5th Cir. Pattern Jury Instr. (Civil) 10.3

1

As to each claim for which Plaintiff [name] has

proved each essential element, you must consider

whether Defendant [name] is entitled to what the law

calls “qualified immunity.” Qualified immunity bars a

defendant’s liability even if [he/she] violated a plaintiff’s

constitutional rights. Qualified immunity exists to give

government officials breathing room to make reasonable but mistaken judgments about open legal

questions. Qualified immunity provides protection from

liability for all but the plainly incompetent government

[officers/officials], or those who knowingly violate the

law.

2

It is Plaintiff [name]’s burden to prove by a

preponderance of the evidence that qualified immunity

does not apply in this case.

3

Qualified immunity applies if a reasonable [officer/

1Instructing a jury on qualified immunity can present difficult—and

often fact-based—decisions for the court. The qualified-immunity issue

“ordinarily should be decided by the court long before trial . . . .” McCoy

v. Hernandez , 203 F .3d 371, 376 (5th Cir. 2000). But “if the issue is not

decided until trial the defense goes to the jury which must then determine

the objective legal reasonableness of the officers’ conduct.” McCoy, 203

F .3d at 376 (citing Snyder v. Trepagnier, 142 F .3d 791, 799 (5th Cir. 1998)).

In most cases in which qualified immunity remains an issue at trial, the

court will have found some underlying factual dispute that precluded a

pretrial ruling. Sometimes the factual disputes are easy to define and lend

themselves to a clean instruction on what constitutes clearly established

law ( e.g., whether the suspect had a gun). It seems inevitable in those circumstances that the instruction on what constitutes clearly established

law may appear to be peremptory . Other cases present more complicated

fact patterns that make it difficult to frame the issues and instruct on the

clearly established law. There is no way to draft a pattern instruction that

covers every scenario. The pattern instruction provides only the basic law

and leaves it to the judge to craft a complete instruction that fits the facts

of the case. Nevertheless, the Fifth Circuit has expressly approved the

language in Instruction 10.3. See Mason v. Faul , 929 F .3d 762, 765 (5th

Cir. 2019) (per curiam) (upholding jury charge on excessive force and

qualified immunity where the questions “were precisely and almost

verbatim stated according to the Fifth Circuit Pattern Jury Instruction

(Civil) 10.1 and 10.3.”), cert. denied , — S. Ct. — (2020).

2Malley v. Briggs , 475 U.S. 335, 341 (1986).

3Jimenez v. Wood Cty. , 621 F .3d 372, 378 (5th Cir. 2010) (observing

that burden is on plaintiff once defendant raises defense).

10.3CIVIL RIGHTS — 42 U.S.C. § 1983

93

official] could have believed that [specify the disputed

act, such as the arrest or the search] was lawful in light

of clearly established law and the information Defendant [name] possessed.

4

But Defendant [name] is not

entitled to qualified immunity if, at the time of [specify

the disputed act], a reasonable [officer/official] with the

same information could not have believed that [his/her]

actions were lawful.

5

[Law enforcement officers/

government officials] are presumed to know the clearly

established constitutional rights of individuals they

encounter.

In this case, the clearly established law at the time

was that [specify what constitutes the clearly established law.

6

]

If, after considering the scope of discretion and

responsibility generally given to [specify type of officers/

officials] in performing their duties and after considering all of the circumstances of this case as they would

have reasonably appeared to Defendant [name] at the

time of the [specify disputed act], you find that Plaintiff

[name] failed to prove that no reasonable [officer/

official] could have believed that the [specify disputed

act] was lawful, then Defendant [name] is entitled to

qualified immunity, and your verdict must be for

Defendant [name] on those claims. But if you find that

Defendant [name] violated Plaintiff [name]’s constitutional rights and that Defendant [name] is not entitled

4Wilson v. Layne , 526 U.S. 603, 615 (1999).

5Ashcroft v. al-Kidd , 131 S. Ct. 2074, 2086 (2011) (citations omitted).

6“[W]hat ‘clearly established’ means in this context depends largely

upon the level of generality at which the relevant legal rule is to be

identified. ‘Clearly established’ for purposes of qualified immunity means

that the contours of the right must be sufficiently clear that a reasonable

official would understand that what he is doing violates that right.” Wilson,

526 U.S. at 614–15 (citations omitted and punctuation edited). This does

not mean “that an official action is protected by qualified immunity unless

the very action in question has previously been held unlawful,” but it

means “that in the light of pre-existing law the unlawfulness must be

apparent.” Wilson, 526 U.S. at 614–15.