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New Calls for the Supreme Court to Reconsider Qualified Immunity

Some unusual amicus briefs filed in support of cert. in Allah v. Milling

What do the Alliance Defending Freedom, the American Civil Liberties Union, the Law Enforcement Action Partnership, and the Reason Foundation have in common? A "cross-ideological consensus that this Court's qualified immunity doctrine under 42 U.S.C. 1983 misunderstands that statute and its common-law backdrop, denies justice to victims of egregious constitutional violations, and fails to provide accountability for official wrongdoing." They, along with many other groups across the ideological spectrum, filed an amicus brief yesterday in the Supreme Court encouraging it to grant cert in Allah v. Milling, a cert petition that asks whether qualified immunity should be modified or overruled.

You can find the Second Circuit's opinion here. The plaintiff actually went to trial and won $62,650 for his mistreatment in prison before the verdict was overturned, 2-1, by an appeals panel on the ground that qualified immunity protected the defendants from liability for their unconstitutional conduct. You can find a New York Times story about the amicus brief and the case here. A group of scholars, including me, also filed an amicus brief of our own, arguing that the legal and practical justifications for qualified immunity doctrine are flawed and should be revisited.

Here is the summary of our argument:

Section 1983 seeks to redress violations of federal law by state officials, and qualified immunity seeks to ensure that § 1983 does not hamper the effective administration of government. The Court long ago recognized "the evils inevitable" in any attempt to find the right balance between these goals, and decided that qualified immunity from § 1983 damages liability was the "best attainable accommodation of competing values." Harlow v. Fitzgerald, 457 U.S. 800, 813-814 (1982). Amici submit that the Court should grant the petition for certiorari because, in the decades since Harlow, it has become increasingly apparent that the doctrine no longer strikes the right balance, and for legal and pragmatic reasons should be revisited and rethought.

The important criticisms of existing qualified immunity doctrine are numerous and fundamental, but two stand out: First, that the doctrine as it is currently constituted lacks a sound basis in law. The Court's original suggestion that the doctrine was a natural extension of a common law good faith defense to tort liability has not stood the test of time. Nor is there adequate support for the more recent objective version of the defense. Second, that even as it frustrates the vindication of constitutional violations, the doctrine is not effectively serving its own purported policy goals of protecting officials from damages liability and reducing litigation costs.

This case, in which the lower court easily concluded that a constitutional violation occurred but immunized defendants based on the absence of precedent presenting sufficiently similar facts, illustrates the problems with contemporary qualified immunity. Should the Court grant the petition, it will have at its disposal a rich body of scholarship critiquing the doctrine and, more importantly, offering numerous options for its reform. Amici respectfully submit that the time has come for the Court to revisit qualified immunity.

The brief was also signed by Karen Blum, Alen Chen, Barry Friedman, John Preis, Joanna Schwartz, and Fred Smith. The Court will decide whether to take the case later this fall.

Editor's Note: We invite comments and request that they be civil and on-topic. We do not moderate or assume any responsibility for comments, which are owned by the readers who post them. Comments do not represent the views of Reason.com or Reason Foundation. We reserve the right to delete any comment for any reason at any time. Report abuses.

  • jdgalt1||

    This is a good reason to reject Justice Kavanaugh. He always seems to give law enforcement a pass when they violate their oaths.

  • DjDiverDan||

    That seems like a very knee-jerk reaction by you. Exactly what do you base this on? Cite opinions where you think Judge Kavanaugh gave law enforcement an undeserved pass. And if he was simply following established Supreme Court precedent, on matters like qualified immunity, wasn't that part of his job description as a lower court judge? After all, theoretically, only the Supreme Court has the authority to overrule or modify its own rulings (a theory which apparently does not apply to the 9th Circuit on Second Amendment issues, or to the 6th Circuit on Habeas issues).

  • Captain Motion||

    All immunities should be reconsidered and eliminated. The Framers knew how to create immunities, and they did so for only one group - congresspeople in narrow circumstances. Therefore, none others should have it. Why should judges, prosecutors, cops, CPS workers, and other members of the power structure not have to account in damages for the evils they have wrought? There is no constitutional basis for immunizing them, even though SCOTUS stretched their quills when they manufactured such for themselves and then for the prosecutorial chums. All who damage should have to pay damages.

  • David Nieporent||

    Qualified immunity is not a constitutional doctrine. It's statutory in nature.

  • DjDiverDan||

    As far as I can recall, you won't find any reference to qualified immunity in 42 U.S.C. 1982 or any related statutes. I may be mistaken, but I understood that qualified immunity was a judge-made doctrine, allegedly based upon a common law "good faith" defense, justified by the notion that it would be too burdensome to compel state actors to defend these kinds of suits unless there was a clearly established violation of constitutional rights.

  • David Nieporent||

    You are correct that the doctrine is judge-made. But the Court that created it did not say that it was constitutionally required; it said that Congress intended to incorporate (alleged) common law immunities when it enacted § 1983 or the like.

    So the fact that the framers of the constitution did not create immunity is irrelevant. Congress was certainly free, when it created liability, to limit said liability. (The dispute is over whether Congress actually did so.)

  • Perseus`||

    Heaven forbid that congresscritters get off their rear ends and clarify matters for the judiciary.

  • Kyfho Myoba||

    Qualified immunity is NOT statutory at all. It is entirely judge-made.

  • Kyfho Myoba||

    Judicial immunity is inherent in the job. In any case, somebody loses, and they might blame the judge.

  • Eddy||

    Can't lower courts certify questions to the Supremes? If so, why can't some federal appeals court certify this question, forcing the Supremes to deal with it?

  • Soronel Haetir||

    As I understand it a certified question doesn't have to be answered, it's one court asking another to please answer, not a demand that it do so.

  • Eddy||

    Maybe Congress can get to work on this - require the Supremes to answer certified questions (if relevant to the case at hand of course).

  • nonzenze||

    Actually, I would think it would best the other way around -- the Courts certify a question to Congress requiring them to clarify a statute or other details.

    In the instant case, Congress should weigh in specifically on what (if any) immunity it wishes to extend to folks under §1983.

  • Procyon Mustelid||

    Especially when it's a lower court certifying to the Supreme Court. Last time one tried, about 10 years ago I think, the Supreme Court declined. If I remember right, Scalia wrote a dissent along the lines of "The lower courts hardly ever try this, and we haven't said yes for the better part of a century. We should say yes or get rid of this alleged procedure."

  • Michael Ejercito||

    I understand why the Supremes have not said yes, as the aggrieved party of a court's judgment or order could simply appeal.

  • Bill Poser||

    It seems very odd that we hold that "ignorance of the law is no excuse" to apply to people with no role in the legal system or expertise in law but immunize police officers from liability for all but the most blatant constitutional violations even though knowing the law is essential for them to do their work and they receive a certain amount of instruction in the law.

  • David Nieporent||

    It's even odder that we give absolute immunity -- not even mere qualified -- to people who actually are trained in the law, and whose sole job is to apply that law every day. (In case it's unclear, I'm talking about prosecutors. At least in theory one can recover if one can prove that a cop's conduct was so beyond the pale. But a prosecutor can deliberately violate your rights and you still can't sue him.)

  • Michael Ejercito||

    Immunity should be replaced by strict liability. See the Park doctrine for an example.

  • nonzenze||

    To be clear, the intent (maybe not the practice) of QI is not about ignorance of the law but about as-yet-undecided situations in which there is no relevant law to know.

    There is no amount of 'instruction' that would have taught officers to anticipate Jones, Kyllo or Carpenter. Even the law profs that make a business of thinking on it get tangled up into a mess, and some of those were 5-4 decisions at the Court, meaning that an errant heart attack changes the result.

    The practice may have devolved by the lower courts into a cop-out (heyo) where the lack of a find on the exact fact pattern is used as a cudgel. To that extent, the Court should guide them towards a much more constrained version.

  • apedad||

    Another aspect is the judgment call.

    A cop tells a suspect to remove his hands from his pockets.

    The guy does but the cop shoots him anyway because he saw a black object in the guy's hand--which turns out to just be a cell phone.

    Obviously that's not a 'ignorance-of-the-law' issue; cops have a right to defend themselves.

    Now it could be a training issue which would be the responsibility of the police department/police chief, and maybe that's where QI could be challenged.

  • Harvey Mosley||

    Cops have a right to defend themselves from reasonable danger. And if they are going to use deadly force then the danger must be of death or great bodily harm. At least that's what it should be. Unfortunately our "highly trained" "public servants" can kill with impunity as long as they say the magic words: He looked like he was reaching for something in his waistband.

  • ||

    Right, the result is that if the court rules that it's unconstitutional to do a strip search to look for Motrin (Safford v. Redding), but that the teachers couldn't have known it, they'll rule the next year that a strip search for Tylenol is entitled to qualified immunity.

  • nonzenze||

    Well, ARWP, at least we agree on something.

  • ||

    I'm a conservative. I'm leery of government power.

  • mad_kalak||

    That depends on the topic.

  • BillyG||

    That might be the intent, but in practice it tends to be the cops can get away with intentional bad behavior, which they even knew was bad, but still get off because courts hadn't explicitly stated that precise situation was bad. I occasionally agree with a QI judgement when a cop was acting in good faith. The problem is the current doctrine protects cops who act in bad faith as a number of short circuits have covered.

  • BillyG||

    That might be the intent, but in practice it tends to be the cops can get away with intentional bad behavior, which they even knew was bad, but still get off because courts hadn't explicitly stated that precise situation was bad. I occasionally agree with a QI judgement when a cop was acting in good faith. The problem is the current doctrine protects cops who act in bad faith as a number of short circuits have covered.

  • BillyG||

    That might be the intent, but in practice it tends to be the cops can get away with intentional bad behavior, which they even knew was bad, but still get off because courts hadn't explicitly stated that precise situation was bad. I occasionally agree with a QI judgement when a cop was acting in good faith. The problem is the current doctrine protects cops who act in bad faith as a number of short circuits have covered.

  • ||

    BillyG, exactly. It's one thing to grant cops QI because they in good faith believed they could use an infrared camera without a warrant. It's another thing to grant cops QI after they shoved a golf club into a suspect's anus because previous courts had only ruled they couldn't shove baseball bats there.

  • David Nieporent||

    To be clear, the intent (maybe not the practice) of QI is not about ignorance of the law but about as-yet-undecided situations in which there is no relevant law to know.

    First, there's no reason that needs to be an immunity, as opposed to simply a defense to a lawsuit.

    Second, the QI doctrine is not limited to cases in which there's no relevant law; it includes cases where there's plenty of relevant law but it's not 1,000% on point. "Sure, this case says that you can't shoot an unarmed person who is offering no resistance on a Tuesday, but it's not settled law about what happens if you do it on a Wednesday." (Yes, that's hyperbole. But, "No excessive force" isn't deemed enough to put them on notice that they can't use excessive force; they have to be on notice of whether a specific use of force is excessive, even though that's a factual issue rather than a legal one.)

  • ||

    It's hyperbole, but not by much. The fact is, no two cases will ever have exactly identical facts, and thus QI, in practice, is a general "get out of jail free card" for law enforcement. QI should not attach when the courts have declared that a particular set of facts violated the Constitution, and when the actions in the subject case are generally similar.

  • nonzenze||

    I think it makes sense to have it be adjudicated as a preliminary matter (taking all the plaintiff's factual claims as true) because it applies at a pre-factual level.

    And yes, I have repeatedly agreed the Supreme Court should vastly curtail the distinction-without-a-difference parsing here. This just seems like a more realistic course of advocacy than outright repeal, and one more likely to bear fruit.

  • BillyG||

    Do that and I'd be ecstatic. "We have previously ruled the police can't use excessive force on a suspect in custody in the police station. We haven't previously ruled police can't use excessive force on a suspect prior to arrest." And I wish I was making that up but its from Short Circuit.

  • Drewski||

    The advantage to immunity over affirmative defense is that it takes place at the summary judgment stage. If the allegations can't support liability, it saves both parties litigation costs. Understand that when QI is denied that does not foreclose the same argument as a defense: It just means a jury has to decide if the facts support that argument.

  • David Nieporent||

    The advantage to immunity over affirmative defense is that it takes place at the summary judgment stage. If the allegations can't support liability, it saves both parties litigation costs.

    If the allegations can't support liability, then the cops can win on summary judgment on the merits, rather than on QI.

    Moreover, because denials of QI allow for ordinarily-impermissible interlocutory appeals, it's not even clear that it saves litigation costs on net.

  • apedad||

    Does it make a difference to any of the commenters that the plaintiff's name is Almighty Supreme Born Allah?

    Besides that, this does seem to be a rather weak case to argue qualified immunity.

    Reading through the Second Circuit's decision, it seems the prison officials were pretty much following established administrative standards and procedures and ol' Allah-boy was just disgruntled about being in prison.

    Let's get QI case where they shoot an unarmed black guy in the back!

  • VinniUSMC||

    Not enough racism here for you apedad? Did you take your hood off while you were posting that?

  • apedad||

    HA! Good one.

    I was only mocking the religious aspect as well as throwing some red meat out to the Muslim-phobes.

  • mad_kalak||

    Generally speaking, fear of Islam = fear of terrorism and pedo rape gangs, which is not an entirely unfounded fear. Statistically speaking, yes, yes, your average American is more likely to get hit by a car than die in a terror attack and be date raped, but the fact that (Islam = higher levels of terrorism & rape) shouldn't be discounted.

    This is not even getting into the other problems with Islam, which is like bad cultural software running on top of evolutionary firmware.

  • Sarcastr0||

    Dude, talk to an American Muslim. 'bad cultural software running on top of evolutionary firmware' is a fancy analogy, but still a hugely bigoted generalization.

    And you qualify your ipse-dixits. 'Not an entirely unfounded fear' and 'shouldn't be discounted?!' If you're going to make unsupported statements, go for the gusto, man!

  • mad_kalak||

    Dude, I have talked to actual Muslims from the Middle East when circumstances put us in close quarters for an extended period of time such that politically charged conversations were acceptable. Their response is that terrorists are not "real Muslims." Which is a common refrain one hears from the American left. This was after 9/11 so I don't know who was copying whom when they said it. Nice fellows all, and I mean that. So as we are throwing about logical fallacies, everyone of the Islamophiles are all making the "no true Scotsman" one.

    I must admit I stole that analogy from Sam Harris. It's perfectly apt, unless one has their head in the sand about Muslim terrorists and pedophile grooming gangs. So let me turn it around on you, and ask you to show me that the Muslims don't commit a large number of terrorist attacks, and that Muslim grooming gangs don't exist.

  • Sarcastr0||

    So your conclusion is that these nice fellows were using bad cultural software? Whatta dick you are.

    Yeah, I've noticed how much terrorism is Islam, but doesn't mean anything about how much of Islam is terrorism.
    Furthermore, there are socioeconomic confounding factors.

    Your indictment if Islam generally based on pedophilia scandals is the same fallacy. Doesn't mean anyone is denying the gangs exist, only that your generalization based on that is not supported.

    It's not 'No True Scotsman' when you're objecting to the conclusion that all scottsmen have a predisposition for murder.

  • mad_kalak||

    I take your insult as a compliment, though that's not my conclusion, that's Sam Harris' that I happened to agree with. The podcast where he said it: https://www.youtube.com/watch?v=pQ35AATHGTI

    Socioeconomic confounding factors? Most Islamic terrorists are middle/upper class.

    I readily acknowledged the danger of the generalization due to the statistical probabilities that one will actually be gang raped and/or killed by a terrorist is very low. The population of the U.S. could be 1/3 Muslim and we'd only have I would be a couple hundred terrorist attacks from them a year rather than say 5-6.

    The ecological fallacy is the proper name of what you're getting at. However, one can still draw inductively reasoned conclusions from its reverse. Let's use a funny example instead of talking about Muslims. Let's pretend we're Rev. Kirkland....who sees that anti-black racist Republicans and therefor infers that all Republicans are racist. That is a bad conclusion, falling for the ecological fallacy. However for the good Rev, the reverse usually holds to be true, which is that anti-black racists are typically Republicans. So from his prospective, it makes perfect sense to not trust the levers of political power to Republicans, because anti-black racists are Republicans, and you have no way of knowing which Republican is anti-black racist and which isn't.

  • Sanctimonica||

    QI has no application where police shoot an unarmed black man in the back. It's pretty clearly established police can't do that.

  • apedad||

    Well, there is this one: https:// www.nbcnews.com/news/ us-news/supreme-court-declines -appeal-man-paralyzed -cop-shooting-n750176

    (spaces added because I don't know how to change it)

  • Sanctimonica||

    Second, that even as it frustrates the vindication of constitutional violations, the doctrine is not effectively serving its own purported policy goals of protecting officials from damages liability and reducing litigation costs.

    Paraphrase: if something isn't doing what it should do, then just toss it in the bin.

    Does that really make sense? If so, are there not a jillion other applications for the principle?

  • BillyG||

    That's with regards to the current QI practice, not QI as a whole. He's saying the current practice and test needs to be changed. That's not the same as trashing QI completely.

  • Harvey Mosley||

    Sounds good. Let's start with gun control.

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