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Thursday, June 04, 2020

What about Bivens? What about prosecutorial immunity? (Updated)

Rep. Justin Amash, the House member who left the GOP because of Trump, announced plans to introduce a bill (co-sponsored with Ayanna Pressley (D-MA) to eliminate qualified immunity. The bill would "explicitly not[e] in the statute that the elements of qualified immunity outlined by the Supreme Court are not a defense to liability." (Update: Draft text).

But what about Bivens, which has no statutory basis? Federal law enforcement officers assert qualified immunity in Bivens actions (over, for example, using definitely-not-tear-gas-irritant-agents to disperse peaceful protesters); many of the Court's early qualified immunity cases were Bivens rather than § 1983 actions. In Abbasi, the majority incorporated some immunity considerations (e.g., over-deterrence of officials) to the special factors counseling hesitation. But that will not apply in basic Fourth Amendment claims against domestic law enforcement; those officers still fall back on qualified immunity. I suppose that if Amash's bill were to pass, the Court might eliminate immunity to keep Bivens and § 1983 parallel.

And what of other extra-textual absolute immunities that the Court has super-imposed on § 1983 (and Bivens, by extension). Prosecutorial misconduct contributes as much as police misconduct to the racial problems in the criminal justice system (distinct from excessive-force); absolute immunity leaves prosecutors free to engage in blatant misconduct, often shifting the litigation focus back to the police, who then assert qualified immunity. In theory, appellate review, attorney ethics, and electoral checks remedy or deter such misconduct. It has done nothing in practice, given the high standards for showing constitutional violations on appeal, reluctance to sanction prosecutors, and the fact that elected prosecutors run on obtaining lots of convictions as a result of prosecutorial over-reach.

The point is that qualified immunity is bad and should go. But it is not the only cause within the constitutional-litigation framework. (And this does not consider causes outside of constitutional litigation, such as unions and employment practices). Targeting qualified immunity alone--and only in the specific context of § 1983--misses the bigger picture and the many moving pieces necessary for reform.

Posted by Howard Wasserman on June 4, 2020 at 10:54 AM in Civil Procedure, Constitutional thoughts, Howard Wasserman, Judicial Process, Law and Politics | Permalink

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