When To Reach The Merits In Qualified Immunity Cases

Yesterday’s decisions in Plumhoff v. Rickard and Wood v. Moss addressed different claims on the merits but shared an important procedural issue.  In Plumhoff, the Court reviewed a violent car chase and an excessive force claim under the Fourth Amendment, while Wood involved an allegation that secret service agents engaged in viewpoint discrimination against anti-Bush protestors.  Both cases involved findings of qualified immunity, but only one of the cases (Plumhoff) expressly went on to opine on the merits.  This intriguing pair of decisions illustrates the Court’s varying and often unexplained willingness to reach the merits when finding qualified immunity.

In recent years, the Court has taken various positions on when to reach the merits in cases finding qualified immunity.  For a while, the Court called for always reaching the merits, lest constitutional law go undeveloped.  But the Court later made the merits optional.  And, even more recently, the Court appeared to suggest that reaching the merits was disfavored.  As the Court memorably put it in Camreta v. Greene, courts should generally “think hard, and then think hard again, before turning small cases into large ones.”  One virtue of that default rule is that it might prevent judges from reaching the merits for unreflective or even untoward reasons, such as because doing so would be conducive to the judges’ own policy views. 

In Plumhoff, the Court expressly recognized the need to explain why, in addition to ruling in favor of the officers on qualified immunity, it was also resolving the merits in the defendants’ favor.  In particular, the Court noted that Plumhoff involved  “an area that courts typically consider in cases in which the defendant asserts a qualified immunity defense.” While the “area” referenced isn’t clear, it could be read to encompass all Fourth Amendment excessive force claims.  That might be a significant doctrinal development, since it would seem to create at least a presumption of merits findings in a substantial category of cases.  

Accentuating both the decision’s significance and its ambiguity, Plumhoff did not seem to distinguish between unnecessary merits decisions that do find a violation and those finding no violation.  As Plumhoff later noted, its two holdings (merits and immunity) were “[i]n the alternative” in the sense that they both independently supported the judgment in favor of defendants.  But that wouldn’t have been true if the Fourth Amendment issue had come out the other way. Plumhoff did not seem to think that this distinction should make a difference — perhaps because other approaches would skew merits decisions either toward or against finding violations.

Meanwhile, Justices Ginsburg and Breyer declined to join all or parts of the Court’s merits discussion in Plumhoff.  Yet those justices did not issue a separate statement explaining their declination.  Perhaps they were simply less confident in how the merits would come out.  Or did they believe there was some other reason for the Court to avoid the merits?

Wood is a fitting complement to Plumhoff.  Whereas Plumhoff unnecessarily reached the merits while finding qualified immunity, Wood at least purported to resolve only the qualified immunity issue.  In exhibiting this ostensible restraint, Wood may reflect Justice Ginsburg’s consistent approach across the two cases. As noted, Justice Ginsburg declined to join the merits discussion in Plumhoff. In writing the Court’s opinion in Wood, Justice Ginsburg was able to implement that same restrained approach.  A speculative reader might therefore guess that the Court reached the merits in Plumhoff because it was authored by Justice Alito, as opposed to Justice Ginsburg.

Yet Wood's final paragraph did offer a brief comment on the Court’s decision to forgo the merits, parenthetically noting that the defendants’ “briefing on appeal trained on the issue of qualified immunity.” But the Court had granted cert on both the merits and immunity.  Judging from the case’s transcript (cited in Wood’s last paragraph), it seems that the Court was frustrated that the defendants hadn’t argued the merits with sufficient force. Or was the problem that the defendants simply hadn’t taken the merits position that the Court wanted to adopt?  Uncertainty as to the Court’s reasoning is compounded by the fact that — as Howard already observed — much of the discussion in Wood actually does appear to go to the merits. Perhaps Justice Ginsburg could obtain needed votes only by shading her immunity analysis toward the merits. Or, perhaps, she was simply more sympathetic to the defendants’ merits position in Wood than in Plumhoff.  Once again, we are left to wonder.

In a perfect world, the Court would have viewed Plumhoff and Wood, not just as separate opportunities to resolve important merits and immunity issues, but as a pair of cases that might illuminate when courts should and shouldn’t reach the merits when finding qualified immunity.  Instead, we are left with something almost as good: raw material for further debate on the important procedural question of when to reach the merits in qualified immunity cases.

The above is cross-posted from Re's Judicata.