It’s Time To Limit Qualified Immunity
September 17, 2018 by psb40
By Evan Bernick, Visiting Lecturer, Georgetown University Law Center
The most pressing action that the courts and Congress can take to remedy an ongoing violation of constitutional principles is to scale back qualified immunity—a judge-made doctrine that insulates government officials from civil liability for constitutional and statutory claims, so long as they don’t violate “clearly established law” of which “a reasonable person would have known.” The political and doctrinal impediments to doing so are substantial, but that doesn’t make the constitutional problems that qualified immunity creates or the practical impact that qualified immunity has on people’s rights any less severe.
The text of Section 1983, the federal law that authorizes civil suits for constitutional and statutory violations, provides that “every person” who is acting “under color of” law who causes a “deprivation of any rights… secured by the Constitution and laws” “shall be liable to the party injured.” This text embodies a foundational constitutional principle: Where there is a right, there must be a remedy.
In the 1967 case of Pierson v. Ray, however, the Supreme Court held that officials who commit constitutional or statutory violations in “good faith” can raise “qualified immunity” as a defense to civil claims. The Court justified qualified immunity on two grounds, one statutory, one pragmatic.
The statutory ground concerned Section 1983’s supposed incorporation of doctrines of official immunity that existed at common law. After affirming that “[f]ew doctrines were more solidly established at common law than the immunity of judges from liability for damages for acts committed within their judicial jurisdiction,” the Court asserted that “[t]he legislative record gives no clear indication that Congress meant to abolish wholesale all common-law immunities” when it enacted Section 1983. The Court then extended qualified immunity to officials who conducted themselves in good faith, without making any effort to determine whether any officials enjoyed such immunity at common law.
They didn’t. As a number of scholars have shown, there was no good-faith defense at common law—officials were held strictly liable for unlawful acts. To the extent that the original meaning of Section 1983 incorporated common-law immunities, as the Court assumed in Pierson, the Court ought to have denied that officials enjoy any good-faith immunity from civil claims arising from unlawful acts.
Turning to the pragmatic ground, the Court in Pierson considered that risk-averse officials wouldn’t energetically discharge their duties if they had to worry about being held civilly accountable for actions taken in good faith, and that it wouldn’t be fair to them to be thus held accountable. Chief Justice Earl Warren wrote: “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 has probable cause, and being mulcted in damages if he does.”
These weren’t unreasonable concerns. Raise the expected costs of any activity, you’ll get less of it. Energetic official action has benefits as well as costs to members of the public, and raising the costs to officials of energetic action by increasing the likelihood that it will give rise to litigation and liability threatens to reduce those benefits by “over-deterring” officials. Further, around the time that Pierson was decided, the Court was recognizing a number of novel constitutional rights. Should well-intentioned but mistaken officials really be forced to endure the burdens of discovery and trial on their way to paying out of their own pockets if they fail to predict the progress of a criminal procedure revolution?
But over-deterrence and fairness concerns cannot justify qualified immunity today. Consider the officials for whom those concerns seem most pressing—ordinary police officers on the beat, doing their best to keep track of evolving doctrine. Police officers are virtually always indemnified by their employing municipality—taxpayers foot the bill if they’re held liable for rights-violations. Further, qualified immunity rarely shields police officers from the burdens of litigation—vanishingly few claims are dismissed at the motion to dismiss stage or at summary judgment on qualified immunity grounds. Accordingly, qualified immunity is ill-suited to ensure that, as the Court has put it, the prospect of liability and litigation will not “dampen the ardor” of officials. Because the Court subsequently held that the subjective good faith of officials is irrelevant in determining whether qualified immunity can be invoked, it is doubtful that qualified immunity reliably distinguishes between officials who are trying their best to abide by the law and those who are not.
Consider the facts of Mullenix v. Luna. The Tulia Police Department attempted to arrest Israel Leija, Jr. for violating his misdemeanor probation. When officers approached Leija at a drive-in restaurant and told him that he was under arrest, Leija sped off and led officers on an 18-minute chase at speeds between 85 and 110 miles per hour. Officers who had been trained to deploy tire spikes set up spikes at three locations that Leija was expected to reach.
TPD Safety Trooper Chadrin Mullenix decided to stop Leija by different means: Shooting at Leija’s engine block from an overpass with a .223 caliber M-4 rifle. He hadn’t been trained to shoot at moving vehicles. Although he asked the dispatcher to inform his supervisor of his plan and ask if his supervisor thought it was worth doing, Mullenix didn’t wait for a response. He fired six shots, none of which struck the engine block but four of which struck Leija, killing him. In the aftermath of the shooting, Mullenix’s first words to his supervisor were, “How’s that for proactive?” (Apparently, Mullenix was referring to his supervisor’s prior criticism of his failure to take initiative.) Because subjective intent is considered irrelevant, Mullenix’s remark played no role in the Court’s qualified immunity analysis, and the Court held that Mullenix was entitled to qualified immunity. Were subjective intent considered relevant, Mullenix’s remark to his supervisor may have served as triable evidence of bad faith and changed the outcome.
So, what’s to be done? Congress could always amend Section 1983 to take aim at the Court’s various departures from its original meaning, and I have provided guidance to policymakers who are interested in doing precisely that. I worry, however, that any such effort will meet with intense opposition from law enforcement interest groups. The Court could also retreat from its more sweeping statements concerning qualified immunity—disavowing, for instance, the proposition that officials must be “plainly incompetent or . . . knowingly violate the law” before they are denied qualified immunity—or recognize, as it once did, the relevance of subjective intent of officials. I worry, however, that the Court has little interest in doing so. If nothing else, qualified immunity helps the Court—and the judiciary generally—economize on scarce resources. It discourages litigation that might otherwise be generated by countless interactions between public officials and ordinary citizens by raising the expected costs and lowering the expected benefits to litigants of seeking relief for constitutional and statutory injuries. That means that less litigation takes place and courts have more time to focus on cases that Justices on both sides of the ideological spectrum appear to believe that the judiciary is more institutionally competent to decide. The Court’s qualified immunity doctrine has expanded and hardened over the years, notwithstanding complaints from Justices Sotomayor and Thomas. Moreover, the Court closely monitors lower-court compliance with its qualified immunity doctrine—Mullenix is but one of many examples.
None of the practical concerns canvassed above, however make qualified immunity good law or good policy. It is neither. It contradicts the original meaning of Section 1983 and undermines constitutional principles. It imposes heavy costs on the victims of official misconduct by making it far more difficult for them than it would otherwise be to vindicate their rights. It does not provide compensating benefits to officials who conduct themselves in good faith or to members of the public who might benefit from officials’ ardor not being dampened. At a minimum, qualified immunity doctrine should be re-calibrated in light of what scholarly inquiry into the history of common-law immunities and practical experience with the doctrine have shown. I’m not optimistic about the prospects of any meaningful change, but the need for change is urgent.
 42 U.S.C § 1983 (2012).
 Marbury v. Madison, 5 U.S. (1 Cranch) 137, 163 (1803).
 Pierson v. Ray, 386 U.S. 547, 557 (1967).
 Id. at 553-54.
 Id. at 554.
 See id. at 557.
 See, e.g., William Baude, Is Qualified Immunity Unlawful?, 106 Calif. L. Rev. 45, 55 (2018) (“The Court’s account of common-law qualified immunity has several historical problems.”); James E. Pfander & Jonathon L. Hunt, Public Wrongs and Private Bills: Indemnification and Government Accountability in the Early Republic, 85 N.Y.U. L. Rev. 1862, 1917 (2010); Donald L. Doernberg, Taking Supremacy Seriously: The Contrariety of Official Immunities, 80 Fordham L. Rev. 443 (2011).
 Pierson, 386 U.S. at 555.
 Escobedo v. Illinois, 38 U.S. 478, 492 (1964).
 Joanna C. Schwartz, Police Indemnification, 89 N.Y.U. L. Rev. 885, 912 (2014).
 Joanna C. Schwartz, How Qualified Immunity Fails, 127, Yale L.J. 2, 36 (2017).
 Harlow v. Fitzgerald, 457 U.S. 800, 814 (1982).
 Id. at 818.
 136 S. Ct. 305, 305-07 (2015).
 Id. at 312.
 Malley v. Briggs, 475 U.S. 335, 341 (1986).
 Kit Kinports, The Supreme Court’s Quiet Expansion of the Qualified Immunity Defense, 100 Minn. L. Rev Headnotes 62 (2015). But see Ziglar v. Abbasi, 137 S. Ct. 1843, 1869-1872 (2017) (Thomas, J., concurring in part).