A QUALIFIED DEFENSE OF QUALIFIED IMMUNITY.

• Author: Nielson, Aaron L.
• Position: Symposium: The Future of Qualified Immunity

INTRODUCTION

Qualifiedimmunity, as John Jeffries has remarked, is "the most important doctrine in the law of constitutional torts." (1) That is because it shields a government official from a civil suit for monetary damages unless said official violates "clearly established" constitutional rights. (2) As highlighted by the other contributions to this annual federal courts issue, qualified immunity has generated substantial commentary and criticism over the years. Such critical attention should come as no surprise. After all, the doctrine seeks to balance competing values that are in tension: "On one hand, government officialssometimes suffer no personal liability even when they violate constitutional rights. But at the same time, the threat of punishing an officer for violating previously unknown rights could chill legitimate governmental action." (3)

In recent years, two new fronts of attack have emerged. This Essay responds to both and provides a qualified defense of qualified immunity. PartI addresses Will Baude's argument that qualified immunity finds no support in positive law. (4) Part II turns to Joanna Schwartz's pioneering empirical work that has been marshaled to question qualified immunity's effectiveness as a matter of policy. (5)

These two sets of criticisms--a one-two punch that qualified immunity is bothunlawful and ineffective--merit serious consideration and further investigation. Neither, however, is dispositive; there are important counterpoints thatmerit further analysis. But ours is a qualified defense, as qualified immunity isby no means perfect. Based on our empirical work on qualified immunity in the circuit courts, (6) we conclude with some recommendations on how the Supreme Court should improve the doctrine to better ensure it advances its intended objectives.

1. IS QUALIFIED IMMUNITY UNLAWFUL?

   Oneof the sharpest criticisms of qualified immunity in recent years challenges whether positive law supports it. Indeed, Will Baude pointedly asks, "Is Qualified Immunity Unlawful?" (7) He also offers an answer: yes--with a qualification;he does not take a definitive view on whether stare decisis supports qualified immunity, although he suggests a couple of reasons why it might not. On Baude's account, today's qualified immunity is not supported by historical sources, is not an appropriate reaction to judicial overreach regarding the scope of Section 1983, and is not a sound application of fair notice principles.

   Baude's analysis, unsurprisingly, is not frivolous. And it has already had a real-world impact. Citing Baude's work, Justice Clarence Thomas--who has joined numerous opinions awarding qualified immunity--has urged the Supreme Court to "reconsider [its] qualified immunity jurisprudence." (8) The implications of Justice Thomas's about-face (assuming that it actually is an about-face (9)) may be significant whether or not his view commands a majority. The Court often summarily reverses lower courts that fail to grant qualified immunity. (10) The Justices' willingness to do so may decrease if one member of the Court rejects the doctrine out of hand. (11)

   Weapplaud Baude's efforts to get the law right. But we are not persuaded that his analysis dooms qualified immunity, especially in light of stare decisis.When it comes to qualified immunity, the question is largely statutory in character, and so--under the current law of precedent, which we take as given in this Essay--stare decisis should apply with special force. (12) Indeed, to the extent that there is a constitutional dimension, it involves Bivens v. Six Unknown Named Agents of Federal Bureau of Narcotics, (13) in which the Court itself,without a statutory basis, created a cause of action against federal officials. But where the judiciary finds an implied right of action, as it did in Bivens, precedent says that the judiciary has greater discretion to create defensesto that cause of action. Baude's substantive criticisms, even if accurate, thus potentially may be irrelevant to an entire category of qualified immunity cases--namely, suits against federal officers.

   Inany event, although Baude presents plausible arguments, some historical evidence may be in tension with his thesis. He also is too quick to reject the possibility that Section 1983 has been read too broadly and that, absent qualified immunity, some applications of Section 1983 would violate fair notice principles. In other words, Baude's analysis is too unqualified; one should be wary of confident answers where, as here, the question has many layers. When all of this is put together, the pull of stare decisis should be especially strong.

   1. Stare Decisis

      In evaluating the lawfulness of qualified immunity, it is important to recall that stare decisis is also part of "our law." (14) This is particularly true for statutory stare decisis. (15) As the Supreme Court recently explained in Kimble v. Marvel Entertainment, when it comes to nonconstitutional holdings, "stare decisis carries enhanced force" because those who think the judiciary got the issue wrong "can take their objections across the street, and Congress can correct any mistake it sees." (16) Moreover, the Court has stressed that statutory staredecisis applies "whether [the Court's] decision focused only on statutory text or also relied... on the policies and purposes animating the law," and, "[i]ndeed," it applies "even when a decision has announced a 'judicially created doctrine' designed to implement a federal statute." (17) Even Justice Thomas, who gives the least weight to stare decisis of all the current Justices, appears to acknowledge its force when it comes to statutes. (18)

      Because of stare decisis, courts ordinarily do not revisit statutory issues that have been decided absent some "special justification" beyond mere wrongness. (19) At least under current doctrine, moreover, this point holds true even if the statutory methodology used in resolving the now-decided case is suspect--otherwise, a great many cases may have to be revisited. (20) In fact, courts often do not even ask--much less know--whether precedent is wrong.One of the drivers of stare decisis, after all, is judicial economy; litigants and judges can accept some questions as already answered. (21)

      These familiar principles matter because much of qualified immunity falls squarely within statutory stare decisis. One may disagree with the Supreme Court's decision fifty years ago that qualified immunity applies in the Section 1983 context, but it is a decision. (22) And one may disagree with the Court's decision thirty-five years ago in Harlow v. Fitzgerald that qualified immunity uses an objective rather than a subjective standard. (23) But that question too has already been decided, as has the question whether qualified immunity applies outside of the context of false arrests. (24) In fact, the thrust ofHarlow's holding commanded the support of the entire Court; Chief Justice Burger dissented because the holding did not go far enough. (25) No one disputed the basic point that immunity exists and that it uses an objective standard. (26)

      By Baude's account, the Supreme Court has applied Harlow to uphold qualifiedimmunity more than two dozen times, often with no recorded dissent. (27) And the Court issued another such unanimous opinion after Baude's article went to print, (28) plus another with only a two-Justice dissent. (29) These includeunanimous opinions authored by Justices of very different ideological views, including Chief Justice Roberts (30) and Justices Sotomayor, (31) Alito, (32) Ginsburg, (33) and Thomas. (34) Indeed, Justice Ginsburg, joined by Justice Breyer, has gone out of her way to explain the importance of the doctrine, at least in certain contexts. (35) The Court's embrace of qualified immunity has thus been emphatic, frequent, longstanding, and nonideological. In short, for decades at the nation's highest court, qualified immunity has been an unquestioned principle of American statutory law.

      Congress, moreover, has enacted new statutes against that backdrop. (36) Forinstance, in 1996, well into the current age of qualified immunity, Congress amended Section 1983. (37) At that point, there was no question that the Supreme Court had blessed qualified immunity under Section 1983, as well as an objective standard. But Congress did not amend the statute to undo the Court's holdings. Similarly, since Harlow was decided, rather than retreating from qualified immunity, Congress has added it into the U.S. Code in other places. (38) To be sure, it is perilous to infer much from this; Congress acts or does not act for many reasons. (39) Yet for purposes of stare decisis, the judiciary often relies on just these sorts of considerations. (40) This reality suggests that if the United States as a society does not want qualified immunity, Congress should enact new legislation.

      All of this poses a problem for Baude's analysis, at least to the extent that one might attempt to leverage his article to reject precedent. Although Baude does not take a definitive position on stare decisis, he offers two potential arguments, neither of which is especially persuasive.

      First, Baude observes that the Supreme Court's sometimes wobbly path regarding qualified immunity undermines the force of stare decisis. (41) To be sure, Baude is right that the Court has at times charted different paths. Yet this point should not be overstated.

      Consider the Court's objective standard. It is true that before Harlow, the Court's qualified immunity analysis had a subjective component. The Harlow Court reversed course and said the standard is objective. (42) This shift has strengthened the immunity; not only is it now easier for an officer to prevail, the post-Harlow version of qualified immunity enables resolution of the immunity earlier in the litigation and more ready access to interlocutory appellate review. (43) Harlow, however, was decided thirty-five...