Talk:Qualified immunity

Update to cover Reinert article?

There’ve been some fascinating recent developments that might undermine the basis for qualified immunity, as described in a NYT article and a California Law Review article, but I don’t understand the details well enough to add that info to the article. Could someone who understands this better add info about this? Elysdir (talk) 16:37, 16 May 2023 (UTC)

I added a paragraph describing the questions raised by the Reinert article, along with relevant links and a paragraph in the litigation section describing the questions currently presented to SCOTUS in Hulbert v. Pope. There's some question over where the link to the Hulbert v. Pope case information should go, though. Wigginx (talk) 00:58, 18 October 2023 (UTC)

Seems dubious. I went ahead and removed it for now. If it is added back, it should cite a law review instead of a preprint, and it should not be in the lead (opening paragraphs of the article). –Novem Linguae (talk) 03:21, 18 October 2023 (UTC)

@Novem Linguae SSRN is not strictly a preprint website, and is the site that the author of the paper links to for his publications. (See https://cardozo.yu.edu/directory/alexander-reinert) In this case, the author, Alexander Reinert is a Professor of Litigation & Advocacy at the Cardozo School of Law, which qualifies as a subject-matter expert for WP:SELFPUB. Wigginx (talk) 03:24, 18 October 2023 (UTC)

Also, there's a bigger issue here with the content of this article now, which is that @Anachronist reverted a number of changes with a sledgehammer, including some formatting changes introduced by @HaeB. Nevertheless, I overlooked the link @Elysdir supplied above to the paper in the California Law Review. Wigginx (talk) 03:27, 18 October 2023 (UTC)

That paragraph violated WP:LEAD too.

The addition of cases to the list at the end, citing only primary sources, violates WP:OR. It is not our place to include, and especially interpret, material that hasn't been covered in reliable secondary sources. Just because a case mentions "qualified immunity" doesn't mean it merits inclusion here. ~Anachronist (talk) 03:28, 18 October 2023 (UTC)

If we're deleting content based on WP:LEAD, then the second paragraph should get the axe, too. Though it would probably be better to relocate it to an appropriate subsection instead, imo.

As for citing WP:OR, that makes a case for gutting large swaths of this article that are referenced to justia.com and other primary sources. WP:PRIMARY, as I'm sure you're aware, does not categorically prohibit primary sources. I attempted to capture the relevant facts from the primary source without adding any interpretation, since the NYT link @Elysdir provided was broken. I just found the correct link, https://www.nytimes.com/2023/05/15/us/politics/qualified-immunity-supreme-court.html, though. I can take another stab at putting the information in, sourced to the NYT analysis, and am open to suggestions on where it should go. Wigginx (talk) 03:47, 18 October 2023 (UTC)

Are we sure this unusual legal argument (that someone made a mistake over a century ago and this overrides the status quo that the courts have been upholding) deserves WP:WEIGHT? –Novem Linguae (talk) 03:55, 18 October 2023 (UTC)

I believe it's noteworthy, given that there was a New York Times article about it and a recent petition for writ that puts the question before the Supreme Court. Wigginx (talk) 04:03, 18 October 2023 (UTC)

As for citing WP:OR, that makes a case for gutting large swaths of this article that are referenced to justia.com and other primary sources. Yes, it certainly does, if what we're doing is interpreting rather than merely reporting. In the paragraph you added that I removed, you were interpreting the case. Sure, we can use primary sources judiciously. But primary sources are not the basis on which an article should be written. ~Anachronist (talk) 04:14, 18 October 2023 (UTC)

I was trying very hard to avoid interpreting the primary source while not simply block-quoting it. I'm willing to give it another shot, but it might be more efficient if you were to suggest a rephrasing that you believe would be satisfactory. Would you mind looking at the petition for writ (http://www.supremecourt.gov/DocketPDF/23/23-385/284427/20231006170607107_Petition%20Hulbert.pdf) and seeing what you can come up with? As this is a relatively new challenge through litigation (the petition was just filed on October 6th), I can't find any secondary sources. Wigginx (talk) 04:27, 18 October 2023 (UTC)

If there are no secondary sources, we needn't include it. ~Anachronist (talk) 04:34, 18 October 2023 (UTC)

I mean, we "needn't" include anything at all, really... :)

The information seems noteworthy and relevant, as I stated above. So while it doesn't have to be present, I believe it should be. I made a sincere attempt to add it in accordance with policy. While my initial edits may have missed the mark to a minor degree, I don't believe that's a good justification for wholesale deletion, but rather for constructive edits.

Perhaps this article should be tagged, because it's easy to find other examples that could be considered interpretation of a primary source. As one example, in https://en.wikipedia.org/wiki/Qualified_immunity#Discretionary_function_requirement, there's the phrase, "though the Supreme Court has cast doubt on this theory," which is referenced against a primary source that doesn't directly state that (https://supreme.justia.com/cases/federal/us/575/13-1412/). Wigginx (talk) 04:42, 18 October 2023 (UTC)

Since two of us are against inclusion, and two of us are for inclusion, I don't see a consensus to include this at this time. If you'd like to get some more opinions on this, I'd recommend posting a link at WT:LAW with a link to this section inviting folks to weigh in. –Novem Linguae (talk) 04:48, 18 October 2023 (UTC)

I agree the Reinart article should be mentioned, since it's published in the California Law Review, one of the top law journals, and it's received mainstream press coverage. However, it should be given due weight – perhaps a one sentence overview in the "Objections and criticism" – given that the article is essentially an argument that the Supreme Court should have used different tools of statutory construction. If you wanted to improve the article more, you might add a subsection to "Objections and criticism" on scholarly critiques. voorts (talk/contributions) 21:25, 18 October 2023 (UTC)

Sounds good to me. Thanks for the expert opinion. Wigginx, want to add the sentence? –Novem Linguae (talk) 21:39, 18 October 2023 (UTC)

I can absolutely try. I believe a contributing factor to the noteworthiness is that a case has presented questions raised by the article to SCOTUS (even thought the petition has not yet been granted). I may need two sentences :) Wigginx (talk) 02:04, 19 October 2023 (UTC)

A law professor filing an amicus brief with SCOTUS asking them to grant cert is not all that notable. Law professors pitch their theories to the Court all the time. voorts (talk/contributions) 02:09, 19 October 2023 (UTC)

It's not an amicus brief; it's a petition on the paid docket, and the petitioners are parties to the suit from the 4th Circuit. It's related to the Reinert article by the fact that it uses the term he coined (the "Notwithstanding Clause") and puts questions raised by Reinert before the Court. I included it in the paragraph I added about the Reinert article, but it could reasonably be placed in a separate paragraph under Qualified_immunity#Through_litigation. Wigginx (talk) 04:50, 19 October 2023 (UTC)

@Wigginx My mistake. In that case, I think it is worth mentioning there's a cert petition on the issue, but no more than that. I assume every 1983 litigant is gonna put this in their cert petition now, but I doubt SCOTUS will grant cert until there's a case where the issue has been raised and litigated in the trial court. voorts (talk/contributions) 12:06, 19 October 2023 (UTC)

Yeah, I haven't read the case in detail to see if the questions were raised in the original litigation or on appeal. Even if they were, SCOTUS might still not grant cert unless/until there's a circuit split. I'll try to remember to come back and update this piece of the article if there are any substantive QI-related developments. Wigginx (talk) 04:02, 20 October 2023 (UTC)

A few suggested edits to this page

·       Suggested addition for third paragraph in Bivens and 42 USC § 1983 lawsuits with updated information:

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. Thus far the Supreme Court has recognized Bivens claims for violations of the Fourth Amendment, the Fifth Amendment's equal protection component of due process, and the Eighth Amendment, but the Supreme Court has severely restricted the availability of Bivens claims in recent years. [Cites: Egbert and Hernandez.]

·       Suggested addition to Discretionary function requirement section to improve accuracy:

Even ministerial tasks will sometimes involve a small amount of discretion, but this discretion will not necessarily satisfy the requirements of qualified immunity.  Conversely, the discretionary function requirement also restricts the availability of qualified immunity to actions taken “within the scope of an official’s duties.” [Cite: Harlow, at 819 n.34.] Thus, if a government official acts beyond the bounds of his authority, he is not protected by qualified immunity. [Cite: Harlow, at 819 n.34.]

·       Suggested edit for third paragraph in Judicial activism:

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." And critics of qualified immunity, including Cardozo Law School Professor Alex Reinert, have recently observed that the original language of Section 1983 provided liability for officials “notwithstanding any ….law, statute, ordinance, regulation, custom, or usage of the State to the contrary,” indicating that Congress intended to exclude any common-law defenses to the statute. [Cite Flawed Foundation.]

·       Suggested rewrite for the first paragraph of the Through litigation section to improve its accuracy:

Because the Cato Institute does not litigate, including in this area of the law, it is strange that that organization should lead off this section. In addition, the way it is written, it gives the false impression that the other organizations listed afterwards followed Cato’s lead on this issue when, in fact, many of them had already been involved in advocacy and scholarship on this issue.

As just one example of how other organization are litigating in the courts of law on this issue, the Institute for Justice has argued one qualified immunity case before the U.S. Supreme Court, has filed numerous cert. petitions to the Supreme Court appealing qualified immunity cases, and we have litigated nearly a dozen other qualified immunity cases in lower courts.

In that context, we suggest swapping out the entire first paragraph with the following:

Numerous public interest organizations litigate in the courts of law to restrict or eliminate qualified immunity. Among them are the Institute for Justice, the MacArthur Justice Center, the ACLU, Rights Behind Bars, and the Institute for Constitutional Advocacy and Protection. These organizations work is often supported by amici from other public interest organizations include the Cato Institute, Law Enforcement Action Partnership and Restore the Fourth. Lyrical42 (talk) 15:27, 14 June 2023 (UTC)

Misstatements of law about "state law" leading to misinformed google summaries

This article's statements about qualified immunity now show up in google summaries. If a random person googles topics about qualified immunity, one of the top results will come from here. I know this because I am a lawyer who is well versed in qualified immunity, and kept seeing completely wrongheaded notions about the doctrine over and over again in social media circles. Specifically, people googling the topic seem to believe that various states have "passed laws" that purportedly "abolish qualified immunity" in that state.

Any lawyer in this area can confirm that this is legal gibberish and complete nonsense. A state legislature cannot abolish the doctrine of qualified immunity, which is based on the federal courts' statutory interpretation of 42 U.S.C. 1983, a federal statute. The states that have supposedly "ended" qualified immunity only did so within the context of their local state-law claims. This has absolutely no bearing on Section 1983 or the broader debate about qualified immunity.

Frankly I think the entire section on "state law" should be deleted as causing misinformation and confusion. But I took the more cautious approach and have instead just edited the section to clarify the distinctions between state law and federal law. I hope this stops polluting google results with the junk that was put in there in the first place. I still vote for deleting the section. Cbreitel (talk) 14:03, 5 October 2023 (UTC)

Thanks for your edits. I think you struck the correct balance by editing for clarification rather than deleting. The fact that these states did this probably deserves coverage, even if they can only impact state law claims with their actions. If you ever need to get more eyes on a legal article, feel free to make posts at Wikipedia talk:WikiProject Law, which looks fairly active. I hope you stick around. Subject matter experts are very helpful. Happy editing. –Novem Linguae (talk) 23:17, 5 October 2023 (UTC)

Forgot to ping Cbreitel –Novem Linguae (talk) 00:16, 6 October 2023 (UTC)