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Qualified Immunity

Qualifying Qualified Immunity: The Cases in Which the Fair Notice Rationale Clearly Supports …

and clearly does not support qualified immunity.

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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?

NEXT: Today in Supreme Court History: June 16, 1960

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  1. Would someone who is not a government employee ever succeed in making a claim for immunity in similar circumstances?

    1. It seems a reasonable argument to me that if a person is convicted of breaking a law under some novel judicial interpretation of said law, his conviction should only stand if all appellate judges agree with the interpretation. It seems invidious to convict a citizen of an offence when not even trained judges all agree that it's an offence.

      1. And yet, we have all the unauthorized use of computer system controversies. Or epa / navigable water regulatory violations (with fines and possible jail time). Or 'helping' an injured endangered animal bringing risk or actual prosecution.

        Where it is not at all obvious it should apply, yet the accused it held accountable.

        And removing mens rea from many other business practices.

        1. All immunities are an abomination. They are psychotic, being justified by the Sovereign speaking with the Voice of God. They fully justify retaliatory violence in formal logic. Formal logic is supreme over all rules and treaties of the US, because it comes from reality. Ironic. You should be immune if you kick the ass of an immune scumbag.

      2. Theoretically that's how criminal law should work - the rule of lenity, burden of proof beyond a reasonable notice, etc. Civil liability doesn't have nor need that kind of limitation though.

        1. The problem is that it imposes a stricter burden on a criminal defendant than on a civil one, which is the wrong way round.

        2. I wish I understood that part. People are at risk of loss of significant property / money. It should be clear to them that their actions are creating that risk, right? If we give that to .gov employees (QI), and especially when not 'Heat of the moment decisions (hot pursuit) but like school board decisions) then it should be generally available citizens.

          But I must admit to a very, very flawed understanding of the criminal (constitutional?) / civil (common law?) amalgam we live under.

          1. I suspect you understand it well enough, but are baffled by the inconsistencies. It's simple. Protests to the contrary, conservatives are authoritarians and so defer to government when there's a conflict between government and the citizenry - as long as the involved citizenry are other people.

    2. A person who is not a government employee or agent-of-the-state already has such immunity - the Constitution only restrains the government, and private actors cannot be sued for violation of constitutional rights.

      QI is only relevant to the government, because only the government can violate a citizen's constitutional rights & thus only the government can (limited by QI) be sued over such.

      1. Yes, but if you or I are getting beaten up by a government agent and we decide to defend ourselves by responding with force - as we know that's the only recourse we have in practice - we will not be treated the same way. In practical terms, the agent will not be punished criminally and will escape civil suit. Meanwhile, we will be subject to arrest and conviction and he can sue us.

        This is an evident 14A violation.

  2. 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.

    Perhaps it's just a perception issue because these are the kinds of cases most likely to get to the circuit courts and get media coverage, but these kinds of cases seem to be the majority, not few and far between.

    1. I don't think we really have a good statistical breakdown of QI cases, unfortunately.

      1. Seems like something it would be useful to have.

        1. I am unaware of any rigorous empirical work that has been done on that, though one might hazard a guess from empirical work tending to show that very few cases would come out differently if QI were abolished, that most cases are close calls, not outrageous, like Jessup. Anecdotally, from the point of view of someone with decades in the business, and wide contacts with others who do similar work, the Jessup-type cases are extreme outliers, often criticized by people who have no beef with the general concept of QI.

  3. 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.

    Except current QI doctrine not only allows, but encourages the lower courts to dismiss a case on QI grounds without ever announcing a new rule. This current process is fatal to the fair notice rational for QI.

  4. I think there is a distinction you're glossing over. Officers shouldn't be liable for punitive damages without intent. But why should the plaintiff suffer the compensatory damages harms due to the defendant's actions? For instance, if its a "grey area" as to whether the police can tear down someone's house to get at a 3rd party criminal inside. The house is demolished, why should the home owner (who is totally innocent and did nothing to cause this situation at all) have to pay the costs to repair what was done? The officer chose to tear down the house, if that was an illegal act, he should have to pay to put it back up. He shouldn't be punished with more costs then to repair the harm he caused (assuming he didn't mean to do an illegal act), but he is more culpable then the innocent home owner (assuming his acts were unconstitutional), and so he should pay for the harm he caused.

    1. QI doesn't limit the plaintiff's ability to recover damages at-all.

      It limits the plaintiff's ability to recover damages *from the officers/officials personally*.

      To use the example you put forward, the police destroy your house to extract a felony suspect who broke in and barricaded himself inside. In typical American 'throw shit at the wall and see what sticks' fashion, you sue 'everybody' who is tangentially involved - the city, the county, the state, the companies who manufactured the demolition equipment, police leadership & the officers involved....

      QI just takes the police leadership & officers off your list of defendants.

      It doesn't bar your suit completely.

      1. My understanding is that in most cases you can't sue the department and/or the municipal government unless you can show that the police actions you are suing over were in accordance with explicit policy.

        1. If you're talking about federal civil rights suits, this is, roughly, correct. The exceptions are interesting only to specialists. And you can't sue the state or state agencies in such suits at all.

          You may, however, have state-law tort remedies, the usefulness of which depends on the law in your particular state. (By "usefulness" I am thinking mainly of the practical ability to sue a deep-pocket defendant in addition to, or instead of, a likely judgment-proof individual defendant.)

      2. Given sovereign immunity, if you can't sue the officers/officials personally, you often can't recover from the damages at all. The government has to consent to a damages action otherwise, and they often don't like to pay money.

  5. "Officials cannot predict liability" - Officials don't HAVE to predict liability. Virtually always they don't personally pay these judgments. This is only a question of whether the harms caused by public officials violating the constitution should be born solely by the victims or by taxpayers more generally.

    1. The taxpayers pay any-way-you-look-at-it.

      If QI goes away, police will have to be provided with malpractice insurance as part of their pay/benefits packages (since without such insurance, no one would take the risk of doing the job), and the taxpayers will pay for that.

      1. Most of them are indemnified or insured already.

    2. I agree.

      And historically, there was no immunity for government officials who violated citizens rights. There are a ton of civil suits pre-civil war against federal officials. Those officials, if hit with a judgment against them, could petition Congress to indemnify them, and Congress would do so if it determined the official had acted reasonably. (And Congress would pay the judgment).

      The citizen whose rights were violated got his day in court, and if successful, got paid - regardless of whether the official had been reasonable or not.

      That seems like a much sounder way to handle things. (If Congress doesn't want to make those determinations itself anymore, it can create an administrative body to do it for them).

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