Transcript - The History Of Qualified Immunity
“The government of the United States has been emphatically termed a government of laws, and not of men. It will certainly cease to deserve this high appellation, if the laws furnish no remedy for the violation of a vested legal right.”
~Marbury v. Madison, 5 U.S. (1 Cranch) 137, 163 (1803).
This quote seems like an especially appropriate way to start an episode about the history of qualified immunity, because John Marshall said this right before telling Stephen Marbury that even though Marbury had been wronged by James Madison, when the State Department denied him his commission as a justice of the peace. But that he didn’t have the authority to issue the writ of mandamus Marbury sought, that would have ordered them to hand over the commission… Therefore the law furnished no remedy to that which he emphatically had a right to.
It’s even more appropriate because just like qualified immunity, the problem John Marshall couldn’t help with was a problem created by John Marshall. It was his fault Marbury didn’t receive his commission because it had been his duty to deliver it to Marbury. Except his appointment as John Adam’s Secretary of State ended and his term as Chief Justice began before he had delivered the commission. In a way, the Supreme Court both created this problem and then absolutely refused to take responsibility for their mess, while recognizing it was a mess that should be dealt with, but insisted that they were somehow not the appropriate people to fix the thing they broke. I cannot think of a more apt historical event to equate with the judicially fabricated doctrine of qualified immunity.
Qualified immunity is one of the most obviously unjustified legal doctrines in our nation’s history. Although it is nominally an interpretation of our primary federal civil rights statute, that statute says nothing about any immunities, qualified or otherwise. And the common-law background against which it was passed also contained nothing like the across-the-board immunity for public officials that characterizes the doctrine today.
Passage of Section 1983
The doctrine of qualified immunity is nominally an interpretation of our principal federal civil rights statute, now codified at 42 U.S.C. § 1983. Section 1983 was first passed by the Reconstruction Congress as part of the 1871 Ku Klux Klan Act, which itself was part of a series of three Enforcement Acts designed to help combat lawlessness and civil rights violations in the post-war South. Notably, the original version of Section 1983 was passed a mere three years after the adoption of the Fourteenth Amendment and was intended in large part to give teeth to the promise of liberty and equality enshrined in the amendment’s provisions.
As currently codified, the statute states:
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 in an action at law, suit in equity, or other proper proceeding for redress.
~42 U.S.C. § 1983.
This statute thus creates a cause of action against state actors who violate someone’s constitutional rights. On its face, Section 1983 does not provide for any immunities, qualified or otherwise. It simply states that a person acting under state authority who causes the violation of a protected right “shall be liable to the party injured.” Thus, if qualified immunity is to have any valid legal basis, it cannot possibly come from the statute itself.
Of course, no law exists in a vacuum, and statutes generally will not be interpreted to extinguish by implication longstanding legal defenses available at common law. For example, a statute making it a crime to “willfully discharge a firearm at another person” would not be construed to preclude a defendant from arguing self-defense because self-defense is a properly well-established background principle of our legal system.
In the context of qualified immunity, the Supreme Court has appropriately framed the issue as whether or not “[c]ertain immunities were so well established in 1871, when § 1983 was enacted, that ‘we presume that Congress would have specifically so provided had it wished to abolish’ them.” 1
The relevant question then is whether the common law of 1871 included general immunities for state agents that were so well established as to justify the doctrine of qualified immunity today.
Common-Law Background of Liability for Government Agents
In the Founding Era, constitutional claims would typically arise as part of suits to enforce general common-law rights. For example, an individual might sue a federal officer for trespass; the defendant would claim legal authorization to commit the alleged trespass in his role as a federal officer; and the plaintiff would, in turn, claim that the trespass was unconstitutional, thus defeating the officer’s defense. And as many scholars over the years have demonstrated, these Founding Era lawsuits did not generally permit a good-faith defense to constitutional violations. Rather, the background legal assumption at this time was that government agents were, in general, strictly liable for constitutional violations that gave rise to common-law torts.
The clearest example of this principle comes from the 1804 Supreme Court case Little v. Barreme. That case involved a claim against an American naval captain, George Little, who captured a Danish ship off the French coast in 1799, during the Quasi-War with France. Federal law authorized seizure only if a ship was going to a French port (which this ship was not), but President Adams had issued broader instructions to also seize ships coming from French ports. The question was whether Captain Little’s reliance on these instructions was a defense against liability for the unlawful seizure.
The opinion by Chief Justice John Marshall illustrates how the Little Court seriously considered, but ultimately rejected, the very rationales that would later come to support the doctrine of qualified immunity. Detailing a doctrine that would come to be known as The Strict rule of personal official liability. Marshall explained that:
1. “The first bias of my mind was very strong in favor of the opinion that though the instructions of the executive could not give a right, they might yet excuse from damages.”2
2. He noted that the captain had acted in good-faith reliance on the president’s order, and that the ship had been “seized with pure intention.”3
3. Nevertheless, the Court held that “the instructions cannot change the nature of the transaction, or legalize an act which without those instructions would have been a plain trespass.” 4
In other words, the officer’s only defense was legality, not good faith.
This “strict rule of personal official liability, even though its harshness to officials was quite clear,”5 persisted through the 19th century. Its severity was mitigated somewhat by the prevalence of successful petitions to Congress for indemnification. But on the judicial side, courts continued to hold public officials liable for unconstitutional conduct without regard to any across-the-board, good-faith defense. For example, in 1891 the Massachusetts Supreme Court held members of a town health board liable for mistakenly killing an animal they thought was diseased, even when ordered to do so by government commissioners.
Early 20th-century scholarship also explains how “[p]rior to 1880 there seems to have been absolute uniformity in holding officers liable for injuries resulting from the enforcement of unconstitutional acts.”6
Most notably, in the context of Section 1983 itself, in 1915 the Supreme Court held that the statute did not incorporate any freestanding good-faith defense. In Myers v. Anderson, the Court held that Maryland election officers were liable for enforcing a state statute that violated the Fifteenth Amendment’s ban on racial discrimination in voting.
The defendants in Myers argued that, even if the statute was unconstitutional, they could not be held personally liable because the plaintiffs “fail[ed] to allege that the action of the defendants in refusing to register the plaintiffs was corrupt or malicious,” and
That “[m]alice is an essential allegation in a suit of this kind against registration officers at common law,” and that Section 1983 “does not dispense with the necessity of alleging and proving malice.”7
The Supreme Court rejected these arguments.
The Court explicitly noted that “[t]he non-liability in any event of the election officers for their official conduct is seriously pressed in argument,” but then stated that “we do not undertake to review the considerations pressed on these subjects because we think they are fully disposed of . . . by the very terms of [Section 1983], when considered in the light of the inherently operative force of the Fifteenth Amendment.”8
In other words, given the plain language of Section 1983, the only relevant question was whether the defendants had acted unconstitutionally—whether or not they acted in good faith or with malice was irrelevant. Although the Supreme Court did not elaborate on this point in Myers, the lower-court decision that it affirmed was much more explicit:
[A]ny state law commanding such deprivation or abridgment [of a constitutional right] is nugatory and not to be obeyed by any one; and anyone who does enforce it does so at his known peril and is made liable to an action for damages by the simple act of enforcing a void law to the injury of the plaintiff in the suit, and no allegation of malice need be alleged or proved.9
The Myers Court’s rejection of any general good-faith defense “is exactly the logic of the founding-era cases, alive and well in the federal courts after Section 1983’s enactment.”
Creation and Evolution of Qualified Immunity
Pierson v Ray
In 1967, the Supreme Court ultimately destroyed government agent liability in the very same case that first articulated modern qualified immunity. Pierson v. Ray, was a case involved a Section 1983 suit against police officers who had arrested several people under an anti-loitering statute that violated the First Amendment. The court came up with the doctrine of “qualified immunity,” arguing that law enforcement officers, when acting in “good faith” while carrying out their duties, could not be held liable for violations of an individual’s rights.10
The Supreme Court held that, because the common-law tort of false arrest allowed the defense of good faith and probable cause, defendants should have that same defense in an analogous suit under Section 1983. Critically, the Court extended this defense to include not just a good-faith belief in probable cause for the arrest, but a good-faith belief in the legality of the statute under which the arrest was made.
Note that Pierson presents exactly the same kind of issue as Myers v. Anderson—both involved state officials who violated individuals’ rights by enforcing unconstitutional statutes, who then claimed they should not be held personally liable because they were acting in good faith. But whereas the Court rejected this argument in Myers, it accepted it in Pierson. Tellingly, the Pierson Court failed to cite Myers or otherwise acknowledge that it was reversing its own precedent.
Nevertheless, despite ignoring prior case law and the common-law background of strict liability for constitutional violations, the Pierson Court at least grounded its decision on the premise that the analogous tort at issue—false arrest—allowed a good-faith defense at common law. One might then have expected the qualified immunity doctrine to adhere generally to the following model: determine whether the analogous tort permitted a good-faith defense at common law, and if so, assess whether the defendants had a good-faith belief in the legality of their conduct.
Contrary to this doctrine’s popular conception, the purpose is not to confer immunity from having to pay money damages. Rather it is about conferring immunity from having to go through with the cost of a trial at all. This is why the vast majority of cases in which immunity is granted come from pre-trial motions for summary judgement.
But as the Supreme Court continued to refine qualified immunity over the next couple of decades, it soon discarded even this loose tether to history.
In 1974 the Court abandoned the analogy to common-law torts that permitted a good-faith defense (such as false arrest), and instead held that a good-faith defense was available for all executive officers (not just police officers) for any “acts performed in the course of official conduct.”
Between 1967 and 1987 three landmark cases would transform whatever sparse vestiges of tort law remained, to be replaced with more or less our modern doctrine.
Landmark Case Law
in the 1982 case Harlow v. Fitzgerald, the Supreme Court fundamentally changed the nature of the good-faith defense that qualified immunity was purportedly based on. Up until this point, qualified immunity had turned, in part, on a “‘subjective’ test of good faith,” which meant a defendant had to “be acting sincerely and with a belief that he is doing right.” In other words, to claim qualified immunity, defendants had to have an actual good-faith belief that they were acting lawfully.
But in Harlow, the Court eliminated this requirement and instead held that defendants would be entitled to qualified immunity whenever “their conduct does not violate clearly established statutory or constitutional rights of which a reasonable person would have known.”
Under Harlow’s “clearly established law” standard, which continues to govern qualified immunity today, whether or not a defendant was actually acting in good faith is entirely irrelevant; all that matters is the state of the prior case law at the time of the defendant’s alleged misconduct.
Plainly stated the Court erected a significant barrier to overcoming qualified immunity. In Harlow v. Fitzgerald, with the “clearly established law” standard, an individual whose rights had been violated could seek redress only if they could find a case nearly identical to their own in which the offending conduct was deemed to be a constitutional violation.
In Malley v. Briggs, 457 U.S. 335 (1986), the Supreme Court examined immunity for police officers with regard to acting on the basis of a faulty warrant. The Court held that qualified immunity does not apply to a police officer when the officer wrongfully arrests someone based on a warrant, if the officer who could not reasonably believe that there was probable cause for the warrant. Reasonability is determined by the action that an objectively reasonable officer would take.
Finally, in Anderson v. Creighton, 483 U.S. 635 (1987), the Supreme Court held that when an officer of the law (in this case, an FBI officer) conducts a search which violates the Fourth Amendment, that officer is entitled to qualified immunity if the officer proves that a reasonable officer could have believed that the search constitutionally complied with the Fourth Amendment.
*
The relevant question that a court should ask is whether a reasonable officer could have believed the warrantless search to be lawful, considering clearly established law and the information which the officer possessed.
The Supreme Court also held that "subjective beliefs about the search are irrelevant."
Finally, in the 2009 Pearson v. Callahan case, the Court struck the final blow to almost all future civil rights claims against law enforcement.
Courts would now have to first determine whether “clearly established law” existed before determining whether misconduct amounted to a constitutional violation. Courts began dismissing claims before ever deciding the underlying constitutional issue, never setting precedent, and never developing the required body of “clearly established law.”
The modern doctrine of qualified immunity is therefore completely untethered from any statutory or historical baseline. The text of Section 1983 makes no mention of any immunities, qualified or otherwise, and the relevant history establishes a baseline of strict liability for constitutional violations—at most providing a good-faith defense against claims analogous to certain common-law torts. And in 1915 the Supreme Court confirmed that Section 1983 provides for no general good-faith defenses before reversing itself without explanation more than half a century later.
Yet qualified immunity functions today as an across-the-board defense, based on a “clearly established law” standard that was unheard of before the late 20th century.
Although in recent years the Supreme Court has made token attempts to justify the doctrine of qualified immunity on historical grounds, many current and previous members of the Court have candidly acknowledged the uncomfortable truth that the modern doctrine has, at the very least, diverged markedly from any plausible historical baseline.
But the problem is that even when they recognize qualified immunity, we get what Justice Byron White referred to as a “free-wheeling policy choice” in Malley v. Briggs[1] that is not consistent with its origin in common law doctrine, nor is it consistent with the Congressional purpose or intent of §1983 Since the statute, on its face, does not provide for any immunities. But that recognition is entirely worthless when, in the very next breath, they proceed to apply this freewheeling policy choice with all the legal force of a doctrine that is justifiably established in law.
But the deeper we go the more problematic these doctrinal absurdities become. This is especially true with the ever-more-stringent qualifier of “clearly established law”. Imagine for a moment how nonsensical this would be under any other circumstance. If we allowed police to use this same tactic in all potential crimes, not just those tied to a violation of private citizen’s rights. Imagine a woman goes to Court seeking injunctive relief against a habitually abusive boyfriend who regularly beats her and so she is seeking a permanent restraining order based on his history of temporary restraining orders that had been filed over the years against this same abusive partner. However, because a permanent restraining order is a civil action that affords the defendant-respondent a chance to defend himself by factually refuting the claims against him.
When the abusive partner is given the chance to defend against the allegations he doesn’t do that and instead states
Boyfriend: Actually, your honor, I am seeking summary judgement and submit a motion to dismiss under Rule 12(b)(6)-- for failure to state a claim for which relief can be granted.
Judge: Why should you be treated any differently than every other abusive partner in my Court?
Boyfriend: This was a completely unique situation. No reasonable boyfriend in my position would have any reason to believe giving her a black eye is domestic violence.
Boyfriend: Furthermore, she has not provided any case that meets the “clearly established law” standard. No precedent establishes that when a woman makes roast beef for dinner two nights in a row and her partner expresses dissatisfaction by throwing dinner on the floor, forcing her to eat it off the ground and smacking her a few times that that qualifies as a violation of her clearly established rights.
Girlfriend: That is not true, your honor in Barton v Jessup the court ruled against a man who would get angry at his wife for overcooking his steak and lash out in violence…
Boyfriend: Shut up Debbie, the men are talking….
Boyfriend: Your honor, Barton was beating his wife. You see a ring on my girl’s finger? Were not married. Barton is irrelevant...
All her argument here does is prove that she is no better at reading than she is at cooking.
Girlfriend: that is not true, your honor. I was…
Boyfriend: Shut up Debbie, the men are talking….
Boyfriend: This case must be thrown out because it constitutes a momentary exercise of discretion and I acted in good faith on the belief I was simply teaching this dumb bitch an important lesson and not engaging in any kind of violation of her rights.
Judge: You are a monster and your actions are unconscionable. Is their any reason I shouldn’t lock your ass up and throw away the key?
Boyfriend: Did I mention I’m a police officer?
Judge: Case dismissed. You are free to go officer… Thank you for your service!
Post Pearson v Callahan
Now that we have more than a decade between us and that last qualified immunity landmark, Pearson v Calahan in 2009, we can see the effect this major shift in §1983 jurisprudence has had on the problem when the Courts focus primarily, and often even solely, on the “clearly established law” test, untethered from the crucial constitutional violation test. The results are not good.
There is an incredible article (actually a series of articles) in Reuters from 2018 called “For Cops Who Kill, Special Supreme Court Protection” They have done some amazing work focusing on qualified immunity starting around 2001 and going up to the present day. They cover a lot of particular stories about how qualified immunity tends to affect those who actually bring suit against the police and lose. But more than that they have done a real deep dive into data and statistical analysis that shows, very scientifically, the effect that these most recent shifts in Supreme Court doctrine have had some truly catastrophic consequences. I especially found part 3 particularly shocking and upsetting., which is about how qualified immunity doesn’t just make our fourth amendment rights unenforceable guarantees, but the second amendment as well. They found that anytime an armed citizen runs into police their being armed is always used as an excuse to throw out wrongful death cases or §1983 cases.
It will be linked on my show notes page and I insist each and every one of you go read it after you have finished watching this video. But I want to briefly share three key points that I took away from that article that really highlight how Post-Pearson jurisprudence has made the problem substantially worse than the changes resulting from Harlow, Malley and Anderson
Appeals courts are granting qualified immunity to police much more than they used to. We analyzed hundreds of appeals court rulings in Westlaw’s database from 2005 to 2019 and found a noticeable spike in grants in the last few years, in light of frequent Supreme Court interventions that favor defendants. In the first three years we looked at, appeals courts granted qualified immunity in 44 percent of cases, but by the last three years we looked at, that number had jumped to 57 percent.
We also discovered that the courts have changed how they are navigating the two-part qualified immunity test. We found that since 2009, when the Supreme Court ruled that judges do not have to answer the question of whether there was a constitutional violation but can instead focus solely on the “clearly established” prong, courts are indeed increasingly following that route, which is contributing to the overall increase in the rate at which qualified immunity is granted.
Also, this Reuters investigation began with a very interesting disagreement that was found between Justices Alito and Sotomayor in a 2017 case. When the Supreme Court declined to hear an excessive force case in April 2017, a line in Justice Sonia Sotomayor’s dissent from denial caught their attention. In that case, Salazar-Limon v. Houston, she accused the court of handling appeals brought by plaintiffs less favorably than appeals brought by defendants. Justice Samuel Alito wrote his own opinion questioning Sotomayor’s conclusion, saying she had not shown any data to back it up. Reuters set out to get a sense of who was correct in that situation and what they found was an unequivocal vindication of Justice Sotomayor’s concerns..
Finally, we answered the question that set us out on this journey: Did the Supreme Court grant more cert petitions brought by defendants? Our work built on what Professor William Baude has written about the court’s “special solicitude” for defendants in qualified immunity cases. We identified 121 cases in which cert was sought in an excessive force case involving claims against police in which qualified immunity was the key issue. Defendants and police file at roughly the same rate but the court is 3.5 times more likely to grant cert in a case filed by defendants. So yes, Sotomayor was right.
And that is my history of qualified immunity. I hope you guys enjoyed the video, if you did can you take just but a moment to do all them things that help trigger al gores rhythm. Like if you liked, dislike if you disliked. Leave me a comment, let me know what you thought about this episode, subscribe to the channel and share the show, if you can think of someone you know who may enjoy the show or get some value out of it take a moment and send them this episode, if you would help me grow the channel that way I would greatly appreciate it.
Until Next Time
Cartago Delenda Est
[1] Malley v. Briggs, 475 U.S. 335 (1986)
Buckley v. Fitzsimmons, 509 U.S. 259, 268 (1993) (quoting Pierson v. Ray, 386 U.S. 547, 554–55 (1967)).
Little v. Barreme, 6 U.S. (2 Cranch) 170, 179 (1804).
Little v. Barreme, 6 U.S. (2 Cranch) at 179.
Id.
James E. Pfander and Jonathan L. Hunt, “Public Wrongs and Private Bills: Indemnification and Government Accountability in the Early Republic,” New York University Law Review 85 (2010):
Akhil Reed Amar, “Of Sovereignty and Federalism,” Yale Law Journal 96, no. 7 (1987).
Anderson v. Myers, 182 F. 223, 230 (C.C.D. Md. 1910).
238 U.S. at 378–79.
Anderson v. Myers, 182 F. 223, 230 (C.C.D. Md. 1910).
Pearson v. Callahan, 555 U.S. 223, 233–34 (2009).