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Wednesday, June 10, 2015

Barkes, Sheehan, and The Qualified-Immunity Docket

Last week, the Supreme Court summarily reversed a denial of qualified immunity in Taylor v. Barkes, a tragic case involving an alleged failure to implement adequate suicide prevention protocols in prison. As Howard has already notedBarkes follows on the heels of the Court’s recent qualified-immunity decision in San Francisco v. Sheehan and offers further evidence of the Court’s growing determination to protect officials from civil liability. Of special note, Barkes seems like the latest application of a new and more general claim put forward in Sheehan: erroneous denials of qualified immunity are so important as to justify error correction by the Supreme Court.

I've previously discussed Sheehan here. By way of refresher, Sheehan involved two questions. The first posed a circuit split, whereas the second posed a factbound denial of qualified immunity. Surprisingly, the petitioner's merits briefing didn’t advance strong arguments on the first issue, so the Court decided not to resolve that point. This left only the second question concerning qualified immunity. The Court nonetheless went ahead and resolved that question, concluding that qualified immunity should have been granted. 

In dissent, Justice Scalia argued that the Court should have dismissed the entire case. Joined by Justice Kagan, Scalia argued that San Francisco had “snookered” the Court: to get the uncertworthy question granted, the petitioner had linked it to the certworthy one. In making this claim, Scalia clearly asserted that the Ninth Circuit’s denial of qualified presented a “nakedly uncertworthy question.” In response, the Sheehan majority reasoned that qualified immunity is of “importance ... to society as a whole” and that erroneous denials of qualified immunity are therefore certworthy. 

Barkes appears to put the Sheehan majority’s reasoning into practice. In Barkes, that is, the Court reversed what it regarded as an erroneous denial of qualified immunity. That move seems to confirm Sheehan's assertion that erroneous denials of qualified immunity are certworthy—or, at least, that they are worthy of summary reversal. This view is consistent with a growing list of recent decisions--some cited in Sheehan--in which the Court has reversed or summarily reversed denials of qualified immunity. So, at least for the time being, Sheehan offers the leading statement on the certworthiness of qualified immunity errors.

Interestingly, Scalia and Kagan didn’t note that they dissented from Barkes, thereby raising the possibility that even those justices actually agree that erroneous qualified-immunity denials are certworthy. Or perhaps Scalia and Kagan believe that qualified-immunity errors are worth summarily correcting but not worth the hassle of full-dress briefing and argument. It's also possible that Scalia and Kagan did disagree with the Court, but didn't find it worth publicizing that fact. (For more on the need for greater transparency in the Court's summary rulings, check out Will Baude's "shadow docket" paper.)

In an attempt to reconcile Scalia's Sheehan dissent with his acquiescence in Barkes, one might argue that Barkes, unlike Sheehan, did involve a kind of soft circuit split, in the sense that other courts would have found qualified immunity on similar facts. To wit, Barkes notes that “the weight of [lower-court] authority at the time of Barkes’s death suggested that [the plaintiff's asserted] right did not exist.” And Barkes adduced an impressive string cite establishing that point. But Sheehan included a similar statement and string cite, noting that, “[i]f anything,” lower-court “consensus” might run against the plaintiff. Moreover, if Barkes did pose a circuit split, then one might have expected the Court to say so—and to have granted plenary review, rather than disposing of the case summarily. In the absence of an express explanation for the summary reversal in Barkes, it seems fair to assume that the Court acted on the rationale set out in Sheehan

In a thoughtful SCOTUSBlog post, Scott Michelman has a related view of Barkes, but doesn't connect the decision to Sheehan's broader claims about the certworthiness of qualified-immunity denials. Michelman instead advances more generalized rationales for summary reversal in these cases, such as compromises among the justices or a global inclination toward correcting blatant error.  The compromise point is especially key, since it suggests a silver lining for plaintiffs: if justices are compromising on summary reversal, then going that route might avert pro-government rulings on the merits. This plausible framing leads Michelman to ask an important question: have summary reversals "benefited civil rights plaintiffs by averting broader decisions following plenary consideration or helped government defendants by providing summary relief in cases where certiorari might otherwise simply be denied"?

Sheehan's  view of qualified immunity may help answer Michelman's important question. If it is really true that erroneous denials of qualified immunity are of such "importance ... to society as a whole"--presumably because they chill officials in the performance of their duties--then the Court would have a reason to summarily reverse in qualified-immunity cases purely to help officers and deny plaintiffs relief. In other words, even if the Court has no interest in granting plenary review to rule for officers on the merits, Sheehan counsels in favor of review specifically in order to side with government officials on qualified immunity. To the extent that the justices do agree with and implement that theory, summarily reversals in qualified immunity cases would operate as a pure gain for officers and a pure loss for plaintiffs.

Combined, Sheehan and Barkes are emblematic of the Court’s increasing vigilance in enforcing qualified-immunity protections. Barkes is not a legally transformative case, but it is evidence of the new normal in the Court’s qualified immunity docket.

Posted by Richard M. Re on June 10, 2015 at 01:32 PM | Permalink


Or, better still, take a post-Camreta case up as an opportunity to overrule Camreta and hold that the Supreme Court reviews judgments, not statements in opinions.

Posted by: Steve H | Jun 10, 2015 2:23:09 PM

Another explanation for Scalia's and Kagan's silence in Barkes is the general practice against dissenting from the grant of cert. By folding the summary reversal into the cert. grant, the majority heads-off a possible dissent. Alito, joined by Scalia, issued this sort of tepid separate opinion in Tolin v. Cotton, a summary reversal of the grant of Q/I.

Posted by: Howard Wasserman | Jun 10, 2015 2:22:41 PM

One interesting question is whether the Court will take the same approach to post-Camreta cases in which lower courts rule in favor of the defendant on qualified immunity, but nevertheless hold that there _was_ a constitutional violation. I could envision arguments that _those_ cases are at least as worthy of the Court's review, no?

Posted by: Steve Vladeck | Jun 10, 2015 1:54:22 PM

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