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?
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.