Home Immunity Qualified immunity raises the bar

Qualified immunity raises the bar


It is often difficult to thread the needle of the qualified immunity defense, which requires a public official not only to violate the law but to do so through “objectively unreasonable” conduct in light of clearly established law. The decision of our Supreme Court in Winberry real estate associations. v. Boro of Rutherford, while not innovating, shows how narrow the eye of the needle is.

The applicant was a family entity that owned a home for a disabled relative. After failing to pay the property taxes, the city sold the tax sale certificate to a private buyer. Four years later, the owner of the certificate seized it. In accordance with the written law in force, the draft judgment granted the owner the right to redeem at any time until midnight on the day of entry, against payment of the taxes due with interest and costs. Awakened from his inaction, the owner called the collector to ask for the amount of the gain, only to be told that the collector was “too busy” to calculate the interest owed. It eventually turned out that the collector’s computer could have done this in a matter of minutes, but the collector had an unwritten and illegal policy of only accepting written redemption requests. When the landlord handed over an estimated payment that was greater than the actual amount, the collector said she did not have the authority to accept his check. The property was sold in foreclosure, which the owner was only able to vacate and buy back the property after a costly litigation.