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Saturday, November 15, 2014

Does Circuit Precedent Deprive Officers of Qualified Immunity?

In Carroll v. Carman, one of this week’s summary reversals, the Supreme Court held that officers violated no clearly established federal law in conducting a “knock and talk” and so were protected by qualified immunity. Almost as an aside, the Court assumed arguendo that circuit law could constitute clearly established law. In other words, the Court reserved the possibility that officers could defy on-point circuit precedent and still retain qualified immunity. This issue is both important and fascinating.

In this post, I’ll assess relevant cases to shed light on how the doctrine reached its current shape and where it might be going. In my next post, I’ll discuss whether the apparent trend in qualified immunity doctrine makes sense.

The Court has held that officers sued for constitutional wrongs are generally immune from suit unless their conduct violated "clearly established" law. Carroll applied that deceptively familiar standard. Quoting Stanton v. Sims, a similar qualified-immunity summary reversal from about a year ago, Carroll found the officers immune: “[W]hether or not the constitutional rule applied by the court below was correct, it was not ‘beyond debate.’” In other words, it was beyond debate that the issue wasn’t beyond debate.

For present purposes, the interesting thing about Carroll is that it expressed uncertainty as to whether circuit precedent could defeat an officer’s assertion of qualified immunity. Here's the key passage:

[T]he Third Circuit cited only a single case to support its decision that Carroll was not entitled to qualified immunity—Estate of Smith v. Marasco, 318 F.3d 497 (C.A.3 2003). Assuming for the sake of argument that a controlling circuit precedent could constitute clearly established federal law in these circumstances, see Reichle v. Howards, 566 U.S. ––––, ––––, 132 S.Ct. 2088, 2094 (2012), Marasco does not clearly establish that Carroll violated the Carmans' Fourth Amendment rights.

As this passage indicates, the Court made a similar reservation in Reichle two years ago. Reichle’s reservation was somewhat surprising and prompted blog commentary marveling that this basic aspect of the “clearly established law” standard was itself not clearly established. Interestingly, the Court doesn’t always make this reservation when discussing qualified immunity. In last year’s Stanton summary reversal, for instance, no such disclaimer appeared, even though the Court marched through circuit precedents to show their ambiguity.

The reservation in Reichle could have had to do with the distinctive features of that case, which involved the Secret Service. In its Reichle brief, the Solicitor General made the following argument:

The protective duties of the Secret Service are not confined to a particular geographic locale, but instead follow the protected individuals wherever they may be. It is unreasonable, undesirable, and unrealistic to expect agents to modify their performance of their duties based on the law of the local court of appeals, or to “abide by the most stringent standard adopted anywhere in the United States.” al-Kidd, 131 S. Ct. at 2087 (Kennedy, J., concurring).

In other words, it might not be reasonable to expect officers operating in many jurisdictions to study up on each new jurisdiction that they enter. In support of that point, the Solicitor General relied on Justice Kennedy’s 2011 concurrence in Ashcroft v. al-Kidd. The “Ashcroft” in that case name was the Attorney General of the United States. For present purposes, here is the key passage from Justice Kennedy’s opinion:

Some federal officers perform their functions in a single jurisdiction, say within the confines of one State or one federal judicial district. They “reasonably can anticipate when their conduct may give rise to liability for damages” and so are expected to adjust their behavior in accordance with local precedent. In contrast the Attorney General occupies a national office and so sets policies implemented in many jurisdictions throughout the country. The official with responsibilities in many jurisdictions may face ambiguous and sometimes inconsistent sources of decisional law. While it may be clear that one Court of Appeals has approved a certain course of conduct, other Courts of Appeals may have disapproved it, or at least reserved the issue.

When faced with inconsistent legal rules in different jurisdictions, national officeholders should be given some deference for qualified immunity purposes, at least if they implement policies consistent with the governing law of the jurisdiction where the action is taken.

Because of the way the Solicitor General briefed the case, it seemed possible that Reichle meant to reserve the role of circuit precedent specifically in cases involving national officers. Supporting that possibility, the reservation was expressly (if vaguely) limited to “the circumstances of this case.” Perhaps the relevant “circumstances” included the defendants’ role as secret-service agents—a fact that figured prominently in the briefing, oral argument, and ultimate decision.

The Court began to expand on Justice Kennedy’s concurrence in Stanton, the qualified summary reversal from last year. As a side note, the fact that this development occurred in Stanton is rather remarkable in itself, since summary reversals aren’t supposed to change the law—though that purported rule is often observed in the breach. (Michael Dorf just made a similar point in connection with both of this week's summary reversals.) In any event, Stanton emphasized that the officers had acted in accordance with local state-court precedent. This led the Court to observe:

It is especially troubling that the Ninth Circuit would conclude that Stanton was plainly incompetent—and subject to personal liability for damages—based on actions that were lawful according to courts in the jurisdiction where he acted. Cf. al–Kidd, 131 S.Ct., at 2086–2087 (KENNEDY, J., concurring).

The “Cf.” cite here is appropriate, for the Court was building on Justice Kennedy’s insight, rather than applying it. The officer in Stanton wasn’t a “national” officer. Rather, he was a regular officer who was getting somewhat different messages from the state and federal courts operating in the same geographical space. This situation is structurally similar to the predicament of a national officer getting conflicting precedential signals, but still quite different. Most obviously, there are fewer sources of precedent for local officers (usually just two, as Justice Kennedy’s concurrence noted), and it doesn’t seem so hard to keep abreast of two jurisdictions’ laws. National officers are also uniquely relevant to, well, national policy. Finally, moving beyond national officers means that the logic of the Kennedy concurrence is no longer an exception or unusual situation. Instead, Stanton’s logic is potentially applicable to every officer.

Carroll may build on Stanton by suggesting that out-of-jurisdiction precedent might countermand local precedent. In addition to making the state-court point above, Stanton had emphasized "the fact that federal and state courts nationwide are sharply divided" on the relevant question. Carroll likewise explained at some length that the “Third Circuit’s decision is even more perplexing in comparison to the decisions of other federal and state courts, which have rejected the rule the Third Circuit adopted here.” Could such supportive out-of-jurisdiction precedent provide a reason to immunize an officer, even when the officer’s home jurisdiction prohibits a particular action? This possibility may explain Carroll’s reservation. To repeat, Carroll “[a]ssume[d] for the sake of argument that a controlling circuit precedent could constitute clearly established federal law in these circumstances.” The relevant “circumstances” may have included not just the fact that “only a single case” cut against the officers, but also the existence of pro-officer case law from other jurisdictions. Or perhaps not--the Court is opaque on this point.

While it’s impossible to know for sure, the Court seems to be exhibiting increasing interest in limiting the sources of law that can overcome qualified immunity. Especially remarkably, that apparently growing level of interest is evident in unanimous summary reversals, like Stanton and Carroll. Indeed, all of the cases discussed above are just a few years old at most. So while the trend line might shift, it currently places circuit precedent’s status in doubt.

My next post will discuss the normative question of whether circuit precedent should deprive officers of qualified immunity.

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

Posted by Richard M. Re on November 15, 2014 at 12:30 AM | Permalink


Thanks to all for this great discussion, including the cases saying or assuming that circuit precedent is relevant to qualified immunity. Even Stanton, as I noted, seems implicitly to take this as a given. And, for a more forceful recent example, Camreta v. Greene noted that merits rulings (in circuit cases finding immunity) "are rulings self-consciously designed to ... establish[] controlling law and prevent[] invocations of immunity in later cases." All this suggests that it would take a reversal of precedent for the Court to hold that circuit precedent can *never* deprive officers of qualified immunity. The Court may think that there is more precedential wiggle-room to say that circuit precedent is sometimes or even often insufficient to deprive officers of qualified immunity.

Posted by: Richard | Nov 16, 2014 6:51:00 PM

I just came across the same passage in Lanier (before seeing Howard's comment). It's so on point that I think it's worth quoting here:

First, contrary to the Court of Appeals, see ibid., we think it unsound to read Screws as reasoning that only this Court's decisions could provide the required warning. Although the Screws plurality gave two examples involving decisions of the Court, their opinion referred in general terms to rights made specific by "decisions interpreting" the Constitution, see 325 U. S., at 104 (plurality opinion), and no subsequent case has held that the universe of relevant interpretive decisions is confined to our opinions. While United States v. Kozminski, 487 U.S. 931 (1988), a case under §241 for violating Thirteenth Amendment rights, did characterize our task as ascertaining the crime charged "by looking to the scope of the Thirteenth Amendment prohibition . . . specified in our prior decisions," id., at 941, in at least one other case we have specifically referred to a decision of a Court of Appeals in defining the established scope of a constitutional right for purposes of §241 liability, see Anderson v. United States, 417 U.S. 211, 223-227 (1974). It is also to the point, as we explain below, that in applying the rule of qualified immunity under 42 U.S.C. § 1983 and Bivens v. Six Unknown Fed. Narcotics Agents, 403 U.S. 388 (1971), we have referred to decisions of the Courts of Appeals when enquiring whether a right was "clearly established." See Mitchell v. Forsyth, 472 U.S. 511, 533 (1985); Davis v. Scherer, 468 U.S. 183, 191-192 (1984); see also id., at 203-205 (Brennan, J., concurring in part and dissenting in part); Elder v. Holloway, 510 U.S. 510, 516 (1994) (treating Court of Appeals decision as "relevant authority" that must be considered as part of qualified immunity enquiry). Although the Sixth Circuit was concerned, and rightly so, that disparate decisions in various Circuits might leave the law insufficiently certain even on a point widely considered, such a circumstance may be taken into account in deciding whether the warning is fair enough, without any need for a categorical rule that decisions of the Courts of Appeals and other courts are inadequate as a matter of law to provide it.

Posted by: William Baude | Nov 16, 2014 5:25:57 PM

Given that this is happening in summary reversals, it is especially problematic because it ignores US v. Lanier and Hope v. Pelzer. In Lanier, the Court explicitly rejected the Sixth Circuit position that only Supreme Court precedent could make a right "specific" for purposes of Due Process and § 242 prosecutions. Then in Hope, the Court cited Lanier and said the clearly established analysis serves the same purposes and follows the same method as the § 242 analysis. Which must mean that something other than Supreme Court precedent can clearly establish.

Posted by: Howard Wasserman | Nov 16, 2014 7:59:38 AM

Fascinating developments. It seems to me that you have two choices if you want a functioning qualified immunity regime that balances the relevant values effectively: (1) you can have a broad understanding of when a rule is firmly established by Supreme Court decision and not let the existence of minor factual differences between cases disturb that conclusion or (2) you can have a very fact bound understanding of when a rule is clearly established but let lower court precedent count. You can tighten one of the criteria without putting the system out of balance, but when you tighten both--like the Court increasingly appears to be doing--you run the risk of under-compensating and under-deterring.

Posted by: Andrew Siegel | Nov 15, 2014 1:12:46 PM

Great post, Richard.

Posted by: Orin Kerr | Nov 15, 2014 12:55:14 AM

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