Keep Qualified Immunity…For Now
July 1, 2016 (Mimesis Law) – The discussion over the Supreme Court’s decision in Utah v. Strieff is still hot. But some of the discussion has moved away from the merits of Justice Thomas’ opinion. Now, some people are again discussing civil remedies for Fourth Amendment violations. This was compounded by the recent acquittals of officers involved in the death of Freddie Grey.
Senior Circuit Judge Jon Newman led the discussion with his op-ed:
The acquittal Thursday of another Baltimore police officer charged in the death of Freddie Gray, like the acquittal 25 years ago of the Los Angeles officers who beat Rodney King, reveals the inadequacy of the criminal-law remedy. Suing the police for money under a strengthened federal civil rights law would be a better response to police misconduct.
Right now, however, federal law makes it more difficult to sue a police officer for denying a citizen his constitutional rights than for injuring him by ordinary negligence. If an officer negligently drives his car and injures a citizen, the victim can win money just by proving negligence, and the city that employs the officer pays whatever the jury awards.
That, unfortunately, is true. The big-picture reason for this is sovereign immunity, which basically means that the king can only be sued with his consent. Of course, the 1776 Brexit ended the royal rule in the U.S. Yet, the idea of sovereign immunity persisted. Constitutional law titan and the-man-who-never-saw-a-case-he-couldn’t-memorize, Erwin Chemerinksy, summed it up like this:
Sovereign immunity is anachronistic relic and the entire doctrine should be eliminated from American law.
This idea of immunity is not contained to suits directly against the state. Rather, it spills over onto the agents of the government when discharging their duties. This means either the agent of the government is absolutely immune, such as a judge, or the agent has qualified immunity, like a police officer. Although, due to the American experience in the Reconstruction South, even governmental sovereign immunity is slightly modified when a constitutional deprivation is alleged.
Fundamentally, absolute immunity means that the agent can never be sued for misconduct related to the discharge of the duties of their office. So, a judge can wrongfully approve a petition for sterilization without fear of suit, but this isn’t a double-0 license to kill. The judge can still be charged with bribery or other crimes. Thus, a judge wrongfully sterilizing someone without a court order is completely different. Yes, it’s a rather subtle distinction. So, it is a good thing we lawyers are here, because who else would be able to tell the rest what the difference is between the two.
In the case of qualified immunity, the idea is basically that certain factual circumstances can divest the officer of immunity. Regardless of the nuisances of this doctrine, the Supreme Court expressly noted that the purpose of the doctrine was to be, at least in part, a screening mechanism:
Insubstantial lawsuits can be quickly terminated by federal courts alert to the possibilities of artful pleading. Unless the complaint states a compensable claim for relief under the Federal Constitution, it should not survive a motion to dismiss.
In some ways, the screening mechanism is opposite of the procedural screening done under AEDPA. At the pleading stage, qualified immunity often peeks over to the facts and, in large measure, determines the severity of the alleged misconduct, dismissing the less severe conduct, such as mere negligence. On the other hand, AEDPA leads to disposing of many claims without regard to the merit. Although recently the Supreme Court has begun to throw up procedural hurdles in civil rights actions too. Still, like AEDPA, it’s successful at screening out lawsuits early.
In this light Judge Newman makes three recommendations:
But Congress needs to strengthen Section 1983 in three ways. First, the defense of qualified immunity should be abolished. If an officer violates the Constitution, the victim should win the lawsuit, just as he or she wins when hit by an officer negligently driving his vehicle.
Second, the city (or county or state) that employs the officer should pay a damage award, just as a governmental employer pays for injury caused by an officer’s negligent driving. A jury would be more willing to rule against a city than to make a police officer pay out of his own pocket.
Third, the local U.S. attorney, not just the victim of the unconstitutional conduct, should be authorized to bring the suit. When federal law has been violated, a federal lawyer should act on behalf of the victim. A jury is more likely to take the matter seriously if a U.S. attorney sues than when the victim is the plaintiff, who can sometimes be perceived as a not very respectable member of the community.
Addressing his third suggestion first, it’s not a terrible idea on the face of it, but the reality of DOJ civil rights lawsuits suggest that this is probably wishful thinking. The second suggestion fails to recognize that insurers now are the ones really paying out the judgments, regardless of whether the state agency and/or the agents are found liable. While this has led some to suggest that insurers are the key to reform, insurers care about the pool—not the individual insured. So long as civil rights actions are generally unlikely to succeed or succeed big, the pool is safe. Thus, insurers won’t step in to change behavior until their money is at stake.
Finally, that brings us back to qualified immunity. If you get rid of qualified immunity, then you’ll simply have to create another screening mechanism. Governments are usually well-insured, often well-funded, typically risk adverse, and can perpetually refill the treasury through taxes—so long as taxpayers stay put, anyhow. This makes them tempting defendants, as impecunious defendants usually are not sued. On top of that, a defendant who prevails in a civil rights action usually gets attorney’s fees awarded. Mostly, but for qualified immunity, it’s a bonanza for plaintiff’s lawyers.
Plus, we’re told, making lawsuits easier would bring about a policing apocalypse:
If you want to see active policing plummet, tell law enforcement officers they will be civilly liable for conduct which no reasonable person could have foreseen was a violation of any rights!
Here’s an idea. Let’s make Federal Appellate Court judges civilly liable for every decision they have reversed by the Supreme Court. Unlike cops, who have to make real time decisions affecting legal rights, often under life-threatening circumstances, judges have the luxury of time, law clerks and quiet, safe, well-appointed chambers to make sure their legal decisions are correct. Why shouldn’t they be accountable for rendering legal opinions the Supreme Court determines are wrong?
The answer is, unlike cops, judges (like Newman) have, “…absolute immunity from Section 1983 damage actions for their ‘judicial’ acts.” It’s disingenuous of Newman to advocate taking away “qualified” immunity from the police when the U.S. Supreme Court has already given “absolute” immunity to him.
Law enforcement unions and associations such as ALADS must speak out to protect cops from malicious, politically motivated prosecutions and inflammatory anti-cop rhetoric which is slanted, inaccurate or just lies. Our strength comes from our numbers and our collective ability to band together to support each other and the rightness of the job all of us do to protect the public.
Bill Otis agrees. Relatedly, Ken Scheidegger has some interesting thoughts on Judge Newman’s proposal, including suggesting that getting rid of qualified immunity in excessive force actions would be a bad idea because the defendant probably deserved it. I remember the “bitch-deserved-it defense” in my torts class. Doesn’t everyone? The majesty of the law. But of particular interest was Ken’s assertion that constitutional violations should be difficult to prove because they’re more serious.
Ken is judging “seriousness” from the point of view of the officer, the person doing the depriving, rather than the defendant, the person who was deprived. If either the zoning inspector or the police officer negligently deprive you of your constitutional rights, haven’t you still been harmed? Yes is the answer. It’s simply a policy decision to ignore low-intensity deprivations under section 1983.
What makes this issue particularly intractable is everybody’s at least partially right. Ignoring a raft of constitutional deprivations is unfair and, perhaps, even un-American. And wrongdoers should be held to account for their misdeeds. Yet, even in regular negligence cases, we give professionals, like doctors and lawyers, a different standard of care. So, it’s not ridiculous to give certain governmental agents like police officers a different, more forgiving standard of care.
Plus, qualified immunity, along with other mechanisms, prevents and screens out a lot of frivolous litigation. And that cost of frivolous litigation otherwise would be socialized by taxpayers. Plus, in highly variable and discretionary jobs like policing, there is nearly daily opportunity for negligence to occur. So, under such a lower standard of culpability, departments might be essentially uninsurable or unable to effectively patrol.
Contrary to how it may appear to some, a madman didn’t appear one day and set-up the doctrine of qualified immunity. It’s there for reasons that plenty of courts deemed to be important reasons. Judge Newman’s suggestion to tear the fence down because he fails to see the value was made without due consideration. Qualified immunity and its related doctrines might not be the best solution of all best possible worlds, but it is a solution. Let’s figure out a better one before tearing down the old one.