QUALIFIED IMMUNITY AND CONSTITUTIONAL STRUCTURE.

• Author: Crocker, Katherine Mims

A range of scholars has subjected qualified immunity to a wave of criticism--and for good reasons. But the Supreme Court continues to apply the doctrine in ever more aggressive ways. By advancing two claims, this Article seeks to make some sense of this conflict and to suggest some thoughts toward a resolution.

First, while the Court has offered and scholars have rejected several rationales for the doctrine, layering in an account grounded in structural constitutional concerns provides a historically richer and analytically thicker understanding of the current qualified-immunity regime. For suits against federal officials, qualified immunity acts as a "compensating adjustment" to the separation-of-powers error ostensibly underlying the Court's decision to allow such suits without congressional approval. For suits against state officials, qualified immunity addresses federalism concerns by leveling the field for constitutional enforcement so that state defendants do not face harsher penalties than their federal counterparts do.

Second, while this structural account situates the doctrine within powerful constitutional currents, it does not justify the current qualified-immunity regime. For suits against federal officials, the structural account articulates a poor compensating adjustment because qualified immunity supplies an awkward solution to any separation-of-powers problem. For suits against state officials, the structural account appears to rest on a notion of "freestanding federalism" that is too far removed from the actual constitutional design.

Alongside prior scholarship, and for different reasons for suits against federal and state officials, this analysis leaves the present model of qualified immunity ripe for rejection or replacement with a more rights-protective alternative.

TABLE OF CONTENTS INTRODUCTION I. HASHING OVER THE HARLOW STANDARD A. Doctrinal Overview B. Academic Evaluations II. BRINGING IN THE BIVENS BACKGROUND A. Previous Understandings B. The Separation-of-Powers Line of Logic 1. Bivens's Rise and Retrenchment 2. Justice Powell's Relevance C. One Wrinkle III. EXPLORING THE [section] 1983 EXTENSION A. Previous Understandings B. The Federalism Line of Logic 1. The Reasoning Behind Economou 2. Ensuing Entreaties Toward Equivalence C. Two Qualifications IV. ASSESSING THE STRUCTURAL ACCOUNT A. The Separation-of-Powers Line of Logic 1. If Bivens Is Not Broken 2. Silver Bullet or Square Peg B. The Federalism Line of Logic 1. Equal Sovereignty 2. The Fourteenth Amendment 3. Freestanding Federalism C. Three Upshots CONCLUSION INTRODUCTION

Qualified immunity, which provides a defense for executive-branch officials in damages lawsuits alleging the violation of constitutional rights, has enjoyed a prominent spot on the Supreme Court's docket for over thirty years. In 1982, the Court articulated the current form of qualified immunity in Harlow v. Fitzgerald, (1) holding that "government officials performing discretionary functions, generally are shielded from liability for civil damages" in constitutional-tort suits "insofar as their conduct does not violate clearly established ... rights of which a reasonable person would have known." (2) Since then, the Court has repeatedly expanded the protections afforded by the doctrine in new and more muscular ways. Over the same period, however, scholars have done a great deal to undermine the reasons that the justices have offered for adopting the current qualified-immunity regime, and much of the legal community more broadly has come out against it.

Why has the Court "doubl[ed] down" on a doctrine that has been the subject of so much criticism? (3) By focusing on the justices' stated rationales, critics have largely overlooked an account of qualified immunity rooted in constitutional structure and, specifically, in certain separation-of-powers and federalism concerns. This structural account is important because it offers a historically richer and analytically thicker view of the doctrine's development. But on close examination, the considerations underlying this account provide no compelling justification for the defense, leaving the present model of qualified immunity ripe for replacement or, indeed, rejection.

But why does qualified immunity matter? Among other reasons, because it excuses conduct that seems inexcusable. Consider Kisela v. Hughes, (4) one of the Supreme Court's latest qualified-immunity decisions. A police officer shot a woman four times while she was standing outside her home about six feet from her roommate. (5) To be sure, the woman was holding a kitchen knife at her side, and the police had received a report that a woman had been using a kitchen knife to hack a tree. (6) But the woman was calm when the police confronted her, and the officer who gunned her down gave her no warning. (7) The Court granted qualified immunity. (8) In dissent, Justice Sotomayor said that the majority's opinion "tells officers that they can shoot first and think later" and "tells the public that palpably unreasonable conduct will go unpunished." (9) One could say the same thing about White v. Pauly, (10) a 2017 Supreme Court decision vacating the denial of qualified immunity where a police officer shot and killed a man inside his home without sufficient warning (11)--or about Mullenix v. Luna, (12) a 2015 Supreme Court decision reversing the denial of qualified immunity where an officer fatally shot the driver of a fleeing vehicle from a highway overpass in defiance of direct orders and then asked, "[h]ow's that for proactive?" (13)

These examples are all drawn from the Supreme Court's recent docket, but the facts of some lower-court cases are even more egregious. In one case, police officers--again without warning--lowered a dog over a wall and into the backyard of a mobile home while pursuing a robbery suspect. (14) The dog bit the mobile-home resident, who was eighty-nine years old. (15) The wound became infected; the man's leg had to be amputated; and he died the next month. (16) The court granted qualified immunity. (17) In another case, police officers tied a man that they had arrested on a traffic warrant to a metal pole in a deserted parking lot in the middle of the night and drove away, leaving him alone for about ten minutes until officers from another department picked him up. (18) The defendants claimed that they had been playing a prank. (19) The court excoriated them for "Keystone Kop activity that degrades those subject to detention and that lacks any conceivable law enforcement purpose." (20) But it nevertheless granted qualified immunity. (21)

Qualified immunity shields many kinds of government officials, not just police officers. In one Supreme Court case, for instance, several middle-school employees benefited from the doctrine after strip-searching a thirteen-year-old girl suspected of providing prescription-strength ibuprofen and a nonprescription painkiller to classmates. (22) Indeed, there is "no reliable way to know how often zoning officials, welfare bureaucrats, or prison guards act on unconstitutional grounds or discard mandatory procedures." (23)

Nevertheless, constitutional violations have become "routinized in some urban neighborhoods." (24) And qualified immunity has become a prominent part of the national conversation surrounding law-enforcement conduct and racial injustice in the wake of recent events, especially police shootings of unarmed black men. (25) Many believe that "[t]he acquittal" recently "of another Baltimore police officer charged in the death of Freddie Gray, like the acquittal 25 years ago of the Los Angeles officers who beat Rodney King, reveals the inadequacy of the criminal-law remedy" in an acute way. (26) And scholars and advocacy organizations ranging from the NAACP Legal Defense and Educational Fund to the Cato Institute have urged a reevaluation of doctrines like qualified immunity that allow law-enforcement officers who misuse their power to evade civil accountability. (27)

Qualified immunity, of course, matters not only to plaintiffs and others concerned with protecting constitutional rights, but also to defendants and others concerned with curbing spurious suits against public servants. To quote Harlow, and as explored in more detail below, "claims frequently run against the innocent as well as the guilty--at a cost not only to the defendant officials, but to society as a whole." (28) Qualified immunity, the thinking goes, helps ease such burdens where they are relatively unlikely to be cost justified.

So why does an account of qualified immunity rooted in constitutional structure matter? Consider the state of the debate. As expounded below, much of the legal community disapproves of qualified immunity, (29) but the Supreme Court continues to enhance its scope and strength. (30) Scholars attack the defense on multiple grounds. Several argue that it is unjust, unclear, unfair to disfavored populations, or dependent on assumptions that defy reality. And recent commentary contends that it lacks the historical support necessary to qualify as a background legal principle, represents a poor analogy to the rule of lenity, and fails to rectify the effects of a purported error in precedent that some say provides it cover.

Many prior attacks on qualified immunity focus on rationales that members of the Supreme Court themselves have given. And many of these attacks are compelling. But the judges and commentators who continue to support the doctrine have evidently found them unconvincing or incomplete. Additional accounts of where qualified immunity comes from and why it persists, therefore, may offer both sides of the debate a more comprehensive understanding of the problem. One such account turns on constitutional structure and comprises two lines of logic. The first relates to suits against federal officials, and the second relates to suits against state officials. Ultimately, neither...