The Volokh Conspiracy
Mostly law professors | Sometimes contrarian | Often libertarian | Always independent
This is the fourth post in a series on The Fair Notice Rationale for Qualified Immunity (forthcoming Florida Law Review). So far I have argued that: (1) unpredictable adjudications are unfair in the same way that retroactive law is unfair, by treating the defendant as someone who is incapable of making plans; (2) constitutional liability, as a class of liability, is more likely to be unpredictable than other forms of civil liability, and when it is unpredictable, it is even more unfair because it is in tension with the officer's prior duty and carries the community's moral censure.
We are finally ready for the payoff—what does this mean for qualified immunity? This post will identify cases where the fair notice rationale clearly does not support the current scope of the doctrine, and cases where it clearly does. The final post tomorrow will discuss how courts should evaluate hard cases and briefly consider the possible application of the fair notice rationale to other areas of law.
[1.] Cases where qualified immunity does but should not apply
Under the current doctrine, it is irrelevant whether the official acted with bad faith or violated a clear criminal prohibition. All that matters is whether the official violated a clearly established constitutional right. The fair notice rationale does not support immunity in those cases.
When an official acted in bad faith—with the intent to violate the plaintiff's rights, or recklessly as to those rights—the unpredictability of constitutional liability is irrelevant. The defendant was trying to violate the plaintiff's rights, or was acting with reckless indifference to those rights. Far from treating the defendant as though he is incapable of planning, holding him liable simply rewards him for his actual plans, or at a minimum, for taking the bare minimum amount of care.
This would be a significant reform of the doctrine. The Supreme Court originally required good faith for qualified immunity but abandoned that requirement in Harlow v. Fitzgerald, 457 U.S. 800 (1982), because it requires a factual inquiry into the official's state of mind that prolongs litigation. Yet the fair notice rationale does not support extending the doctrine to officials who acted in bad faith, and fairness to victims demands an opportunity to hold bad actors liable.
It is true that bad faith is easy to allege and costly to litigate, giving plaintiffs extra leverage for settlement, even when the officer acted in good faith and did not violate the constitution. My paper suggests that courts could require heightened pleading or shifting burdens of persuasion to reduce the risk that plaintiffs will abuse an allegation of bad faith. This would still, however, amount to a significant reduction in qualified immunity's coverage, with a corresponding increase in the ability of plaintiffs to compensate and vindicate their rights.
The fair notice doctrine likewise does not support qualified immunity when the official's conduct violated existing criminal laws. In that case, the officer was on sufficient notice that he would be subject to punishment that carries the political community's moral censure. Opponents of qualified immunity understandably complain about an infamous case where police officers stole a criminal suspect's valuable coin collection. In Jessup v. City of Fresno, 936 F.3d 937 (9th Cir. 2019), the suspect sued them for violating his Fourth Amendment rights, but the court held that they were entitled to qualified immunity because there was no case saying that stealing a suspect's property violates the Fourth Amendment. The Supreme Court denied cert. The officers should not have been entitled to qualified immunity—they violated one of the most universal criminal laws, and they should have known they would be subject to the community's punishment for it. (Whether stealing a suspect's property violates the Fourth Amendment is another question, one the plaintiff deserved an answer to.) These cases are (hopefully) few and far between, but eliminating them from qualified immunity's reach would take a step toward rehabilitating trust between citizens and officials.
[2.] Cases where qualified immunity rightly applies
The paradigmatic example of a case where qualified immunity ought to apply is where liability depends on the announcement of a new rule implementing a rarely-interpreted provision of the Constitution. Suppose District of Columbia v. Heller, 554 U.S. 570 (2008) had been litigated as a suit for damages against an officer who had searched and seized a handgun to enforce the DC regulation which the Court later held to be invalid. Officials cannot predict liability when it depends on a newly announced rule implementing a constitutional provision the Court has rarely interpreted. Litigants who want to move the needle on a contested constitutional right have plenty of other ways to do so, from suits for prospective relief to raising constitutional defenses to enforcement.
Suits that overtly seek a newly announced constitutional rule are rare but they provide a benchmark for determining the sorts of cases where liability is plainly unpredictable. Analogous cases would be when the Court applies an existing rule to a new jurisdiction, such as when it applied the Sixth Amendment unanimous jury requirement to the states two years ago in Ramos v. Louisiana, 140 S.Ct. 1390 (2020). Or when the Court expressly says it is creating a new rule, which it sometimes does. Or when the Court overturns existing precedent to announce a new constitutional right. Or when it announces a new right that conflicts with longstanding custom or practice. To be clear: the point is not that the Court should never announce such rights, only that it should not award damages against an official when it does so. These are the core cases where the fair notice rationale has the most force.
People on both sides of the political aisle have good reason to support qualified immunity in these cases. What if Roe v. Wade had been litigated as a suit for damages? More recently, what if Espinoza v. Montana Department of Revenue, 140 S.Ct. 2246 (2020) had awarded damages to families who had been denied a tax credit for tuition at a religious school? Both cases upset longstanding state laws and practices, and it would have been unfair to make an official bear the cost of the constitutional violation in either case. We don't normally think about qualified immunity applying in these cases, but it does. And if Congress or the courts completely eliminated the doctrine, it wouldn't. Individual official liability would become a vehicle for constitutional change.
We have seen the "easy" cases against qualified immunity, and the "easy" cases for qualified immunity in light of the fair notice rationale. Tomorrow we will explore the hard cases—how does the fair notice rationale apply in the mine-run of cases, where the official's conduct was governed by an existing rule, but the rule (such as "no excessive force") is vague?