Date01 January 2022
AuthorObasogie, Osagie K.

INTRODUCTION 409 I. SECTION 1983 AS CONTEXT FOR UNDERSTANDING QUALIFIED IMMUNITY 417 A. Reconstruction and the Civil Rights Act of 1871 417 B. Reemergence of [section] 1983 420 II. EMERGENCE OF QUALIFIED IMMUNITY 422 A. Pierson v. Ray 423 B. Harlow v. Fitzgerald and Rewriting Qualified Immunity 426 C Pearson v. Callahan 428 III. SCHOLARLY PERSPECTIVES ON QUALIFIED IMMUNITY 432 A. Debates on the Merits of Qualified Immunity 432 B. Pearson, Saucier, and the Sequencing Debate 436 C. Overlooking How Qualified Immunity Became Attached to Excessive Force 438 IV. RESEARCH QUESTION AND METHODS 444 A. Research Question 444 B. Methods 444 V. FINDINGS 445 VI. DISCUSSION 450 A. Uncovering the "Middle History" of Qualified Immunity 451 1. Qualified Immunity Applied to Fourth Amendment Searches: Malley v. Briggs and Anderson v. Creighton 454 2. Qualified Immunity Meets Graham: 1989-2001 459 3. The Supreme Court of the United States Decides Qualified Immunity Applies to Excessive Force: Saucier v. Katz 462 B. Middle History Implications 470 1. Legal Questions of "Clearly Established Law" Replace Constitutional Law 471 2. Qualified Immunity and Police Excessive Force at the Supreme Court Post-Saucier (2001-2021) 475 CONCLUSION: RECLAIMING [SECTION] 1983 482 INTRODUCTION

Unarmed petty theft and burglary can be survival strategies for poor and unhoused persons. (1) Living on the streets of Nashville, Tennessee, Alexander Baxter rummaged through unlocked houses so that he could steal items that could be easily resold, such as video games and laptop computers. (2) When the police pursued him in response to a reported burglary, Baxter fled to the basement of a nearby dwelling. (3) Officers Harris and Bracey followed him with their trained dog, who found Baxter downstairs. (4) The two officers entered the basement where Baxter was hiding, commanding him to show his hands. (5) Baxter testified in the district court that he did not verbally respond, but that he "was sitting on his butt with his hands up in the air." (6) The police could have easily arrested Baxter. But they chose a different tactic: releasing the police dog, who bit Baxter's armpit. (7) Baxter required emergency medical attention and was rushed to a local hospital. (8)

Baxter filed a federal civil rights complaint under 42 U.S.C [section] 1983 that sought monetary damages. (9) He claimed that Officer Harris' decision to release the police dog after he surrendered with his hands up and Officer Bracey's failure to intervene violated his Fourth Amendment right to be free from excessive use of force. (10) Officers Bracey and Harris responded as most police officers do when faced with a [section] 1983 claim: they said the doctrine of qualified immunity shielded them from such civil lawsuits. (11)

Qualified immunity is a common law doctrine that states that government officials can only face [section] 1983 civil lawsuits and the possibility of paying damages if the plaintiff demonstrates (1) that a constitutional right was violated and (2) that the unlawfulness of the conduct in question was clearly established at the time. (12) The United States Supreme Court has held that clearly established means that "at the time of the officer's conduct, the law was sufficiently clear that every reasonable official would understand that what he is doing is unlawful." (13) Put differently, "existing law must have placed the constitutionality of the officer's conduct beyond debate." (14) The Supreme Court famously described qualified immunity in 1986 as "providing] ample protection to all but the plainly incompetent or those who knowingly violate the law." (15)

Officer Bracey moved to dismiss the failure-to-intervene charges. (16) The district court denied qualified immunity--a decision later affirmed by the court of appeals. (17) Citing the Sixth Circuit's decision in Campbell v. City of Springboro, the appeals court noted:

The right to be free from the excessive use of force in the context of police canine units was clearly established by 2012, when in Campbell we held that officers who used an inadequately trained canine, without warning, to apprehend two suspects who were not fleeing, acted contrary to clearly established law. (18) Following discovery, both officers sought summary judgement by asserting qualified immunity. (19) Although previously denied, a different Sixth Circuit panel concluded that qualified immunity did indeed apply. (20) How could this be? Didn't Campbell provide clearly established Sixth Circuit law on the matter? Not in the eyes of this panel.

In Campbell, the police released their dog on an individual who was lying down. (21) In this case, the officer released the police dog upon Baxter while he was sitting up with his hands in the air. (22) The Sixth Circuit panel concluded that "Baxter does not point us to any case law suggesting that raising his hands, on its own, is enough to put Harris on notice that a canine apprehension was unlawful in these circumstances." (23) This rather petty detail--whether non-fleeing plaintiffs were lying down or sitting with hands up--motivated much of the Sixth Circuit's decision to find the officers immune from facing a civil lawsuit. (24) In their eyes, Campbell only clearly established that using a police dog in those particular circumstances--poorly trained dog, plaintiffs lying down, no verbal warning--was unlawful and not in other situations such as Baxter's.

Qualified immunity, as a legal doctrine, has relied upon thin distinctions that allow officers to evade accountability for excessive abuses, including killing people. (25) The idea that an officer post-Campbell would not know that it was unlawful to release a police dog on a person visibly surrendering with their hands up defies common sense and leaves police to brutalize people without remedy or compensation.

Attention to the relationship between qualified immunity and police impunity has grown in the wake of recent social movements against police violence that gained momentum and public visibility following the unjustified police killings of Tamir Rice, Breonna Taylor, George Floyd, and many others. Protesters, commentators, and scholars have identified qualified immunity as a barrier to accountability that allows police to use force unlawfully without consequences and limits the ability of victims to use civil rights statutes, such as 42 U.S.C. [section] 1983, to seek damages. (26) State and federal legislators have responded with proposals to reform or entirely eliminate qualified immunity. (27) And at the end of the Supreme Court's 2020 term, the Court had nine qualified immunity cases in conference--including Baxter v. Bracey--leading many to think that it would take the opportunity to review, rethink, or possibly overturn qualified immunity. (28) Ultimately the Court decided not to grant certiorari to any of these cases. (29)

It is largely assumed that the development of qualified immunity for excessive force cases tracks the history of qualified immunity doctrine itself. In the traditional story, the Supreme Court first created qualified immunity in the 1967 case Pierson v. Ray, then modified the doctrine in the 1982 case Harlow v. Fitzgerald, giving us its modern version. It is widely thought that qualified immunity began to significantly limit civil lawsuits against police in use of force cases since the doctrine's inception. (30)

But this is not the case. Although qualified immunity has, in contemporary times, played a pivotal role in nearly every excessive force lawsuit, it was not until 2001 in the case Saucier v. Katz that the Supreme Court explicitly stated that qualified immunity could apply to excessive force claims. (31)

Before 2001, the question of whether qualified immunity should apply to police officers who use excessive force was deeply contested. From 1967, when the Supreme Court first created qualified immunity for [section] 1983 claims, until 2001, when the Supreme Court issued its first decision in a qualified immunity case involving excessive force, many lower federal courts and legal scholars thought qualified immunity did not apply in situations where law enforcement was accused of using unlawful amounts of force. (32)

This "middle history" of qualified immunity--the years after Harlow in 1982 through the Saucier decision in 2001--that brought qualified immunity into excessive force doctrine is often overlooked. It is critical to examine the particular doctrinal choices the Court made related to police and qualified immunity during these years in order to understand how it became entrenched in [section] 1983 excessive force litigation today. This Article highlights this middle history to reveal how qualified immunity made its way into [section] 1983 excessive force litigation, quietly taking life out of constitutional tort actions against police officers that abuse their authority.

This Article draws upon an original empirical dataset to tell the story of how qualified immunity became an exculpatory doctrine of excessive force. The data shows a pattern where, over time, qualified immunity morphed from a narrow theory of executive privilege into a specific theory to limit civil lawsuits against police officers who use excessive force. Our study sampled and analyzed 569 district court cases to determine how the development of qualified immunity at the Supreme Court impacted excessive force litigation. We found that during its origins, qualified immunity was raised in a variety of cases involving public officials, including cases about employment discrimination, free speech rights, and improper seizures of property. But as the power of qualified immunity grew, so too did the proportion of qualified immunity cases involving police officers facing [section] 1983 suits for excessive force. This Article's legal and empirical examination of qualified immunity's evolution reveals its political nature and provides context for...

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