where official failed to follow legal advice he could not rely on it to establish entitlement to qualified immunity
How later courts described this case
- where official failed to follow legal advice he could not rely on it to establish entitlement to qualified immunity
- “[Although reliance on counsel’s advice may indeed be a factor to be considered in deciding whether a defendant has demonstrated an ‘extraordinary circumstance,’ reliance on legal advice alone does not, in and of itself, constitute an ‘extraordinary circumstance’ sufficient to prove entitlement to the exception to the general Harlow [v. Fitzgerald, 457 U.S. 800, 102 S.Ct. 2727, 73 L.Ed.2d 396 (1982),] rule.”
- although reliance on advice of counsel alone does not consti- tute "extraordinary circumstance," reliance on the advice of counsel is a factor to be considered
- reliance on counsel’s advice is a factor in whether a defendant has demonstrated extraordinary circumstances, but is not-alone enough
Written by the judges who cited it.
The opinion
WILLIAMS, Circuit Judge,
concurring:
I agree with the Majority that the judgment of the district court should be affirmed in all respects. I write separately, however, to underscore the limited holding of Part III. In Part III, we hold that a state actor who fails to follow legal advice cannot rely upon that advice to establish qualified immunity. Because Deputy Cundiff failed to follow the legal advice that he was given, he is simply not entitled to qualified immunity. In light of our actual holding, the discussion concerning the legal significance of actually following the advice of counsel is unnecessary and can best be described as dicta. See Bettius & Sanderson, P.C. v. Nat’l Union Fire Ins. Co., 839 F.2d 1009 , 1019 n. 3 (4th Cir.1988) (Murnaghan, J., concurring in part and dissenting in part) (stating that “[t]o reach out and decide what need not be decided is frequently denigrated as dictum ”).
If the issue were squarely before us, I would not adopt a rule that discouraged a state actor from seeking and following legal advice. See McElveen v. County of Prince William, 725 F.2d 954, 958 n. 5 (4th Cir.1984) (noting that, in some eases, one who relies upon legal advice may be entitled to qualified immunity); Tanner v. Hardy, 764 F.2d 1024, 1027 (4th Cir.1985) (noting that reliance upon advice from counsel is a factor to be considered in determining whether qualified immunity applies); see also Hollingsworth v. Hill, 110 F.3d 733, 741 (10th Cir.1997) (stating that reliance upon counsel “is a vital ingredient in eases where we have found extraordinary circumstances to exist”); V-1 Oil Co. v. State of Wyoming, 902 F.2d 1482, 1488 (10th Cir.1990) (stating that “reliance on the advice of counsel in certain circumstances rises to the level of extraordinary circumstances” (internal quotation marks omitted)); Watertown Equip. Co. v. Norwest Bank Watertown, N.A., 830 F.2d 1487 , 1495 (8th Cir.1987) (“[Rjeliance on the advice of counsel ... may be a factor which bears on the question of qualified immunity.”).