Qualified Immunity

The Lack Of A Common Law Basis For Qualified Immunity

My response to an important new article by Scott Keller


Scott Keller, the former solicitor general of Texas, now a partner at Baker Botts, has an important article forthcoming in the Stanford Law Review: Qualified and Absolute Immunity at Common Law: It dives into nineteenth century treatises and cases to describe the immunities available to government officials, and argues that there was—contrary to conventional wisdom—a form of qualified immunity recognized at common law. Here is the abstract:

Qualified immunity has become one of the Supreme Court's most controversial doctrines. But while there has been plenty of commentary criticizing the Court's existing "clearly established law" test, there has been no thorough historical analysis examining the complicated subject of government officer immunities under nineteenth-century common law. Yet the legitimacy of state officer immunities, under the Court's precedents, depends on the common law as it existed when Congress passed the Civil Rights Act of 1871. In the Supreme Court's own words, it cannot "make a freewheeling policy choice" and must apply immunities Congress implicitly adopted from the "common-law tradition."

This Article therefore provides the first comprehensive review of the common law around 1871 on government officer immunities. In particular, it canvasses the four nineteenth-century treatises that the Supreme Court consults in assessing officer immunity under the common law of 1871: Cooley's 1879 Law of Torts; Bishop's 1889 Commentaries on Non-Contract Law; Mechem's 1890 Law of Public Offices and Officers; and Throop's 1892 Law Relating to Public Officers. Not only do these treatises collect many overlooked state common law precedents, but they rely heavily on the Supreme Court's own, often ignored, nineteenth-century decisions.

These historical sources overwhelmingly refute the prevailing view among modern commentators about one critical aspect of qualified immunity. This Article confirms that the common law around 1871 did recognize a freestanding qualified immunity protecting all government officers' discretionary duties—like qualified immunity today.

But many other important features of the Supreme Court's current officer immunity doctrines diverge significantly from the common law around 1871: (1) high-ranking executive officers had absolute immunity at common law, while today they have only qualified immunity; (2) qualified immunity at common law could be overridden by showing an officer's subjective improper purpose, instead of a violation of "clearly established law"; and (3) the plaintiff had the burden to prove improper purpose with clear evidence, while today there is confusion over this burden.

Restoring the common law around 1871 on state officer immunities could address many modern problems with qualified immunity, and these three features from the common law provide a roadmap for reforming qualified immunity. If high-ranking executive officials have absolute immunity, that would sufficiently protect the separation of powers without resort to the "clearly established law" test—which frequently denies plaintiffs money damages when lower-ranking executive officials violate their constitutional rights. At the same time, if plaintiffs in qualified immunity cases have the burden to prove lower-ranking officers' subjective bad faith with clear and convincing evidence, then officer defendants and courts will have significant procedural mechanisms to dismiss insubstantial claims before trial.

I have just posted a short article responding with my disagreement: Is Quasi-Judicial Immunity Qualified Immunity? Here is the introduction:

Has qualified immunity finally found its roots? Scott Keller's article shows the breadth and complexity of nineteenth century case law dealing with official immunities. But perhaps its most important claim, for today's purposes, is the claim to find a historical basis for a doctrine of qualified immunity. According to Keller, "the common law definitively accorded at least qualified immunity to all executive officers' discretionary duties" in 1871, when Congress passed the civil rights statute now codified as 42 U.S.C. §1983. This is contrary to the received scholarly wisdom, and it would be very important if it were true. But it is not.

Let us assume that this body of nineteenth century common law should be translated to the scope of remedies under a statutory action for violations of the Constitution. Even so, the common law did not recognize the doctrine of qualified immunity. It recognized a doctrine of quasi-judicial immunity, which shielded certain acts from liability for good faith mistakes. Keller does acknowledge that this nineteenth century doctrine has important differences from today's doctrine. But the differences run deeper than you would know from Keller's account.

A closer examination of the doctrine of quasi-judicial immunity shows just how distant it was from the modern doctrine of qualified immunity. It protected quasi-judicial acts like election administration and tax assessment, not ordinary law enforcement decisions. It allowed for harsh liability for officers who exceeded their authority. And the defense was not an immunity from suit. Thus, today's doctrine of qualified immunity owes more to modern judicial invention than it does to the common law.

And Professor Jim Pfander has just posted a response of his own as well: Zones of Discretion at Common Law. Abstract:

Scott Keller argues in an important forthcoming article that the common law recognized forms of qualified immunity. This reply suggests that Keller's authorities comprise a body of administrative law, rather than a body of qualified immunity law. Many of the doctrines Keller identifies operate much the way Chief Justice Marshall's account of judicial review operated in Marbury v. Madison. Marshall acknowledged that matters lawfully assigned to the discretion of the executive branch were beyond the scope of judicial review. But where an official's lawful discretion ended, and legal boundaries were transgressed, the common law was available (indeed obliged according to Marshall) to supply a remedy. In much of what Keller points to, common law courts were acknowledging that executive officials enjoyed zones of lawful discretion. But the common law did not confer immunity when those boundaries were transgressed.

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  1. Interesting. Wisearcreing after a quick skim of the pieces:

    Say a peace officer walks into my apartment, lifts up the record player and copies the serial number underneath. Now in the common law generally, the trespass claim serves as my primary defense against these itinerant blundering constables. Second layer: in the American system and others, an exclusionary rule keyed to the constitutional violation protects me from the state’s formal use of its wandering constabulary. I still retain the tort claim against any direct harms sustained by the act itself, though. Third layer: S1983 says that even if state law seems to sanction the peace officer’s acts, the federal constitutional or statutory right prevails, and the violation is actionable.

    Now — is a common law immunity developed in (1) necessarily imputed to (3)? The colorable claim of state law sanction arguably directly enters into questions of agency and private autonomy. The courts also no longer need to draw a bright line between valid police investigation and dastardly overreach, given the protections of the exclusionary rule. In short, is the codified tort of violating the Federal Constitution under color of state law on all four corners with the tort protections against state officer overreach. Is the relevant intent the actual treading of herbage or striking with force of arms, or that the Federal Constitution be violated? I’d tend to say that the immunity’s common law roots play second fiddle to the fact that without the knowledge that the right existed, there could be no intent to violate the right. QI isn’t some hard-won liberty that has to be protected through time and printed on a big card from time to time; it’s simply the way the logic of the law works.

  2. This is indeed interesting. But I’m unpersuaded that today’s problems with QI can be solved by any return to a Golden Age of past, forgotten precedents. I’m in favor of a congressionally negotiated and crafted replacement for QI which thinks outside the judicial box.

    Trying to use a heightened burden of proof as a procedural gatekeeper to weed out the flood of bogus claims still is going to put Article III judges in the position of micro-managing public policy. But Congress isn’t as limited in the kinds of procedures it can decree for these kinds of claims; in particular, Congress can directly involved affected constituencies in the gatekeeper function, so that instead of federal judges making their own arbitrary-by-comparison decisions about, e.g., whether a choke-hold constitutes reasonable or excessive force, a special masters review panel with a cross-section of the relevant real-world experiences will do that.

    1. How would that be squared with article III?

      1. I genuinely don’t understand your question.

  3. The contrapositive of a true assertion is always, with greater certainty than the laws of physics. All bats are mammal (A then B). This animal is not a mammal. It cannot be a bat (not B then not A).

    If legal liability is a replacement for endless, debilitating cycles of violence, then immunity justifies violence. Immunity if not good for the defendant.

    The government may have immunity for governmental functions, such as kidnapping and caging criminals. It should have no immunity for misconduct nor for negligence.

    1. But some bats are vegitable (baseball bats) and some are mineral (aluminum soft ball bats).

  4. Lots of potential defendants have immunity. Professors who teach incompetently, property owners who negligently start fires which injure firemen, newspaper editors who negligently publish falsehoods. What I haven’t seen is an explanation of how the average citizen will be better off if QI is abolished. Right now, the NYC police have pulled back extensively from law enforcement, and the level of public disorder has increased dramatically. You might think the place has become a libertarian paradise, but strangely enough, the middle class is decamping in droves and the Baude/Somin hypocrites have not moved in.

  5. Why is “common law” still a thing?

    I get precedents and traditions, and that’s-the-way-we’ve-done-things mindset.

    What I don’t get is how and why common law has the force of statutory law.

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