Qualified and Absolute Immunity at Common Law.

• Author: Keller, Scott A.

Table of Contents Introduction I. Government-Officer Actions That Categorically Lacked Immunity at Common Law A. Neglected Ministerial Duties B. Clear Absence of Jurisdiction or Delegated Authority for Discretionary Actions II. Absolute Immunity at Common Law for Legislators and Judges A. Legislators B. Judges and Other Judicial Actors III. Executive-Officer Immunity at Common Law A. Absolute Immunity at Common Law for High-Ranking Executive Officers 1. U.S. Supreme Court precedent 2. Nineteenth-century treatises 3. No absolute immunity for government prosecutors B. Qualified Immunity at Common Law for Other Officials' Discretionary Acts 1. U.S. Supreme Court precedent 2. Nineteenth-century treatises and state cases 3. Presumption of good faith and plaintiffs' clear-evidence burden of proof IV. The Supreme Court's [section] 1983 State-Officer-Immunity Doctrines' Departure from the Common Law of 1871 A. The Current Absolute Immunity Doctrine 1. High-ranking executive officials 2. Prosecutors and legislative aides B. The Current Clearly-Established-Law Test for Qualified Immunity 1. Pre-Harlow origins of the clearly-established-law test 2. Harlow's replacement of the common law's good-faith defense with the clearly-established-law test 3. Harlow petitioners' alternative argument for a "higher evidentiary burden" on plaintiffs Conclusion Introduction

Police use of force against racial minorities--most notably the killing of George Floyd--prompted massive protests across the nation in 2020, and "qualified immunity has emerged as a flash point" in the continuing national conversation over police reform. (1) As one federal judge recently explained, "[i]n legal circles and beyond, one of the most debated civil rights litigation issues of our time is the appropriate scope and application of the qualified immunity doctrine, particularly in cases of deaths resulting from police shootings." (2)

Qualified immunity today frequently shields government officials from having to pay money damages when they violate citizens' constitutional rights. Several Justices of the Supreme Court have recognized significant problems with the existing qualified immunity doctrine. (3) Citing a commendable recent article by William Baude, Justice Thomas has urged the Court to "reconsider [its] qualified immunity jurisprudence" and reestablish "the focus of [its] inquiry [on] whether immunity existed at common law." (4) Many circuit judges have acknowledged substantial criticism of the current law. (5) And "perhaps the most ideologically diverse amici ever assembled" have implored the Supreme Court to reexamine qualified immunity. (6)

Yet toward the end of its 2019 Term, the Court denied several petitions for certiorari urging this reexamination. (7) Justice Thomas dissented from the denial of certiorari in one of those cases, reiterating that he "continue[s] to have strong doubts about [the Court's] [42 U.S.C.] [section] 1983 qualified immunity doctrine" and advocating a "return" to a historical examination of the "common law." (8) As the petition in that case argued, "[m]erits briefing" could have "explore[d] fully the alternatives to the current qualified immunity regime." (9)

The Supreme Court may have wanted further percolation on these reform alternatives because there has been "[s]urprisingly little attention" to "how significant doctrinal reform should be achieved." (10) While plenty of commentary criticizes the status quo, there has been no analysis thoroughly addressing state-officer immunities as they existed at common law. Aaron Nielson and Christopher Walker recently acknowledged this dearth of scholarship, noting that how qualified immunity operated at common law "in 1871" is "a complicated subject" that "calls out for additional historical examination and analysis." (11)

This historical analysis is crucial because, as the Supreme Court has held, the legitimacy of state-officer immunities depends on "the common law as it existed when Congress passed [section] 1983 in 1871." (12) The federal Civil Rights Act of 1871 "createfd] a species of tort liability"--a cause of action for money damages against state officials acting under color of state law who violate federal rights. (13) This statute, also known as the Ku Klux Klan Act of 1871, was an integral part of the paradigm shift in American law during Reconstruction after the Civil War. (14) As Justice Thomas has explained, "[i]n the wake of the Civil War, Republicans set out to secure certain individual rights against abuse by the States." (15) Through the Civil Rights Act of 1871, "Congress sought to respond to 'the reign of terror imposed by the Klan upon black citizens and their white sympathizers in the Southern States.'" (16)

The Act's text, both originally and as codified today in 42 U.S.C. [section] 1983, says nothing about state-officer immunities. (17) Starting in the 1950s, the Supreme Court began interpreting the [section] 1983 cause of action to include those officer immunities recognized at common law around the time of the federal statute's initial passage in 1871, reasoning that Congress would have to provide clear legislative intent to abrogate preexisting common law immunities. (18) Discussing whether that statutory interpretation is correct is beyond the scope of this Article. (19) Similarly, it is beyond the scope of this Article to analyze whether the Supreme Court in Monroe v. Pape correctly interpreted the Act's phrase "under color of any [law] of any State" to cover state-officer actions without authorization under state law. (20) This Article takes both holdings as givens, although each has recently garnered renewed debate. (21)

Accordingly, this Article starts from the premise articulated by the Supreme Court that the common law of 1871 dictates state-officer immunities. The Court "do[es] not have a license to establish immunities from [section] 1983 actions in the interests of what [it] judge[s] to be sound public policy." (22) Rather, the Court's '"role is to interpret the intent of Congress in enacting [section] 1983, not to make a freewheeling policy choice'"--and precedent dictates that doing so requires a historical examination of the "common-law tradition." (23)

This Article therefore provides the first comprehensive review of the common law of 1871 on state-officer immunities. No other article has canvassed the four nineteenth-century treatises that the Supreme Court has consulted in recent decades to assess officer immunities at common law: Thomas Cooley's 1879 Law of Torts; (24) Joel Prentiss Bishop's 1889 Commentaries on the Non-contract Law; (25) Floyd Mechem's 1890 Law of Public Offices and Officers; (26) and Montgomery Throop's 1892 Law Relating to Public Officers. (27) Of these treatises, the Supreme Court has relied on former Michigan Supreme Court Justice Cooley's treatise the most, (28) describing it as particularly "influential." (29) The Supreme Court's immunities cases cited Bishop the second most among these treatises, and one journal in 1885 described Bishop as "the foremost law writer of the age." (30)

These treatises collect scores of common law precedents from state supreme courts. And state courts throughout our nation's history have been "general common-law courts" that "possess a general power to develop and apply their own rules of decision"--through customary, unwritten law set by judicial precedents. (31) These treatises also rely on the Supreme Court's own nineteenth-century immunity decisions. Unlike today, when federal courts must leave common law developments to the state courts, (32) the Supreme Court in the nineteenth century could expound on the common law along with state courts. (33)

These historical sources refute the prevailing view among modern commentators that nineteenth-century cases did not recognize "a freestanding common-law defense" for government officers' discretionary duties. (34) This Article confirms that the common law around 1871 did recognize a freestanding qualified immunity protecting all government officers' discretionary duties--like qualified immunity today. Key nineteenth-century Supreme Court precedents--namely, Otis v. Watkins (1815) (35) and Wilkes v. Dinsman (1849) (36)--recognized a freestanding qualified immunity. A reporter's annotation subsequently added to the Supreme Court's 1845 Kendall v. Stokes opinion described a freestanding qualified immunity defense, citing Otis and Wilkes along with many other state supreme court decisions. (37) Cooley's treatise similarly reinforced a freestanding qualified immunity defense by collecting many of the same sources cited in the forgotten reporter's annotation to Kendall. (38) And the authors of the other three treatises agreed. (39) These treatises recognized that qualified immunity applied to all sorts of officials, including police officers, as the treatises enumerated the various officials and cases in which courts applied qualified immunity. (40)

But while the common law recognized the existence of a freestanding qualified immunity, the common law's test for overcoming this immunity looked quite different from the Supreme Court's modern clearly-established-law doctrine. At common law, this immunity was "qualified" because it did not apply if a plaintiff proved an officer's subjective improper motive--typically referred to as malice or bad faith. (41) Modern analysis also misses that at common law the plaintiff bore the burden to show this bad faith by clear evidence because courts started from the presumption that government officials acted with honest motives. (42)

This Article proceeds in four parts. Part I identifies two sets of government-officer actions that categorically lacked immunity at common law (43): ministerial duties neglected by an official or actions taken by ministerial officials in excess of their delegated authority (discussed in Subpart A), (44) and discretionary duties performed by an official with a...