June 2020
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)
I have been posting lately about the trials and travails of self publishing on Amazon KDP:
I am going to continue doing this for the benefit of others thinking of doing the same thing. The topic of 21st century legal publishing is very interesting, and I am happy to chat about it by
email, too. For those of you picking up this discussion based on a google search, welcome to the site.
As previously noted, I decided to give away the ebook for three days for two reasons: 1) to generate some reviews, and 2) to sell some of the paperbacks. I ended up with about 375 downloads, generated one review, and sold nine paperbacks. I'm happy with the download and paperback numbers, but a bit disappointed about the lack of reviews. If you downloaded the book, and are reading this, please give me a review on the Amazon page!
The next step is to mail out some review copies of the paperback. I have some folks in mind, but if you have a Web site that does book reviews, and want a review copy, please email me.
I'm also thinking of spending some of my royalties on advertising. Amazon KDP has some
low cost options that I am interested in trying, but I need to study them a bit more. I'll post about that, too.
(06/08/20) (permalink)
This one is mostly for collateral review experts. I tried to explain the issues in a
post last year. The Court needed to distinguish a 2005 case,
Gonzalez v. Crosby, which they did. I am posting about it here only to link a
thought provoking analysis by Kent Scheidegger at
Crime and Consequences.
(06/02/20) (permalink)
For the next three days I am giving away free copies of the Kindle version of
360 Federal Crimes.
The purpose of this is to generate Amazon reviews and to spread the word about the book's availability (and perhaps generate some sales for the paperback version, a format that has independent merit). So if you download the book, please take a moment to share your thoughts about it on the Amazon review page, and let other folks know about the giveaway.
The Amazon note about the sale is a bit confusing, because they put a link to the "Kindle unlimited" version on top of the free Kindle book offer. Unless you already have Kindle unlimited, you'll want to check the second box.
(06/01/20) (permalink)
May 2020
It took a couple of weeks; perhaps delayed a bit by COVID-19 priorities.
I am very pleased with the results. I was a little concerned with not having the ability to spec paper weights or have personal contact with the printer (Amazon handles all of that), but the printer did a terrific job. The cover looks great, and there's no page bleed. These are high quality paperbacks.
The book is available now on Amazon in
paperback and Kindle formats. Each format has its own strengths, and it is priced low enough to make owning both a reasonable purchase.
(05/26/20) (permalink)
As noted below, I have a new book out that is available in paperback and Kindle format on
Amazon. If you go there and click on the "look inside" link, you will see that a generous portion of the book is available, including the Foreword, which describes the book in some detail.
The book is intended to cover most of what you need to know about substantive federal criminal law in one paperback volume. This required considerable concission, which may present a challenge for the general reader. Although I am hopeful that non-lawyers, e.g., law enforcement officers, will buy the book, I resisted any temptation to dumb it down (in my experience, law enforcement officers who would buy a book like this have considerable legal sophistication). In any event, the book is more in the nature of a field guide rather than a treatise, that is, something that one would regularly consult rather than read cover to cover. In that respect, readers will find the 120-page index helpful.
It is a theme of the trialdex Web site, explained here, that federal pattern jury instructions are extraordinarily valuable and authoritative, and, consistent with that view, I began my research for each crime by consulting every official instruction and annotation. This was easy to do, using the trialdex federal jury instruction index. This provided as many as eight treatments of the same statute, and ensured that I was not going to miss an important issue.
In each case, I followed up by looking for pertinent articles published in the Department of Justice Journal of Federal Law and Practice (before 2018, the United States Attorneys' Bulletin). These are detailed practice guides written by federal attorneys with extensive experience or supervisory authority over the subject matter. I also checked for Reports by the Congressional Research Service ("CRS Reports"). I did conventional research as well, but the pattern instructions were my most valuable resources.
Put another way, making an assertion, and footnoting it with a citation to an official pattern instruction, is, I think, more compelling and useful authority than the more conventional approach of supporting the assertion with a string of case citations. This is particularly true for a survey of federal criminal statutes. It also has the added benefit of helping attain a manageable page count.
The crimes are placed in the order that they appear in the United States Code. The preferred approach was to start with the crime's name and statute number, followed by an excerpt of the pertinent text of the statute and an elements list, and ending with an annotation. This approach could not be strictly followed for each crime; often legal principles would apply to a range of statutes, and I did not want to repeat the same text over and over again. So some discussions were moved to the beginning of the book, and in some cases the annotations were grouped before or after the individual crimes. I hope that the rationale for each individual decision regarding the placement of an annotation will make sense to the reader.
By self-publishing, I have kept the price of the book ($24.99 for the paperback, $9.99 for the Kindle version) way below what's normal for a legal text. By way of example, I have
another book in print with a major legal textbook publisher that lists at $1300. On that book, I have the advantage of professional marketing. On this book, all I have is word of mouth. So I hope, if you have a good experience with the book, that you will pass along a good word to friends who may be interested, and take a couple of minutes to post an honest review on Amazon.
(05/08/20) (permalink)
I have spent the better part of a year writing a book,
360 Federal Crimes. Click on the link or the image to see how it looks on Amazon.
I co-authored a couple of books in the 1980s, one of which, the
Law of Confessions, is annually updated and still in print. From 1995 to 2018 I worked for the Department of Justice Office of Legal Education, where I edited and wrote dozens of books, practical skills manuals for government lawyers that are not publically available.
A *lot* has changed since the 1980s, and for a lot of reasons not worth reciting here, I was determined to self-publish this time. I have a working knowledge of how publishing works—how to create what we used to call a camera ready copy, how to spec print orders, the proper fonts, gutters, how to create a cover, etc.—but did not want to get involved in processing and shipping book orders or maintaining an inventory. I have no idea how successful the book will be, and do not wish to put up a lot of money up front (ISBNs alone cost $$$). Also, I wanted to publish an ebook edition. After quite a bit of research, I have decided, at least initially, to go all in on publishing with Amazon.
I wrote the book using Microsoft Word, and then converted it to PDF (there are more sophisticated products for writing books, but Word is what I know and have). Amazon initially rejected my PDF with a cryptic "error processing interior" message. Some online research suggested that this might be an Internet transfer corruption issue, or perhaps a problem with fonts that have not embedded. I pulled up the File/Options/Save menu in Word and checked the "Embed fonts in file" and "Embed only the characters used in the document" boxes before saving in PDF/A format, and after a couple of tries the upload was accepted.
The cover file, once again created in Word and converted to PDF/A, was offset a bit when I previewed it. The problem turned out to be my margin settings, which needed to be zero on all four sides. Amazon has a
free Cover Creator application that I did not use, and that might have saved me some time.
The other part of this was the creation of a Kindle ebook. I had very limited experience with Kindles (I like to read physical books). But there is no doubt that ebooks are part of the market, and Amazon Kindle has a near-monoply position in that market, so I went to work.
I think that it is possible to simply upload a Word or PDF file, and let Amazon convert it. But my book has 1448 footnotes, probably a thousand internal cross-references, thousands of links to statutes and cases, and a 120-page index, and I wanted to have hands-on control of all of those links. So I elected to convert the book to HTML, carefully edit the HTML, and convert the HTML to the MOBI format used by Kindle.
The first step was converting the Word file to HTML. I have a lot of experience with file conversions. My rule of thumb is never to use file conversion programs, including the one that is part of Word. They spit out hopelessly complex HTML that is impossible to edit. Instead, my first step was to use macros to insert the bold and italic tags, and to similarly tag the footnotes. Next, replace all the paragraph breaks (Word ^p) with HTML <p> tags (I don't use </p> tags; they really don't do anything).
The next step was to save the file as a plain text file, and go to work adding other essential HTML tags. There are not many of these; Kindle wants your HTML as vanilla as possible, because they want the initial control of how their books look, and want the customers, not the creators, to make any changes in that format (this makes perfect sense to me). I use Notepad++; be sure to set your encoding to UTF-8.
This took *hours*, but I am very happy with how it turned out. The book is full of links that work as intended, and it looks great on Kindle devices.
The MOBI conversion process was a bit of a challenge. It actually involves using a command line program, not an issue for folks from my generation, but probably intimidating for others. I had unsatisfactory results following instructions on Amazon and on various blogs and Web sites. I finally got error free code by *precisely* following the instructions on
this site (well, I did get "warnings" about my unclosed <p> tags, but as noted above, those warnings may be safely ignored).
The last step was pricing the book. I did a bit of online research, and tried to price it compared to other similar books (one outlandish comparison; the list price on my other (professionally published) book is a cool $1300). But the pricing process is very complicated, because the royalties vary based on how you price the book, and the level of your participation in programs like Amazon Select and Kindle Unlimited. I ended up selecting every option, with the purpose of seeing what works.
In closing, I don't want to pose as any sort of expert here. And it's way to early to call this a success. For one thing, I have not seen a physical copy of the book. But so far, so good. I'll post again when I know more.
(05/06/20) (permalink)
See the post below regarding the Supreme Court's decision last month in Ramos v. Louisiana, and a link to my post from last year explaining the decision's unlikely retroactive effect. Today, the Court granted cert in
Edwards v. Vannoy, No. 19-5807, to determine whether "the Supreme Court’s decision in Ramos v. Louisiana applies retroactively to cases on federal collateral review."
Collateral review guru Kent Scheidegger is also
skeptical about the petitioner's chances in this one, but notes that the issue has not really been briefed yet, so we will have to wait and see what Edwards' counsel comes up with.
On a personal note, I spent half of my career prosecuting cases in Oregon, one of the two states that authorized non-unanimous verdicts. I can't recall that anybody ever challenged or complained about it. The rule presumably cut down on the number of hung juries, but not to any significant degree. Some defendants would probably prefer to take their chances on a 10-2 verdict to the expense and stress of multiple trials.
(05/04/20) (permalink)
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