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The Supreme Court did the right thing on qualified immunity

The Supreme Court denied cert this morning in a number of "qualified immunity" cases. Justice Thomas wrote a dissent in one of these cases, Baxter v. Bracey. No other Justices joined in this dissent, and there were no other opinions in the case. But the reasons for the denials are easy to see.

The Civil Rights Act of 1871, codified in part at 42 U.S.C. § 1983, authorizes lawsuits against state officials acting under color of law who deprive persons of "any rights, privileges, or immunities secured by the Constitution and laws." In Bivens v. Six Unknown Fed. Narcotics Agents, 403 U.S. 388 (1971), the Supreme Court authorized this sort of lawsuit against federal officials for violations of the Fourth Amendment.

Two types of immunity apply. Some state actors, notably judges acting as such, Bradley v. Fisher, 20 L.Ed. 646 (1872), legislators performing legislative acts, Tenney v. Brandhove, 341 U.S. 367 (1951), and prosecutors during the judicial phase of a criminal process, Imbler v. Pachtman, 424 U.S. 409 (1976), are entitled to absolute immunity. These officials can't be sued for exercising these functions, even if they do so corruptly or maliciously. The rationale for this protection is that the threat of lawsuits from disgruntled parties would interfere with the exercise of independent decision making.

Other state officials (police officers, teachers, administrators) do not have absolute immunity, but at least since Pierson v. Ray, 386 U.S. 547 (1967), they are protected by the doctrine of qualified immunity. Subsequent cases have established that these officials are protected unless (1) they violated a federal statutory or constitutional right, and (2) the unlawfulness of their conduct was "clearly established at the time." See Reichle v. Howards, 566 U.S. 658, 664 (2012).

Clearly established means that, at the time of the conduct, the law was sufficiently clear that every reasonable officer would understand that what he or she is doing is unlawful. Anderson v. Creighton, 483 U.S. 635, 640 (1987). This does not mean that there must be a specific holding that the conduct was unlawful. Id. But an existing body of law must have placed the unconstitutionality of the officer's conduct "beyond debate." Ashcroft v. al–Kidd, 563 U.S. 731, 741 (2011). The doctrine protects "all but the plainly incompetent or those who knowingly violate the law." Malley v. Briggs, 475 U.S. 335, 341 (1986).

Those interested in taking a deep dive into these issues should review the pertinent official civil pattern jury instructions and annotations. The most thorough treatments are found in the Third and Ninth Circuits, but you can use the trialdex jury instruction index to view them all.

As a preliminary matter, it should be noted that § 1983 does not say anything about immunity. This was a judge-created doctrine that (at least in Pierson) was arguably rooted in the common law. In effect, the Court has been saying that the absolute and qualified immunity existed when the statute was enacted in 1871, and that if Congress had intended to deny that the immunities applied, Congress would have said so.

There is some scholarship that casts doubt on whether a common law privilege existed at all in 1871, but, as a practical matter, there is no possibility whatsoever that the Court would rule that the absence of immunity language in § 1983 would, by itself, rule out qualified immunity, because a holding like that would void judicial immunity as well, something that the Court would never, ever, do.

How does qualified immunity work? Here's an illustrative example. Police officers routinely searched passenger compartments of cars incident to an arrest between 1981 and 2009 under the authority of what was then known as the Belton rule: "[W]hen a policeman has made a lawful custodial arrest of the occupant of an automobile, he may, as a contemporaneous incident of that arrest, search the passenger compartment of that automobile." New York v. Belton, 453 U.S. 454, 460 (1981). The Supreme Court had further clarified that this rule applied to searches that took place after the arrestee was handcuffed and placed in a patrol car. Thornton v. United States, 541 U.S. 615, 618 (2004).

This clear rule was abrogated in a 5-4 decision by the Supreme Court in Arizona v. Gant, 556 U.S. 332 (2009). The Gant Court observed that the Belton rule was "widely taught in police academies and that law enforcement officers have relied on the rule in conducting vehicle searches during the past 28 years," id. at 349, and that "[b]ecause a broad reading of Belton has been widely accepted, the doctrine of qualified immunity will shield officers from liability for searches conducted in reasonable reliance on that understanding." Id. at 349 n.11. The converse of this is, of course, that without qualified immunity, these officers would be liable under § 1983 for conduct that they were trained to do, and that was expressly permitted by then-existing United States Supreme Court case law (not to mention four members of the Gant Court).

Justice Thomas' dissent in Baxter echoed concerns he had voiced earlier in Ziglar v. Abbasi, 137 S.Ct. 1843, 1870-72 (2017). He accepted Pierson, because it was "confined to certain circumstances based on specific analogies to the common law." However, the subsequent cases that established the objective "clearly established" standard did not undertake that analysis. Thomas favored the approach of asking whether immunity was historically accorded to the relevant official in an analogous situation at common law.

Why didn't the other Justices agree? Overturning the many, many qualified immunity cases would raise significant stare decisis concerns, which "weigh heavily in the area of statutory construction, where Congress is free to change this Court's interpretation of its legislation." Illinois Brick Co. v. Illinois, 431 U.S. 720, 736 (1977). If the Court has been wrong about the existence or scope of qualified immunity all these years, one would have thought that Congress would have stepped in and either abolished the privilege or redefined it. Put another way, qualified immunity is not a constitutional issue, but a statutory construction issue. The best guidance on the meaning of statutes is the body that wrote them.

It should be noted parenthetically that "legislative silence" arguments are often rejected in contexts that don't involve substantive rules and stare decisis. See, e.g. Pearson v. Callahan, 555 U.S. 223, 234 (2009). But abolishing the "clearly established" standard for qualified immunity falls squarely under Illinois Brick.

In that context, it is worth noting that Congress has not been shy about amending § 1983 (it was last amended in 1996). And far from being hostile to the doctrine, Congress has explicitly added qualified immunity provisions in other statutes. See, e.g., 6 U.S.C. § 1104(b)(1) (immunity for reports of suspected terrorist activity); 14 U.S.C. § 645 (medical quality assurance records).

Even more to the point, Congress is looking at the issue right now. The recently introduced Justice in Policing Act of 2020 would eliminate qualified immunity altogether for law enforcement and corrections officers, even where they act in good faith, or reasonably believe that the conduct was lawful at the time that the conduct was committed. It would no longer matter whether the alleged violation of rights was clearly established at the time, or that the defendant could not reasonably have been expected to know whether the conduct was lawful.

On what sort of record would the Court, rather than Congress, modify or abolish qualified immunity? The Court has previously recognized a number of practical advantages of qualified immunity. It mitigates:

  • "the expenses of litigation”
  • "the diversion of official energy from pressing public issues"
  • "the deterrence of able citizens from acceptance of public office"
  • "the danger that fear of being sued will 'dampen the ardor of all but the most resolute, or the most irresponsible [public officials], in the unflinching discharge of their duties.'"

Harlow v. Fitzgerald, 457 U.S. 800, 814 (1982).

These are factual assertions that may or may not be well grounded empirically. There have been attempts to test them, but the results are not definitive. See Aaron L. Nielson & Christopher J. Walker, A Qualified Defense of Qualified Immunity, 93 Notre Dame L. Rev. 1853, 1875-83 (2018). Ultimately, any studies in this area fall into the category of soft science, with results likely to mirror the prejudices of their authors. These concerns are magnified when the "studies" are introduced in the record in amicus briefs, or otherwise not really tested in the record below. To the extent that these studies have value, Congress has a far better ability query experts and fund its own studies (it has the Congressional Research Service; the Supreme Court doesn't).

In short, if § 1983/Bivens qualified immunity is a doctrine that should be revisited, that is a job for Congress, not the Supreme Court. The Court properly denied cert in these cases.

(06/15/20) (permalink)

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