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Friday, September 27, 2019

Qualified Immunity and Stare Decisis

Recently, a lot of terrific scholarship has attacked qualified immunity as unsound both as a legal and as a policy matter. I applaud this work and largely agree. If the question then is "Should Congress abolish or dramatically curtail qualified immunity?" I would say yes. If the question, though, is "Should the Court overrule its predecents on qualified immunity?" I would say no (or no chance).

Stare decisis, the Court has told us a million times, is at its apex in statutory cases. Qualified immunity, for better or worse, is an interpretation of Acts of Congress. And we are just talking about one precedent or a few--there are almost too many cases to count where the Court has applied qualified immunity since Fitzgerald set forth the modern framework in 1982. I just don't see the Justices revisiting any of this. Granted, they could start using a more favorable (for plaintiffs) definition of "clearly established law" in cases going forward, but that would be more of a marginal change. More than that can (and should) come only from Congress.

Posted by Gerard Magliocca on September 27, 2019 at 02:16 PM | Permalink


I think that Will is right about stare decisis here; 1983 is a common-law statute, just like the Sherman Act, and stare decisis is much weaker there. For that reason, however, his positive-law arguments that qualified immunity is inconsistent with the law of the time of 1983's enactment, and those of many others, are entirely besides the point. The Court is every bit as free to depart from the common law of qualified immunity as it existed in 18whenever as it is to depart from the common law of consent or mistake, when raised as a defense to a 1983 action by a prison guard sued for raping a prisoner, as it existed in 18whenever. To the extent it's guided by positive law of any kind, it should be looking at what common law says about consent today, and the same is true of immunity.

Posted by: Asher Steinberg | Sep 27, 2019 8:05:16 PM

Here is what we said in an amicus brief (https://www.supremecourt.gov/DocketPDF/18/18-1287/101650/20190531163444690_18-1287.tsac.Legal.Scholars.pdf) urging the Court to take up this question in October:

Ordinarily, the Court has said, “stare decisis carries enhanced force when a decision * * * interprets a statute.” Kimble v. Marvel Entm’t, LLC, 135 S. Ct. 2401, 2409 (2015). But that rule need not apply with respect to the
Harlow immunity standard for several

To begin with, Harlow itself overturned a settled precedent—the qualified immunity rule set forth in Pierson and reaffirmed in multiple decisions, which itself overturned earlier precedents. And Monell v. Department of Social Services, 436 U.S. 658 (1978), overruled the holding of Monroe v. Pape, 365 U.S. 167 (1961), regarding the Section 1983 liability of municipalities. That significantly reduces the role of stare decisis in this context.

In addition, the Court has stated that the statutory stare decisis rule does not apply if “Congress ‘expected the courts to give shape to the statute’s broad mandate by drawing on common-law tradition.’” State Oil Co. v. Khan, 522 U.S. 3, 20-21 (1997). The Court has “reconsidered its decisions construing the Sherman Act when the theoretical underpinnings of those decisions are called into serious question.” Id. at 21. Just as the Court has interpreted the Sherman Act to delegate to the courts the authority to use the methods of the common law to shape the Act’s prohibition, so too has it construed Section 1983 to delegate to the
courts the task of shaping the contours of Section 1983’s remedial scheme. Indeed, Harlow expressly did just that—significantly revising the qualified immunity standard prescribed in Pierson and its progeny based on the Court’s perception of the relevant policy considerations.

While a full discussion of stare decisis should await merits briefing, it is clear that stare decisis is not a barrier to reconsideration of the qualified immunity standard if the theoretical underpinnings of those decisions are called into serious question.

Posted by: William Baude | Sep 27, 2019 5:15:58 PM

A measured and justifiable first step would be to hold that denial of motion to dismiss or for SJ is not immediately appealable. This would of course involve overruling precedent, but you can easily imagine an opinion explaining how the appealability doctrine has proven problematic and how formulating QI as an "immunity" rather than a "defense" was so very wrong.

Not saying this will happen, but it would be a good first bite at the apple.

Posted by: Sam | Sep 27, 2019 4:58:41 PM

Interesting! Chris Walker and Aaron Nielsen discuss stare decisis and qualified immunity in a Notre Dame Law Review symposium on QI. https://papers.ssrn.com/sol3/papers.cfm?abstract_id=3188936

Posted by: Jeffrey Pojanowski | Sep 27, 2019 4:48:06 PM

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