By Ryan D. Dreveskracht
On Tuesday, the U.S. Supreme Court distributed thirteen different qualified immunity Petitions for Certiorari for its May 15, 2020, conference. This is no coincidence—it means that by the morning of Monday, May 18th, we will know whether the High Court is willing to revisit the doctrine. As described below, this is important and necessary.
The Civil Rights Act, 42 U.S.C. § 1983, makes liable state actors who violate constitutional or other legal rights. It was first enacted during Reconstruction as a section of the 1871 Ku Klux Act, part of a suite of “Enforcement Acts” designed to help combat lawlessness and civil rights violations in the southern states. Today, the law is most commonly evoked to seek redress against police officers who use excessive force to injure or even murder people.
There is no reference to immunity of any type in the text of the statute. But in 1967 the Supreme Court issued an opinion in Pierson v. Ray, 386 U.S. 547 (1967), that changed the landscape. The Pierson plaintiffs were black clergymen who attempted to use segregated facilities at a bus terminal in Jackson, Mississippi. They were arrested and charged with violating a Mississippi law that prohibited the gathering of people in a public place “under circumstances such that a breach of the peace may be occasioned thereby.” After the charges were eventually dropped, the clergymen sued the officers in federal court for violations of the Civil Rights Act.
The Court ruled that the police should not be held liable for the unconstitutional arrests because in a common-law suit for false arrest, “a peace officer who arrests someone with probable cause is not liable for false arrest simply because the innocence of the suspect is later proved,” and that could arguably be extended to “excusing him from liability for acting under a statute that he reasonably believed to be valid but that was later held unconstitutional.” The newer constitutional tort, the Court held, should be read the same way:
[Section] 1983 “should be read against the background of tort liability that makes a man responsible for the natural consequences of his actions.” Part of the background of tort liability, in the case of police officers making an arrest, is the defense of good faith and probable cause. We hold that the defense of good faith and probable cause, which the Court of Appeals found available to the officers in the common-law action for false arrest and imprisonment, is also available to them in the action under [Section] 1983.
On its face, one might have expected this reasoning to be limited to false arrests or other torts with similar elements, but the Court rapidly expanded it to executive action generally in subsequent cases. One might also have expected this reasoning to support a subjective defense of good faith, but the Court has since transformed it into an objective analysis of “the objective reasonableness of an official’s conduct, as measured by reference to clearly established law.” Malley v. Briggs, 475 U.S. 335, 342 (1986).
Today, qualified immunity today is much broader than the “good-faith” defense that it was founded on. Unless the injured person—that’s right, the burden has shifted to the plaintiff; it’s no longer a defense—makes a two-part showing, qualified immunity shields government officials from liability. The plaintiff must show both: The official(s) violated a federal statutory or constitutional right, and—at the time of the alleged act or failure to act there was clearly established law that defined the contours of the federal right objectively putting the official(s) on notice – i.e., every reasonable official would understand that what they are doing is unlawful. What is more, after the Court’s opinion in Anderson v. Creighton, 483 U.S. 635 (1987), plaintiffs are forced to make this showing before the facts of the incident have even been ironed out:
Noting that no discovery has yet taken place, the [plaintiffs] renew their argument that, whatever the appropriate qualified immunity standard, some discovery would be required before [the] summary judgment motion could be granted. We think the matter somewhat more complicated. One of the purposes of the . . . qualified immunity standard is to protect public officials from the broad-ranging discovery that can be peculiarly disruptive of effective government. For this reason, . . . qualified immunity questions should be resolved at the earliest possible stage of a litigation.
In 2001, the Supreme Court threw civil rights plaintiffs a bone in holding that lower courts ruling on qualified-immunity cases were required to decide both prongs of the qualified-immunity inquiry. In Saucier v. Katz, 533 U.S. 194 (2001) the Court ruled: “A court required to rule upon the qualified immunity issue must consider, then, this threshold question: Taken in the light most favorable to the party asserting the injury, do the facts alleged show the officer’s conduct violated a constitutional right? . . . [I]f a violation could be made out on a favorable view of the parties’ submissions, the next, sequential step is to ask whether the right was clearly established.” In other words, cases would not get thrown out simply by determining that the right was not “clearly established”—courts could at least make new law that would “clearly establish” what conduct would be unconstitutional in future cases.
But in 2009, in Pearson v. Callahan, 555 U.S. 223 (2009), the Supreme Court overturned Saucier’s rule of mandatory sequencing, after just eight years of its application in qualified immunity cases. The Pearson Court held, instead, that in deciding qualified-immunity cases courts now need only to decide the clearly established prong of the qualified-immunity two-part inquiry. Thus, under Pearson, if a court finds that the law was not clearly established at the time of the official’s conduct, the court has discretion whether or not to decide the underlying merits of the plaintiff’s claim.
Moving the ball yet again, just two years ago, in Kisela v. Hughes, 138 S. Ct. 1148 (2018), the Supreme Court held that the existing precedent must “squarely govern[] the specific facts at issue” and that courts should “not to define ‘clearly established’ law at a high level of generality.” In other words, the plaintiff must point to a case with almost exact facts ruling that the officer’s conduct violated his or her constitutional rights—even though under Pearson, courts are no longer required to make that inquiry. According to the Court, granularly exact facts are necessary to “provide an officer notice that a specific use of force is unlawful.”
This has created an impossible regime where the success of an injured party’s civil rights case is left to the whims of the judge assigned. The High Court might determine that the plaintiff’s rights were violated, and at least create some new law, or it might not. The Court might demand exact specificity of facts to determine that a law is “clearly established,” or it might not. As Judge James Browning, U.S. District Court Judge for the District of New Mexico, wrote in a footnote just last week, this is a responsibility that trial courts do not want and should not have:
The Supreme Court has signaled to the lower courts that a factually identical or a highly similar factual case is required for the law to be clearly established. Factually identical or highly similar factual cases are not, however, the way the real world works. Cases differ. Many cases have so many facts that are unlikely to ever occur again in a significantly similar way. The Supreme Court’s view of the clearly established prong assumes that officers are well-versed in Supreme Court and Tenth Circuit opinions. It is hard enough for the federal judiciary to embark on such an exercise, let alone likely that police officers are endeavoring to parse opinions. It is far more likely that, in their training and continuing education, police officers are taught general principles, and, in the intense atmosphere of an arrest, police officers rely on these general principles, rather than engaging in a detailed comparison of their situation with a previous Supreme Court or published Tenth Circuit case. It strains credulity to believe that a reasonable officer, as he is approaching a suspect to arrest, is thinking to himself: “Are the facts here anything like the facts in York v. City of Las Cruces?”
Thus, when the Supreme Court grounds its clearly established jurisprudence in the language of what a reasonable officer or a “reasonable official” would know, yet still requires a highly factually analogous case, it has either lost sight of reasonable officer’s experience or it is using that language to mask an intent to create an absolute shield for law enforcement officers. The Court concludes that the Supreme Court is doing the latter, crafting its recent qualified immunity jurisprudence to effectively eliminate § 1983 claims against state actors in their individual capacities by requiring an indistinguishable case and by encouraging courts to go straight to the clearly established prong.
The Court disagrees with the Supreme Court’s approach. The most conservative, principled decision is to minimize the expansion of the judicially created clearly established prong, so that it does not eclipse the congressionally enacted § 1983 remedy. . . . [Q]ualified immunity has increasingly diverged from the statutory and historical framework on which it is supposed to be based. The text of 42 U.S.C. § 1983 . . . makes no mention of immunity, and the common law of 1871 did not include any across-the-board defense for all public officials. With limited exceptions, the baseline assumption at the founding and throughout the nineteenth century was that public officials were strictly liable for unconstitutional misconduct. Judges and scholars alike have thus increasingly arrived at the conclusion that the contemporary doctrine of qualified immunity is unmoored from any lawful justification. . . . The judiciary should be true to § 1983 as Congress wrote it.
Moreover, there should be a remedy when there is a constitutional violation, and jury trials are the most democratic expression of what police action is reasonable and what action is excessive. If the citizens of New Mexico decide that state actors used excessive force or were deliberately indifferent, the verdict should stand, not be set aside because the parties could not find an indistinguishable Tenth Circuit or Supreme Court decision. Finally, to always decide the clearly established prong first and then to always say that the law is not clearly established could be stunting the development of constitutional law.
O'Farrell v. Bd. of Commissioners for Cty. of Bernalillo, No. 17-1052, 2020 WL 1955292, at *19 n.29 (D.N.M. Apr. 23, 2020) (quotation omitted). Fifth Circuit Judge Don Willett—a Trump appointee—has also voiced a criticism of the doctrine:
[T]he judge-made immunity regime ought not be immune from thoughtful reappraisal. . . . [Q]ualified immunity smacks of unqualified impunity, letting public officials duck consequences for bad behavior—no matter how palpably unreasonable—as long as they were the first to behave badly. Merely proving a constitutional deprivation doesn’t cut it; plaintiffs must cite functionally identical precedent that places the legal question “beyond debate” to “every” reasonable officer. Put differently, it’s immaterial that someone acts unconstitutionally if no prior case held such misconduct unlawful. This current “yes harm, no foul” imbalance leaves victims violated but not vindicated. Wrongs are not righted, and wrongdoers are not reproached. . . .
Two other factors perpetuate perplexity over “clearly established law.” First, many courts grant immunity without first determining whether the challenged behavior violates the Constitution. They avoid scrutinizing the alleged offense by skipping to the simpler second prong: no factually analogous precedent. Forgoing a knotty constitutional inquiry makes for easier sledding, no doubt. But the inexorable result is “constitutional stagnation”—fewer courts establishing law at all, much less clearly doing so. Section 1983 meets Catch-22. Plaintiffs must produce precedent even as fewer courts are producing precedent. Important constitutional questions go unanswered precisely because no one’s answered them before. Courts then rely on that judicial silence to conclude there’s no equivalent case on the books. No precedent = no clearly established law = no liability. An Escherian Stairwell. Heads government wins, tails plaintiff loses.
Second, constitutional litigation increasingly involves cutting-edge technologies. If courts leapfrog the underlying constitutional merits in cases raising novel issues like digital privacy, then constitutional clarity—matter-of-fact guidance about what the Constitution requires—remains exasperatingly elusive. Result: gauzy constitutional guardrails as technological innovation outpaces legal adaptation.
Qualified immunity aims to balance competing policy goals: “the need to hold public officials accountable when they exercise power irresponsibly and the need to shield officials from harassment, distraction, and liability when they perform their duties reasonably.” And I concede that the doctrine enjoys special favor at the Supreme Court, which seems untroubled by any one-sidedness. [But e]ven in this hyperpartisan age, there is a growing, cross-ideological chorus of jurists and scholars urging recalibration of contemporary immunity jurisprudence.
Indeed, it’s curious how this entrenched, judge-created doctrine excuses constitutional violations by limiting the statute Congress passed to redress constitutional violations. Count me with Chief Justice Marshall: “The government of the United States has been emphatically termed a government of laws, and not of men. It will certainly cease to deserve this high appellation, if the laws furnish no remedy for the violation of a vested legal right.
Doctrinal reform is arduous, often-Sisyphean work. Finding faults is easy; finding solutions, less so. But even if qualified immunity continues its forward march and avoids sweeping reconsideration, it certainly merits a refined procedural approach that more smartly—and fairly—serves its intended objectives.
Zadeh v. Robinson, 928 F.3d 457, 479-81 (5th Cir. 2019) (Willett, J. Dissenting) (quotation omitted; emphasis added). In other cases, too, Judge Willett has been emphatic about having the Supreme Court take another look at the doctrine. See Cole v. Carson, 935 F.3d 444, 470 (5th Cir. 2019) (Aug. 21, 2019) (“I repeat what I said last month: The entrenched, judge-invented qualified immunity regime ought not be immune from thoughtful reappraisal.”) (Willett, J. Dissenting).
And these judges are not alone. There are, “many voices critiquing current law as insufficiently protective of constitutional rights,” including many from the federal bench, on both sides of the political divide. McCoy v. Alamu, 950 F.3d 226, 237 (5th Cir. 2020) (Costa, J. dissenting); see, e.g., Russell v. Wayne Cty. Sch. Dist., No. 17-154 , 2019 WL 3877741, at *2 (S.D. Miss. Aug. 16, 2019) (“Judge Willett is not a solo performer. There is a chorus.”); Fogle v. Sokol, No. 19-1066, 2020 WL 1921611, at *5 n.11 (3d Cir. Apr. 20, 2020) (“There is growing concern that the doctrine of qualified immunity has likewise diverged from the historical inquiry mandated by the statute.”) (quotation omitted); Ventura v. Rutledge, 398 F. Supp. 3d 682, 697 n.6 (E.D. Cal. 2019) (“[T]his judge joins with those who have endorsed a complete re-examination of the doctrine which, as it is currently applied, mandates illogical, unjust, and puzzling results in many cases.”).
It appears that these voices have been heard. By May 18th, we will finally know whether the Justices are prepared to confront one of the most pernicious doctrines in its repertoire. Here is the complete list of the thirteen different petitions that have been distributed for the May 15th conference:
· Baxter v. Bracey, 751 F. App’x 869 (6th Cir. 2018). The Sixth Circuit granted qualified immunity to two officers who deployed a police dog against a suspect who had already surrendered and was sitting on the ground with his hands up.
· Brennan v. Dawson, 752 F. App’x 276 (6th Cir. 2018). The Sixth Circuit granted immunity to a police officer who, in an attempt to administer an alcohol breath test to a man on misdemeanor probation, parked his car in front of the man’s home at 8:00pm; turned the lights and sirens on for over an hour; circled the man’s house five to ten times, peering into and knocking on windows; and wrapped the home’s security camera in police tape. The court held that this warrantless invasion of the property violated the Fourth Amendment, but nevertheless granted immunity due to a lack of “clearly established law.”
· Zadeh v. Robinson, 928 F.3d 457 (5th Cir. 2019). The Fifth Circuit granted immunity to state investigators that entered a doctor’s office and, without notice and without a warrant, demanded to rifle through the medical records of 16 patients.
· Corbitt v. Vickers, 929 F.3d 1304 (11th Cir. 2019). The Eleventh Circuit granted immunity to a deputy sheriff who shot a ten-year-old child lying on the ground, while repeatedly attempting to shoot a pet dog that wasn’t posing any threat.
· Kelsay v. Ernst, 933 F.3d 975 (8th Cir. 2019). The Eighth Circuit granted immunity to a police officer who grabbed a small woman in a bear hug and slammed her to ground, breaking her collarbone and knocking her unconscious, all because she walked away from him after he told her to “get back here.”
· West v. City of Caldwell, 931 F.3d 978 (9th Cir. 2019). The Ninth Circuit granted immunity to police officers who bombarded an innocent woman’s home with tear-gas grenades. The homeowner had given the officers permission to enter her home to look for a suspect, but never consented to anything like the practical destruction of her home that resulted. Nevertheless, the court granted immunity on the grounds that no prior case specifically established that this sort of bombardment exceeded the scope of consent that the homeowner had given.
· Jessop v. City of Fresno, 936 F.3d 937 (9th Cir. 2019). The Ninth Circuit granted immunity to police officers who stole over $225,000 in cash and rare coins in the course of executing a search warrant. The court noted that noted that while “the theft [of] personal property by police officers sworn to uphold the law” may be “morally wrong,” the officers could not be sued for the theft because the Ninth Circuit had never issued a decision specifically involving the question of “whether the theft of property covered by the terms of a search warrant, and seized pursuant to that warrant, violates the Fourth Amendment.”
· Mason v. Faul, 929 F.3d 762 (5th Cir. 2019). The Fifth Circuit granted immunity to a police officer, unprovoked, who shot a man seven times in response to a 911 call.
· Cooper v. Flaig, 779 F. App'x 269 (5th Cir. 2019). The Fifth Circuit granted immunity to officers who killed an unarmed man in his parents’ home by tasing him nine times while he was having an acute mental-health episode.
· Anderson as trustee for next-of-kin of Anderson v. City of Minneapolis, 934 F.3d 876 (8th Cir. 2019). The Eighth Circuit granted immunity to 911 first responders who were alleged to have prematurely declared a 19-year-old dead of hypothermia, in violation of their own emergency protocols, thereby depriving him of what could have been life-saving medical assistance.
· Clarkston v. White, 943 F.3d 988 (5th Cir. 2019). The Fifth Circuit granted immunity to a state education official who was alleged to have caused the denial of a charter school application in retaliation for remarks made by the school's CEO about disciplinary practices.
· Cole v. Carson, 935 F.3d 444 (5th Cir. 2019), as revised (Aug. 21, 2019). The Fifth Circuit denied immunity to an officer who shot a 17-year-old boy without warning. Although the boy was holding a gun, he had made no threatening gestures toward the officers and was facing away from them and unaware of their presence when he was shot. At the en banc stage, this case generated a lively discussion between several Fifth Circuit judges about whether qualified immunity should be reconsidered, including a dissent by Judge Willett asking the Court to take up the issue.
· Ermold v. Davis, 936 F.3d 429 (6th Cir. 2019) This case involves Kim Davis, the former Kentucky county clerk who refused to issue marriage licenses to same-sex couples in the wake of the Supreme Court’s landmark decision in Obergefell v. Hodges. The couples sued Davis for violating their right to marry, and the Sixth Circuit denied immunity, finding that their rights were clearly established.
The fact that the High Court sent all thirteen of these cases to conference on the same day is an unambiguous indication that the Justices are taking a serious look at the doctrine, behind closed doors for now, but hopefully in open court soon.
Ryan Dreveskracht is an attorney with Galanda Broadman, PLLC, in Seattle. His practice includes civil rights and wrongful death litigation. He can be reached at (206) 909-3842 or ryan@galandabroadman.com.
