Qualifying Qualified Immunity: Why Constitutional Liability Is Generally Less Fair …

than other kinds of civil liability.

This is the third in a series of posts on my forthcoming article The Fair Notice Rationale for Qualified Immunity. Yesterday I explained why liability that is unpredictable from a defendant's standpoint is unfair: just like retroactive law, it deprives the defendant of the ability to plan, and treats her as a means to an end. That theory helps evaluate the fairness of constitutional liability, and, therefore, the fair notice rationale for the defense of qualified immunity.

My paper argues next that three aspects of constitutional liability make it—in general—more likely to be unpredictable or otherwise unfair than most other forms of civil liability. My argument is not that constitutional liability is the only form of liability that has one or more of these features, but that altogether they make constitutional liability sufficiently unique, as a class, to justify the availability of a defense in at least some cases.

First, constitutional liability is often uniquely unpredictable. Most of the constitutional provisions that form the basis of that liability are vague. Jurists disagree about interpretive methodology. And to the extent a provision requires judicial construction, jurists disagree about what norms or principles should guide it. In short, constitutional doctrine is subject, at least in principle, to more unpredictable changes than most civil liability. Courts interpret provisions for the first time, they apply a doctrine to the states for the first time, they announce a previously unannounced right. They apply doctrinal principles to practices or customs that are longstanding. They tweak doctrine to apply it to new factual contexts. And so on.

This is not to say that constitutional law is arbitrary or entirely unpredictable. Many doctrines are stable, even though they are vague and their application entails discretion. Avid Supreme Court-watchers can usually predict a case's outcome, but the legal basis for that outcome is often unpredictable, even to them.

Some would of course contest the notion that the Court changes constitutional law. Depending on your jurisprudential druthers (and the decision in any case), you might think that doctrinal change—abandoning precedent, extending a rule, etc.—is simply "getting it right," i.e., enforcing the law, not changing it. If you are an originalist, when the Court abandons non-originalist doctrine for one that comports with the original understanding/meaning of the Constitution, it isn't changing constitutional law, only the doctrine that lower courts must apply. If you are an egalitarian Dworkinian, the same applies when the Court decides a case according to a Rawlsian-Dworkinian theory of the good. And so on. My paper means to be agnostic about judicial methodology. My point is only that, from the standpoint of an official, they experience changes to constitutional doctrine as legal change, and often unpredictable change at that. It is unfair to make an officer bear the cost of a court's unpredictable doctrinal change—even if it simply returns the doctrine to the "right answer."

The Supreme Court has implemented this intuition in a number of constitutional situations, usually without exploring its theoretical underpinnings. Consider a recent case. In Barr v. American Association of Political Consultants, Inc., 140 S.Ct. 2335 (2020), the Court considered a law that prohibits robocalls to collect debts. The Court held that an exception for calls to collect debts owed to the government violated the Free Speech Clause. The decision seemed like an obvious application of the existing doctrine's prohibition on content-based restrictions on speech. In a footnote, though, the Court said that no one who had made a robocall in reliance on the provision could be held liable. Why? The Court did not say, but it is at least consistent with the theory that individuals should not pay for constitutional change.

Another feature of constitutional liability that makes it potentially unfair is that, unlike garden-variety torts (or even criminal liability), it often involves the announcement of an unpredictable rule that seems to conflict with a prior-existing duty. Officials must act—it is their job. They often have discretion about means, but they have a legal duty to act. Retroactive constitutional liability, however, creates at least an apparent tension between the duty to act and a constitutional prohibition. It is not a true "conflict" of legal rules because a constitutional norm presumably pre-exists the officer's duty, even if it was not spelled out by the courts, and a constitutional norm trumps lesser legal duties. But to the extent the defendant could not have reasonably predicted the constitutional liability, the official experiences the newly announced rule as creating a conflict, with all the unfairness that entails.

The third aspect of constitutional liability that makes it unique is that, unlike most civil liability, it reflects the community's moral censure. In this respect, it is closer to criminal liability, which cannot be imposed retroactively. Officials uniquely owe a duty to the public. Constitutional liability entails a judgment that the official has breached that duty, one that sounds not only in private wrongdoing, like ordinary torts, but also in public wrongdoing. The wrongdoing is not only against the plaintiff, but in a different, more ephemeral sense, against society at large. This notion of constitutional liability is not well-developed in the literature. It draws on communitarian conceptions of criminal punishment and a newly-championed (but in fact old) conception of torts as moral wrongs rather than merely a matter of distribution of costs and benefits. Unlike many forms of civil liability, the burden of constitutional judgment cannot be outsourced to an employer or an insurance agency through indemnification. It conveys to the defendant, and to the society whose trust he breached, "you didn't just harm the plaintiff, you let us all down. Shame on you."

I have argued that constitutional liability—as a class of torts—has unique aspects that make it, at least in many cases, uniquely unpredictable, at odds with a prior duty, or burdensome. This may demonstrate that the fairness rationale supports qualified immunity in some constitutional cases, but not necessarily in all of them. Tomorrow's post will discuss when this analysis supports qualified immunity, and when it doesn't.