Law Review: Qualified Immunity — A Deconstruction of the Curious Doctrine
On May 25, a Black man named George Floyd was accused of using a counterfeit $20 bill to buy cigarettes in a deli in Minneapolis. After police arrived on the scene, the situation took a turn for the worse as one of the officers, Derek Chauvin, pressed his knee against Floyd’s neck for nearly nine minutes while the other officers just stood and watched. Chauvin kept his knee pressed against Floyd’s neck despite his pleas that he couldn't breathe and even after paramedics arrived. Eventually, Floyd lost consciousness and tragically lost his life. Aside from the revisited discussion about race and criminal justice reform, this horrendous incident has also reawakened a debate in legal circles regarding the legal doctrine of qualified immunity.
Qualified immunity asserts that a government official can not be prosecuted for violating a citizen’s constitutional rights unless that official’s actions violated a “clearly established” statutory or constitutional right. This likely could mean that Chauvin can’t be prosecuted for his actions since it could be argued that, under qualified immunity, there was no previous case that decided an officer can’t press his knee against a person’s neck. As Patrick Jaicomo and Anya Bidwell, attorneys at the Institute for Justice, have pointed out: “When Floyd’s family goes to court to hold the officers liable for their actions, a judge in Minnesota may very well dismiss their claims. Not because the officers didn't do anything wrong, but because there isn't a case from the Eighth Circuit Court of Appeals or the Supreme Court specifically holding that it is unconstitutional for police to kneel on the neck of a handcuffed man for nearly nine minutes until he loses consciousness and then dies.” If that is the case, then it would seem impossible to ever hold officers accountable for abusing their power like in the aforementioned incident. In a country whose pledge of allegiance concludes with the famous words “liberty and justice for all,” how did our legal system devise a doctrine that allows for officers to be above the law?
The origins of qualified immunity can be traced back to 1967 when the Supreme Court introduced the doctrine in Pierson v. Ray, 386 U.S. 547 (1967). The case involved Black clergymen in Mississippi who, in 1961, were charged with violating the Mississippi Code by attempting to use a waiting room in a bus terminal that was designated for only white people. The clergymen were then convicted in civil court, but the cases against them were dropped after one of them was granted a trial de novo in which the jury decided a verdict in his favor. Subsequently, the clergymen sued for damages in the District Court for the Southern District of Mississippi under 42 U.S.C § 1983 which states: “Every person who, under color of any statute, ordinance, regulation, custom, or usage, of any State… subjects, or causes to be subjected, any citizen of the United States… 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.” After much deliberation, the jury ruled in favor of the policemen.
Appealing the case in the Fifth Circuit Court of Appeals, the appeals court sided with the officers, ruling: “In this cause… the doctrine of official immunity protects the police officers from common-law false-imprisonment liability.” The Supreme Court, in an opinion by Chief Justice Earl Warren, reversed the ruling of the Fifth Circuit Court of Appeals, writing: “The common law has never granted police officers an absolute and unqualified immunity, and the officers in this case do not claim that they are entitled to one. Their claim is rather that they should not be liable if they acted in good faith and with probable cause in making an arrest under a statute that they believed to be valid. Under the prevailing view in this country a peace officer who arrests someone with probable cause is not liable for false arrest simply because the innocence of the suspect is later proved.” Chief Justice Warren’s opinion rejected the idea that the officers were covered by absolute immunity, but accepted that the officers were entitled to what we now know as qualified immunity.
The Supreme Court would further develop the doctrine less than a decade later in Wood v. Strickland, 420 U.S. 308 (1975). In 1974, high school students in Arkansas who had been expelled for possession of alcoholic beverages sued their school officials in the District Court for the Western District of Arkansas under 42 U.S.C. § 1983. The district court ruled in favor of the school officials on the grounds that they did not act with malicious intent toward the students. On appeal, the Eighth Circuit Court of Appeals reversed the decision of the district court and ordered a new trial. The Supreme Court then vacated and remanded the decision, ruling that qualified immunity extends to public school officials so long as they acted within good faith. Writing for the majority, Justice Byron White explained: “we hold that a school board member is not immune from liability for damages under § 1983 if he knew or reasonably should have known that the action he took within his sphere of official responsibility would violate the constitutional rights of the student affected, or if he took the action with the malicious intention to cause a deprivation of constitutional rights or other injury to the student.”
As a result of the decisions handed down in Pierson and Wood, the standard for applying qualified immunity rested on whether a government official acted within good faith, believing that his or her conduct was lawful, and that the conduct was objectively reasonable. However, this standard would not last long as the Supreme Court would revise its application less than a decade after the decision in Wood.
In 1982, the Supreme Court created a new standard for qualified immunity in Harlow v. Fitzgerald, 457 U.S. 800 (1982), which coincided with Nixon v. Fitzgerald, 457 U.S. 731 (1982). The developments of the cases began in 1970 when Earnest Fitzgerald was fired from his position in the Department of the Air Force. Fitzgerald then accused President Richard Nixon of terminating his position in retaliation for a testimony he gave before a Congressional Subcommittee in 1968 in which he claimed that there were cost overruns and unexpected technical difficulties concerning the development of a particular airplane. The Civil Service Commission, a government agency tasked with selecting federal employees based on merit, denied Fitzgerald’s claim that his dismissal represented unlawful retaliation. Thereafter, Fitzgerald filed a suit in the District Court for the District of Columbia against presidential aides Bryce Harlow and Alexander Butterfield accusing them of conspiring against him in his wrongful dismissal. President Nixon was also named a defendant in the case. The district court ruled that the officials were not entitled to absolute immunity. Harlow, Butterfield and Nixon appealed the decision regarding absolute immunity to the D.C. Circuit Court of Appeals who dismissed the appeal without issuing an opinion.
The Supreme Court heard and decided both cases at the same time, reversing the decision of the district court. The Supreme Court held that Nixon, in his capacity as a former president, was entitled to absolute immunity. Regarding the status of the aides, the Court ruled that they were not entitled to absolute immunity like the president, but were entitled to qualified immunity. Writing the majority opinion in both decisions, Justice Lewis Powell criticized the prevailing standard for qualified immunity, writing: “The previously recognized ‘subjective’ aspect of qualified or ‘good faith’ immunity… frequently has proved incompatible with the principle that insubstantial claims should not proceed to trial.” Setting up what is now the applicable standard for qualified immunity, Justice Powell declared: “Henceforth, government 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.”
While the doctrine of qualified immunity has come under particular scrutiny after the recent tragedy involving George Floyd, it has also received criticism from members of the Supreme Court over the preceding years. The calls to revisit the doctrine have come from justices of all judicial philosophies. Some of the Court’s left-leaning justices have shown concern that the doctrine has served as a cover-up for officers that violate the law. Justice Sonia Sotomayor, joined by Justice Ruth Bader Ginsburg, wrote in a dissent in Kisela v. Hughes 584 U.S. (2018) that qualified immunity “tells officers that they can shoot first and think later, and it tells the public that palpably unreasonable conduct will go unpunished.” Indeed, a series of recent appeals court rulings confirms Justice Sotomayor’s discontents. Last year, the Eleventh Circuit Court of Appeals reversed a district court decision, and held that an officer who shot a 10-year-old boy was covered by qualified immunity. The Ninth Circuit Court of Appeals ruled that an officer who shot a 15-year-old boy who was walking to school was also protected by qualified immunity. The court even acknowledged that the officer violated the boy’s due process rights under the Fourteenth Amendment, but could not convict the officer because there was no similar case that existed previously.
The Supreme Court’s right-leaning justices have criticized qualified immunity from a more legal perspective. The late Justice Antonin Scalia explained in a dissenting opinion in Crawford-El v. Britton, 523 U.S. 574 (1998) that he felt the doctrine was essentially made up by the Court and not grounded in common-law: “As I have observed earlier, our treatment of qualified immunity under §1983 has not purported to be faithful to the common-law immunities that existed when §1983 was enacted, and that the statute presumably intended to subsume… We find ourselves engaged, therefore, 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.” Justice Clarence Thomas, who joined the aforementioned dissent by Justice Scalia, echoed a similar sentiment in a concurring opinion in Ziglar v. Abbasi, 582 U.S. (2017): “I write separately, however, to note my growing concern with our qualified immunity jurisprudence… Until we shift the focus of our inquiry to whether immunity existed at common law, we will continue to substitute our own policy preferences for the mandates of Congress. In an appropriate case, we should reconsider our qualified immunity jurisprudence.”
The criticism that qualified immunity was created by judicial decree is certainly not unfounded. Chief Justice Warren essentially admitted as much in the Pierson decision where he 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.” The revision of the doctrine by Justice Powell in the Harlow decision also gives credence to the claim that the doctrine was a creation of the Supreme Court. As noted above, he criticized the old standard and subsequently declared a new one. Was the Court not acting like the legislature in simply rewriting the standard for applying qualified immunity? It may very well be the case that officers should be entitled to some form of protection for doing their job in a reasonable manner despite the damage incurred by an innocent party, but according to originalists like Scalia and Thomas, it is not the job of the Court to legislate from the bench.
The desire to end qualified immunity is also apparent in the halls of Congress as some members have devised legislation that would eliminate the doctrine. The legislative efforts to repeal the doctrine are also not confined to partisan politics. Currently, Representative Justin Amash of Michigan, the lone Libertarian in Congress, has introduced a bill called the “End Qualified Immunity Act,” that has received Republican and Democratic support. This makes it the first tri-partisan supported bill in history.
Considering that the Supreme Court recently decided not to hear a set of cases challenging the doctrine, it seems that any reforms will need to come in the form of legislation. While it may seem disheartening that the Court has refused to hear these cases, it does not mean that it will not hear them at a later point in time. Nevertheless, with a Court review off the table for the foreseeable future, any reforms will need to come through an act of legislation. Regardless of where one stands politically, there is ample reason to be skeptical about the doctrine of qualified immunity.
Photo Caption: Police in Lyon, France amid protesters.
Photo Credit: Unsplash