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Monday, November 30, 2015

Should Reversals on Qualified Immunity Vacate Lower-Court Merits Decisions?

The Supreme Court is becoming increasingly accustomed to reversing lower court rulings that deny qualified immunity to police. Just a few weeks ago, for instance, the Court attracted a lot of media attention in Mullenix v. Luna, which summarily sided with a police officer accused of using excessive force.

But for all the attention that Mullenix and similar decisions have garnered, the discussion has overlooked a critical procedural issue: when the Court reverses on qualified immunity because relevant law is unclear, what happens to the lower court’s separate determination that the Constitution was violated?

Under the Court’s qualified-immunity cases, there is a strong argument that lower-court merits determinations should remain intact even after the Court reverses on qualified immunity. This conclusion, if adopted, would substantially alter the implications of the Court’s vigorous enforcement of qualified immunity, including its recent use of summary reversals.


Let’s start with some quick background on Mullenix. In short, an officer attempted to stop a rogue vehicle by shooting at its engine block, even though his superiors allegedly ordered him to rely on a “spike strip” that had already been deployed. The officer’s shots missed the engine but killed the driver (whose car double-rolled seconds later, after hitting the spike strips). The officer was then sued for using excessive force in violation of the Fourth Amendment. A divided Fifth Circuit panel ruled that the officer’s alleged conduct violated clearly established law. Therefore, the officer was not entitled to qualified immunity.

In an 8-1 summary reversal, the Supreme Court ruled not that the police officer had acted constitutionally, but rather that no clearly established law precluded his action. As a result, the officer was entitled to qualified immunity. Objecting to that result, Justice Sotomayor penned a solo dissent arguing in part that the Court had encouraged a “‘shoot first, think later’ approach to policing.” That pointed observation understandably garnered a great deal of media attention—though, unfortunately, much of the media coverage didn’t appreciate the difference between ruling on qualified immunity as opposed to the merits. Indeed, Sotomayor’s criticism may ironically have contributed to the perception that the Court had upheld the constitutionality of the police conduct at issue.

Once the distinction between the merits and qualified immunity comes into focus, so too does the difficulty of Sotomayor’s position. Under current law, Sotomayor had to grapple with qualified immunity’s “clearly established law” standard—a challenge made all the harder by the fact that no other justice joined her opinion. (If you’re the only one who thinks that something is clear, it probably isn’t.) So Sotomayor’s dissent is perhaps best understood as an implicit plea to reform qualified-immunity doctrine, to make it is less protective of police.


But there’s an overlooked procedural solution to the problem that Sotomayor has identified. If summary reversals on qualified immunity are sending the wrong message to police by encouraging them to push the legal envelope, then the Court could clarify its message by explicitly preserving the lower court’s determination, applicable within its jurisdiction, that the police acted unconstitutionally. This approach would fulfill the distinctive purposes of qualified immunity by sheltering the officer in Mullenix and other cases from liability. At the same time, a targeted reversal of the lower court’s immunity decision would preserve the lower court’s ruling that the alleged police conduct was unconstitutional.

It may seem paradoxical to reverse the lower court’s formal judgment—that the officer is not qualifiedly immune—while simultaneously preserving the lower court’s determination that the officer has violated the Constitution. But as qualified immunity aficionados well know (and, really, who else is reading this post?), the Court has already drawn a similar distinction. Under Pearson v. Callahan, lower courts have discretion to rule on the merits that officers violated the Constitution, even when finding the officers protected by qualified immunity.  And in Camreta v. Greene, the Court “vacated” a lower court’s informal merits decision while preserving its formal judgment finding immunity.

If a lower court can issue a distinct and reversible merits decision when it does find qualified immunity (Camreta), then it stands to reason that it can also issue a distinct and reversible merits decision when not finding qualified immunity (Mullenix). If anything, the latter conclusion is more defensible, since the existence of a constitutional violation is logically necessary to finding that the violation is clearly established. By contrast, finding a constitutional violation on the way toward finding immunity seems a lot like dicta, or an advisory opinion.

It's possible to imagine a lower court that rejects a claim of qualified immunity only because it thinks it's bound by clearly established law. If such a court had realized that it had an opportunity to exercise its Pearson discretion, it might not have made a discretionary merits ruling at all. In principle, this complication could call for vacating the lower court's implicit merits ruling. In practice, however, lower-court reasoning that supports finding a clearly established violation usually entails a finding that, even if case law is disputable, there was a violation. And to extent there is uncertainty on this point, lower courts can alleviate the concern by plainly stating that, even if the law weren't clear, they would still find a violation.

So, under existing law, the lower court decision in Mullenix is best viewed as having two distinct and freestanding components: first, a ruling on the merits that police violated the Constitution; and, second, a ruling denying the officer’s qualified immunity.

All the reasoning in Mullenix goes to whether the police violated “clearly established law”—that is, to the immunity point. None of Mullenix’s reasoning dictates the answer to the merits question. Moreover, the Court has recently said that certiorari is independently justified by the need to correct qualified immunity errors, given their “importance … to society as a whole.” All of this suggests that Mullenix and similar summary reversals should be understood to leave the lower court’s merits decision intact.

Besides clarifying the meaning of qualified-immunity reversals, preserving merits decisions by lower courts would facilitate the development of the law and provide guidance to officers and plaintiffs alike. In this way, narrowly construing Mullenix would promote systemic values recognized in Pearson and other cases as important to qualified-immunity doctrine.

None of this is to deny that the Supreme Court could properly reverse or vacate the lower court’s merits decision, in addition to reversing on qualified immunity. Most obviously, the Court could exercise its own Pearson discretion and opine on the merits itself. Or the Court might conclude, based on the Pearson factors, that it would be an abuse of discretion for any court to reach the merits. Or the Court's reasoning on qualified immunity might cast doubt on the lower court's analysis of the merits. In any event, the Court needs some reason for vacating the lower court's merits decision. The Court shouldn’t automatically eradicate distinct merits determinations as though they were so much collateral damage.

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Mullenix illustrates that the Court is using its summary reversal power to cut back on lower court rulings in civil rights cases. But even if the Court is right to enforce its broad qualified immunity doctrine, that alone isn’t sufficient justification to erase lower court decisions that the Constitution has been transgressed.

Posted by Richard M. Re on November 30, 2015 at 08:30 AM | Permalink


Very interesting post -- as always -- Richard!

I wonder to what extent this problem/issue interfaces with the Supreme Court's shift in its jurisprudence on how one handles the ordering of the two steps of the QI inquiry. You may be too young to have encountered this, but when I was a litigator the governing rule was still Saucier v. Katz, 533 U.S. 194 (2001),and lower courts were to first determine if there was a constitutional violation and only then look to see if it was clearly established.

Saucier was very limited (indeed perhaps more accurate to say all but gutted) by Pearson v. Callahan, 555 U.S. 223 (2009). Many people disliked Saucier and thought it was a bad rule, but it did make me think your problem was intimately related to the question of whether Saucier vs. Pearson is the right rule.

I also suppose you could think of this as a multi-level game.
Trial Court -- Saucier or Pearson
Cir Court -- Saucier or Pearson approach in its REVIEW
S. Ct -- Saucier or Peason in its REVIEW

It need not be "turtles, turtles" (or pehaps "Saucier, Saucier") all the way down but in fact could be a mix of which courts one thinks should have to speak to which of the two parts of QI first (or just make it a free for all). Of course it would be strange if the Supreme Court was the first one to answer both parts of the QI analysis in a particular case but I suppose one can always affirm on any ground in the record.

It is a bit on the late side so I may not be at my best at explaining what I am thinking, but assuming you follow some of it I am curious what you think.

Posted by: I. Glenn Cohen | Nov 30, 2015 11:21:57 PM

I confess I find it very difficult to understand, Camreta and Pearson notwithstanding, how the constitutional "holding" of an opinion finding qualified immunity is anything more than dictum, and dictum of a rather invidious sort to boot, as courts can make new constitutional law without having to apply it in the case before them. That said, one can hold that view (expressed by Kennedy in his Camreta dissent) and still agree with you, I think, as the constitutional holding of an opinion that finds no qualified immunity really is a holding, and should normally remain intact when the Court reverses for the reason that the court of appeals got qualified immunity wrong.

Posted by: Asher Steinberg | Dec 1, 2015 1:09:50 AM

Glenn: Many thanks for these thoughts.

I agree that this issue is closely related to the choice between Saucier and Pearson. For instance, if Saucier were rigidly followed in the Supreme Court, then the Court would be less likely to resolve these cases summarily, since it would be unlikely to opine on the merits in a summary posture. (As Will Baude has pointed out to me, Brosseau v. Haugen approved pure-QI reversals even before Pearson.) In general, more discretionary, Pearson-like approaches legitimize pure QI reversals, and the frequency of the Court's discretionary review presumably increases when a less challenging, divisive, and consequential mode of review is available.

I also think you're right that we should think about how different levels of the judicial hierarchy should approach Pearson discretion. For instance, we could be more supportive of discretionary merits rulings in the courts of appeals than in the Supreme Court--perhaps because lower courts should be laboratories of experimentation while the Supreme Court should set uniform, fixed precedents only when it's especially sure that it's correct.

One of the advantages of my proposal, I think, is that it allows the judicial system to take greater advantage of precisely that kind of variation. That is, it allows circuit courts to be maximalist about the merits in the case at hand, even as the Supreme Court gets to be minimalist about the merits in that very case. Otherwise, the legal system loses out on the benefits of circuit maximalism whenever the Supreme Court intervenes in a minimalist way.

Let me add one disclaimer, prompted by an off-line reader: the advantages of my proposal partially depend on whether circuit precedent can strip officers of qualified immunity, as the Court tacitly assumed in Camreta and other cases. But the Court has recently reserved that question in several cases. I've discussed this issue in previous posts (see for example: http://prawfsblawg.blogs.com/prawfsblawg/2014/11/does-circuit-precedent-deprive-officers-of-qualified-immunity.html) and should flag it again here.

Posted by: Richard Re | Dec 1, 2015 4:25:01 PM

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