Last summer, I made a little ‘splainer for the Washington Post briefly explaining how Qualified Immunity works (and doesn’t). [Link] This afternoon, a very nice reporter reached out to me for some followup. She’s doing a longer piece on QI, and had some questions specifically about the Supreme Court’s jurisprudence here. I dashed off a quick email response — by which I mean one that I didn’t take the time to tighten up. But re-reading it, I get the feeling that with a bit of research, some fleshing out of ideas, it might have the beginnings of a halfway decent law review article. (There are so many I want to write.)
But I don’t have time to write one now. And my email was too long for there to be any likelihood of it getting quoted in full, if at all. So I figured I’d share it here and give you all a chance to tell me exactly what I got wrong. And then when I do get around to writing that article… never mind. Here’s the copypasta:
1. I recently spoke with a con law scholar who said the Supreme Court is “fascinated” with the topic and takes cases that don’t even seem that important. What do you think?
2. Recent Supreme Court decisions on the topic are generally summary reversals of circuit court decisions denying qualified immunity. Why do you think the Court isn’t issuing more merits decisions?
3. Although the Court says it doesn’t correct errors in individual cases, they seem to be doing that in this area. Please comment.
4. Regarding the circuit courts, do you have any statistics (or a resource) about which ones consistently deny qualified immunity?
5. The Court repeatedly finds that there isn’t “clearly established” law to deny qualified immunity but it doesn’t issue further guidance on what clearly established law is. Why do you think this is?
1, 2, 3, and 5 are related. I don’t have anything to offer for #4, sadly.First, a little background. After §1983 was passed in 1871, it didn’t have the same meaning and scope that it does today. Not until the 1961 Supreme Court decision of Monroe v. Pope, which really gave new life to the statute. During the 1960s and 1970s, the Court expanded the statute’s applicability and made it easier to sue a state actor in federal court. By the end of the 1970s, §1983 had become the go-to statute for civil rights lawsuits.But starting in the 1980s, the Court had a change of heart. Now it seemed focused on undercutting the scope and effect of §1983. For example, civil rights lawsuits are basically torts — constitutional torts — but the Court replaced tort standards of culpability with newer, harder standards of the Court’s own devising. Similarly, the Court decided that some things like false imprisonment and slander wouldn’t count as civil rights violations for §1983 purposes, so you’d have to sue under state tort law for those kinds of wrongs.Among the limitations it added were newfangled ideas of “immunity” from being sued. In other words the government officials §1983 apparently let you sue couldn’t be sued. Judges and prosecutors got absolute immunity in the late 1970s, but Qualified Immunity for other officials wouldn’t be added until the mid-1980s.The problem was, the Supreme Court made up Qualified Immunity out of whole cloth. They tried to find an existing legal principle to justify it, but when the law was enacted in 1871 there really wasn’t one. So they invented it. Instead of basing it on legal principles, they based it on “policy” principles, which translates to “what we think is best.”That’s a problem. When the Court replaces what the law is with what it thinks the law ought to do, things get really messy. Cases get decided based on the desired outcome, rather than on the application of a consistent and predictable legal standard. When you see confusing, inconsistent, or irreconcilable lines of cases, this is often the explanation. The rulings meander because they’re rudderless.Before the 1980s were out, the Court’s jurisprudence on Qualified Immunity was already confusing, and it was going through some real contortions to craft decisions that got the desired results.I think that’s why they started acting like you suggest in 1, 2, 3, and 5. It got to be too much. The Court wanted outcomes, but was unwilling to go through the gymnastics necessary to justify those outcomes. Merits decisions require some reasoning, and also create precedent. Better to issue summary reversals, and avoid having to come up with contorted reasoning and confusing precedent. I’m only speculating here, but I bet I’m not too far wrong.Why is their desired outcome generally in favor of granting immunity? There is likely a policy preference in favor of letting the police do what they do. The Court has made it clear in other lines of cases that it has a preference for letting the police gather and use evidence, for letting the police catch culprits. In the Qualified Immunity realm, the Justices are probably loath to create incentives that would undermine all that. As mentioned in the comic, if a cop’s afraid of getting sued for crossing the line, he’s not going to go anywhere near it. All kinds of evidence hecould have gotten, and culprits who could have been caught, will go free because the officer had a compelling personal reason to hold back. (This is precisely why the Exclusionary Rule works, by the way — rather than penalizing the officer personally for violating the 4th Amendment, we simply don’t let the government introduce evidence at trial it shouldn’t have had in the first place. The cop can go right up to the line and gather all the evidence the law allows, and the law only takes away what shouldn’t have been gotten. /digression.)Okay, that would explain their chosen outcome. But it doesn’t explain why they’re bothering to act in the first place. Why take cases that don’t seem Earth-shaking? Why correct lower-court errors without establishing useful precedent? There I’d have to speculate again, but I strongly suspect that they feel that this is “doing the right thing,” because for decades the Court has wished Qualified Immunity didn’t even exist.The lone dissent in the 1961 Monroe case was Justice Frankfurter. He said the Court was making this all up, that §1983 wasn’t about any of this — it was only supposed to have been used when your rights were violated by state law, not merely by a state actor. The statute was there to give you a remedy in cases where you couldn’t already sue under state law, because state law is what allowed the wrongdoing. Broadening the scope of §1983 meant the federal courts would be poking their noses in local affairs needlessly. But more than that, it would require the federal courts to make on-the-spot decisions about what our civil rights are, when they didn’t need to.That was the lone dissent in 1961, but during the later Burger years and the Rehnquist years the Court seemed like they’d come around to his way of thinking. If that vote was held today, I bet the majority of the Court would hold that view.So the short answer to all of this is probably “the Court wishes it didn’t have to, but it does what it does because it wants to.”Very glib, I know. But I don’t have time for a longer (or shorter?) email with I’m sure better analysis. Hope it helps, though!