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Qualified immunity

Qualified immunity is a legal doctrine in United States federal law that shields government officials from being sued for discretionary actions performed within their official capacity, unless their actions violated "clearly established" federal law or constitutional rights. It is intended to protect officials who "make reasonable but mistaken judgments about open legal questions", but not protect "the plainly incompetent or those who knowingly violate the law". Qualified immunity applies only to government officials, and does not protect the government itself from suits arising from officials’ actions.

The U.S. Supreme Court first introduced the qualified immunity doctrine in 1967, originally with the rationale of protecting law enforcement officials from frivolous lawsuits and financial liability in cases where they acted in good faith in an unclear legal situation. Starting around 2005, courts increasingly applied the doctrine to cases involving the use of excessive or deadly force, leading to widespread criticism that it, in the words of a 2020 Reuters report, "has become a nearly failsafe tool to let police brutality go unpunished and deny victims their constitutional rights".

History and background

Pierson v. Ray

In Pierson v. Ray (1967), the Supreme Court justified the need for qualified immunity by arguing that "[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 had probable cause, and being mulcted in damages if he does."

Bivens and 42 USC § 1983 lawsuits

Qualified immunity frequently arises in civil rights cases, particularly in lawsuits arising under 42 U.S.C § 1983 and Bivens v. Six Unknown Named Agents (1971). Under 42 U.S.C § 1983, a plaintiff can sue for damages when state officials violate his Constitutional rights or other federal rights. The text of 42 U.S.C. Sec. 1983 reads as follows:

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 ...

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.

Harlow v. Fitzgerald

The modern test for qualified immunity was established in Harlow v. Fitzgerald (1982).

Prior to Harlow v. Fitzgerald, the U.S. Supreme Court granted immunity to government officials only if: (1) the official believed in good faith that his conduct was lawful, and (2) the conduct was objectively reasonable. However, determining an official's subjective state of mind (i.e. did he have a good faith belief that his action was lawful) required a trial, often by jury. Concerned allowing suits to go this far deterred officials from performing their duties, "[diverted] official energy from pressing public issues, and [deterred] able citizens from acceptance of public office", the Supreme Court handed down the current rule for qualified immunity: "[G]overnment 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." Therefore, the application of qualified immunity no longer depends upon an official's subjective state of mind, but on whether or not a reasonable person in the official's position would have known their actions were in line with clearly established legal principles.

Application of qualified immunity

Discretionary function requirement

Qualified immunity only applies to acts that are "discretionary" rather than ministerial. Courts specifically distinguish discretionary acts from ministerial acts. A discretionary act requires an official to determine "whether an act should be done or a course pursued" and to determine the best means of achieving the chosen objective. By contrast, a ministerial act is of a "clerical nature"—the official is typically required to perform the action regardless of his own opinion. Even ministerial tasks will sometimes involve a small amount of discretion, but this discretion will not necessarily satisfy the requirements of qualified immunity.

Clearly established law requirement

Qualified immunity does not protect officials who violate "clearly established statutory or constitutional rights of which reasonable person would have known". This is an objective standard, meaning that the standard does not depend on the subjective state of mind of the official but rather on whether a reasonable person would determine that the relevant conduct violated clearly-established law.

Whether the law is "clearly established" depends on whether the case law has addressed the disputed issue or has established the "contours of the right" such that it is clear that official's conduct is illegal. It is undisputed that Supreme Court opinions can "clearly establish" the rule for the entire country. However, circuit court of appeals opinions may have a more limited effect. Circuit courts of appeals typically treat their opinions as clearly establishing the law within that circuit—though the Supreme Court has cast doubt on this theory. In order to meet the requirement of "Clearly Established Law", the facts of the instant case must also fairly closely resemble the facts of the case relied on as precedent.

Judicial application: The Saucier two-step test

In 2001, the US Supreme Court in Saucier v. Katz established a rigid order in which courts must decide the merits of a defendant's qualified immunity defense. First, the court determines whether the complaint states a constitutional violation. If so, the next sequential step is to determine whether the right at issue was clearly established at the time of the official's conduct. The Court subsequently modified Saucier in Pearson v. Callahan, holding that "the Saucier protocol should not be regarded as mandatory in all cases," and that its decision "does not prevent the lower courts from following the Saucier procedure; it simply recognizes that those courts should have the discretion to decide whether that procedure is worthwhile in particular cases."

Objections and criticisms

Difficulty of suing public officials

Critics have argued that qualified immunity makes it excessively difficult to sue public officials for misconduct. Criticism is aimed in particular at the "clearly established law" test. This test is typically read as requiring not only that an officials' behavior likely violates written law but that there exists a clear judicial precedent that establishes the behavior as unlawful. Critics have noted that in practice this has meant that plaintiffs must prove that there exists a prior court determination of law made in actual litigation under facts extremely close to those of a case at hand exists, or else the case is dismissed. Critics argue that the difficulty in requiring plaintiffs find an exact match in both law and precedent makes it unduly challenging to sue public officials, giving government officials undue latitude for lawless conduct in new or unusual situations. George Leef, for instance, argued in Forbes that:

This doctrine, invented by the Court out of whole cloth, immunizes public officials even when they commit legal misconduct unless they violated 'clearly established law'. That standard is incredibly difficult for civil rights plaintiffs to overcome because the courts have required not just a clear legal rule, but a prior case on the books with functionally identical facts.

Critics have cited examples such as a November 2019 ruling by the United States Court of Appeals for the Sixth Circuit, which found that an earlier court case ruling it unconstitutional for police to sic dogs on suspects who have surrendered by lying on the ground did not apply under the "clearly established" rule to a case in which Tennessee police allowed their police dog to bite a surrendered suspect because the suspect had surrendered not by lying down but by sitting on the ground and raising his hands.

Critics further argue that the "clearly established" standard discourages and/or delays the establishment of clear rules, even for common circumstances. The first litigant to bring a case against an official under a given set of facts is likely to lose because there is as yet no clearly established standard. Therefore, such a person may not choose to bring the case at all. Furthermore, even if a case is brought and carried to judgment, there is no certainty the decision will establish a clear and generally applicable legal standard. Until such a standard is articulated, qualified immunity will continue to apply in analogous cases. As The Institute for Justice puts it, "Qualified immunity means that government officials can get away with violating your rights as long as they violate them in a way nobody thought of before."

Ineffectiveness

Conversely, in a 2017 Yale Law Journal paper titled How Qualified Immunity Fails, UCLA law professor Joanna C. Schwartz offered a different criticism of qualified immunity. Examining 1,183 Section 1983 cases, she found that it was being invoked primarily when it should not have been, and therefore was being ignored or dismissed frequently. Her conclusion was that it is ineffective for its stated goals in such a way that it could not be strengthened, and should be replaced by other mechanisms for obtaining those ends.

In August 2018, Circuit Judge Don Willett concurred dubitante when the United States Court of Appeals for the Fifth Circuit found that the Texas Medical Board was entitled to qualified immunity for an unconstitutional warrantless search it made of a doctor's patient records. Willett called for "thoughtful reappraisal" of the "'clearly established law' prong of qualified-immunity analysis", citing a tendency for many courts to grant immunity based on no clear precedent, while avoiding the question of whether a Constitutional violation has occurred. Hence, those courts do not establish new law. He wrote:

Section 1983 meets Catch-22. Important constitutional questions go unanswered precisely because those questions are yet unanswered. Courts then rely on that judicial silence to conclude there's no equivalent case on the books.

Judicial activism

No federal statute explicitly grants qualified immunity — qualified immunity is a judicial precedent established by the Supreme Court. While qualified immunity has been repeatedly affirmed by courts and legislation has established similar immunity at the state level, critics have argued that the adoption of qualified immunity in federal law amounts to judicial activism. That is, they argue the Supreme Court invented a new legal doctrine that has little basis in written law. The late Supreme Court Justice Antonin Scalia has argued as much, stating in his dissenting opinion in Crawford-El v. Britton: "[the Supreme Court] find[s] [itself] 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". Clarence Thomas has likewise expressed "growing concern with our qualified immunity jurisprudence", stating that there is no apparent basis for it in the original intent of the law.

Some critics have argued that the Supreme Court's creation of qualified immunity amounts to "gutting" Section 1983 of the United States Code, which allows any citizen to sue a public official who deprives them "of any rights, privileges, or immunities secured by the Constitution and laws". U.S. District Court Judge Lynn Adelman has argued that "qualified immunity is a limitation on Section 1983 that the Court created in 1982 without support in the statute’s text or legislative history". University of Pennsylvania professor of law David Rudovsky similarly argued that "the Court also has engaged in an aggressive reconstruction of the scope of § 1983...This reorientation of civil rights jurisprudence has blunted the impact of § 1983".

The court has claimed to base qualified immunity on three factors: a "good faith" defense at common law, making up for the supposedly mistaken broadening of § 1983, and serving as a "warning" to government officials. 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."

Police brutality

A significant amount of criticism contends that qualified immunity allows police brutality to go unpunished. Legal researchers Amir H. Ali and Emily Clark, for instance, have argued that "qualified immunity permits law enforcement and other government officials to violate people’s constitutional rights with virtual impunity". Supreme Court Justice Sonia Sotomayor has noted a "disturbing trend" of siding with police officers using excessive force with qualified immunity, describing it as "sanctioning a 'shoot first, think later' approach to policing". She stated that:

We have not hesitated to summarily reverse courts for wrongly denying officers the protection of qualified immunity in cases involving the use of force ... But we rarely intervene where courts wrongly afford officers the benefit of qualified immunity in these same cases.

A Reuters report concurred with Sotomayor, concluding that "the Supreme Court has built qualified immunity into an often insurmountable police defense by intervening in cases mostly to favor the police".

Relevant cases

• Harlow v. Fitzgerald, 457 U.S. 800 (1982)
• Malley v. Briggs, 475 U.S. 335 (1986)
• Anderson v. Creighton, 483 U.S. 635 (1987)
• Saucier v. Katz, 533 U.S. 194 (2001)
• Hope v. Pelzer, 536 U.S. 730 (2002)
• Brosseau v. Haugen, 543 U.S. 194 (2004) (dealing with qualified immunity in highly fact-bound cases involving police use of force)
• Pearson v. Callahan, 555 U.S. 223 (2009)
• Camreta v. Greene, 563 U.S. 692 (2011)
• Plumhoff v. Rickard, 134 S. Ct. 2012 (2014) (dealing with qualified immunity in highly fact-bound cases involving police use of force)
• City & Cty. of San Francisco, Calif. v. Sheehan, 135 S. Ct. 1765, 1772 (2015)
• Hernandez v. Mesa, 589 U.S. ____ (2020)

See also

• Absolute immunity
• Ignorantia juris non excusat
• Sovereign immunity