an action independently, but as befits a defense covering many core aspects of officers’ functions, the doctrine is in harmony with the emphasis on reasonableness throughout qualified immunity law.