The Weekly Bipartisan: Reforming Qualified Immunity


[Welcome to The Weekly Bipartisan, where we share instances of meaningful bipartisanship, on the Hill and elsewhere. This project seeks to shine a light on efforts to come together to find common ground and advance shared values in a political climate defined by polarization, an increasingly jaded citizenry, and vilification instead of constructive dialogue and debate.  –LDB Editors]

Introduction: “Every person who . . . subjects . . . any citizen . . . to the deprivation of any rights . . . .”

What can you do when the government violates your rights? Well, for one, you can sue.

Under federal law, any state official who violates an individual’s rights under the U.S. Constitution or federal law is subject to liability for such conduct. As the Civil Rights Act of 1871 declares (as amended),

Every person who, under color of any statute, ordinance, regulation, custom, or usage, of any State . . . subjects, or causes to be subjected, any citizen of the United States . . . to the deprivation of any rights, privileges, or immunities secured by the Constitution and laws, shall be liable to the party injured in an action at law, suit in equity, or other proper proceeding for redress . . . .

This law subjects state officials to damages actions for violating your rights. The idea is that, if, say, the local fire department burns your house down because they don’t like you, they won’t be shielded by the fact that they acted as firefighters when they did so. They will be held responsible personally, just like a private arsonist would be. The idea is that, given this threat of personal liability, people working in government will have some incentive to avoid wronging you.

The Burger Court (whether correctly or incorrectly) extended this rule to federal officials who violate individual rights as well. As that Court stated,

The question is merely whether petitioner, if he can demonstrate an injury consequent upon the violation by federal agents of his Fourth Amendment rights, is entitled to redress his injury through a particular remedial mechanism normally available in the federal courts. “The very essence of civil liberty certainly consists in the right of every individual to claim the protection of the laws, whenever he receives an injury.” Having concluded that petitioner’s complaint states a cause of action under the Fourth Amendment, we hold that petitioner is entitled to recover money damages for any injuries he has suffered as a result of the agents’ violation of the Amendment.

Bivens v. Six Unknown Named Agents of Federal Bureau of Narcotics, 403 U.S. 388, 397 (1971) (internal citations omitted) (quoting Marbury v. Madison, 5 U.S. (1 Cranch) 137, 163 (1803)).

In my opinion, this is all good and well as a matter of policy (even if the Bivens Court did offend separation of powers principles to adopt this rule; see Correctional Svcs. Corp. v. Malesko, 534 U.S. 61, 75 (2001) (Scalia, J., concurring)). After all, if an individual violates your rights, you can sue them and recover the damages you suffered on account of that violation. And in a government where “We the People” are sovereign, the government should be subject to the same rule as is any other person–if the state, or an official acting pursuant to government authority, violates your rights, you should be able to sue it or them and recover damages. Federal law reflects this basic idea. In theory.

I. “It’s Good to Be the King”

In reality, however, things are not as they appear, thanks to the judicial doctrine known as qualified immunity. In an opinion written by the iconic Chief Justice Warren (of Brown v. Board fame!), the Court declared that “[t]he legislative record” of 42 U.S.C. § 1983 “gives no clear indication that Congress meant to abolish wholesale all common-law immunities” available to government officials against such lawsuits when acting under color of law. Pierson v. Ray, 386 U.S. 547, 554 (1967). Included among these “common-law immunities” was “the defense of good faith and probable cause” that police officers could proffer when tort suits were brought against them for wrongful arrest or false imprisonment. Id. at 556-57. In Pierson, the Court held unequivocally that these defenses remain available to police officers in actions brought under § 1983. Id. at 557.

The Court later expanded upon this, declaring that qualified immunity means that “government officials performing discretionary functions generally are shielded from liability for civil damages insofar as their conduct does not violate clearly established statutory or constitutional rights of which a reasonable person would have known.” Harlow v. Fitzgerald, 457 U.S. 800, 818 (1982). Qualified immunity thus shields government officials like police officers from liability for harms that result from reasonable mistakes committed while acting in their capacity as officers. It “gives government officials breathing room to make reasonable but mistaken judgments” without risking incurring personal liability for those reasonable mistakes. Ashcroft v. al-Kidd, 563 U.S. 731, 743 (2011). So long as “a reasonable officer could have believed” that their actions were lawful “in light of clearly established law and the information the . . . officers possessed,” then a law enforcement official cannot be held liable for the action, even if it was later determined to be unlawful or unconstitutional. Anderson v. Creighton, 483 U.S. 635, 641 (1987).

To be denied qualified immunity, a law enforcement official must have been “plainly incompetent or . . . knowingly violate[d] the law,” Malley v. Briggs, 475 U.S. 335, 341 (1986), or she must have violated a right of an individual the contours of which were “sufficiently clear,” Anderson v. Creighton, 483 U.S. 635, 640 (1987), and the existence of which was “beyond debate.” Ashcroft v. al-Kidd, 563 U.S. 731, 741 (2011). Phrased differently, qualified immunity means that a government official is not liable for misconduct unless his actions violate an individual’s rights in such a way and in such circumstances that “every reasonable official would have understood that what he is doing violates that right.” Id. 

Just this last term, the Court appeared to go even a step further, reversing the Tenth Circuit’s denial of qualified immunity to law enforcement officials because the court of appeals “failed to identify a case where an officer acting under similar circumstances as Officer White was held to have violated the Fourth Amendment.” White v. Pauly, 137 S. Ct. 548, 552 (2017). While acknowledging elsewhere in the opinion that there need not necessarily be a case “directly on point” in order for a plaintiff to overcome the nigh insuperable hurdle of qualified immunity and demonstrate that a right was “clearly established,” the reasoning of White suggested that qualified immunity would shield a police officer’s actions unless a nearly parallel factual scenario had been previously addressed and deemed unlawful by a court of law. Id. at 551.

Raising this high bar even higher, the Court has adopted a habit of giving a sort of special solicitude to police officers in qualified immunity cases. As Justice Alito recently wrote for the Court, given “the importance of qualified immunity ‘to society as a whole,’ the Court often corrects lower courts when they wrongly subject individual officers to liability.” City and County of San Francisco, Calif. v. Sheehan, 135 S. Ct. 1765, 1774 n.3 (2015) (quoting Harlow v. Fitzgerald, 457 U.S. 800, 814 (1982)).

In sum, here’s where we stand today. Given the nearly infinite permutations of factual scenarios in which your rights can be infringed, it is highly unlikely that, for purposes of qualified immunity, your right will be sufficiently “clearly established” such that a government actor can be held liable for violating it. And, if you succeed in convincing a judge, or a panel of judges, that your right was clearly established and the government actor should be held liable for violating it, the Supreme Court will probably step in and reverse their decision, in order to make sure government officials are not “wrongly subject . . . to liability.”  In short, as Mel Brooks observed,



II. “[A] disturbing trend.”

This doctrine’s importance is hard to overstate. As Professors Aaron Nielson and Christopher Walker note, suits against government officials have come to “constitute a major portion of the federal judiciary’s docket.” Aaron L. Nielson & Christopher J. Walker, The New Qualified Immunity, 89 S. Cal. L. Rev. 1, 9 (2015). Section 1983 “pours into the federal courts tens of thousands of suits each year . . . .” Crawford-El v. Britton, 523 U.S. 574, 611 (1998) (Scalia, J., dissenting). No wonder, then, that, as one expert describes it, “Qualified immunity is . . . the most important doctrine in the law of constitutional torts.” John C. Jeffries, Jr., What’s Wrong with Qualified Immunity?, 62 Fla. L. Rev. 851, 851-52 (2010). While, on the one hand, federal law subjects both state and federal officials to personal liability for violating someone’s civil rights, the doctrine of qualified immunity, on the other hand, alleviates them of liability for doing so.

And the latter occurs quite frequently. As Evan Bernick put it,

The rise of qualified immunity . . . has given us a status quo of rights without remedies that undermines the supremacy of the Constitution and is extraordinarily menacing to the countless Americans who find themselves at the mercy of arbitrary police power. No easy solution to a problem that the Court is in substantial measure responsible for creating presents itself, but acknowledging the problem . . . is a necessary first step.

Thankfully, many jurists and scholars are growing increasingly concerned that the doctrine of qualified immunity has gone off the rails. For instance, in Justice Sotomayor’s estimation, the Court has evinced a “disturbing trend” that has created an inequitable imbalance, the trend being the Court’s willingness to “summarily reverse courts for wrongly denying officers the protection of qualified immunity in cases involving the use of force” while “rarely interven[ing] where courts wrongly afford officers the benefit of qualified immunity.” Salazar-Limon v. Houston, Tex., 137 S. Ct. 1277, 1282-83 (2017) (Sotomayor, J., dissenting from denial of certiorari). She sees the Court’s recent jurisprudence in this area as “sanctioning a ‘shoot first, think later’ approach to policing” that “renders the protections of the Fourth Amendment hollow.” Mullenix v. Luna, 136 S. Ct. 305, 316 (2015).

And she’s not alone in thinking so. At the end of this year’s term, Justice Thomas registered his “growing concern with our qualified immunity jurisprudence.” Justice Thomas found fault with how unmoored the doctrine has become from its original justification as an implicit, common-law background to the statutory scheme of § 1983. He concluded his concurrence:

Until we shift the focus of our inquiry to whether immunity existed at common law, we will continue to substitute our own policy preferences for the mandates of Congress. In an appropriate case, we should reconsider our qualified immunity jurisprudence.

Ziglar v. Abbasi, 582 U.S. ___ (2017) (Thomas, J., concurring in part and concurring in the judgment), slip op. at 6.

Though their concerns stem from different perceived problems–Justice Sotomayor voicing more consequentialist concerns and Justice Thomas raising more theoretical-jurisprudential ones–both Justice Thomas and Justice Sotomayor have essentially called for rethinking qualified immunity from the ground up. Change is in the air.

III. “I Feel a Change Comin’ On

Justices Thomas and Sotomayor are representative of the wider legal community. Calls for reform have come from many quarters, from the NAACP’s call for re-examination of qualified immunity after the Tamir Rice shooting, to Second Circuit Judge Jon Newman calling for the doctrine’s abolition, to libertarian Cato scholar Clark Neily pointing out its problems, to conservative law professor (and former Roberts clerk) Will Baude posing the question flatly, “Is Qualified Immunity Unlawful?

Baude’s article, cited by Justice Thomas in Ziglar, is particularly insightful. By deconstructing the legal basis for the doctrine of qualified immunity, the article provides the rationale to assail it on the basis of sound statutory interpretation rather than simply on consequentialist grounds, making the case more appealing to jurists who believe they are constrained to say “what the law is.”

All that’s needed now is a vehicle for the Court to address the issue head on. And on that front, there’s good news. A petition for certiorari recently filed with the Court raises this issue squarely. Penned by Jason Steed of #appellatetwitter fame, the brief does not beat around the bush:

If the qualified-immunity doctrine lacks legal justification and fails to provide the benefits it purports to provide, then the Court should consider discontinuing the doctrine so that Surratt’s—and everyone’s—constitutional rights can be vindicated.

With at least two of the nine justices openly interested in reconsidering qualified immunity, with scholars from across the ideological spectrum calling for an overhaul to this convoluted doctrine, with judges at all levels of the judiciary regularly noting the travesties resulting from its application, and given the doctrine’s significant impact on everyday citizens’ civil rights and liberties, here’s to hoping the Court heeds the call and reins in this runaway rule, in some way.

Coda: “[B]ecause they kept asking”

While I was drafting this post, yet another decision came out that highlights so much of what is wrong with the Supreme Court’s qualified immunity jurisprudence. In Sause v. Bauer, the Tenth Circuit ruled that police officers were entitled to qualified immunity because the plaintiff “fail[ed] to demonstrate that the contours of the right at issue are clearly established.” In light of the conduct that Sause was subjected to, however, one wonders if the subset of rights that are “clearly established” constitutes a judicial null set.

Sause was at home when the police came to investigate a noise complaint. At first she did not permit entry because she was unable to determine who was at her door through the viewhole. Upon their later return, she let them in. When they entered, they appeared angry. According to Sause’s complaint (which is presumed true for purposes of determining whether qualified immunity applies), the officers mocked Sause and told her she “was going to jail,” though they were not sure why just yet. Sause then asked the officers if she could pray, at which time they let her. However, they quickly ordered her to stop doing so, and they told her she needed to move to Missouri because they were told “no one likes her.” They then charged her arbitrarily with disorderly conduct and interfering with law enforcement, and they asked for Sause to show them her scars from a double mastectomy, which she complied with “because they kept asking” and to which the officers ostensibly reacted with disgust.

The court assumed that

the defendants violate Sause’s rights under the First Amendment when . . . they repeatedly mocked her, ordered her to stop praying so they could harass her, threatened her with arrest and public humiliation, insisted that she show them the scars from her double mastectomy, and then ‘appeared . . . disgust[ed]’ when she complied . . . .

As the court noted, however, “this assumption doesn’t entitle Sause to relief.” Rather, “Sause must demonstrate that any reasonable officer would have known this behavior violated the First Amendment.” The right at issue was not simply the somewhat obvious “right to pray in the privacy of [one’s] home free from governmental interference” in the absence of “any legitimate law enforcement interest.” This right was obviously violated by the officers’ order to an individual to stop praying without having any reason to do so.

But the Supreme Court has instructed federal courts not to construe rights at such a “high level of generality.” Mullenix v. Luna, 136 S. Ct. 305, 308 (2015). Rather, “the clearly established law must be ‘particularized’ to the facts of the case.” White v. Pauly, 137 S. Ct. 548, 552 (2017). Indeed, as mentioned above, dicta from White is being taken as instruction to lower courts that a right cannot be “clearly established” unless the plaintiff or the court can “identify a case where an officer acting under similar circumstances . . . was held to have violated” a plaintiff’s rights. Id. Outside of “an obvious case,” there is almost an irrebuttable presumption that the right in question has not been “clearly established.” See id. (quoting Brosseau v. Haugen, 543 U.S. 194, 199 (2004)). The mere fact that there exists “a unique set of facts and circumstances” is “an important indication . . . that . . . conduct did not violate a ‘clearly established’ right.” Id.

As such, the Tenth Circuit concluded that “while the conduct alleged in this case may be obviously unprofessional, we can’t say that it’s ‘obviously unlawful.'” And, under the Supreme Court’s case law, the Tenth Circuit was almost certainly correct here. Which is the problem.

Perhaps Sause can be faulted for bringing the wrong type of claim–after all, the most offensive aspect of the allegations she makes are the officers’ repeated request to see her mastectomy scars. If the Fourth Amendment means anything, one would think it means that a civilian need not expose herself to law enforcement on their request, even if the exposure appeared superficially consensual, given that “account must be taken of subtly coercive police questions, as well as the possibly vulnerable subjective state of the person who consents.” Schneckloth v. Bustamonte, 412 U.S. 218, 229 (1973). As Judge Tymkovich observed in a concurrence:

Ms. Sause’s allegations fit more neatly in the Fourth Amendment context. And, I must add, either the officers here acted with extraordinary contempt of a law abiding citizen and they should be condemned, or, if Ms. Sause’s allegations are untrue, she has done the officers a grave injustice by manufacturing such reprehensible conduct.

Either way, something is seriously amiss in our jurisprudence–and in our government generally–when law enforcement can barge into an individual’s home, subject that person to humiliating treatment, and then avoid any liability whatsoever for doing so, despite such behavior being clearly beyond the pale of anything resembling reasonableness. Yet, qualified immunity has become a shield for bad actors with badges to behave in this sort of way–oftentimes, with impunity. Insofar as the Court is responsible for this state of affairs, the Court should–and thankfully, can–fix it. Here’s to hoping they do, soon.

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