Judicial Conversations: End Qualified Immunity

National Review

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Congress passed a law to restrain government actors. The courts should enforce it as written.I’m going to start with a story that will break your heart. In the early morning hours of July 15, 2012, a young man named Andrew Scott was up late, home with his girlfriend. They were playing video games when they heard a loud pounding on the door. Alarmed, Scott grabbed a pistol and opened the door. He saw a man crouching outside in the darkness. Scott retreated, gun still at his side, pointing down to the ground.

Almost instantly, the crouching figure fired his own weapon. The encounter was over in two seconds. Scott lay on the ground, dead. The man who fired? He was a police officer. He was at the wrong house. Andrew Scott was a completely innocent man who had done nothing more than exercise his constitutional right to keep and bear arms in defense of his own home.

As for the officer? Well, not only was he at the wrong house, but he had no search warrant even for the correct house, he had not turned on his emergency lights, and he did not identify himself as police when he pounded on the door.

The officer was never prosecuted. The state ruled that the shooting was “justified” — in part because it said the police had no obligation to identify themselves. Then, when Scott’s estate sued the officer for money damages, the court threw out the lawsuit. A panel from the Eleventh Circuit Court of Appeals affirmed the dismissal. Then last year the entire court rejected en banc review.

A police officer killed a completely innocent man because of the officer’s inexcusable mistake. He escaped criminal prosecution. And then he even escaped civil liability — because of a little-known, judge-made legal doctrine called qualified immunity.

Sadly, this was but one injustice caused by this misguided doctrine. It will not be the last. But there’s a solution. Judges created qualified immunity, and they can end it. It’s past time to impose true accountability on public servants who violate citizens’ constitutional rights.

First, some background. Since 1871, federal law has permitted Americans to file lawsuits against public officials who violate their constitutional rights. It’s a powerful tool that essentially deputizes members of the public to defend their own liberties. The relevant statutory language seems quite clear:

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. [Emphasis added.]

However, after generations of judges have interpreted the statute, the phrase “shall be liable” has come to mean “may occasionally be liable.” As The New Republic’s Matt Ford outlines in an excellent extended essay on qualified immunity, courts originally permitted public officials to “cite traditional common-law defenses of good faith and reasonableness to overcome Section 1983 lawsuits.”

In 1982, however, the law changed. In a case called Harlow v. Fitzgerald, the Supreme Court concocted the modern doctrine of qualified immunity. Designed in part to encourage the “vigorous exercise of official authority,” the Court’s redesigned doctrine protected public officials “insofar as their conduct does not violate clearly established statutory or constitutional rights of which a reasonable person would have known.”

And how does one determine what is a “clearly established” right? After all, the First Amendment seems relatively clearly established. As does the Fourth Amendment. And the Second. And the Sixth.

But no. As the doctrine developed, to prove that a right is clearly established, the plaintiff generally had to find and cite a remarkably similar case, with nearly identical facts, decided by a court of controlling jurisdiction.

So, when Andrew Scott’s estate sought compensation for his death, it didn’t just have to prove that the officer had no warrant, knocked on the wrong door, and gunned down an innocent man in his own home; it also had to find another case “with facts similar to the undisputed facts” in Scott’s case. Oh, and the comparison had to be “particularized.” “High levels of generality” simply won’t do.

In a recent concurrence, newly confirmed Fifth Circuit judge Don Willett launched a blistering attack on qualified immunity:

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.

I’d encourage you to read the entire concurrence (it’s not long). And then I’d also encourage you to read an extraordinary amicus brief filed by one of the most ideologically diverse groups ever arrayed on the same side at the Supreme Court. When the Alliance Defending Freedom, the American Civil Liberties Union Foundation, the Second Amendment Foundation, the Reason Foundation, the National Police Accountability Project, and Public Justice (among others) join hands, we’re approaching the “dogs and cats, living together” phase of the judicial apocalypse.

Together, they make a simple and profoundly true point:

Qualified immunity denies justice to victims of unconstitutional misconduct. It imposes cost-prohibitive burdens on civil-rights litigants. And it harms the very public officials it seeks to protect.

I’d add one more thing to the brief and to Judge Willet’s opinion — the entire notion of “clearly established law” rests on a series of absurd, fantastical premises. Are we really to believe that a police officer doesn’t know he shouldn’t pound on the wrong door and blow away the innocent occupant unless a court said so in a case, say, five years before? Do we really believe police officers and university administrators are diligently reading such cases as they are decided anyhow?

Also note how qualified immunity flips the meaning of the statute upside-down. Section 1983 is a law designed to protect citizens and help them secure their rights. It was not designed to protect the “vigorous exercise of official authority” but instead to restrain that authority. Judges have defied Congress. They’ve granted lawless officials countless free passes for unconstitutional behavior.

As Ford notes in his New Republic essay, the judicial times may be changing. Justices Clarence Thomas and Sonia Sotomayor have both signaled their displeasure with the doctrine, and in 2017 respected University of Chicago law professor William Baude wrote a comprehensive critique. While I’d encourage the curious to read the entire paper, this conclusion — from the abstract — is on point:

Members of the Supreme Court have offered three different justifications for imposing this unwritten defense on the text of Section 1983. First, that the doctrine of qualified immunity derives from a common-law “good-faith” defense. Second, that it compensates for an earlier putative mistake in broadening the statute. Third, that it provides “fair warning” to government officials, akin to the rule of lenity.

On closer examination, each of these justifications falls apart for a mix of historical, conceptual, and doctrinal reasons. There was no such defense; there was no such mistake; lenity ought not apply. . . . Despite its shoddy foundations, the Supreme Court has been formally and informally reinforcing the doctrine of immunity. In particular, the Court has given qualified immunity a privileged place on its agenda reserved for habeas deference and few other legal doctrines. Rather than doubling down, the Court ought to be beating a retreat.

Among the many powerful points that ADF, the ACLU, and their allies make in their brief is the link between the culture of impunity created by qualified immunity and the loss of public trust in American institutions. In part because of qualified immunity, public officials in this nation often have greater financial incentives to keep sidewalks repaired than they do to preserve the fundamental, unalienable rights that their government was created to preserve.

The amicus brief ends with a powerful quote from Marbury v. Madison: “The very essence of civil liberty certainly consists in the right of every individual to claim the protection of the laws whenever he receives an injury.” Indeed, “One of the first duties of government is to afford that protection.”

When it passed Section 1983, Congress took a vital step toward fulfilling that duty. The Supreme Court must not frustrate its intent. The time has come to apply the words of the statute, restore its plain meaning, and end qualified immunity.

David French — David French is a senior writer for National Review, a senior fellow at the National Review Institute, and a veteran of Operation Iraqi Freedom.

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