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Friday, August 07, 2020

Some Thoughts on Qualified Immunity

I teach about qualified immunity on a regular basis but have never written an article on that topic. It's one of those doctrines that I often think of writing about but then say "Nah" because I'd rather write about something else. Still, I thought I'd offer some thoughts on what is a growing conversation.

My starting point is that I think the current doctrine is erroneous as a matter of law and policy. I think, though, that the proper remedy lies with Congress and with the state legislatures. A couple of states have already reformed their official immunity doctrines this year, and I expect that more will do so next year.

Why do I prefer this route? One answer is that qualified immunity should not be a one-size-fits-all concept. The Supreme Court's decision to apply the same standard to all governments officials who exercise discretion was a mistake. There are many kinds of government officials who perform very different sorts of tasks. Some may deserve qualified immunity. Some may not. And some might deserve that only if certain conditions are met. Legislatures can make these sorts of distinctions in a much better way than courts. 

A second answer is that I don't see the Supreme Court doing anything with its qualified immunity precedents with the current zeitgeist on stare decisis. Statutory stare decisis, we've been repeatedly told, is the strongest kind. And when the precedents in question are under discussion in Congress and in the states, that just gives the stare decisis crowd another reason to say that they should not act. The certiorari denials in the recent petitions challenging qualified immunity signal that fact loud and clear.

That said, I can see the Court applying qualified immunity in a less stringent way. To my mind, another fault in the current doctrine is that "clearly established law" is  a standard that gives courts too much discretion in saying when immunity applies. "It's clear to us" is easy to say assuming that a constitutional violation occurred. It's just as easy to say "it's not clear to us." There is no objective standard of clear in contested cases. Thus, the Court could adhere to its qualified immunity standard but just start saying that more cases do not warrant immunity, as a way of sending a message to the lower federal courts. Do I think that will happen? Probably not, but I'm not sure. 

Posted by Gerard Magliocca on August 7, 2020 at 09:02 AM | Permalink

Comments

I would just say that qualified immunity seems to me to fall outside of the normal class of statutory stare decisis cases, and belongs more with precedents on things like antitrust, where the Court doesn't purport to be engaged in interpretation as interpretation is normally understood and therefore gives its precedent weaker stare decisis force. I take the cert denials on qualified immunity to be more about vehement disinterest among the non-Thomas conservatives and moderate liberals in ending qualified immunity than stare decisis. People like Breyer quite like qualified immunity.

That said, I don't really get the angst about qualified immunity. Are there people who really believe that if it were harder to defend Section 1983 cases, policing would change much? Or that it's just terribly important as a matter of justice that there be an effective damages remedy for deprivations of federal constitutional rights? If we have a problem with undercompensating victims of police shootings, I tend to think state tort law is a better way of handling that than suits for Fourth Amendment violations, because Fourth Amendment doctrine is not made to do the work of tort law.

Posted by: Asher Steinberg | Aug 7, 2020 10:27:32 PM


The respectable author of the post, claims, I quote:

" One answer is that qualified immunity should not be a one-size-fits-all concept. The Supreme Court's decision to apply the same standard to all governments officials who exercise discretion was a mistake. There are many kinds of government officials who perform very different sorts of tasks. Some may deserve qualified immunity. Some may not. And some might deserve that only if certain conditions are met. Legislatures can make these sorts of distinctions in a much better way than courts."

End of quotation:

But, it is confusing between them both (court v. lawmaker). For, the lawmaker, did nothing so far, but to dictate, I quote relevant part(42 U.S. Code § 1983):

"Every person who, under color of any statute, ordinance, regulation, custom, or usage, of any State or Territory or the District of Columbia, subjects, or causes to be subjected, any citizen of the United States or other person within the jurisdiction thereof to the deprivation of any rights, privileges, or immunities secured by the Constitution and laws, shall be liable to the party injured in an action at law, suit in equity, or other proper proceeding for redress......"

Without specifiying further, on what condition shall be liable or not. For, this is the inherent duty of courts. To specify, case by case, and refining it. Lawmaker, can't do it typically. It is unpredictable and very complicated.

And that is what has been done by courts. Case by case, observing it, and defining, in light of certain context and circumstances, when exactly, one officer should be liable, when not. Strictly:

If there is or was precedent, and the officer, didn't follow it, he is liable(if clearly established right, has been violated, and not "clearly established law" as written in the post by the way).

Anyway, the real issues have to do with protocols, precedents, not immunity. For, the law, doesn't grant immunity, but, on the contrary, dictates liability. Protocols, that incorporate constitutional principles, the law, rules, etc...... The immunity, is granted after the fact, by courts, not by the lawmaker.

Thanks

Posted by: El roam | Aug 7, 2020 10:00:23 AM

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