« So you want to be a law professor? (Updated and moved to top) | Main | Assignments and female voices »

Monday, June 29, 2020

More on constitutional-litigation reform (Updated)

A law professor letter is circulating in support of the one-two punch of eliminating qualified immunity and overriding Monell  to make municipalities liable on respondeat superior. The move towards respondeat superior liability is in the Reforming Qualified Immunity Act, introduced by Sen. Mike Braun (R-IN)The letter is here, for those interested in signing.*

[*] I signed the letter, as it involves an issue on which I know something as a legal scholar, as opposed to as a citizen with a law degree.

Braun's bill also would revise, but not eliminate qualified immunity. He replaces it with a narrower immunity that protects an officer if he acts in good faith and either acted pursuant to a statute or regulation that had not been declared invalid or the conduct had not been declared invalid. In essence, the change to immunity flips the default--an officer is not immune if the law is uncertain, but becomes immune if the law is certain that his conduct is valid.

Full reform still requires two more steps. Section 1983 must be extended to states, which Congress can do by making clear that states are persons for § 1983 purposes. Otherwise, state police and sheriff's officers will be beyond these reforms, since they are not local officers. And something has to be done to codify the Bivens cause of action, otherwise federal officers will be beyond these reforms.

Update: A reader emails to offer another way to limit the effects of qualified immunity--overruling or overriding Mitchell v. Forsyth and eliminating collateral-order review of Q/I denials, which places Q/I at the heart of the case and moves cases quickly into the court of appeals and SCOTUS. Eliminating immediate review (or requiring judicial leave under § 1292(b)) would combine well with Braun's approach. I have not seen this as part of any proposals.

Posted by Howard Wasserman on June 29, 2020 at 01:11 PM in Civil Procedure, Constitutional thoughts, Howard Wasserman, Judicial Process | Permalink

Comments

Post a comment