CTA's 2nd Brief & Response to Plaintiff's 1st Brief - National Center ...

Case: 09-56689 07/26/2010 Page: 50 of 80 ID: 7418245 DktEntry: 45-1
defendant automatically "waives" qualified immunity by not raising the issue
before dispositive motions are filed. To the contrary, the Ninth Circuit has held
that, absent a showing of prejudice, defendants can raise qualified immunity for
the first time at the summary judgment stage even when qualified immunity was
not asserted in their answer and defendants did not seek leave to amend the
answer. Camarillo v. Mecarthy, 998 F.2d 638, 639 (9"' Cir. 1993). Here, Dr.
Corbett did seek and obtain leave to amend his answer to include qualified
immunity, and, moreover, as discussed below, the District Court correctly found
under Rule 15(a) that the amendment caused no prejudice to Farnan.
While government actors are entitled to raise qualified immunity early in
litigation, typically via a motion to dismiss, they are not required to do so, and, as
the Ninth Circuit has recognized, it is not always advisable to do so. Kwai Fun
Wong v. United States, 373 F.3d 952,957 (9" Cir. 2004); see also Pearson v.
Callahan, 129 S.Ct. 808, 818-19 (2009). In Kwai Fun Wong, this Court noted the
difficulty of adjudicating some constitutional claims on a non-existent factual
record, stating:
[Wlhile government officials have the right, for well-developed
policy reasons, to raise and immediately appeal the qualified
immunity defense on a motion to dismiss, the exercise of that
authority is not a wise choice in every case. The ill-considered filing
of a qualified immunity appeal on the pleadings alone can lead not