Alan K. Chen, the Facts About Qualified Immunity

• Publication year: 2006

EMORY LAW JOURNAL

Volume 55 2006 Number 2

ARTICLES

THE FACTS ABOUT QUALIFIED IMMUNITY^*

Alan K. Chen^**

The United States Supreme Court ought to learn the facts about qualified immunity, the judicially-created doctrine that often protects public officials from damages actions for the violation of constitutional rights. Since the Court established the doctrine in 1967,¹qualified immunity has developed into a critical element in the adjudication of constitutional tort claims.²As defined by the Court's decisions, qualified immunity protects officials from constitutional tort claims so long as "their conduct does not violate clearly established . . . constitutional rights of which a reasonable person would have known."³

While articulating the qualified immunity test is relatively easy, applying it is not. One judge recently confessed that "[w]ading through the doctrine of qualified immunity is one of the most morally and conceptually challenging tasks federal appellate court judges routinely face."⁴This frustration is puzzling. Qualified immunity is essentially a reasonable mistake-of-law defense for public officials charged with unconstitutional conduct.⁵Legal doctrine is replete with reasonableness tests and courts ought to be comfortable implementing them.

The legal system continues to struggle with qualified immunity, however, because the Court's decisions have embedded a central paradox into the doctrine. On one hand, the Court regularly and emphatically declares that the issue of qualified immunity is a pure question of law,⁶and that qualified immunity claims can and should be resolved at the earliest stages of litigation.⁷

Its devotion to these principles is driven by what has emerged as the primary policy justification for qualified immunity-limiting the social costs of civil rights claims against public officials.⁸On the other hand, reasonableness analyses inherently entail nuanced, fact-sensitive, case-by-case determinations involving the application of general legal principles to a particular context.

The fact-intensive nature of these inquiries is exacerbated by the predominance of multifactored balancing tests in substantive constitutional law.⁹As any experienced civil rights practitioner or federal trial judge knows, the primary impediment to expedited termination of constitutional tort suits through qualified immunity-based summary judgment claims is the existence of material fact disputes.

The Court's continuing and fundamental failure to acknowledge the critical role of facts in qualified immunity adjudication complicates the analysis in ways that make the doctrine not only internally inconsistent, but also extraordinarily difficult and costly to administer. Over the past four decades, the Court has devoted an extraordinary amount of energy struggling to define and to clarify the procedures under which parties litigate, and lower courts adjudicate, officials' immunity claims. This effort has been largely unsuccessful because the Court either consciously ignores or fails to comprehend the unavoidable tension between early termination of civil rights suits and the inherently fact-based nature of the reasonableness inquiry that lies at the heart of qualified immunity's analytical framework.

During this period, the Court's opinions have been designed to avoid the complexities of potential factual conflict associated with the reasonableness inquiry. For example, the Court has transformed qualified immunity from a combined subjective/objective test to a purely objective test.¹⁰It has altered the procedural mechanisms available to assert qualified immunity in order to emphasize early disposition.¹¹It has sent confusing signals about if and when courts ought to allow discovery on qualified immunity claims.¹²It has required interlocutory appeals from trial court decisions rejecting an official's assertion of qualified immunity.¹³In short, the Court has circumvented the reality of factual conflict in every possible way, except where it is absolutely unavoidable.¹⁴

In its past several terms, the Court decided several more cases addressing the procedures under which lower courts adjudicate qualified immunity claims.¹⁵In this Article, I examine these recent decisions and demonstrate how they fit into the Court's pattern of structuring qualified immunity doctrine in ways that ignore or deliberately bypass the complexity of factual disputes. Ironically, two of the more recent decisions purport to address how courts should adjudicate immunity claims in contexts where factual disputes commonly arise-suits in which the plaintiff alleges a constitutional violation that requires her to show that an official acted with improper motive and claims alleging that police officers used excessive force in violation of the Fourth Amendment. Consistent with the Court's prior decisions, although these cases refine important aspects of the doctrine, the manner in which they were decided reflects the Court's continuing discomfort with the nature of pretrial adjudication where factual issues interfere with the qualified immunity determination. Properly understood, these more recent decisions can be seen as further attempts to avoid the recurring problem presented by factual conflict in applying the immunity doctrine's reasonableness standard.

Neither the academic community nor the courts have paid sufficient attention to the Court's unstated but crucial transformation of qualified immunity doctrine. Part of my objective here is to not only describe what is happening, but also to suggest some reasons why the Court continues to engage in this procedural manipulation. In the second part of this Article, I argue that the Court treats the reasonableness inquiry in qualified immunity claims as a pure legal analysis because of its desire that judges, rather than juries, resolve such claims. Thus, the Court's characterization of qualified immunity serves an allocative function. The more it treats qualified immunity as a legal question, and the less it acknowledges factual complexity, the better the Court can justify the allocation of decision making about officials' entitlement to qualified immunity to judges, even where that might be inappropriate under ordinary rules of summary judgment.¹⁶

I contend that the Court assigns decision-making power to judges because it is extremely uncomfortable with the idea that qualified immunity is just that-qualified. The Court's recent efforts to refine this procedural structure reflect its wish to move qualified immunity toward something resembling absolute immunity. Accordingly, it is transferring the adjudication of civil rights claims toward judges and away from juries.

At least two problems arise from this undertaking. First, if the Court is unqualifying immunity, it is doing so subversively. That is, its efforts to empower lower court judges to dispose of civil rights claims are occurring without a sufficient articulation of the policy considerations necessary for such a move. The lack of transparency in the Court's manipulation of the doctrine obscures any meaningful discourse that might arise were its attempts to transform qualified immunity, and thereby undermine civil rights enforcement, overt. Second, by allocating the resolution of qualified immunity claims to judges, the Court ignores the critical role that facts play in articulating legal principles in constitutional adjudication. Even in other contexts where the Court has allocated decision-making authority regarding factual matters to judges, it has at least permitted fact finders to make conclusions as a basis for the judges' decisions.¹⁷Unless the Court confronts these foundational problems, the doctrine is doomed to another generation of failed promises and counterproductive exacerbation of the time and energy spent on civil rights litigation.

I. SHAPING QUALIFIED IMMUNITY DOCTRINE TO CIRCUMVENT

FACTUAL CONFLICT

The law provides a damages action to people whose constitutional rights have been violated by federal, state, and local public officials acting under the color of their governmental authority.¹⁸These "constitutional torts" serve critical compensatory and deterrent functions in the scheme of constitutional enforcement.¹⁹While acknowledging these values, the Supreme Court nonetheless has established substantial barriers to such suits against public officials. Through its decisions, it has developed a bifurcated system under which public officials who carry out certain functions are entitled to absolute immunity from constitutional tort actions, while all other officials are protected by only "qualified" immunity. Officials performing prosecutorial,²⁰judicial,²¹ or legislative²²functions when they commit the act for which they are sued may successfully claim absolute immunity. The Court's functional approach means that officials who ordinarily perform these types of functions are not entitled to claim absolute immunity when they perform official acts that are not within the scope of these protected functions.²³For example, a prosecutor may claim absolute immunity for prosecutorial but not investigative acts.²⁴She may still, however, assert qualified immunity.

The Court's absolute immunity doctrine is driven in part by a concern that officials who perform these functions are highly likely to be subject to suits from persons disgruntled by their actions, such as criminal defendants, prisoners, losing litigants, and the minority side in the legislative process.²⁵

Implicit in this assumption is that many or most of these claimants' actions will be vindictive nuisance suits. According to the Court, without immunity, officials performing these functions would likely be inundated by such claims, overwhelming them and interfering with their ability to perform their jobs.²⁶

One of the putative advantages of the Court's categorical, functional approach to absolute immunity is that it facilitates prompt resolution of such claims at an...