The Volokh Conspiracy
Mostly law professors | Sometimes contrarian | Often libertarian | Always independent
My friend and co-blogger Will Baude asks an interesting question: What explains the Supreme Court's continued interest in reviewing seemingly fact-bound lower court decisions on qualified immunity? Will writes:
I have criticized the Court's qualified immunity doctrine at length, but I do understand that one might disagree, especially if one believes in evolving judge-made law (see this draft response from Hillel Levin and Mike Wells) or might think the issue so settled by stare decisis that my critiques are merely academic. Still, it is worth noting that the Court treats qualified immunity not just as ordinary settled law, but as an area of law so important that it is worth deciding a series of factbound cases that would never earn the Court's attention if they involved a different legal issue. Moreover, the Court seems uninterested or unable to find such cases where a lower court wrongly denied relief to a person whose constitutional rights were violated.
I remain unconvinced that this special legal treatment has a good legal basis.
I've wondered about this, too, and I wanted to offer a possible explanation. I apologize that my explanation is long, tentative, and perhaps a bit rambling. I hope there's at least the kernel of a useful idea in here, but of course you'll be the judge of that.
First, some background. It seems to me that the Supreme Court uses qualified immunity to create what Meir Dan-Cohen famously called "acoustic separation" between conduct rules and decision rules. Here's the idea, at least as applied to criminal investigations. Ex ante, there may be some ideal rule that you would want the police to follow. That's the conduct rule, in this case the constitutional standard. But ex post, when the police don't follow the rules, the less-than-ideal remedies available to deter misconduct may support a less restrictive rule for when that remedy is actually imposed for violations. That's the decision rule.
Of course, we can debate whether remedies really do cause harms that justify a separate decision rule. But the cases suggest that the Justices believe they do. Less-than-ideal penalties may incentivize shirking, the Court tells us, when an officer faces personal liability. And in the criminal setting, evidence lost to the exclusionary rule imposes the public harm of leaving crimes without successful prosecutions.
Under this set of assumptions, the ideal system might be one with so-called "acoustic separation" between conduct rules and decision rules. In plain English, the best system may be one in which the police think the conduct rule governs and aim to follow it, but in which the courts actually only impose liability ex post under more limited decision rules.
I suspect that's what the Justices are trying to get from qualified immunity doctrine. Constitutional doctrine is the conduct rule, and qualified immunity is the decision rule. Qualified immunity creates a buffer between the conduct rule and actual liability. Because qualified immunity uses a very lawyerly deference standard—whether an officer violated clearly established law that a reasonable person would have known—an officer in the field can't really know where the line is and can just aim for the conduct rule. Ideally, at least, the lawyerly and vague nature of the qualified immunity standard creates the needed acoustic separation. But because the standard is quite deferential under the Supreme Court's approach, remedies are imposed ex post only in pretty rare and extreme cases. If the system works as the Justices imagine—a huge "if," obviously, but run with it for now—you may end up with the needed deterrence (from the conduct rule announced ex ante) with less of other harms imposed (from the decision rule applied ex post).
Now you're wondering: How does any of this explain the Supreme Court's interest in reviewing so many qualified immunity cases? Well, I'm not totally sure. But here's a theory for how it might explain it: Because the buffer of qualified immunity is the same general standard in every context, misapplying the buffer in one specific case can effectively alter decision rules in a way that creates the functional equivalent of a circuit split. Put another way, misapplying qualified immunity doctrine might look like a fact-bound case but operate like an important circuit split. And that might plausibly explain Supreme Court review in what otherwise looks like fact-bound cases.
Here's my thinking. The conduct rules of constitutional law are usually pretty specific rules that apply general constitutional principles. In the Fourth Amendment setting, I have called this the difference between the principles layer of the doctrine and the application layer of the doctrine. The principles layer might be that a search occurs when the government violates a reasonable expectation of privacy (a general principle). The application layer might be that using a thermal imaging device directed at a home is a search or that using a drug sniffing dog during a traffic stop is not a search (applications of the general principle to create specific rules).
Circuit splits that justify Supreme Court intervention are almost always at the application layer of the doctrine. That is, lower courts will split on the correct rule that emerges from the general principle in a very specific situation. It's not like circuits will disagree about whether to follow the reasonable expectation of privacy test. Lower courts instead disagree on a specific application of the broader principles, such as whether surreptitiously installing a GPS device on a car is a search or whether collecting historical cell-site records from a cell phone provider is a search.
Qualified immunity works differently. It's one general and exceedingly fact-specific standard—whether an officer violated clearly established law that a reasonable person would have known—that isn't subject to neat rules. It's a particular thickness of buffer on top of the constitutional conduct rule, but it's not of a thickness that is reducible to a bright line. You have to read some qualified immunity cases to get a feel for how thick a buffer it is beyond the constitutional standard. And that thickness applies all around in every context. The thickness of the buffer that is qualified immunity—that separates the conduct rule from the decision rule—is the same general standard regardless of what underling conduct rule at the application layer is being considered.
The takeaway is that misapplying the decision rule of qualified immunity could have quite broad effects. What looks like a fact-specific case could have much broader implications. First, a decision applying qualified immunity in a particular way is not just reaching a fact-bound application: It is effectively creating a rule about the thickness of the qualified immunity buffer. And second, because the thickness of the qualified immunity buffer is understood to be the same in all contexts, a precedent that wrongly narrows the thickness of the buffer in one context could apply in all contexts. That makes a decision applying qualified immunity to a particular set of facts have potentially much greater significance.
Perhaps an example with some numbers might prove the point. Say the Supreme Court regulates different law enforcement practices on a scale of 1 to 10, with 1 meaning no limits imposed on the government and 10 meaning the imposition of very strict limits on the government. (These are totally artificial numbers, obviously. Consider this just a proof of concept, not a hypothetical based on empirical evidence). Say the Court concludes that the conduct rule of an arrest should be set at a 6.0, wiretapping should be an 8.0, a Terry stop should be a 3.0, and an excessive use of force should be a 4.0. The Court further wants the buffer of qualified immunity that creates the best decision rule to be a 2.0. That is, for each government practice, the actual point of imposing a remedy should come when the government's violation was two points on the scale less than the conduct rule ideal point. A remedy for an illegal arrest should come when the government was below a 4.0; a remedy for an unlawfully excessive use of force should be imposed only when the government dropped below 2.0, and the like.
Now imagine the Ninth Circuit has a case on excessive force. Let's say a plaintiff sues a police officer claiming that the officer's use of force against the plaintiff was unconstitutional because, he claims, it was below the permitted 4.0 standard of the constitutional rule. Let's also say the Ninth Circuit correctly rules that the facts of the use of force, based on the totality of the circumstances, measure a 3.0. It therefore holds that the officer's use of force was excessive and violated the Fourth Amendment. So far, so good.
Now we get to the important part. Say the Ninth Circuit misapplies the qualified immunity standard. It applies that general standard in a particularly narrow way as if the buffer of qualified immunity were only 0.5 points thick instead of 2.0 points thick. As a result, the Ninth Circuit holds the officer personally liable. First, the the officer violated the constiution, as the facts were a 3.0 which is below the 4.0 constitutional conduct rule. And second, the buffer wasn't big enough to avoid liability under qualified immunity because the buffer was applied to be only 0.5. Because the facts were a 3.0, and the buffer was only 0.5, the officer acted below the threshold of liability and is held personally liable.
As I said, this is obviously a totally artificial and highly stylized hypothetical. But I hope it shows why misapplying the qualified immunity standard might have far greater systematic implications than merely misapplying the Fourth Amendment conduct rule. On one hand, whether the court properly applied the conduct rule has no far-reaching implications. In this case, the Ninth Circuit held that the use of force on the facts of this case was a 3.0, which was below the constitutional threshold. That happened to be correct in my hypothetical. But whether it was right or wrong, in a future case that holding would have only limited significance. The constititutional conduct rule for an excessive use of force is a 4.0 no matter how the Ninth Circuit rules in this particular case. A very fact-specific application of the Fourth Amendment ruling that a particular set of facts was a 3.0 isn't likely to matter very much.
On other other hand, whether the Ninth Circuit properly applied the qualified immunity standard could have more far reaching implications akin to creating a circuit split. Later precedents could look to that Ninth Circuit decision for guidance on the thickness of the qualified immunity buffer. If this case treated the buffer as a 0.5 instead of the 2.0 buffer that the Supreme Court intended, future lower courts can follow the circuit decision treating the buffer as only a 0.5. The practical effect would be to shift the decision rule for an excessive use of force from a 2.0 (the 4.0 conduct rule minus the 2.0 buffer) to a 3.5 (the 4.0 conduct rule minus a 0.5 buffer). What looked like a fact-bound ruling on qualified immunity would have the effect of a precedential rule on the thickness of the buffer between the conduct rule and decision rule. It's the functional equivalent of rejecting the Supreme Court's intended decision rule.
Further, because the thickness of the qualified immunity buffer is presumed to be the same in all contexts– remember, it's just one general standard—a ruling treating the buffer as only a 0.5 in an excessive force case provides a precedent for moving the decision rule in every case. The decision rule for an arrest could move from 4.0 to 5.5, for wiretapping from 6.0 to 7.5, for a Terry stop from 1.0 to 2.5, etc. A ruling on the decision rule could have really far-reaching impact because the decision rule, unlike the conduct rules, are assumed to be universal.
Now you might reasonably believe that the Supreme Court's approach is wrong and see a narrow application of the qualified immunnity doctrine as a good thing. You might conclude the existing conduct rules should be at higher numbers, and moving the decision rules might induce the police to act as if they are. Or maybe you think the gap between the conduct rule and decision rule should be thinner, such that slimming it down is for the public good. There are important and signficant arguments for both of these positions. But the key for us is that such judgements are about resetting the conduct rules and decision rules of criminal procedure law, not just making fact-bound judgements in a particular case. If you're a Supreme Court Justice who thinks that the existing conduct rules and decision rules are more or less correct, you might see lower-court efforts to thwart those rules as something deserving your pretty close attention.
Anyway, that's a possible explanation for the Supreme Court's continued interest in qualified immunity cases. I'm pretty tentative on the explanation myself, so I don't claim to be certain that I'm right. But I thought the argument worth developing in case others find it interesting.
Alternatively, maybe the Supreme Court just really likes the police.