Unlikely bedfellows in the fight against qualified immunity

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Qualified immunity, for decades the bane of civil rights lawyers associated with liberal causes, is facing a new enemy: the legal right.

Last month, Judge Don R. Willett -- a conservative jurist who sits on the 5th U.S. Circuit Court of Appeals -- wrote a concurrence blasting the doctrine for gutting the ability of litigants to seek damages for constitutional violations.

"The current 'yes harm, no foul' imbalance leaves victims violated but not vindicated; wrongs are not righted, wrongdoers are not reproached, and those wronged are not redressed," wrote Willett, whose conservative bona fides landed him a spot on President Donald Trump's U.S. Supreme Court shortlist.

The judge-made doctrine protects state and local officials from lawsuits seeking damages for alleged constitutional violations. Under existing precedent, legal actions against such officials can proceed only if existing case law established that the alleged wrongdoing was unconstitutional at the time of the offense.

In the 5th Circuit case, the court ultimately decided that Texas Medical Board investigators violated a physician's constitutional rights by refusing a doctor an opportunity to seek legal advice when presented with a subpoena, telling his medical assistant that failing to comply with the document request would lead to the loss of the doctor's medical license.

But the plaintiff physician could not seek damages for the violation, because existing case law in the 5th Circuit didn't put the investigators on notice that such a request was unconstitutional. Zadeh v. Robinson, 17-50518 (5th Cir. 2018)*.

The doctrine of qualified immunity developed at the Supreme Court in a series of cases starting in the 1960s, but in the early 1980s, the justices announced the "clearly established" requirement. Harlow v. Fitzgerald, 457 U.S. 800 (1982).

Whether lower courts are required to determine first a constitutional violation occurred before embarking on the "clearly established" test has been subject to change in recent decades.

In 2001, the Supreme Court mandated both inquiries be performed, regardless of whether a court applied qualified immunity in the end. Saucier v. Katz, 533 U.S. 194 (2001).

Eight years later, the court changed its tune, giving courts discretion in deciding qualified immunity claims. Pearson v. Callahan, 555 U.S. 223 (2009)

Under that model, district and circuit courts have been allowed to not opine on the constitutionality of the activity in question. Instead, judges may simply note a lack of clear case law and choose to apply qualified immunity.

"Important constitutional questions go unanswered precisely because those questions are yet unanswered," Willett wrote in his critique. "Courts then rely on that judicial silence to conclude there's no equivalent case on the books. No precedent = no clearly established law = no liability."

The Harlow decision establishing the clear law rule addressed a lawsuit seeking damages against federal agents. However, in a footnote, the court extended the protection to state and local authorities subject to lawsuits under 42 U.S. Code Section 1983, a law passed by Congress in 1871 with the intent of allowing plaintiffs to collect damages for constitutional violations by such actors.

Critics say that decision directly contradicts the purpose of the 147-year-old statute.

"[I]n the name of protecting ... officers from being held formally accountable for 'minor' errors made in the line of duty, the court has through qualified immunity created such powerful shields for law enforcement that people whose rights are violated, even in egregious ways, often lack any means of enforcing those rights," the late 9th Circuit Judge Stephen Reinhardt wrote in a 2015 Michigan Law Review article.

His lament is common to other liberal legal thinkers, especially in a political climate divided over issues like police shootings, which are often litigated under Section 1983.

Reinhardt and Willett aren't the only unlikely bedfellows.

Currently, the libertarian-leaning Cato Institute is engaged in a full-fledged assault against the doctrine and hopes to get a test case before the Supreme Court soon.

Recently, the organization put its weight behind a certiorari petition from the 2nd U.S. Circuit Court of Appeals involving a Connecticut man placed in solitary confinement for more than a year during a pretrial detention period. In a split decision, the 2nd Circuit found a constitutional violation, but granted qualified immunity, saying no clear law prohibited such treatment. Allah v. Milling, 876 F.3d 48 (2d Cir. 2017)*

Cato filed an amicus brief* supporting the petitioner's cause, arguing the 2nd Circuit got the case wrong as a matter of law, but also urged the court to revisit the question of qualified immunity entirely.

Among those supporting Cato's case were the Alliance Defending Freedom, a social conservative advocacy group, the American Civil Liberties Union Foundation and Americans for Prosperity, which is funded by prominent conservative donors David and Charles Koch.

Earlier this month, the justices dismissed the petition at the request of the plaintiff, who settled with the Connecticut Department of Corrections for more than he initially won at trial.

"The Allah case was a win and a loss," said Jay Schweikert, a policy analyst with the Cato Institute's Project on Criminal Justice. "In some ways, we did our job too well. It's pretty rare for a government to abandon a total victory on appeal."

The development isn't deterring the organization, though.

"The bad news for the country, but the good news for this project is there [is] no shortage of these cases," Schweikert said.

He and other lawyers at the Cato Institute are looking at a number of potential test cases, including one from the 10th U.S. Circuit Court of Appeals involving a Kansas prisoner held in solitary confinement for 20 years based not on indications of intent to attack prison guards, but rather on an allegation that he was trafficking drugs. Grissom v. Roberts, No. 17-3185 (10th Cir. 2018)*.

The case is now in the en banc phase.

Cato is also eyeing a 6th U.S. Circuit Court of Appeals involving a prison official who sexually abused a female inmate. The defense has agreed to the alleged facts, but claims no existing case law established at the time of the alleged abuse that it was unconstitutional for a male guard to order a female prisoner to remove her clothes for non-penological reasons. Rafferty v. Trumbull County, 17-4223 (6th Cir., filed Feb. 24, 2016).

Justice Clarence Thomas

"It might be a good vehicle for bringing the issue to the court's attention," Schweikert said.

Whether the justices are interested in taking such a case is a different question. The Supreme Court routinely grants certiorari at least once a term in a qualified immunity case to reverse a circuit court's denial of it.

This last term, a 9th Circuit case was the sacrificial lamb, with the high court summarily reversing in a per curiam opinion the West Coast federal appeals court's decision not to grant qualified immunity to an Arizona police officer who shot a woman four times after she failed to follow a command to drop a knife. Kisela v. Hughes, 138 S. Ct. 1148 (2018).

"This court has repeatedly told courts -- and the Ninth Circuit in particular -- not to define clearly established law at a high level of generality," the majority wrote.

"They're saying to the lower courts again and again, you have to be stricter," Schweikert said. "But they haven't been able to give clear meaning on what clearly established law is."

Justice Sonia Sotomayor, joined by Justice Ruth Bader Ginsburg, dissented.

"[T]his court routinely displays an unflinching willingness 'to summarily reverse courts for wrongly denying officers the protection of qualified immunity' but 'rarely intervene[s] where courts wrongly afford officers the benefit of qualified immunity in these same cases," she wrote. Sotomayor added that the decision sends a signal to police officer to "shoot first and think later."

Though the court has been steady in its affirmations of qualified immunity, Sotomayor is not the only sitting justice to go on the record critiquing the doctrine.

Justices Stephen Breyer, Anthony Kennedy and Clarence Thomas have all in some form or another critiqued the doctrine, Joanna C. Schwartz, a professor at UCLA School of Law, noted recently in a Notre Dame Law Review article critical of qualified immunity.

Thomas is the most recent. In 2017, he said the court should at some point revisit qualified immunity to understand the "common-law backdrop against which Congress enacted the 1871 Act." Ziglar v. Abbasi, 137 S. Ct. 1843 (2017).

Cato isn't the only conservative force active in the assault against qualified immunity. William Baude, a law professor at the University of Chicago known for his originalist scholarship, published this year in Harvard Law Review a lengthy critique of the doctrine from a historical perspective.

Both Baude's and Schwartz's articles have repeatedly been cited by federal judges who have written to express concern about qualified immunity.

But in some respects, the debate attracts primarily the attention of academics and appeals court judges and is removed from the day-to-day litigation of civil rights cases. "For me, it's been in the background," said Los Angeles trial lawyer Thomas C. Hurrell, managing partner at Hurrell Cantrall which regularly defends police officers. "I hear about it at conferences and such, but I'm not following it closely."

Barry Litt, a partner at the Pasadena firm Kaye McLane Bednarski & Litt LLP which regularly represents plaintiffs in civil rights suits, expressed sentiments similar to Hurrell's.

"I'm interested in it, but so far haven't seen any indication from the court that it's at all prepared to take it more seriously," Litt said. The end of qualified immunity "is not something that I think is all that likely to come from the current court."