Justice Thomas (Dissenting) Further Arguing Against Qualified Immunity

He views the doctrine as likely not authorized by the text of the Civil Rights Act of 1871, or the legal principles that it may have implicitly absorbed; instead, he argues, it was created it just "because of a 'balancing of competing values' about litigation costs and efficiency."

|The Volokh Conspiracy |

From Justice Thomas's opinion today in Baxter v. Bracey, dissenting from the denial of certiorari; congratulations to our own Will Baude, who was cited twice:

Petitioner Alexander Baxter was caught in the act of burgling a house. It is undisputed that police officers released a dog to apprehend him and that the dog bit him. Petitioner alleged that he had already surrendered when the dog was released. He sought damages from two officers under 42 U.S.C. § 1983, alleging excessive force and failure to intervene, in violation of the Fourth Amendment. Applying our qualified immunity precedents, the Sixth Circuit held that even if the officers' conduct violated the Constitution, they were not liable because their conduct did not violate a clearly established right. Petitioner asked this Court to reconsider the precedents that the Sixth Circuit applied.

I have previously expressed my doubts about our qualified immunity jurisprudence. See Ziglar v. Abbasi (2017) (Thomas, J., concurring in part and concurring in judgment). Because our § 1983 qualified immunity doctrine appears to stray from the statutory text, I would grant this petition….

In the wake of the Civil War, Republicans set out to secure certain individual rights against abuse by the States. Between 1865 and 1870, Congress proposed, and the States ratified, the Thirteenth, Fourteenth, and Fifteenth Amendments. These Amendments protect certain rights and gave Congress the power to enforce those rights against the States.

Armed with its new enforcement powers, Congress sought to respond to "the reign of terror imposed by the Klan upon black citizens and their white sympathizers in the Southern States." Congress passed a statute variously known as the Ku Klux Act of 1871, the Civil Rights Act of 1871, and the Enforcement Act of 1871. Section 1, now codified, as amended, at 42 U.S.C. § 1983, provided that "any person who, under color of any law, statute, ordinance, regulation, custom, or usage of any State, shall subject, or cause to be subjected, any person within the jurisdiction of the United States to the deprivation of any rights, privileges, or immunities secured by the Constitution of the United States, shall … be liable to the party injured in any action at law, suit in equity, or other proper proceeding for redress …." Put in simpler terms, § 1 gave individuals a right to sue state officers for damages to remedy certain violations of their constitutional rights….

The text of § 1983 "ma[kes] no mention of defenses or immunities." Instead, it applies categorically to the deprivation of constitutional rights under color of state law.

For the first century of the law's existence, the Court did not recognize an immunity under § 1983 for good-faith official conduct. Although the Court did not squarely deny the availability of a good-faith defense, it did reject an argument that plaintiffs must prove malice to recover. Myers v. Anderson (1915). No other case appears to have established a good-faith immunity.

In the 1950s, this Court began to "as[k] whether the common law in 1871 would have accorded immunity to an officer for a tort analogous to the plaintiff 's claim under § 1983." The Court, for example, recognized absolute immunity for legislators because it concluded Congress had not "impinge[d] on a tradition [of legislative immunity] so well grounded in history and reason by covert inclusion in the general language" of § 1983. The Court also extended a qualified defense of good faith and probable cause to police officers sued for unconstitutional arrest and detention. Pierson v. Ray (1967). The Court derived this defense from "the background of tort liabilit[y] in the case of police officers making an arrest." These decisions were confined to certain circumstances based on specific analogies to the common law.

Almost immediately, the Court abandoned this approach. In Scheuer v. Rhodes (1974), without considering the common law, the Court remanded for the application of qualified immunity doctrine to state executive officials, National Guard members, and a university president. It based the availability of immunity on practical considerations about "the scope of discretion and responsibilities of the office and all the circumstances as they reasonably appeared at the time of the action on which liability is sought to be based," rather than the liability of officers for analogous common-law torts in 1871. The Court soon dispensed entirely with context-specific analysis, extending qualified immunity to a hospital superintendent sued for deprivation of the right to liberty. O'Connor v. Donaldson (1975); see also Procunier v. Navarette (1978) (prison officials and officers).

Then, in Harlow v. Fitzgerald (1982), the Court eliminated from the qualified immunity inquiry any subjective analysis of good faith to facilitate summary judgment and avoid the "substantial costs [that] attend the litigation of " subjective intent…. The Court has subsequently applied this objective test in § 1983 cases….

In several different respects, it appears that "our analysis is no longer grounded in the common-law backdrop against which Congress enacted the 1871 Act."

There likely is no basis for the objective inquiry into clearly established law that our modern cases prescribe. Leading treatises from the second half of the 19th century and case law until the 1980s contain no support for this "clearly established law" test. Indeed, the Court adopted the test not because of "'general principles of tort immunities and defenses,'" Malley v. Briggs(1986), but because of a "balancing of competing values" about litigation costs and efficiency.

There also may be no justification for a one-size-fits-all, subjective immunity based on good faith. Nineteenth-century officials sometimes avoided liability because they exercised their discretion in good faith. See, e.g., Wilkes v. Dinsman (1849); see also Nielson & Walker, A Qualified Defense of Qualified Immunity, 93 Notre Dame L. Rev. 1853, 1864–1868 (2018); Baude, Is Qualified Immunity Unlawful? 106 Cal. L. Rev. 45, 57 (2018); Engdahl, Immunity and Accountability for Positive Governmental Wrongs, 44 U. Colo. L. Rev. 1, 48–55 (1972). But officials were not always immune from liability for their good-faith conduct. See, e.g., Little v. Barreme (1804) (Marshall, C. J.); Miller v. Horton (Mass. 1891) (Holmes, J.); see also Baude, supra, at 55–58; Woolhandler, Patterns of Official Immunity and Accountability, 37 Case W. Res. L. Rev. 396, 414–422 (1986); Engdahl, supra, at 14–21.

Although I express no definitive view on this question, the defense for good-faith official conduct appears to have been limited to authorized actions within the officer's jurisdiction. See, e.g., Wilkes; T. Cooley, Law of Torts 688–689 (1880); J. Bishop, Commentaries on NonContract Law § 773, p. 360 (1889). An officer who acts unconstitutionally might therefore fall within the exception to a common-law good-faith defense.

Regardless of what the outcome would be, we at least ought to return to the approach of asking whether immunity "was 'historically accorded the relevant official' in an analogous situation 'at common law.'" The Court has continued to conduct this inquiry in absolute immunity cases, even after the sea change in qualified immunity doctrine. We should do so in qualified immunity cases as well.

{Qualified immunity is not the only doctrine that affects the scope of relief under § 1983. In Monroe v. Pape (1961), the Court held that an officer acts "'under color of any statute, ordinance, regulation, custom, or usage of any State'" even when state law did not authorize his action. Scholars have debated whether this holding is correct. Compare Zagrans, "Under Color of " What Law: A Reconstructed Model of Section 1983 Liability, 71 Va. L. Rev. 499, 559 (1985), with Winter, The Meaning of "Under Color of " Law, 91 Mich. L. Rev. 323, 341–361 (1992), and Achtenberg, A "Milder Measure of Villainy": The Unknown History of 42 U.S.C. § 1983 and the Meaning of "Under Color of " Law, 1999 Utah L. Rev. 1, 56–60. Although concern about revisiting one doctrine but not the other is understandable, respondents—like many defendants in § 1983 actions—have not challenged Monroe.}

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  1. Seems that Mr. Thomas demonstrates more good sense than his colleagues

    1. I think he is right. Again.

    2. Justice Thomas is eager to address the QI decision. It would only take three more judges to agree to address it to overturn it. I’m trying to figure out how come we can’t get three more judges out of the eight remaining. Not the right case or what?

      1. There are multiple proposals for reforming qualified immunity in Congress right now. It’s possible that the rest of the justices are willing to wait and see how those shake out.

        1. Yep that’s the courts job. To let people suffer violations of rights while the legislatures make up their mind.

          1. If the Court can wait to resolve a constitutional question until there’s a solid circuit split, which it does on a regular basis, it can certainly wait to see if Congress addresses the issue first.

  2. I’ve recoiled at some of the QI horror stories we’ve seen recounted here, as I imaging most readers have, but Thomas seems to suggest that one answer might be to eliminate it entirely on the grounds that immunity isn’t mentioned in the statute and the availability of a good-faith defense is adequate protection. I wonder though if he would apply that same logic to eliminate judicial immunity?
    No, I don’t really wonder. Judicial immunity is a common-law doctrine that was very well established in 1871. But if you accept that the Civil Rights Act of that year was intended to create liability where the law had previously denied it, why wouldn’t it apply to even so well established a doctrine?

    1. Justice Douglas addressed the issue in his Pierson v. Ray dissent.

      Congress critter Lewis, of Kentucky, among others, expressed fear that the proposed legislation would apply to judges. Notwithstanding their passion play for the plight of the poor judges who would be held to account for their behavior, the bill passed with the “any person” language.

    2. Presidential immunity seems safe too under Nixon v Fitzgerald.

      The problem isn’t the notion of immunities per se. Lots of torts are subject to immunity doctrines. But this is an expansive immunity doctrine that thwarts the purpose of the statute.

      1. Perhaps I’m being dense, but how does presidential immunity relate to qualified immunity under § 1983?

  3. #typo The subtitle of this post contains an extraneous use of the word “it”. Or something.

  4. Well, today is a fun day isn’t it?

  5. Well, good for Clarence Thomas.

  6. This guy Baxter is a shvartz, right?

  7. If Thomas and others are right about there being no legal basis for qualified immunity, they that’s one issue. I’ll let them argue over that since I clearly can’t go toe-to-toe with them.

    I would just point out a couple of things that are not strictly legally based. The assumption is that QI provides a disincentive for police officers to avoid violating the constitutional rights of others. There seems to be a questionable factual basis. Police officers and other public officials are sued all the time, the availability of QI notwithstanding. Rather than bringing out the best candidates, I think doing away with QI will drive out the best candidates out, and leave you with the worst candidates.

    Plaintiffs’ lawyers don’t like QI because it prevents them from getting punitive damages awards (even though I believe most juries simply factor in a punitive element to the emotional distress award). I think if you really wanted to get rid of the worst, a better way might be to tinker with Monell liability, and thereby provide an incentive for employers to get rid of the worst.

    1. Public employees in MA are indemnified in most cases anyway — it would go to the employer as it should.

    2. ” The assumption is that QI provides a disincentive for police officers to avoid violating the constitutional rights of others. There seems to be a questionable factual basis. Police officers and other public officials are sued all the time, the availability of QI notwithstanding.”

      The disincentive argument ignores indemnification. While it may or may not exist for other government officials, police officers have full indemnification in nearly every jurisdiction inside the US.

      Even under currently law, where cases get past QI, officers don’t pay a dime out of their own pockets.

    3. The best and the brightest cops, i.e., the cops who are not ex-military, who are not juice freaks, who actually went to a decent college, who do not intend to be wearing a badge for more than a few years, and who do not hail from 2nd, 3rd, or 4th generation public sector payroll families, would not be troubled by abolishing QI.

      There is no provision in the text of the Declaration of Independence authorizing the judiciary to concoct the doctrine of QI. In addition, QI is repulsive to the spirit of the DOI.

      There is no provision in the federal constitution that grants the judicial branch the power to fabricate a device to insulate fellow state actors from facing liability for their misdeeds.

      The 1871 statute does not contain an exemption for cops.

      What part of the above don’t you understand?

  8. Given that, especially in the context of municipal police, employed by a municipal corporation, they police a given community by that communities consent, would it be reasonable to assume that such consent would never have been given if this undisclosed area of the contract were known?
    I can’t believe anybody in their right mind would read a contract proposal that had such things for the opposing party and would then agree to that contract.
    We are supposed to have government by consent… Nobody in our government has any divine right over anybody else. If this is the terms by which they will work for us, I unequivocally revoke my consent. Total anarchy and whatever grows out of it, couldn’t possibly be worse.

    1. There are compelling arguments against qualified immunity, but I don’t think this is one of them. State and local governments remain free to create causes of action against their police forces if they want to: section 1983 is designed to create a cause of action even if the state or local government doesn’t want to allow one.

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