John M. Greabe


The Supreme Court’s decisions in Ashcroft v. Iqbal and Ashcroft v. al-Kidd contain issue-framing statements indicating that a constitutional tort plaintiff is required to plead facts sufficient to establish the inapplicability of the qualified immunity defense. Yet, framing the issue in this way ignores the Court’s earlier decisions in Gomez v. Toledo and Crawford-El v. Britton and is at odds with the established law of pleading; a plaintiff is not required to anticipate an affirmative defense and negate its applicabilityin the complaint. These cases thus raise a number of questions—Does the Court really mean what its issue-framing statements suggest? If so, should we construe the obligation to state facts negating the applicability of qualified immunity as being limited to the context of qualified immunity? Or is the Court’s intent a more general shift in the law governing the pleading and proof of affirmative defenses?

In this Article, I consider these questions and conclude that, while the Court’s issue-framing statements were likely not accidental, they should not be seen to have implications outside of qualified immunity cases. It is apparent that the Court sees itself on the horns of a dilemma in such cases. On the one hand, the Court wants to see cases doomed to fail on qualified immunity grounds resolved on the pleadings so that public officials will not be put to the burdens of pretrial discovery and thereby be overly deterred in the performance of official duties. On the other hand, the Court does not want courts to impose heightened pleading requirements by judicial fiat. But therein lies the rub. For, if qualified immunity is to remain an affirmative defense, the only way to accomplish the pleadings-based dismissals that the Court desires is to require plaintiffs to plead facts establishing the inapplicability of qualified immunity. And this is heightened pleading.

There is a way out of this conundrum. If the Court were to recognize that the individual-capacity claims to which the qualified immunity defense applies are in fact sub-constitutional, it easily could, consistent with precedent, reallocate to plaintiffs pressing such claims the burden of pleading facts sufficient to establish that the defendant violated clearly established constitutional rights. A doctrinal reform of this sort—which would render conceptually unnecessary the qualified and absolute immunity doctrines—would reinforce rule-of-law values and bring much needed clarity toconstitutional tort law. Moreover, such a reform could be accomplished in a manner that is sensitive to the problem of “law freezing” which has occupied so much recent scholarly attention. Finally, the regime that would emerge in the wake of such a reform might well prove, in the long run, to be more rights-protective than that which presently governs individual-capacity claims.