Courts have recognized that parole and probation officers may possess “qualified immunity” to the extent that they act outside any judicial or quasi-judicial proceeding. Whether qualified immunity is available is largely dependent on the facts and circumstances of the particular case. As discussed, a state official may be covered by qualified immunity where they (1) carry out a statutory duty, (2) act according to procedures dictated by statute and superiors, and (3) act reasonably. Babcock v. State, 809 P.2d 143 (1991). Government officials performing discretionary functions are entitled to qualified immunity unless they violate clearly established statutory or constitutional rights of which a reasonable person would have known. Harlow v. Fitzgerald, 457 U.S. 800 (1982); see also Graves v. Thomas, 450 F.3d 1215, 1218 (10th Cir. 2006); Perez v. Unified Gov’t of Wyandotte Cty./Kansas City, Kan., 432 F.3d 1163, 1165 (10th Cir. 2005); Robinson v. Warden, N. NH Corr. Facility, 634 F. Supp. 2d 116 (D. Me. 2009) If the plaintiff’s allegations sufficiently allege the deprivation of a clearly established constitutional or statutory right, qualified immunity will not protect the defendant. Grayson v. Kansas, No. 06-2375-KHV, 2007 WL 2994070 (D.C. Kan. Oct. 12, 2007); Payton v. United States, 679 F.2d 475 (5th Cir. 1982) (Trial court erred in finding that requesting or transmitting records and providing standard medical care pertaining to the parole decision were not actionable under Federal Tort Claim Act. The statute placed on the parole board a non-discretionary duty to examine the mental health of parolee. Where government assumed the duty of providing psychiatric treatment to offender, it was under a non-discretionary duty to provide proper care.)
Parole and probation officers may enjoy qualified immunity if their actions are in furtherance of a statutory duty and in substantial compliance with the directives of superiors and relevant statutory or regulatory guidelines. The immunity requires only that an officer’s conduct be in substantial compliance, not strict compliance, with the directives of superiors and regulatory procedures. Taggart v. State, 822 P.2d 243 (Wash. 1992). Whether a government official may be held personally liable for an allegedly unlawful action turns on the “‘objective legal reasonableness’ of the action in light of the legal rules that were ‘clearly established’ at the time.” Anderson v. Creighton, 483 U.S. 635, 639 (1987) (quoting and interpreting Harlow v. Fitzgerald, 457 U.S. 800, 818-19 (1982)). Qualified immunity is a question of law and a public official does not lose his or her qualified immunity merely because his or her conduct violates some statutory provision. Davis v. Scherer, 468 U.S. 183, 194 (1984).