Author:Preis, John F.
Position:Symposium: The Future of Qualified Immunity


As a general rule, liability correlates with fault. That is, when the law declares a person liable, it is usually because the person is, in some sense, at fault. Similarly, when the law does not declare a person liable, it is usually because the person is not deemed to be at fault. There are exceptions, of course. A storekeeper who unwittingly sells a product that harms another may be held liable under the doctrine of strict liability, despite her blameless conduct. (1) Similarly, a website owner who knowingly permits others to post defamatory statements on her website is not liable, despite her blameworthiness. (2) In these exceptional cases, liability does not correlate with fault because instrumental goals override its importance.

Instrumental goals have long animated qualified immunity law. One goal is to protect government from the perceived burdens of litigation. Litigation can be costly and time consuming and, inasmuch as the qualified immunity defense permits the early dismissal of claims, the defense keeps many lawsuits short and relatively painless. (3) Another goal is to ensure that public servants are not overdeterred in discharging their duties. By insulating officers from liability in most instances, officers will presumably feel free to vigorously pursue state interests without the fear of private liability. (4) A third goal of the defense, in the minds of some at least, is enabling constitutional development. (5) If every declaration of a new constitutional right carried with it significant remedial costs, courts might be less likely to create such rights. By limiting remedies, therefore, the defense promotes the expansion of constitutional rights.

Recent scholarship has cast doubt on these instrumental goals. There is good reason to think that the defense does not relieve governments of the burdens of litigation (because qualified immunity is rarely resolved before trial or settlement), (6) that the defense does not solve the problem of overdeterrence (because there is not likely an overdeterrence problem), (7) and does not spur the expansion of constitutional rights (because courts no longer have to delineate rights to approve the defense of qualified immunity (8)). With these instrumental goals swept away, the defense as currently conceived must stand or fall based on the general rule that liability correlates with fault. Fault, which I sometimes refer to as "blame" in this Essay, has generally played a role in the qualified defense, (9) but given the prominence of instrumental justifications, it has received far less attention. (10) As these instrumental justifications begin to fall, a new evaluation of fault is in order.

This Essay describes, critiques, and attempts to reform the role of fault in the defense of qualified immunity. It first argues, in Part I, that the defense does not properly assess fault because it immunizes persons who are at fault and holds liable persons who are not. The chief cause of this problem is that the defense is focused on an exceedingly narrow source of law: appellate judicial opinions. (11) Appellate opinions are, not surprisingly, rarely read by government officers and, even when their substance is communicated to officers, they only comprise one of many factors that affect the blameworthiness of an officer.

Given that fault can often be assessed outside the context of appellate judicial opinions, the Essay then begins to sketch in Part II two different ways in which this assessment could occur. Neither approach, however, is fully satisfying. One approach would be to base qualified immunity on an officer's adherence to clearly established state law as well as federal law. This approach is appealing because it embraces clearly established law from multiple sources and dispenses with the unrealistic assumption that our sense of fault is only tied to appellate judicial opinions addressing federal constitutional law. Yet this approach is also troublesome because it still leaves fault incompletely assessed in certain cases. Additionally, the approach will be difficult to implement and impinge on traditional state prerogatives regarding the maintenance and operation of state law.

Given the problems with this approach, the Essay takes up another alternative in Part III. Under this approach, an officer's immunity from damages in a constitutional tort action would turn on her actual knowledge of federal unconstitutionality or her compliance with the standard of care prevailing in the officer's department or agency. This approach is attractive because it more closely tracks the blameworthiness of the officer as traditionally understood in criminal and tort law. In addition, the approach is attractive because it may create strong incentives for departmental self-assessment and reform. Yet this approach is also flawed in that it may also create incentives cutting in the other direction--such as incentives to cut back on policy and training. Another problem with this approach is that its benefits will mostly be confined to constitutional tort actions against state officers working for local governments. When it comes to officers working for the state-wide agencies and the federal government, the benefits may not apply with equal force.

Given that neither of these two approaches to reforming qualified immunity is sufficiently compelling, I briefly explain in a conclusion that, however qualified immunity might be reformed (or even if it remains the same), the perceived fault (or lack of fault) of the officer can never support the entire defense without sacrificing instrumental goals or causing other problems. The task facing reformers, therefore, is how to balance the law's traditional concern with fault against policy concerns that inevitably invade any body of judge-made law.


    The qualified immunity doctrine distinguishes between officers who violated law that was "clearly established" and law that was not "clearly established." (12) The focus on clearly established law assumes that clear law provides officers with "fair notice" of the wrongfulness of their conduct. (13) Constitutional law, the argument goes, is full of intricacies and nuances that will escape most government officers. Reasonable officers cannot be expected to grasp these subtleties and thus are not blameworthy when they violate them. Where the law is clear rather than nuanced, however, the officer may fairly be considered to be at fault and thus be held liable. Yet, as explained in Sections LA and LB below, this approach will often excuse the faulty and hold liable the faultless.

    Before explaining these points, however, it will be useful to note up front this Essay's working definition of "fault." As used herein, an officer is "at fault" if, prior to taking some action, she has actual or constructive knowledge that her action is wrongful, and yet takes the action anyway. "Wrongfulness" may feel uncomfortably ambiguous, but it is fact what criminal law uses to allocate fault all the time. As Professor John Jeffries has argued, the legitimacy of criminal liability is not based on the "fanciful" notion that "ordinary citizens have access to [criminal] statutes that define criminal offenses or to the volumes of decisions that interpret them or that, if they did, they would have the skill or aptitude to understand such materials." (14) Instead, it is based on the "common social duty" that all of us absorb simply by living in a given community. (15) This common social understanding of wrongfulness is both reflective of, and informative of, the law itself. If criminal fault can be based on such a basis, certainly civil liability can be built on the same basis. (16)

    1. Excusing the Faulty

      Questions of constitutional law are both easy and hard. Consider first an easy one: To be convicted of treason based on witness testimony, how many witnesses must testify? The answer is at least two. To figure this out, one need only look it up in Article III, Section 3 of the United States Constitution. (17) It's right there in black and white. Now consider a harder question:

      If an intoxicated driver who has threatened to kill police officers is leading officers on a high-speed chase, and is approaching a spike strip that will likely end the chase, does an officer engage in excessive force when he, while stationed on an overpass forward of the spike strip, shoots at the driver's car engine but misses and kills the driver? (18) In contrast to the treason example, constitutional text will be of no help here. The question might still have an easy answer, but it will depend on the cases establishing the right to be free from excessive force. If, for whatever reason, the Supreme Court had previously declared it per se excessive to shoot at a moving vehicle, the answer would be easy. The officer in our example would have violated a bright-line rule. But the law of excessive force does not contain such bright-line rules. Courts faced with excessive force questions must "analyz[e] the totality of the circumstances" to determine whether an officer acted "reasonabl[y]." (19)

      Application of this reasonableness test produces law in that it results in precedent that can be applied to future cases. But because the holding in such a case necessarily turns on the "totality of the circumstances," it will always be challenging to discern the specific rule established by a case. If shooting an intoxicated driver in the situation described above is unconstitutional, would it still be unconstitutional if the driver were sober? What if the driver had not previously threatened the police, or was not likely armed, or the chase had been proceeding at slower speeds? Reasonable attorneys could make arguments on both sides, which means that a case holding a particular use of force unconstitutional puts an officer on notice only when she encounters that specific situation in the...

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