In two cases it decided last fall and last winter, the U.S. Supreme Court suggested that it might be prepared to limit the scope of qualified immunity, a doctrine that shields police officers and other government officials from federal liability for violating people's constitutional rights unless the alleged misconduct ran afoul of "clearly established" law. In two decisions issued last week, by contrast, the Court complicated the puzzle of how plaintiffs can hope to satisfy that test.
The Court reaffirmed its prior statement that qualified immunity protects "all but the plainly incompetent or those who knowingly violate the law"—a standard that excludes all manner of outrageous abuses. Worse, the justices twice suggested, in a decision from which none of them dissented, that lawsuits under 42 USC 1983, which allows people to seek damages for violations of their rights, may be barred even when the appeals court for the circuit in which a case is filed has previously concluded that conduct very similar to the defendant's was unconstitutional.
"Even assuming that controlling Circuit precedent clearly establishes law for purposes of §1983," the Court said in Rivas-Villegas v. Cortesluna, the 9th Circuit decision cited by the plaintiff "did not give fair notice" to the officer he sued. "Even assuming that Circuit precedent can clearly establish law for purposes of §1983," the Court reiterated later in the same opinion, the earlier case "is materially distinguishable and thus does not govern the facts of this case." Those opening clauses imply that "fair notice" might require a decision in which the Supreme Court itself addressed nearly identical facts, which would make an already formidable obstacle nearly impossible to overcome.
Whether or not the Court follows through on that alarming implication, the very notion of "fair notice" to police officers is based on what UCLA law professor Joanna Schwartz calls "qualified immunity's boldest lie": the assumption that cops keep abreast of relevant case law, such that they would know when their actions closely resemble conduct that was previously deemed unconstitutional. Schwartz's research, which she reported last May in The University of Chicago Law Review, documents a yawning gap between that implausible assumption and the reality of how cops are actually trained.
"Nowhere in the Court's decisions is consideration given to how, exactly, police officers are expected to learn about the facts and holdings of the hundreds—if not thousands—of Supreme Court, circuit court, and district court opinions that could be used to clearly establish the law for qualified immunity purposes," Schwartz notes. "Nor has much consideration been given to the likelihood that police officers recall the facts and holdings of these hundreds or thousands of cases as they are making split-second decisions about whether to stop and frisk someone, search a car, or shoot their gun."
Schwartz examined "hundreds of use-of-force policies, trainings, and other educational materials received by California law enforcement officers." She found that the information in these materials was generally limited to the broad principles laid out in major Supreme Court rulings—principles that the Court has said are not sufficient to show that an officer's alleged conduct violated "clearly established" law.
In the 1985 case Tennessee v. Garner, for example, the Court held that police may use deadly force against a fleeing suspect only if it is necessary to prevent his escape and there is probable cause to believe he poses a significant threat of violence to officers or the general public. In the 1989 case Graham v. Connor, the Court said the use of force by police must be "objectively reasonable," a determination that "requires careful attention to the facts and circumstances of each particular case, including the severity of the crime at issue, whether the suspect poses an immediate threat to the safety of the officers or others, and whether he is actively resisting arrest or attempting to evade arrest by flight."
While "police departments regularly inform their officers about watershed decisions like Graham and Garner," Schwartz found, "officers are not regularly or reliably informed about court decisions interpreting those decisions in different factual scenarios—the very types of decisions that are necessary to clearly establish the law about the constitutionality of uses of force." That conclusion is based partly on Schwartz's examination of California police department policy manuals, which "reference or incorporate the constitutional standards from Graham and Garner,
but rarely reference any cases in which Graham and Garner were applied."
Schwartz also read 329 police "training outlines" and found that more than three-quarters "referenced no court decision applying Graham and/or Garner." Even when such decisions were mentioned, "the outlines suggest that trainers do not educate officers about their facts and holdings." And while police training does "incorporate hypotheticals as a way to help officers develop an understanding about whether force is appropriate in various scenarios," the outlines "offer no indication that these scenarios are drawn from court cases." Schwartz found little evidence that prosecutors or newsletters were filling this gap in police knowledge.
"Even if law enforcement relied more heavily on court decisions to educate their officers about the constitutional limits of force, the expectations of notice and reliance baked into qualified immunity doctrine would still be unrealistic," Schwartz writes. "There could never be sufficient time to train officers about the hundreds—
if not thousands—of court cases that could clearly establish the law for qualified immunity purposes. Moreover, even if an officer did somehow come to learn about the facts and holdings of court decisions applying Graham and Garner, there is no reason to believe that an officer would think about those cases during the types of high-speed, high-stress interactions that often lead to uses of force."
Given this reality, Schwartz says, it "makes no sense to require plaintiffs to plumb the depths of Westlaw for factually similar lower court decisions as proof that officers were on notice of the unconstitutionality of their conduct." Because that requirement is based on a plainly erroneous premise, she says, it "does not advance the stated goals of qualified immunity."
If police cannot reasonably be expected to absorb the information that the Supreme Court has said is necessary for "fair notice," defenders of qualified immunity might conclude, maybe they need even more protection from liability. But if this kind of detailed knowledge really is necessary to prevent officers from violating people's rights, shouldn't the police departments that routinely fail to impart it be liable for the resulting abuses? And if their current approach is sound, what does that say about the Court's insistence on highly specific precedents as a condition for suing police under 42 USC 1983?
Without qualified immunity, courts would be free to decide whether an officer's conduct violated the principles established by cases like Graham and Garner, even if no one had previously been held to account for doing exactly the same thing. That approach would not result in ruinous personal liability for police officers, because (as Schwartz also has shown) cops are routinely indemnified even when they lose civil rights cases. But letting such cases proceed would improve accountability, allow victims of police abuse to seek compensation, and help clarify constitutional issues that currently go unresolved.
"Because courts can grant officers qualified immunity simply because plaintiffs cannot find a prior similar case, qualified immunity can deny relief to plaintiffs whose constitutional rights have been violated and can shield officers from liability even when they have behaved maliciously or recklessly," Schwartz notes. She concludes that courts should stop "sending the message to officers that they can 'shoot first and think later' and sending the message to people that their rights do not matter."