A Defense of Qualified Immunity?

Qualified immunity is not merely a hated (by some of us) concept in law, but is exposed to attack by the fact that it was created by judicial fiat out of nothing. After Will Baude ripped it to shreds, there seemed to be momentum building to kill this judicial Frankenstein that protected cops from their outrages with the flimsiest, most malleable of excuses.

And then the Supremes doubled down in White v. Pauly, clearing the path for circuit courts to rule any damn way they pleased if they would only put in the minor effort to come up with one detail, real or imagined, to distinguish this murderous scenario from every other murderous scenario. It was sheer, unadulterated cover for cops to kill with impunity.

But lawprofs Christopher Walker and Aaron Nielson have done the unthinkable.

In recent years, we have seen a growing call in the legal academy to revisit qualified immunity—the doctrine that shields a government actor from civil suit for monetary damages unless the government official violates “clearly established law.” On the doctrinal front, for instance, Will Baude argues that qualified immunity’s foundations are suspect as a matter of positive law. On the empirical front, Joanna Schwartz has done groundbreaking work at the district-court level that calls into question qualified immunity’s effect at shielding government officials from discovery and trial. This Essay responds to both sets of criticisms and provides a partial defense of the qualified immunity.

A partial defense of QI? And they make some good points. As much as it may be pleasing to only think about all the reasons QI is a blight on the law and covers the outrages committed by police under the malarkey rubric of “clearly established law,” it’s important to know and appreciate the arguments in support of QI. And it pains me greatly to acknowledge this.

I’ll merely mention a few points raised with far less detail and nuance, not to mention length, than the article, so anyone seriously interested should read the original article. I admit that my antipathy to the general idea of defending QI might color my discussion.

The Limits of 42 U.S.C. § 1983.

Lawyers refer to them as Section 1983 suits, tort actions against government officials for a violation of people’s constitutional rights. But § 1983 only applies to state actors. Congress chose to create a federal cause of action against local cops without any mention of their own federal agents. So you could sue for a cop’s actions but not for the exact same actions committed by a federal agent? Enter Bivens v. Six Unknown Named Agents of Federal Bureau of Narcotics.

And this presents the first crack in favor of QI.

Indeed, to the extent that there is a constitutional dimension, it involves Bivens v. Six Unknown Named Agents of Federal Bureau of Narcotics, in which the Court itself, without a statutory basis, created a cause of action against federal officials. But where the judiciary finds an implied right of action, as it did in Bivens, precedent says that the judiciary has greater discretion to create defenses to that cause of action.

The Supreme Court made up a cause of action against federal actors for which no statutory authority existed. And if they can do that, they can also manufacture a made-up defense to their made-up cause of action. Much as § 1983 provides no basis for the creation of Qualified Immunity, Bivens cases thus fall into a separate category from § 1983 cases, and the statutory omission of QI has no bearing since there’s no statutory authority for the cause of action in the first place.

Clearly Established Law

In the scheme of dreaded aspects of the Qualified Immunity Doctrine, nothing is more hated than the prong that the damages are compensable only if the conduct violates “clearly established law.” No matter how egregious the conduct, how blatantly obvious to anyone with the most modest degree of humanity and intelligence, If there isn’t caselaw specifically saying “you cannot take the toilet plunger from the precinct bathroom and ram it up a guy’s anus so hard and far that it rips his guts to shreds,” then you lose.

Fair notice is an important principle. It is unjust to punish someone for conduct that, at the time, reasonably appeared lawful—indeed, imposing new obligations retroactively may be “literally Orwellian.” It can also be unfair to clarify a vague prohibition with retroactive effect. Thus, using adjudication to retroactively turn a general prohibition into a specific rule may implicate due process.

While my plunger example may present a fairly easy scenario to shrug off because it’s too obvious for words, there are also many closer calls. Fair notice is a critical aspect of due process, the knowledge in advance where the line is drawn, what conduct crossed the line. Much as it may not require much heavy lifting to expect a cop to know that they can’t ram a plunger up a person’s anus, at what point is a cop sufficiently threatened to pull the trigger during a traffic stop?

Stare Decisis

For the emanations and penumbras crowd, the doctrine of Stare Decisis* is a very big thing, protecting as it does some judicial lawmaking greatly favored by some and abhorred by others. Having won the day, whether because the ruling was sound or you got away with it, holding onto your win becomes critical. Think abortion, gay marriage and, yes, qualified Immunity.

The point here is that even if the Supremes pulled this noxious doctrine out of its butt in the first place, it has since become so firmly established, so regularly reaffirmed, so deeply embedded in our jurisprudence, that it’s real now. It’s existence as precedent is undeniable, and notably Congress passed no law to let the Court know that it was wrong. So even if its birth was ugly, it’s grown up into real law.

Of course, the same could be said of other doctrines, subsequently reversed by Brown v. Board of Education and District of Columbia v. Heller, for example. Even stare decisis has its limits.

As much as QI has been deservedly maligned for providing a free pass for law enforcement to engage in conduct that is so obviously abusive, even outrageous, it’s not completely absurd. Of course, one might well argue the real purpose behind it isn’t lofty, but merely to cover the bad and stupid cops as a price the Court was willing to pay to appease the Gods of Safety from the bad dudes, and the effort not is to create a rationale that makes this seem not so pragmatic and imbue the doctrine with some intellectual foundation.

Then again, does any human being really need to be told that it’s wrong to ram a plunger up a guy’s butt or to put a bullet in the head of a kid in cuffs?

*Stare decisis literally means to stand by the decision, which is the foundation of precedent.

24 thoughts on “A Defense of Qualified Immunity?

  1. REvers

    “Then again, does any human being really need to be told that it’s wrong to ram a plunger up a guy’s butt or to put a bullet in the head of a kid in cuffs?”

    Cops do, apparently.

    (Sorry. I can get kind of cranky before I’ve had my first cup of coffee.)

      1. B. McLeod

        I have never found one menacing my favorite Bobby Seale (with a lead-filled snowshoe).

  2. Skink

    “Then again, does any human being really need to be told that it’s wrong to ram a plunger up a guy’s butt or to put a bullet in the head of a kid in cuffs?”

    SHG–you know doggone well neither of those would pass muster. The link never has to be that tight.

    QI has lost it’s defensive luster because almost everything is clearly established. Take the recent post on the K9. The cops get sued and there’s no real defense for them because jumping the use-of-force continuum is clearly wrong. They will seek QI, but they know it’s a loser. They seek it because it slows the roll of the case, as the denial is immediately appealable. Sitting in circuit for a year can get the case settled.

    But that and suing the cops individually only works if the government is willing to indemnify the cops or if they are covered by a primary insurance policy. Governments are often self-insured, at least initially, and they are taking the position that they are not required to indemnify. So a lawyer bringing the case has to wonder whether it’s worth it to name the cops. These are civil cases, and we ain’t doing it for fifty bucks. If the cops ain’t sued individually, then QI doesn’t apply.* So the issue isn’t really broached, except to force settlement, because there’s no money in tilting at that windmill.

    They can still sue the government, but they have to find an unconstitutional custom or policy. That’s so much harder than overcoming QI. So hard that it’s nearly nonexistent in relation to the number of cases. Back to the K9. The government says we have a constitutional policy: the use-of-force continuum. The cops just didn’t follow policy. And with that, the government is out. Skink gets $150K and the plaintiff gets nothing.**

    I’m not telling you QI wasn’t developed from dopiness; it was. But it wasn’t done just to protect cops. It was also done because judges were screaming that 20%, or more, of their dockets were Section 1983 claims. But like so many made-up rules, it’s lost it’s force to litigation reality.

    *For the uninitiated. Apologies to others.
    **No, that doesn’t mean Skink feels bad about not taking on clients better served by a $50 CDL.

    1. SHG Post author

      I knew this was like throwing red meat at you, Brother Skink. To make it up to you, I’ve devised a special Plan B just for you.

    2. Richard Kopf

      Dear Skink, my roadkill eating friend,

      In the vast wasteland, we are still seeing section 1983 suits where the cops are named individually. The governmental entities are still indemnifying the cops. Without QI, section 1983 suits for plaintiff’s lawyers would become the equivalent of FELA suits (against railroads) for plaintiff’s lawyers. File suit. Get settlement money. Cha-ching.

      All the best.


      1. Skink

        At least I cook what gets flattened by the orange-haulin’ trucks. Some folks don’t even wait for it to stop wigglin’.

        Of course they get filed. Otherwise, my wife don’t get shoes and you don’t get frustrated. Perfection requires both. And filings continue despite QI and stuff like the PLRA. But I’m sure you’ve seen the deterioration of successful QI arguments: they just aren’t bought as they once were. And you don’t see how it’s really used because it never hits the docket. Indemnification hasn’t completely eroded, but it’s a useful tool that gets used like this:

        Government: We’ll settle for X, but you have to dismiss the individuals before the settlement is executed. Otherwise, you can wait for the circuit to return the case and we’re not indemnifying a verdict.
        Plaintiff: Okay.

        The government isn’t vicariously liable*, so why not agree if the cops are uncollectable?

        The current power of QI is that it causes a delay where the plaintiff can’t stand one. It might not be ethical, but that’s the fact.**

        *This meandering to civil thought is fleeting. I will do no more.
        **The Skink Law Firm hasn’t raised the defense in years because the founder thinks it’s deader than roadkill and ethics still exist in the swamp.

  3. Raccoon Strait

    It seems to me that the biggest problem with Qualified Immunity is the quality of the qualifications.

    That whole rubric about “clearly established law,” means so little when the Supreme Court says that cops don’t need to know the laws they enforce. In that, how can any law be clearly established?

    Maybe they should list the times QI isn’t ripe. The list would be a whole lot shorter than the one the courts are creating where it is. Or, maybe congress should get off their asses (yeah, like that’s going to happen).

  4. MollyG

    From my perspective the main argument against QI is that in order to win, someone else with the same facts has to pay to take their case to the appellate level and lose. This disincentives claimants from bringing cases in the first place since very few want to burden the expense of losing just so others in the future can win. This is too high of a bar when it comes to protecting constitutional rights.

    IAMAL, but is this a common legal threshold for non-police cases? Do other defendants get to walk away with out liability if there is no case law on their specific set of facts? Can I create a new type of fraud and get away with it because there is no “clearly established law”? Somehow I think not.

    1. SHG Post author

      Not really sure where your second paragraph is heading (and, as I’m sure you realize, your comment is off topic anyway). This is the test for liability under 1983, no matter what the claim. That doesn’t mean there isn’t culpability for public actors under other laws, including criminal statutes.

    2. JR

      So someone lost, cops get QI. From what little seen that doesn’t mean that the plunger up the anus is now established and the next guy can win. Now sometimes the ruling is that the cops get QI and from now on they are on notice, but I think that is rare.

      1. SHG Post author

        Used to be a two-prong test until SCOTUS said, “why bother.” But about the plunger? What if it was a broom handle? What it is was only inserted six inches instead 12? What if it was made of lucite instead of wood? There’s always a different in there if you look hard enough.

        1. Skink

          No. It’s clearly established that prisoners can’t be abused for enjoyment. Plunger in the ass or over the head; Lucite, wood or palm frond.

          I’ve done enough damage. I’m gonna do my chores.

          1. SHG Post author

            Enjoyment? Not at all. You are so cynical. “This is going to hurt me more than it hurts you,” he said as he thrusted.

  5. B. McLeod

    This whole thing kind of went down a strange path a long time ago, when we decided to suppress evidence instead of holding officers accountable, and when we decided taxpayers should pay the ticket (because they can theoretically manage the police). So yeah, quallified immunity is one of those imperfect things we have done to mitigate other imperfect things we have done. At some point somebody (courts, legislatures or both) need to get back to square #1and re-think every bit of this from the get-go.

  6. Mollyg

    Another issue I thought about while reading another appellate decision. Commonly a court will dismiss a complaint under QI because the “right was not clearly established” without and then declining to rule on whether the right should be established based on the specific facts. This allows repeated QI on what could be illegal conduct because no court bothers to say it is not allowed.

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