Qualified immunity

In Pierson v. Ray (1967), the Supreme Court first justified the need for qualified immunity from civil rights violation lawsuits for law enforcement officers by arguing that "[a] policeman’s lot is not so unhappy that he must choose between being charged with dereliction of duty if he does not arrest when he had probable cause, and being punished with damages if he does."[5]

Qualified immunity frequently arises in civil rights cases,[8] particularly in lawsuits arising under 42 USC § 1983 and Bivens v. Six Unknown Named Agents (1971).[9] Under 42 USC § 1983, a plaintiff can sue for damages when state officials violate his constitutional rights or other federal rights. The text of 42 USC § 1983 reads as follows:

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 ...[10]

Similarly, under Bivens v. Six Unknown Named Agents, plaintiffs may sue for damages if federal officials violate their constitutional rights. However, not all Constitutional violations give rise to a Bivens cause of action.[11] Thus far the Supreme Court has recognized Bivens claims for violations of the Fourth Amendment,[9] the Fifth Amendment's equal protection component of due process,[12] and the Eighth Amendment.[13]

The modern test for qualified immunity was established in Harlow v. Fitzgerald (1982).[14][15]

Prior to Harlow v. Fitzgerald, the U.S. Supreme Court granted immunity to government officials only if: (1) the official believed in good faith that his conduct was lawful, and (2) the conduct was objectively reasonable.[15] However, determining an official's subjective state of mind (i.e. did he have a good faith belief that his action was lawful) required a trial, often by jury.[15] Concerns over allowing suits to go this far deterred officials from performing their duties, "[diverted] official energy from pressing public issues, and [deterred] able citizens from acceptance of public office",[16] the Supreme Court handed down the current rule for qualified immunity: "[G]overnment officials performing discretionary functions generally are shielded from liability for civil damages insofar as their conduct does not violate clearly established statutory or constitutional rights of which a reasonable person would have known."[17] Therefore, the application of qualified immunity no longer depends upon an official's subjective state of mind, but on whether or not a reasonable person in the official's position would have known their actions were in line with clearly established legal principles.

Qualified immunity only applies to acts that are "discretionary" rather than ministerial.[17] Courts specifically distinguish discretionary acts from ministerial acts.[18] A discretionary act requires an official to determine "whether an act should be done or a course pursued" and to determine the best means of achieving the chosen objective.[19] By contrast, a ministerial act is of a "clerical nature" – the official is typically required to perform the action regardless of his own opinion.[19] Even ministerial tasks will sometimes involve a small amount of discretion, but this discretion will not necessarily satisfy the requirements of qualified immunity.[20]

Qualified immunity does not protect officials who violate "clearly established statutory or constitutional rights of which reasonable person would have known".[17] This is an objective standard, meaning that the standard does not depend on the subjective state of mind of the official but rather on whether a reasonable person would determine that the relevant conduct violated clearly-established law.[21]

Whether the law is "clearly established" depends on whether the case law has addressed the disputed issue or has established the "contours of the right" such that it is clear that official's conduct is illegal.[22] It is undisputed that Supreme Court opinions can "clearly establish" the rule for the entire country. However, circuit court of appeals opinions may have a more limited effect. Circuit courts of appeals typically treat their opinions as clearly establishing the law within that circuit[23]—though the Supreme Court has cast doubt on this theory.[24] In order to meet the requirement of "Clearly Established Law", the facts of the instant case must also fairly closely resemble the facts of the case relied on as precedent.[25][26]

The concept of testing whether the official action was covered by qualified immunity was first raised in the 1991 case Siegert v. Gilley (1991) in which the Supreme Court affirmed a dismissal of a lawsuit due to lack of clear demonstration that a constitutional right had been violated at the time of the action as a necessary precursor for any judicial relief.[27]

In 2001, the U.S. Supreme Court in Saucier v. Katz[28] formalized this rigid order, or sequencing, in which courts must decide the merits of a defendant's qualified immunity defense. First, the court determines whether the complaint states a constitutional violation. If so, the next sequential step is to determine whether the right at issue was clearly established at the time of the official's conduct. The Court subsequently modified this mandatory sequencing from Saucier in Pearson v. Callahan in 2009, holding that "the Saucier protocol should not be regarded as mandatory in all cases,"[29] and that its decision "does not prevent the lower courts from following the Saucier procedure; it simply recognizes that those courts should have the discretion to decide whether that procedure is worthwhile in particular cases."[30] The Pearson opinion gave courts the discretion to evaluate either the constitutional violation or the rights issue first. This can have benefits of expediting some cases and reducing waste of resources in the court system, but has also led to cases that focus heavily on one side of the case and weigh in favor of government officials, particularly in the area of police brutality.[27][6]

Critics have argued that qualified immunity makes it excessively difficult to sue public officials for misconduct.[31] Criticism is aimed in particular at the "clearly established law" test. This test is typically read as requiring not only that an official's behavior likely violates written law but that there exists a clear judicial precedent that establishes the behavior as unlawful.[32][7] Critics have noted that in practice this has meant that plaintiffs must prove that there exists a prior court determination made in actual litigation under facts extremely close to those of the case at hand exists, or else the case is dismissed.[33][34] Critics argue that the difficulty plaintiffs face in finding an exact match in both law and precedent makes it excessively challenging to sue public officials, giving government officials undue latitude for lawless conduct in new or unusual situations.[35][36] George Leef, for instance, argued in Forbes that:

This doctrine, invented by the Court out of whole cloth, immunizes public officials even when they commit legal misconduct unless they violated 'clearly established law'. That standard is incredibly difficult for civil rights plaintiffs to overcome because the courts have required not just a clear legal rule, but a prior case on the books with functionally identical facts.[37]

Critics have cited examples such as a November 2019 ruling by the United States Court of Appeals for the Sixth Circuit, which found that an earlier court case ruling it unconstitutional for police to sic dogs on suspects who have surrendered by lying on the ground did not apply under the "clearly established" rule to a case in which Tennessee police allowed their police dog to bite a surrendered suspect because the suspect had surrendered not by lying down but by sitting on the ground and raising his hands.[38][39]

Critics further argue that the "clearly established" standard discourages and/or delays the establishment of clear rules, even for common circumstances.[36] The first litigant to bring a case against an official under a given set of facts is likely to lose because there is as yet no clearly established standard.[40] Therefore, such a person may not choose to bring the case at all. Furthermore, even if a case is brought and carried to judgment, there is no certainty the decision will establish a clear and generally applicable legal standard. Until such a standard is articulated, qualified immunity will continue to apply in analogous cases. As the Institute for Justice puts it, "Qualified immunity means that government officials can get away with violating your rights as long as they violate them in a way nobody thought of before."[41]

A significant amount of criticism contends that qualified immunity allows police brutality to go unpunished.[6] Legal researchers Amir H. Ali and Emily Clark, for instance, have argued that "qualified immunity permits law enforcement and other government officials to violate people's constitutional rights with virtual impunity".[42] Supreme Court Justice Sonia Sotomayor has noted a "disturbing trend" of siding with police officers using excessive force with qualified immunity,[43] describing it as "sanctioning a 'shoot first, think later' approach to policing".[42] She stated:

We have not hesitated to summarily reverse courts for wrongly denying officers the protection of qualified immunity in cases involving the use of force...But we rarely intervene where courts wrongly afford officers the benefit of qualified immunity in these same cases.[44]

A 2020 Reuters report concurred with Sotomayor, concluding that "the Supreme Court has built qualified immunity into an often insurmountable police defense by intervening in cases mostly to favor the police". The report reviewed over 200 cases involving excess force by police since 2007, and found since the 2009 Pearson change from mandatory sequencing to discretionary sequencing, plaintiffs have had a more difficult time moving their case past the qualified immunity stage.[6]

No federal statute explicitly grants qualified immunity—it is a judicial precedent established by the Supreme Court.[40] While qualified immunity has been repeatedly affirmed by courts and legislation has established similar immunity at the state level, critics have argued that the adoption of qualified immunity in federal law amounts to judicial activism. That is, they argue the Supreme Court invented a new legal doctrine that has little basis in written law.[45][46] The late Supreme Court Justice Antonin Scalia has argued as much, stating in his dissenting opinion in Crawford-El v. Britton: "[the Supreme Court] find[s] [itself] engaged...in the essentially legislative activity of crafting a sensible scheme of qualified immunities for the statute we have invented—rather than applying the common law embodied in the statute that Congress wrote".[47] Clarence Thomas has likewise expressed "growing concern with our qualified immunity jurisprudence", stating that there is no apparent basis for it in the original intent of the law;[42] in Ziglar v. Abbasi, Thomas urged the court to reconsider qualified immunity, which he considered a doctrine that "substitute[s] our own policy preferences for the mandates of Congress."[48]

Some critics have argued that the Supreme Court's creation of qualified immunity amounts to "gutting"[49] Section 1983 of the United States Code, which allows any citizen to sue a public official who deprives them "of any rights, privileges, or immunities secured by the Constitution and laws".[50] U.S. District Court Judge Lynn Adelman has argued that "qualified immunity is a limitation on Section 1983 that the Court created in 1982 without support in the statute’s text or legislative history".[49] University of Pennsylvania professor of law David Rudovsky similarly argued that "the Court...has engaged in an aggressive reconstruction of the scope of § 1983...This reorientation of civil rights jurisprudence has blunted the impact of § 1983".[51]

The Court has stated that it bases qualified immunity on three factors: a "good faith" defense at common law, making up for the supposedly mistaken broadening of § 1983, and serving as a "warning" to government officials. But William Baude, Professor of Law at the University of Chicago Law School, states that "there is no such defense, there was no such mistake, and lenity [warning] should not apply. And even if these things were otherwise, the doctrine of qualified immunity would not be the best response."[46]

In a 2017 Yale Law Journal paper titled "How Qualified Immunity Fails", UCLA law professor Joanna C. Schwartz examined 1,183 Section 1983 cases and found that it was being invoked primarily when it should not have been, and therefore was being ignored or dismissed frequently. Her conclusion was that it is ineffective for its stated goals in such a way that it could not be strengthened, and should be replaced by other mechanisms for obtaining those ends.[52][5]

On March 1, 2018, the Cato Institute launched a strategic campaign to challenge the doctrine of qualified immunity, centered on "a series of targeted amicus briefs urging the Supreme Court to reverse its precedents and eliminate the doctrine outright".[45] By January 2020, this campaign had garnered the support of a cross-ideological spectrum of public interest organizations, including the ACLU, the Alliance Defending Freedom, the Institute for Justice, the NAACP Legal Defense Fund, and the Second Amendment Foundation.[45]

In August 2018, Circuit Judge Don Willett concurred dubitante when the United States Court of Appeals for the Fifth Circuit found that the Texas Medical Board was entitled to qualified immunity for an unconstitutional warrantless search it made of a doctor's patient records.[53] Willett called for "thoughtful reappraisal" of the "'clearly established law' prong of qualified-immunity analysis", citing a tendency for many courts to grant immunity based on no clear precedent, while avoiding the question of whether a Constitutional violation has occurred. Hence, those courts do not establish new law, so "[w]rongs are not righted, and wrongdoers are not reproached."[54] He wrote:

To some observers, qualified immunity smacks of unqualified impunity, letting public officials duck consequences for bad behavior—no matter how palpably unreasonable—as long as they were the first to behave badly. Merely proving a constitutional deprivation doesn't cut it; plaintiffs must cite functionally identical precedent that places the legal question "beyond debate" to "every" reasonable officer. Put differently, it's immaterial that someone acts unconstitutionally if no prior case held such misconduct unlawful. This current "yes harm, no foul" imbalance leaves victims violated but not vindicated.
[...]
Section 1983 meets Catch-22. Important constitutional questions go unanswered precisely because those questions are yet unanswered. Courts then rely on that judicial silence to conclude there's no equivalent case on the books. No precedent = no clearly established law = no liability. An Escherian Stairwell. Heads government wins, tails plaintiff loses.[55][56]

In 2020, there were several cases awaiting a Supreme Court decision involving qualified immunity.[57][58][59] However, on June 15, 2020, the Supreme Court declined to hear cases involving revisiting qualified immunity.[60][61] This was until November 2, 2020, when the Supreme Court ruled in a 7-1 per curiam decision ruled that the 5th Circuit errered in granting two prison guards qualified immunity despite severe abuses. [62] Erwin Chemerinsky of the UC Berekely School of Law calls this "a rare civil rights victory on qualified immunity." [63]

On May 30, 2020, U.S. Representative Justin Amash (L-Michigan) proposed the Ending Qualified Immunity Act, stating: "The brutal killing of George Floyd by Minneapolis police is merely the latest in a long line of incidents of egregious police misconduct...police are legally, politically, and culturally insulated from consequences for violating the rights of the people whom they have sworn to serve".[64][65][57] On May 29, 2020, Representative Ayanna Pressley (D-Massachusetts) announced that she would cosponsor the bill.[66] The bill was introduced in the House of Representatives on June 4, 2020,[67] with 16 additional cosponsors.[68] As of September 12, 2020, it now has 66 cosponsors (65 Democrats and 1 Republican).[68] A second bill, the Justice in Policing Act of 2020, H.R.7120, was introduced by Rep. Bass, Karen [D-CA-37] on 06/08/2020. It would end qualified immunity for law enforcement. [69]

On June 3, 2020, Senators Kamala Harris (D-California), Edward Markey (D-Massachusetts), and Cory Booker (D-New Jersey) introduced a Senate resolution calling for the elimination of qualified immunity for law enforcement.[70][71] Senators Bernie Sanders (D-Vermont), Elizabeth Warren (D-Massachusetts), and Chris Van Hollen (D-Maryland) are cosponsors.[70] On June 23, 2020, Senator Mike Braun (R-Indiana) introduced the Reforming Qualified Immunity Act,[72] proposing that "to claim qualified immunity under the Reforming Qualified Immunity Act, a government employee such as a police officer would have to prove that there was a statute or court case in the relevant jurisdiction showing his or her conduct was authorized".[73]

Through the passing of the Enhance Law Enforcement Integrity Act in June 2020, Colorado became the first state to explicitly remove qualified immunity as a defense for law enforcement officers.[74]