The Volokh Conspiracy
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This is the fifth and final post in a series on The Fair Notice Rationale for Qualified Immunity. Thanks so much to Eugene and the other conspirators for letting me post, and to you for reading to the bitter end!
Yesterday I said that there are some cases where the fair notice rationale clearly does not support the existing scope of qualified immunity, and some cases where it clearly does. In general, it does not support immunity when the official acted with malice or violated a criminal law, but it does support immunity when the liability depends on what is clearly a change to constitutional doctrine.
Today we consider the hard cases. The plaintiff alleges that the officer's conduct violated an existing legal standard, so we are not in "new constitutional rule" land. Yet the standard is vague and no court has ever held that the officer's specific conduct violates it. This problem could arise in a lot of doctrinal areas, from procedural due process to free speech, but the cases that tend to get the most attention are those that involve the use of force by police officers or incarceration officials. Was the search "reasonable" under the Fourth Amendment? Was the use of force "excessive"? And so on. These vague standards give rise to a generality problem: how specific must the rule be, or the facts in a prior case be, to "clearly establish" that the officer's conduct violated the plaintiff's right?
The Supreme Court has insisted that the right be established in detail. For a vague rule, there has to be a prior case holding that conduct very similar to the defendants was unconstitutional for a plaintiff to overcome qualified immunity. The Court takes this approach so consistently that the exceptions prove the rule. In two cases involving brutal forms of punishment, the Court has held that "obvious" constitutional violations are not entitled to qualified immunity. Otherwise, though, the Court has insisted that officers are entitled to qualified immunity "unless the right's contours were sufficiently definite that any reasonable official in the defendant's shoes would have understood that he was violating it." Translated: there has a to be a case factually "on all fours" to overcome qualified immunity.
The fair notice rationale does not go that far. What ought to matter is whether the reasons for the existing constitutional standard clearly apply to the officer's conduct. Everyone understands that a rule derives its meaning in large part from its rationale, and certainly government officials can understand that. Prior applications of the rule will inform its scope, of course, but so will judicial statements about its rationale and purpose. The Court does not always do a bang-up job of explaining the rationale for constitutional rules, but it should, and taking the rationale into account for purposes of liability would incentive it to do so.
This is all pretty abstract. To illustrate, consider Corbitt v. Vickers, decided a few years ago by the Eleventh Circuit. The analysis is fact-intensive, so bear with me. Quoting from my paper:
A group of officers followed a suspect into the plaintiff's backyard, where an adult, six children, and a dog were playing. None of them knew the suspect. The officers, gun drawn, ordered everyone onto the ground, and they complied. The dog did nothing to threaten the officers. The defendant officer shot at the dog and missed. The dog ran under the house. After about ten seconds, the dog started walking toward its owners (who were lying on the ground). The defendant officer shot at the dog again, missed again, but struck the plaintiff's ten-year-old son, who was lying only about 18 inches from the defendant. The plaintiff sued the officer for using excessive force in violation of the Fourth Amendment.
The applicable legal rule was clearly established. In Graham v. Connor, the Supreme Court held that an officer's use of force in the course of making an arrest must be objectively reasonable in light of all of the facts. The court of appeals had articulated an even more specific rule: "a police officer violates the Fourth Amendment, and is denied qualified immunity, if he or she uses gratuitous and excessive force against a suspect who is under control, not resisting, and obeying commands." Yet the court of appeals held that the officer was entitled to qualified immunity because "[n]o case capable of clearly establishing the law for this case holds that a temporarily seized person—as was [the child] in this case—suffers a violation of his Fourth Amendment rights when an officer shoots at a dog—or any other object—and accidentally hits the person." The Supreme Court declined to review the case.
In light of the Supreme Court's insistence on a high degree of specificity, the decision in Corbitt v. Vickers case is understandable. And it is true that the Supreme Court has never held that an officer making an arrest who shoots at a dog and strikes a bystander violates the Fourth Amendment. Such cases are fortunately rare.
But the Supreme Court had held that "using deadly force to apprehend a fleeing suspect who did not appear to be armed or otherwise dangerous violated the suspect's constitutional rights." The Court had also explained that the following facts are important for determining whether the force is objectively excessive: "the severity of the crime at issue, whether the suspect poses an immediate threat to the safety of the crime at issue, whether the suspect poses an immediate threat to the safety of the officers or others, and whether he is actively resisting arrest or attempting to evade arrest by flight." Boiling these factors down, the Eleventh Circuit had determined that using "gratuitous and unnecessary" force in the course of an arrest violates the Fourth Amendment. The reasons for prohibiting "gratuitous and unnecessary" force need hardly be stated: police officers are meant to protect people, not to needlessly harm them. The reason underlying the rule are plain, and the rule itself is sufficiently precise and clear to guide official conduct.
According to the plaintiff in Corbitt, the dog posed no threat. It was acting in a nonthreatening manner and walking towards its owners. The court of appeals considered the complaint's allegation that the dog was not a threat to be "conclusory," and it is true that the plaintiff could have provided more factual detail. But the conclusion, if it was one, follows from the other facts the plaintiff had pled: there were multiple officers in the backyard with their guns drawn, the two adults in the backyard—the suspect and a bystander—were both handcuffed and on the ground, and the children were likewise on the ground, obeying orders. The dog was "walking toward its owners" and the officer had made no attempt to secure the dog without shooting it. Taken together, the facts support an inference that shooting the dog was "gratuitous and unnecessary" to make the arrests.
In sum, the officer had fair notice that he might be held liable for his conduct, and he should not have been granted qualified immunity.
My theory of the fair notice rationale would reduce the breadth of qualified immunity in cases involving the use of force, expanding liability for officers and the opportunity for compensation and vindication for victims. There would be plenty of hard cases, but at least courts would be focused on the right issue: whether a reasonable official could have predicted constitutional liability in light of the rationale for an existing rule. Officers would no longer be insulated from liability for bizarre and inhumane conduct simply because it was bizarre enough to have no precursor.
I'm probably wishful thinking, but maybe—just maybe—shrinking qualified immunity to the size of the fair notice doctrine would promote trust and understanding among officials and the communities they are hired to serve.
In an earlier post, I promised to discuss the other possible applications of my theory of fair notice, but I am sadly out of time and space. Feel free to peruse the paper, which tentatively considers liability for municipalities, government contractors, and private parties, like abortion providers in Texas (according to SB8), whose liability might depend on a subsequent change in constitutional law. Over and out.