As I have argued over the past three days, the Supreme Court's qualified immunity doctrine is ungrounded in history, unnecessary or ill-suited to serve its intended policy goals, and counterproductive to interests in holding government wrongdoers responsible when they have violated the law. The Court has said that evidence undermining its justifications for qualified immunity would be reason to revisit the sensibility of the defense. Yet the justices might, instead, advance alternative justifications for qualified immunity. In a forthcoming article, I explain why the Court would be ill-advised to adopt any of several alternative rationales for qualified immunity. Here, I want to focus on one: the possibility that qualified immunity should be preserved because it encourages constitutional innovation.
Qualified immunity doctrine allows a court to announce a new constitutional right (or expand the contours of an existing one) but shield the defendants in the case from damages liability. As a result, some believe that qualified immunity allows judges to expand constitutional rights without worrying about the "financial fallout." In a world without qualified immunity, John Jeffries fears:
[E]very extension of constitutional rights, whether revolutionary or evolutionary, would trigger money damages. In some circumstances, that prospect might not matter. In others, it surely would. The impact of inhibiting constitutional innovation in this way is impossible to quantify, but I think it would prove deleterious.
Jeffries is right—it is impossible to quantify the impact eliminating qualified immunity would have on the development of constitutional rights. But even accepting that qualified immunity could be used by courts to spur constitutional innovation, this possible benefit should not save qualified immunity doctrine from the chopping block.
As a preliminary matter, qualified immunity does not appear to encourage very much in the way of constitutional innovation. To the extent courts use qualified immunity to shield government defendants from liability while expanding constitutional rights moving forward, they must find a constitutional violation and then grant qualified immunity on the ground that the right was not clearly established. But several studies of circuit court decisions show that qualified immunity motions are rarely decided in this manner. The Supreme Court also seems uninterested in constitutional innovation through qualified immunity—since its 2009 decision in Pearson, it has found a constitutional violation but granted qualified immunity just two times. Indeed, studies show that courts are far more likely to grant qualified immunity motions without ruling on the underlying constitutional claim—a practice that increases constitutional stagnation, not innovation.
The fact that courts infrequently find constitutional violations but grant qualified immunity does not foreclose the possibility that they are dramatically innovating on the rare occasions that they do. But, in fact, these decisions offer little in the way of constitutional innovation. In their study of 844 circuit court qualified immunity opinions decided over a three-year period—encompassing 1,460 separate claims—Aaron Nielson and Christopher Walker identified forty-three opinions in which circuit courts found one or more constitutional violations but granted qualified immunity. I reviewed each of these decisions and would characterize none as dramatically expanding the law. Most offer what could be described as modest or incremental developments of the law, applying well-established constitutional principles to slightly different factual scenarios.
Moreover, there is no reason to believe that qualified immunity's shield from damages liability is what motivated courts' decisions to find constitutional violations in these cases. Courts issuing these decisions are just as likely to be simply applying the law—concluding that defendants violated plaintiffs' constitutional rights but were entitled to qualified immunity because there was no "controlling authority in their jurisdiction" or a "consensus of cases of persuasive authority" with facts so closely resembling the instant case that "existing precedent . . . placed the statutory or constitutional question beyond debate."
Perhaps qualified immunity should be understood as encouraging constitutional innovation in a broader sense. Qualified immunity has been described as one component in a bundle of substantive laws, remedial doctrines, and other rules that courts calibrate to achieve an optimal system of rights and remedies. By this logic, regardless of whether qualified immunity is invoked in a particular case, its existence allows courts to read the Constitution and other rules more expansively—and its elimination would cause courts to interpret the Constitution and other rules more narrowly. Qualified immunity arguably played this equilibrating role in Arizona v. Gant, a Supreme Court case limiting the circumstances in which an officer can conduct a warrantless vehicle search. Justice Stevens, writing for the majority, addressed concerns that police officers had long relied on the prior legal rule, which allowed such searches, by observing in a footnote that "qualified immunity will shield officers from liability for searches conducted in reasonable reliance on that understanding." We cannot know whether or to what extent the existence of qualified immunity encouraged the Court to issue this decision. It is certainly possible that the Court would not have limited warrantless vehicle searches in Arizona v. Gant if qualified immunity did not exist.
But it is just as easy to find a case in which the Court does not treat qualified immunity as an equilibrating force. In Ziglar v. Abbasi, the Supreme Court held Bivens actions cannot be brought regarding policy decisions made in time of war or national emergency in part out of concern that such litigation would result in "inquiry and discovery" about "sensitive functions" of the executive branch and national-security policy. Justice Breyer, dissenting, observed that these concerns did not necessitate eliminating a Bivens remedy for this type of claim because there were already a number of other rules in place that would shield government officials from undue interference, including the scope of the Fourth Amendment, qualified immunity, plausibility pleading rules, and trial courts' abilities to limit discovery. Justice Breyer concluded:
Given these safeguards against undue interference by the Judiciary in times of war or national-security emergency, the Court's abolition, or limitation of, Bivens actions goes too far. If you are cold, put on a sweater, perhaps an overcoat, perhaps also turn up the heat, but do not set fire to the house.
Although the equilibration idea makes sense, and the Supreme Court appeared to use qualified immunity in this manner in Arizona v. Gant, it is far from clear that the Supreme Court is adept at equilibrating, or that it does so very often.
Moreover, to whatever extent qualified immunity spurs constitutional innovation, it is an unnecessarily blunt tool for this task. Even John Jeffries, who believes that "some version of qualified immunity should be the liability rule for constitutional torts" to encourage constitutional innovation criticizes current doctrine for being "too technical, too fact-specific, and far too protective of official misconduct." Jeffries would adjust qualified immunity so that its focus would be on whether an officer's conduct was "clearly unconstitutional." The Supreme Court could achieve this same goal by doing away with qualified immunity but limiting the circumstances in which constitutional innovations are retroactively enforced.
Encouraging constitutional innovation is all well and good, but I am entirely unconvinced that qualified immunity is well-suited to this task.