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Monday, November 04, 2013

The rhetoric of qualified immunity

I think SCOTUS has given up on qualified immunity. Today the Court in one eight-page per curiam order in Stanton v. Sims granted cert, reversed, and remanded a case in which the Ninth Circuit had denied qualified immunity, where an officer kicked open a fence to enter private property without a warrant, purportedly in "hot pursuit" of a misdemeanor suspect. And all without resolving whether there was a violation, so lower courts have no new guidance on the question.

What is noteworthy is the Court's new rhetorical move. In Ashcroft v. Al-Kidd, the Court had explained that qualified immunity "protects ‘all but the plainly incompetent or those who knowingly violate the law.'" The Court today repeated the phrase "plainly incompetent" five times in the opinion; in doing so, it seems to be suggesting that a court that denies qualified immunity is, per se, labeling that officer as "plainly incomepetent." If lower courts and defendants seize on that, qualified immunity will become even harder to overcome (and dismissal easier to obtain), because no plaintiff wants to be seen as labeling the officer incompetent and no court wants to sign onto calling police officers names or questioning their integrity and ability.

Posted by Howard Wasserman on November 4, 2013 at 05:32 PM in Civil Procedure, Constitutional thoughts, Howard Wasserman | Permalink


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Stepping back, isn't it remarkable that the sole justification for the officer giving chase was simply that the target disobeyed an order to stop? ... Isn't the message that if an officer wants to justify chasing someone (anyone), all he must do is shout "stop!"?

Posted by: Ponyboy | Nov 9, 2013 6:43:37 AM

"no plaintiff wants to be seen as labeling the officer incompetent"

Since when? Plaintiffs' civil rights lawyers do that all the time.

Posted by: Heynonnynonny Mouse | Nov 5, 2013 11:04:45 AM

The worst part of the decision and the way the doctrine is heading, is the refusal to 'clearly establish' anything at all for the purposes of QI. Given the Court's tiny docket that just looks feckless.

Posted by: Brad | Nov 4, 2013 11:32:58 PM

I was struck by the oddness of today's opinion, but chalk it up to "incompetence" rather than "knowingly changing the law" (a little qualified immunity joke there) - because, although the Court repeated "plainly incompetent" throughout the opinion, as you say, they introduce that point by saying "There is no suggestion in this case that Officer Stanton knowingly violated the Constitution ..." Thus the Court seems to frame both halves of that old qualified immunity aphorism as if it was a question of whether those descriptions were fair characterizations of the person in question. Which is wrong. The aphorism was a colorful way of describing the result of the qualified immunity test, not the actual legal substance of the test.

Posted by: Sam | Nov 4, 2013 8:32:55 PM

David: Thanks for pointing that out; I corrected it.

Orin: It's not so much the language as a legal standard, which has been around for awhile, but the rhetorical deployment. That denying qualified immunity is functionally equivalent to calling a police officer "plainly incompetent" is new and will have a rhetorical effect on how these cases are argued. Its use in Stanton was not unintentional.

Posted by: Howard Wasserman | Nov 4, 2013 7:09:25 PM

TJ, I agree that the Court can emphasize or deemphasize different versions of a test. At the same time, I think the qualified immunity standard is sufficiently well established and familiar that lower courts are unlikely to see this per curiam opinion as changing anything.

Posted by: Orin Kerr | Nov 4, 2013 7:06:44 PM

Orin, you're the 4A expert here. But we all know that there are often multiple ways of expressing what is supposed to be a single legal standard, and the different formulations often carry different connotations as to how the standard will be applied. I too was struck by how a *unanimous* court repeatedly emphasized "plainly incompetent" and "beyond debate" in a way that seems to suggest that, short of a police officer shooting a justice on the Supreme Court steps, there isn't such a thing as a clearly established 4A violation.

Posted by: TJ | Nov 4, 2013 6:37:46 PM

"If lower courts and defendants seize on that, qualified immunity will become even harder to obtain, because no plaintiff wants to be seen as labeling the officer incompetent and no court wants to sign onto calling police officer names."

I think you mean "harder to overcome" or "easier to obtain." A denial of qualified immunity would mean that the officer violated clearly established law, which (arguably) makes him "plainly incompetent." To avoid that epithet, your argument goes, courts and plaintiffs would tend to avoid denying qualified immunity.

Posted by: David | Nov 4, 2013 6:18:18 PM

The other half of that test is "or those who knowingly violate the law" ... seems more often than not, that is what is more likely.

Posted by: Joe | Nov 4, 2013 6:04:05 PM

Hasn't that been true since 1986, when the Court introduced the "plainly incompetent" language in Malley v. Briggs, 475 U.S. 335 (1986)?

Posted by: Orin Kerr | Nov 4, 2013 5:45:13 PM

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