AuthorDavidson, Adam A.


Who decides? Failing to consider this simple question could turn attempts to abolish qualified immunity into a Pyrrhic victory. That is because removing qualified immunity does not change the answer to this question; the federal courts will always decide. For an outcome-neutral critic of qualified immunity who cares only about its doctrinal failures, this does not matter. But for the vast majority of critics who are outcome-sensitive, meaning they care about qualified immunity because of its role in police accountability, this is a troubling realization. Building on earlier work on the equilibration thesis, as well as on qualitative and quantitative analysis of both the entire federal judiciary and the recent spate of Trump appointees, this Article argues that absent qualified immunity, courts are likely to issue more merits decisions against the plaintiffs that outcome-sensitive critics care about. These merits decisions would not only be necessarily broader than a decision on qualified immunity's "clearly established" prong but may be entrenched for decades because of the current liberal-led attempts to strengthen stare decisis.

From this specific discussion, the Article takes a general lesson. As the political economy around advocates changes, they must reevaluate the tools at their disposal. Old friends may become foes and former enemies may become saviors. This lesson underlies many of the current debates about the role of various institutions, such as those surrounding court reform and the distribution of federal-state and state-local power. This Article makes this lesson explicit and extends it to the realm of constitutional litigation. In that realm, advocates and policymakers should prefer procedural losses to merits or justiciability decisions because hostile procedural doctrines can be modified by the political branches, while substantive and justiciability doctrines are solely the province of the courts.

Finally, by combining the question "who decides?" with the nascent literature on power-shifting, this Article suggests a way for qualified immunity's outcome-sensitive opponents to go beyond least-bad losses to actual wins. Such individuals should focus their considerable political will on encouraging legislation that raises the floor of substantive rights and empowers the communities most affected by police violence, thereby shifting the power to decide away from the federal judiciary.

INTRODUCTION I. QUALIFIED IMMUNITY AND JUDICIAL DECISION MAKING A. Qualified Immunity Doctrine B. Criticism of Qualified Immunity 1. The Minority: Outcome-Neutral Criticism 2. The Majority: Outcome-Sensitive Criticism II. WHO DECIDES AND THE PYRRHIC VICTORY OF ABOLISHING QUALIFIED IMMUNITY A. Trump Judges, Obama Judges, and the Equilibration Thesis 1. The Pre-Trump Judiciary 2. The Equilibration Thesis 3. Trump Judges, Obama Judges B. The Problem of Merits Decisions C. Justiciability D. The Uncertain Role of Stare Decisis III. SHIFTING POLITICAL ECONOMIES AND PREFERRING PROCEDURAL LOSSES IV. CHANGING WHO DECIDES BY RAISING THE RIGHTS FLOOR CONCLUSION INTRODUCTION

Courts, academics, advocates, politicians, the popular press, and the people themselves have taken up the call to abolish qualified immunity. At first glance, it seems these diverse groups speak in one voice. That they might do so is unsurprising; qualified immunity is an easily attackable doctrine.

Consider the doctrine's frustration of the development of the law and the faults in its logical and policy underpinnings. This frustration occurs because qualified immunity is a two-pronged defense. First, and most obviously, there must be an underlying constitutional violation. (1) Second, and most frustratingly, that underlying alleged violation must have been "clearly established" at the time it occurred. (2)

This "clearly established" requirement has two relevant effects. First, it means that unless there is a sufficiently similar (often, nearly factually identical) binding circuit or Supreme Court case on point, then the government defendant escapes liability. (3) Second, because courts can choose whether to decide the defense on the first prong (whether there was a constitutional violation) or the second prong (whether that violation, assuming there was one, was clearly established), (4) there are cases where courts never decide whether a constitutional violation occurred. (5) Instead, they simply hold that the assumed violation was not clearly established and dismiss the case. (6) These "clearly established" decisions allow constitutional law to remain stagnant, as courts never have to decide what the Constitution does or does not require.

And all of this frustration occurs with weak origins and is done in service of unclear gains. Qualified immunity is an entirely judge-made doctrine, grafted onto 42 U.S.C. [section] 1983--a statute that, on its face, contains no immunities whatsoever. (7) And the qualified immunity of today seemingly bears no relation to the common law immunities that the Court once used to justify it. (8) Moreover, while qualified immunity is designed to balance protecting the people's rights with protecting government actors from vexatious litigation, it is far from clear that the doctrine accomplishes these goals. Both quantitative and qualitative empirical studies have found that qualified immunity is rarely the deciding factor at the early, pre-discovery phases of litigation that the Supreme Court has imagined. (9)

But despite their facial unanimity, 1 posit that for most of qualified immunity's opponents--especially those outside of the judiciary and the academy--all of these doctrinal problems are an afterthought, at best. Instead, it seems the reason qualified immunity has become such a cause celebre, particularly for those on the political left, is because it frustrates the remediation of civil rights claims. Not only does it frustrate those claims, it does so through a process that seems opaque and unexplainable, and in cases where the wrongdoing of government actors (especially police) seems patently obvious.

That obviousness seems especially clear to non-legally-trained persons, who are often unaware of the various liability limitations on government actors' harmful actions. That is likely why the Federalist Society, in addition to its traditional debates and talks for legal observers, created a five-minute cartoon explaining the doctrine. (10) And why the founders of Ben & Jerry's ice cream have done rounds of interviews in the popular press explaining why qualified immunity must end. (11) As the ACLU says, "qualified immunity is now in the spotlight" with the recent uprisings spurred by George Floyd's murder; they continue: "For decades, the doctrine has shielded police officers and other government employees from being held responsible for all sorts of malfeasance." (12) To the ACLU, the frustration of the law's development does not even bear mentioning. Likewise, even when the Institute for Justice discusses doctrinal stagnation, it does so through the lens of how such stagnation allows further wrongdoing. (13) And Congresswoman Ayanna Pressley's one pager on the Ending Qualified Immunity Act focuses entirely on how "[a]cross the country, police officers continue to escape accountability when they break the law, shielded from liability by the doctrine of qualified immunity." (14) In short, though qualified immunity might have many flaws, most of its opponents support ending it because of the doctrine's ability to create injustice.

But what if ending qualified immunity would not prevent these injustices? (15) What if, instead, ending qualified immunity would only further entrench the very injustices opponents of qualified immunity seek to prevent? I argue that this outcome is not only possible, it is likely. That is because proponents of ending qualified immunity have almost uniformly overlooked a, if not the, core question that impacts how the cases they most care about will be determined: who decides? (16)

Without qualified immunity, federal courts will be forced to decide constitutional cases on the merits. For someone with a neutral dedication to the development of the law, this change is all upside. Instead of dodging difficult questions of constitutional import by saying that the answer was not "clearly established," courts will now grapple with the boundaries of the Constitution's protections directly.

However, for those who care not (or not only) that cases are decided on the merits, but that they are decided in a pro-civil rights plaintiff direction, this change is fraught with danger. Quite simply, there is little reason to think that federal courts will be more open to civil rights plaintiffs without qualified immunity standing in their way. The federal courts were already full of jurists whose demographic and professional backgrounds suggested they would be pro-government. But now, there is also growing evidence that the courts are in the midst of a shift that could see them becoming increasingly hostile to the exact plaintiffs that proponents of ending qualified immunity seek to protect. (17)

This shift appears to be occurring because of President Trump's appointees to the federal bench. A growing body of evidence suggests that judges appointed by President Trump are leading a charge to entrench conservative principles into the law in a way previous judges appointed by Republican presidents have not. (18) Given the narrowing of constitutional protections from police behavior by past conservative judicial appointees, (19) it is difficult to imagine that this area of the law would be free from the Trump appointee-led move rightward.

Even without this shift, the doctrine of qualified immunity already allows for courts to establish pro-plaintiff constitutional rules if they wish, but they rarely do." (20) While a court does not have to decide the constitutional merits if it grants...

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