The Volokh Conspiracy

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Supreme Court

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.