King: Yes, Justice Thomas, Qualified Immunity Is A Mess

Justice Clarence Thomas made headlines again by taking a shot at qualified immunity. His opinion highlights that the doctrine is a mess and rests on shaky historical foundations. When merely answering the door can get you shot three times by police officers, without any legal redress, you can question to what strange shores have you been brought by the tides of qualified immunity.

There’s a lot that can be said about the history of sovereign immunity, the Reconstruction Amendments and civil rights acts, and the policy justifications for qualified immunity. And it’s all very interesting legal and historical stuff. Really, it is.

But at the end of the day, a legal case is foremost about solving the dispute at hand and secondarily about reducing uncertainty about legal rights in future matters. At the risk of sounding like a realist, pragmatist like Judge Posner (shudder), all this precedence and historical evidence doesn’t really help the dead guy’s family or the next poor soul who dares open a door with a firearm in hand.

Many criminal procedure and constitutional torts (civil rights claims) are agency problems in disguise. Taking a step back, if I am operating a delivery service with my truck, and I negligently run someone over, I am responsible for the damage. Likewise, if I decide to expand my business and hire several people to drive my trucks and one of them negligently runs someone down, it’s fair to hold me responsible. That person was my agent, using my truck, and doing the things that I told the driver to do, the way I told the driver to do it. By treating that agent as an extension of the principal, who is in the best position to control the agent, the law ensures that the principal keeps sufficient skin in the game to adequately control, supervise, and train the employee.

By increasing the number of drivers beyond me, my uncertainty, risk, and lack of control increases, but so do my profits. And I can do things like buy insurance, install GPS devices, and hire only good drivers to mitigate my risk. But if one of my drivers decides to stop off at a bar, get wasted, and then runs somebody down while leaving the bar, I can argue that I am not responsible because that driver wasn’t truly acting as my agent at that time. When the injury happened, my driver was serving his own interest, rather than acting as my agent to fulfill my interests. So, it’s fair to let me off the hook, and leave the driver solely responsible, as he would have been if the event had happened in his own car, after work hours.

So when a police officer shoots Andrew Scott as he opened his door, is the officer more like the driver who got drunk and ran someone down or is he more like the good driver who merely had an accident? Well, don’t expect the Supreme Court to provide any straightforward answers here.

First, the Court has held that states and state agencies are immune from suits for damages, including executive branch officials. Yet, political subdivisions of those states, counties and cities, do not enjoy that same broad immunity. That’s true even when the state is operating a police force. On the other hand, you can get to the state purse through the ADA or FMLA. This distinction exists despite the fact the Ku Klux Klan Act was aimed at eliminating state indifference (or more accurately: complicity) in depriving freed blacks their constitutional rights. Go figure.

Putting the formalism of the Eleventh Amendment aside, it’s a seemingly curious distinction to read into this Reconstruction-era statute. In essence, different agents for the same state get remarkably different treatment: you can sue a deputy sheriff, but you cannot sue a state police officer for damages. They are both paid by the taxpayers of the state and both draw their authority from the Constitution and laws of the state. And the harm either can cause is remarkably similar.

But should it matter to the dead guy’s family and the other citizens of the state whether the officer than shot Andrew Scott is a state or local police officer? You can imagine how that conversation would go.

Lawyer: Sorry about your loss.

Scott’s Mom: Thanks. They shouldn’t have shot him.

Lawyer: Yeah. But unfortunately for your son it was the state police who shot him. Maybe next time your family will suffer a wrongful death at the hands of local law enforcement.

If the officer wrongly acted while serving as an agent for the state, which is ultimately a corporation for the benefit of the citizens of the state, then relative difference in institutional level should make no difference in holding the agent accountable. Yes, the Eleventh Amendment, but it’s really more about the judicial gloss on Section 1983 than the text of the Amendment or statute. The distinction is defensible on legal formalism grounds, but the practical consequence is a distinction without meaningful difference. The ability of the people to hold its law enforcement agent accountable is frustrated in one situation but allowed in another.

Even if it is a local law enforcement officer who wrongfully kills your family member, the Supreme Court has thrown a couple other big roadblocks in the way. In the negligent delivery driver scenario, the employer is vicariously responsible for the harms the agent causes. But in the cause of a local government, to hold the government itself responsible, an injured party must show that the police officer causing the harm was motivated by official policy.

The Court grafted this requirement onto the statute without much discussion as to why this was a good limiting principle. The lack of its consideration is all the more stark when it proceeded with an analysis and then conclusion as to why vicarious liability is a useful doctrine. As a result, local governments have less incentive than a private employer to effectively control its agents and take steps to mitigate damages. Then this is compounded by public unions that often shield bad employees internally from oversight and accountability.

If you’re keeping score, local law enforcement officers are like state law enforcement officers but they can be sued for damages. And local police departments enjoy more legal protection for the actions its agents than private employers. This results in a great number of claims being invalidated, regardless of the magnitude or willfulness of the constitutional violation. If the goal of these doctrines is to screen out cases, then they work spectacularly well. But if the idea underlying the civil rights act was indeed to hold state actors accountable for federal constitutional torts, then they fail spectacularly in achieving those ends.

Then comes the coup de grâce, qualified immunity, which was the actual subject of Justice Thomas’s opinion. If you are fortunate enough to have your rights violated by someone you can sue for damages, then the next big hurdle is qualified immunity. Let’s imagine the conversation the lawyer had with Mama Scott.

Lawyer: I am sorry we lost; it’s not right.

Mama: Why did we not get to have a trial?

Lawyer: You see it wasn’t clearly established that in the absence of a warrant or reasonable suspicion, the officer shouldn’t knock on a door, and then shoot any occupant the officer sees holding a firearm.

Mama: Don’t officers, you know, get training on when to use their firearms?

Lawyer: Yeah, but it doesn’t really count until a federal court determines beyond debate that it’s a constitutional violation to do something.

Mama: What does “beyond debate” mean?

Lawyer: It means there is a robust consensus in the federal circuit court.

Mama: Isn’t that just different ways of not explaining what you mean?

Lawyer: Sure. Usually it means that they expressly established the right in some case.

Mama: How is there not a case yet saying that this was a violation of my son’s constitutional rights?

Lawyer: You see, the courts can repeatedly find that no such right has been clearly established, without really being forced to conclusively determine that it’s a violation. You’re the third plaintiff to bring a similar case, and each time the court resolves the case by finding no such right has been established.

Mama: That’s wrong. Can’t we sue the judges for not deciding it?

Lawyer: Nope. They have absolute immunity.

Mama: So the first constitutional violation is usually free?

Lawyer: It sure can be.

If you’re inclined to take the point of view of the victim and his family, then you’re no doubt appalled. Beyond that, these rules provide little judicial oversight of a government agent. The courts can dodge the underlying constitutional question; the case takes years to get to judgment; a case of first impression is likely to be a win for the defendant; and nuances of an appellate judicial opinion about qualified immunity is unlikely to provide meaningful guidance to an individual officer, meaning the second violation may be free too.

In practice, much of the Court’s immunity and qualified immunity doctrines are screening devices to reduce the number of claims and the number of successful claims. The fact that Section 1983 was passed before notice pleading suggests the attempt at judicial narrowing through procedural devices. But that excuses the heightened-pleading requirement of Iqbal, not the qualified immunity doctrine as a whole.

This screening function is comparable to AEDPA and several related habeas procedural doctrines. But the essential difference is habeas is a collateral review—the petitioner has already had a day in court and at least one appeal. In civil rights cases, the screening mechanisms thwart merits-based decisions. And by doing so, they totally obviate a state actor’s responsibility when committing a constitutional violation.  Justice Thomas is right to ask the Court to revisit its jurisprudence here. It no longer makes sense.

16 comments on “King: Yes, Justice Thomas, Qualified Immunity Is A Mess

  1. Richard Kopf


    Setting to one side my penchant for allowing cops to do whatever the hell they want, this is the most concise and cogent piece I have ever read on the murky mess that is qualified immunity.* All the best.


    * Try applying the doctrine as a trial judge. The chances are about 98% percent of reversal if you deny a motion for summary judgment on qualified immunity. The reversals come when the Court of Appeals is appalled at the behavior of the cops. I call it the “clearly appalled” standard of review. Not sound as doctrine, but true in practice. Please weep for me Andrew, I know not what I do.

    1. Marc Whipple

      Judge, you seem like a decent human being. That has to be a tough spot to be in for a decent human being.

      Something has been bothering me about this mess, and I’d be interested in the opinion of you or our gracious host. As the truth becomes harder and harder to deny, what risk is there of people losing faith in the system and:

      1) Becoming more willing to resist police officers with lethal force; and/or

      2) Resorting to the vendetta when it becomes undeniable that there will be no justice for their loved ones who die at the hands of police officers?

      That second one seems like it could happen in a hurry, and like it could get ugly even faster once it starts. I’ll be honest: if a cop shot my wife by “accident” and suffered no consequences, I don’t know if I could let it stand. Of course, we are Caucasian and relatively well to do, so the odds are good that won’t happen… But they seem to be getting worse. Those damn cell phones and that cursed Internet are making it impossible to keep the “secret” that people like you and Mr. Greenfield knew all along. How long can this go on?

      1. SHG

        This was the point raised as cops were acquitted of murdering black guys because of the Reasonably Scared Cop Rule, where the question was why a black guy shouldn’t just kill the cop before the cop killed him. After all (to borrow a slogan), better to be judged by 12 than carried by six.

        1. Scott Jacobs

          And as more and more are either not even put on trial, or acquitted if they are, the likelihood of a fairly large part of the population deciding to show the police the difference between “War on Cops” and an actual war on anything with a badge increases.

          I give it two more years, and that’s me being optimistic we avoid it that long.

          1. Marc Whipple

            I think it will be longer, if it happens at all, but that is because all the fluoride in the water (or something) has sapped the precious bodily fluids of Americans, making them complacently accept things that would have caused riots in the streets in years gone by. I think it *could* happen, but I don’t know if it will.

            Obligatory Terry Pratchett: At one point, Commander Vimes, leader of the City Watch, dwells on the fact that most of the power of the police comes from the citizenry believing they have it. A hundred organized people could wipe the Watch out, to a man, and he knows it. So one of his top priorities is making sure the Watch never gets such a bad reputation as to cause that to happen.

            Given that, say, the NYC police department is one of the top 100 armies in the world by size it would take more than a hundred determined New Yawkers, but the basic principle remains. Especially given how many people in our population now have experience fighting guerrilla insurgencies. Which, of course, is pretty much the same thing as experience *conducting* guerrilla insurgencies.

      2. Richard Kopf


        The truth is that I don’t have an answer to your questions. I can only guess, and my guess is no better than yours or others.

        All the best.


        PS I deeply resent your suggestion that I am a decent human being. It is bad for business.

      3. Scott Jacobs

        Of course, we are Caucasian and relatively well to do, so the odds are good that won’t happen…

        She must not be Australian.

  2. B. McLeod

    So as more officers knock on doors and shoot people, eventually there may be a clearly established right not to be shot by officers knocking on doors. In a way, absence of a clearly established right may be a good thing.

  3. John Barleycorn

    Andrew brings the meaty links, and doesn’t even overly salt the oatmeal with cynical tears.

    Wow, how cool is that!!!

    These parties on the SJ back deck could get really good…and it ain’t even August yet!

    Oohrah, Andrew!

  4. MonitorsMost

    I spent far too much time trying to figure what unqualified opinion and commentary Shaun King was providing on qualified immunity.

  5. Jake

    Andrew: Thanks, I learned a lot from this deeper explanation of the underlying causes and conditions that allow police to ‘get away with murder’ from the perspective of a layman.

    S/J: I guess my question, which may not have an answer, is this: What can the average citizen do, right now, to begin dealing with the problem? Is there anything one person can do to influence change on this issue?

    1. phv3773

      Think marathon, not sprint. The notion of police “specialness” is baked into the system and not going away anytime soon. Note the slow rate of change on asset forfeiture and body cameras.

  6. Lee

    In the U.S. Fifth Circuit, in which I practice, Qualified Immunity almost always means the cop wins.

    As much as I believe that Black Lives Matter and the New Black Panthers are misguided, it is difficult (even as a CIS gendered white male over 60) to not have sympathy for victims of police overreaction who have no effective legal remedy.

    I do not want to see open war between the police and the populace, but I fear such a thing could occur. One first step to prevent such a war would be ending or reforming Qualified Immunity.

    But despair is a sin.


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