Stanley v. Gallegos, 842 F.3d 1210 (10th Cir. Mar. 17, 2017)

This appeal presented the question of whether a state employee who acts without state authority can nevertheless be entitled to qualified immunity in a claim under 42 U.S.C. § 1983.  In this divided opinion, the three judges agreed that the district court’s decision holding the defendant district attorney was not entitled to qualified immunity must be reversed.  They disagreed, however, as to whether and to what extent the court should adopt the “scope-of-authority” exception to qualified immunity, and whether to even reach that issue in this case.  Judge Hartz, who drafted the lead opinion, concluded the exception should apply, if at all, only when the authority under state law is clearly established.  Because the district attorney’s authority under New Mexico law was not clearly established, the exception would not apply even under Judge Hartz’s reasoning.