Qualified immunity reform: Don’t forget about state courts

On the anniversary of George Floyd's death beneath Minneapolis police officer Derek Chauvin's knee, qualified immunity has taken its place as the most controversial, discredited and despised federal law "on the books." While struggle over reform or repeal of the shield on police and prison guard abuse and misconduct continues in Congress and in federal courts, attention should not be diverted from state courts, such as California, that might otherwise replicate this grandly scaled jurisprudential error by incorporating, rather than repudiating, or at least, fencing off the federal doctrine. Similar to regulatory capture by interested businesses of administrative rule making authorities, law enforcement and its bar have proven adept at convincing courts to adopt rules which, by keeping facts and claims from juries, shield law enforcement from liability and accountability. Unfortunately, California courts have recently been getting it wrong.

In its current iteration, qualified immunity is a rule that grants government officials immunity from violating a citizen's federal rights unless the plaintiff shows that the official violated "clearly established statutory or constitutional rights of which a reasonable person would have known." In, for example, the anticipated civil lawsuit by the Floyd family against Chauvin for violating a Fourth Amendment-based prohibition against using unreasonable deadly force, Chauvin's attorneys will likely contend that Chauvin had no idea his conduct was unlawful because, when Floyd was pleading he couldn't breathe, Chauvin had been taught and thought that the mere fact words were coming out of Floyd's mouth indicated his airways were sufficiently clear. Moreover, Chauvin will contend there is no precise case in the 8th U.S. Circuit Court of Appeals, which covers Minnesota, that demonstrates in sufficient detail how employing only such force as Chauvin thought necessary under the circumstances violated clearly established Fourth Amendment law. But for the bystander video evidence of Chauvin's extreme callousness, this legal maneuver had a good chance of success. Indeed, the motion to dismiss the Floyd family's civil lawsuit might be heard early in the litigation because federal courts created a special rule for law enforcement officers permitting the early dismissal of such claims, a rule not otherwise found "on the books," i.e., inside the Federal Rules of Civil Procedure which apply to all other litigants.

The now familiar bill of particulars, then, against qualified immunity: First, the doctrine lacks historical and jurisprudential legitimacy and intellectual integrity. The first 90 years of the Civil Rights Act of 1871, law enforcement had no need for a qualified immunity doctrine as the act had been subjected to a different form of jurisprudential capture. Federal judges, hostile to such post-Civil War enactments, read the statutory requirement of "under color of law" narrowly. If, for example, a family brought a lawsuit in federal court alleging a police officer, using his knee, choked the life out of their father, husband or son, the court would have ruled that there is no federal claim because Minnesota state law prohibits battery. That one deft jurisprudential knee ensured that, for 90 years, easily over 99% of claims that otherwise would have been made in federal courts, facts that would have been presented to juries, were doctrinally choked lifeless before reaching the filing window.

The second moment of significant judicial capture occurred in 1967 when the Supreme Court instituted out of whole cloth the first iteration of federal governmental immunity. Six years earlier, Monroe v. Pape, 365 U.S. 167 corrected the definition of "under color of law" to mirror a decades-old revision of the same requirement under federal criminal civil rights statutes, a revision to enable the U.S. attorney general's office to prosecute infamous violations of life and liberty during the Jim Crow era. Monroe opened the federal court's civil doors to a Black family abused by Chicago police, allowing them to steer clear of Daley-era Cook County courts where the family stood no chance of recovery, regardless of the case's legal and factual merits.

Federal courts were not ready for the resulting onslaught of claims or for so many facts to be presented to juries. In 1967, the Supreme Court in Pierson v. Ray, 386 U.S. 547 created what started as a doctrine of "good faith" immunity to protect police officers, in that case, officers who arrested Freedom Riders having the temerity to sit and request service at a bus station cafeteria's counter. The doctrine had no statutory anchor at the time. Its subsequent iterations have drifted farther ashore. Courts have interminably argued over if judges should first determine whether a right had been violated or whether the right had been previously established; in what jurisdiction the federal right had to have been established [ultimately, in the federal circuit's jurisdiction, as if police officers read circuit opinions]; and at what level of abstraction and fact it was necessary that the right under the a case's particular circumstances had been previously established. Courts debated these philosophical problems like medieval monks counting angels on a pin, albeit without the textual support of the Book of Revelation.

The result is the same pattern as the first 90 years of reflexively keeping claims and facts from juries. In the year after Floyd's death, attention to how the doctrine fails both as a matter of principled jurisprudence and as sound public policy has intensified. Scholars, such as William Baud at the University of Chicago Law School, and Joanne C. Schwartz at UCLA Law School, have developed an impressive body of both theoretical and empirical work exposing both the checkered history of the doctrine and, policywise, the doctrine's strange, unintended effects and failures. Conservative jurists, pundits, and think tanks, such as Justice Clarence Thomas, George Will and the Cato Institute, have joined advocates on the other side of the spectrum calling for reform. At the moment, congressional efforts to repeal the doctrine are cleanly divided along party lines, with Republicans opposing repeal. The political reality is that contemporary Republicans are acting on a class bias in favor of police over the underclasses they too frequently abuse. This bias is exposed by the irony that, in terms of judging and law, the Republican Party's rhetoric is uniformly structured around attacking judges who "legislate from the bench." As a political class, though, no group more than law enforcement has successfully advocated for judge-made rules to keep facts and claims from juries.

California courts need to steer clear of this morass. The Bane Act, California Civil Code Section 52.1, passed in 1987, is modeled on a similar experiment in Massachusetts, not the federal Civil Rights Act of 1871. It provides remedies against persons who interfere or attempt to interfere "by threat, intimidation, or coercion" with "rights secured by the Constitution or laws of the United States, or of rights secured by the Constitution or laws of this state." The law enforcement defense bar's first reaction to the new Bane Act was to bundle federal constitutional rights with qualified immunity, then directly import the doctrine into Bane Act jurisprudence. In Venegas v. County of Los Angeles, 153 Cal. App. 4th 1230 (2007), where defendant deputies moved to dismiss a false arrest and excessive force case brought under the Bane Act, the California Supreme Court correctly slowed the effort, ruling that qualified immunity is not found in the Bane Act or California's statutory governmental immunity framework. So far, so good.

In Shoyoyee v. County of Los Angeles, 203 Cal. App. 4th 947 (2012), however, wherein the plaintiff was lawfully arrested, but inadvertently overdetained 16 days due to a paperwork error, defendants successfully contended that they lacked an intent to violate a plaintiff's rights independent from the inherent coercion of being detained. Then, Cornell v. City & County of San Francisco, 17 Cal. App. 5th 766 (2017), a review of a Bane Act claim in a false arrest and negligence case, narrowed this new requirement imposed on plaintiffs to set forth separate facts apart from the "threat, intimidation, or coercion" inherent in the event. Instead, the court filled what it perceived as a statutory void by imposing a separate "specific intent" requirement borrowed from a federal source, Screws v. United States, 325 U.S. 91 (1945), a rule inset into criminal civil rights conspiracy cases. The new rule, sounding very much like qualified immunity doctrine, requires the plaintiff to establish defendant's specific intent by first demonstrating a "right at issue clearly delineated and plainly applicable under the circumstances of the case." In turn, B.B. v. County of Los Angeles, 25 Cal. App. 5th115 (2018), reconciled Shoyoyee and Cornell by limiting the former to dismissing what are essentially negligence actions brought under the Bane Act rubric.

Cornell came as a relief to the plaintiffs' bar because it limited the potential judicial carnage inflicted upon potential Bane Act claims. But both Shoyoyee and Cornell are wrong. Regarding Shoyoyee, there is, hypothetically, a world of difference between the coercive effect of a peace officer who causes a fender bender because he spilled coffee driving from a Starbucks window, from an officer who accidentally spills coffee on booking paperwork, causing a 15-day overdetention. The latter, a factfinder might reasonably conclude is inherently coercive. If the California Legislature had intended to draw the line on Bane Act claims at negligence, and let judges make the call, it could have expressly done so. But it didn't.

The irony is that Cornell too, unchecked, threatens to become an even larger obstacle to presenting claims and facts to juries. Effectively, it is a back door invitation to import into state law, federal qualified immunity doctrine. But there is nothing in the Bane Act which suggests that determination of whether an event evidences "threats, intimidation or coercion" is a two part, mixed question of law and fact. Intended or otherwise, this test, jurisprudentially imposed ex cathedra, places a judicial thumb on the scales.

It is a back door imposition of what essentially is a federal qualified immunity test which the California Supreme Court has already ruled in Venegas is not to be found in the Bane Act. It prevents proper presentation of claims and facts to juries. Given the text of the Bane Act and the problematic history and status of qualified immunity, California courts interpreting California civil rights law must not go down this federal rabbit hole. 