Author:Smith, Fred O., Jr.
Position:Symposium: The Future of Qualified Immunity


Over the past four decades, the story of suing governments and their agents for money damages is a story marked by change and challenge. Most doctrines in that story have either undergone substantial revisions during that period or faced sharp criticism. The doctrine of state sovereign immunity, for example, has slowly expanded, even as commentators and jurists have sharply questioned its basic tenets and legitimacy. (1) Leading scholars in the field of federal courts have undermined the capacious nature of prosecutorial immunity, (2) and the Supreme Court seemed close to narrowing the doctrine only a few terms ago. (3) Bivens--the doctrine that allows suits against federal officials for constitutional violations--has faced increased scrutiny at One First Street, becoming narrower virtually each time the Court touches it. (4) The Court has also narrowed the class of cases allowed against local governments, (5) even as other Justices and many scholars have insisted that the class of cases should actually be broader.

By comparison, qualified immunity is an anomaly, in that its basic tenets went largely unchallenged by leading scholars and Justices for decades. To be sure, there have been fights at the Court about how the doctrine should apply in given cases. (6) And scholars have sometimes questioned whether some circuits apply it too stringently, (7) whether it should apply to suits for nominal damages, (8) and whether courts should have to answer whether an official's actions are unconstitutional even when said official is entitled to qualified immunity. (9) But the basics of the doctrine have gone largely unquestioned since the Supreme Court's 1982 case of Harlow v. Fitzgerald. (10) There, the Court held that qualified immunity is an objective test, not a subjective one. (11) Since that decision, it has been the law that a government official is entitled to qualified immunity in claims for money damages unless she has violated a clearly established right that a reasonable person would have known at the time of the violation. (12) This has been generally accepted with relative unanimity.

Until now. In recent years, federal courts scholars have undermined some of the basic empirical and legal assumptions undergirding qualified immunity, (13) and in 2017, one Justice expressed a willingness to reopen this uncommonly stable doctrine. (14) Indeed, the doctrine seems anachronistic in light of two legal and social moments. First, we are in an age of formalism with respect to federal jurisdiction, as the Court is expressing increased skepticism about court-created causes of action and court-created limits on federal judicial power. Second, we are in an age of "Ferguson" or "post-Ferguson"--the town that arrested the nation's attention as its racially discriminatory policing practices came to light. (15) There is a palpable sense that contemporary social movements are demanding greater accountability for violations of rights, especially on matters at the intersection of criminal justice and race. (16) And scholars such as Dean Erwin Chemerinsky have argued that qualified immunity is to blame, in part, for the absence of proper accountability in this area. (17)

Both moments leave qualified immunity on uneasy ground. If it is the case that courts lack the authority to decline to exercise jurisdiction for prudential reasons, as the Court has strongly suggested in the past few years, how can it be that qualified immunity roars on unabated? The doctrine is utterly untethered from the text or history of Section 1983, for example. (18) And what is more, scholars such as Joanna Schwartz have shown that many of the empirical assumptions that purportedly justify this lack of accountability are wrong. (19) Further, if it is the case that unconstitutional uses of force are in need of a more significant range of deterrent remedies, a doctrine that forgives unreasonable--albeit "reasonably unreasonable"--uses of deadly force stands as an inevitable target. Worse, as I have written elsewhere, when governmental defendants invoke qualified immunity and other immunities in the same case, this sometimes means that there is no one to hold accountable. (20)

This Essay explores whether formalism and accountability are compatible lodestars as we steer toward a new future for qualified immunity. Ultimately, I argue that two existing proposals would bring the doctrine closer to its text and history, mitigate against fragmentation in the law of constitutional torts, and narrow the rights-remedies gap when government officials violate the Constitution. One proposal, by John Jeffries, would create a fault-based system, where government officials and entities alike would be liable for constitutional violations that are both unreasonable and unconstitutional. (21) Another proposal would render governmental employers' liable for the acts of their agents.


    The plain text of Section 1983 begins with two words that place governmental immunities in a precarious position from the outset: "Every person." (22) The statute commands that "[e]very person who" under the color of state law

    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. (23) The text only provides one exception: judicial immunity for certain types of prospective relief. (24)

    Qualified immunity nonetheless routinely blocks Section 1983 suits. Government officials are insulated from damages actions unless those officials violate "clearly established law" that a reasonable official would have known. Sometimes the Court invokes what would appear to be a higher standard, protecting officers unless they are "plainly incompetent." (25) The gap between this standard and the text is yawning. And this gap presents something of a riddle in an age of formalist approaches to understanding both statutory text and the nature of federal jurisdiction.

    This Part explores that gap. It observes the possibility that there were multiple approaches to governmental immunity that various jurisdictions across the United States employed at the common law. In the event that there are a range of plausible readings that can be defended on historical grounds, this may well free us to identify, among this range of plausible readings, the one that best ensures accountability in our current time.

    1. Formalism and Judicial Power

      The term "formalism" defies simple definition. It was once used as a term of derision, as scholars contended that judges sometimes used strict linguistic trappings deceptively to hide the range of other plausible legal outcomes. (26) By the late 1980s, however, scholars like Fred Schauer noted that formalism need not always embody deception. (27) Sometimes legal rules do bind, thereby restricting discretion. (28) And, he noted, it is far from evident that strict legal rules are inherently undesirable. In the years that followed, rules-based legal logic met a more strident and public defender by way of Justice Antonin Scalia. In A Matter of Interpretation, he proclaimed: "Long live formalism. It is what makes a government a government of laws and not of men." (29)

      The rise of avowed and strongly defended formalism was not limited to scholarly and public debates. It made its way into legal doctrine. With a crescendoing emphasis over the past twenty years, Supreme Court decisions remind us that it is text that matters most in constitutional and statutory interpretation. For example, it has become considerably harder to argue that a congressional statute implies a cause of action. (30) In previous eras, when a statute did not explicitly provide for a cause of action, courts looked to a statute's purpose to determine whether Congress nonetheless so intended. (31) Causes of action were later understood to be implied when a statute provided rights or benefits to an identifiable class of individuals. (32) Not so today, unlike the "heady days" (33) of old that ushered in an "ancien regime"* (4) that sometimes focused on legislative purpose and legislative history, implied statutory causes of action are now impermissible absent affirmative text that indicates Congress so intended. (35)

      Constitutional causes of action have experienced a similar shift toward formalist rules. In the early 1970s, in Bivens v. Six Unknown Named Agents of the Federal Bureau of Narcotics, the Court held that plaintiffs may sometimes seek damages remedies against federal officials who, while acting under the color of federal law, violated federal constitutional rights. (36) While the Constitution does not expressly permit such an action, the Court held that such a remedy was necessary in order to ensure that the Amendment had force in some contexts. The Court observed that "[h]istorically, damages have been regarded as the ordinary remedy for an invasion of personal interests in liberty." (37) Roughly a decade later, the Court also made clear that litigants may rely on Bivens even when the federal constitutional violations they have suffered do not arise from the Fourth Amendment. (38)

      Over the past two decades, however, the scope of Bivens claims has been tightly circumscribed, as formalist conceptions of causes of action have taken root. The Court has held, for example, that one cannot rely on Bivens to sue corporations that run private prisons for their employees' constitutional violations. (39) More recently, in Ziglar v. Abbasi, (40) the Supreme Court considered whether to grant relief to South Asian and Arab men who alleged that they had been rounded up and abused on account of their race and religion in the aftermath of 9/11. The Court held that the detainees could not rely on Bivens to challenge their...

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