QUALIFIED IMMUNITY AND UNQUALIFIED ASSUMPTIONS.

• Author: Ravenell, Teressa E.

INTRODUCTION. 0.2 I. HARLOW V. FITZGERALD: THE MAKING OF AMORPHOUS LAW. 0.6 A. "Discretionary Functions". 0.7 B. Clearly Established Law. 13 1. "A Reasonably Competent Public Official Should Know the Law Governing His Conduct". 13 2. "Constitutional Rights of Which a Reasonable Person Would Have Known". 16 C. Reasonable Officials, Reasonable Reliance and Extraordinary Circumstances. 20 1. Extraordinary Circumstances. 21 2. The Reasonable Government Official. 22 II. POLICE OFFICIALS' ACTUAL KNOWLEDGE. 26 A. The Findings. 26 III. POSITIVE AND NORMATIVE NOTIONS OF THE REASONABLE OFFICIAL. 29 A. Qualified Immunity: A Positive Notion. 29 B. Qualified Immunity: A Normative Standard. 32 CONCLUSION. 34 INTRODUCTION

A lot of smart people question the wisdom of qualified immunity. Lower court judges called on the Supreme Court to overhaul the defense. (1) The House passed a bill that would eliminate qualified immunity in certain actions. (2) Several states passed legislation curtailing it. (3) Scholars from across the political spectrum have panned qualified immunity. (4) Even Supreme Court Justices criticize the doctrine. (5)

And there is little wonder why so many people are skeptical of qualified immunity. Under this doctrine, a government official may violate the United States Constitution and avoid liability so long as the constitutional right at issue was not "clearly established." (6) The Court, at least initially, saw qualified immunity as a compromise because it preserved the damages remedy that 42 U.S.C. [section] 1983 promises while simultaneously protecting reasonable government officials. (7)

Nevertheless, more and more people have come to view qualified immunity as a failure. (8) Qualified immunity protects government officials when they do something everyone knows is wrong, like stealing, simply because a court has never held it to be constitutionally wrong. (9) As the Supreme Court made clear in Davis v. Scherer, the violation of a clear state statute or department regulation by a government official does not necessarily mean the offending official will be denied qualified immunity. (10) The relevant question in qualified immunity disputes is not whether they violated a clearly established state law or department regulation. Rather, the relevant question is whether the defendant deprived the plaintiff of a clearly established constitutional right."

Yet, Harlow v. Fitzgerald, the seminal case on qualified immunity, hinges on what would seem to be an uncontroversial premise: "a reasonably competent public official should know the law governing his conduct." (12) Although this seems self-evident, this Article begins with the following question in mind: "Should a reasonably competent public official know the law governing his conduct?"

In her recent article, Qualified Immunity's Boldest Lie, Professor Joanna Schwartz proves that police officials, in fact, are not regularly informed of court decisions interpreting Fourth Amendment use of force decisions. (13) From Professor Schwartz's work, one might conclude that reasonable officials should not know the law governing their conduct because they are not trained to do so. (14) This Article agrees with Professor Schwartz's findings and builds upon her work. In fact, our own study of twenty United States police departments confirms her conclusion that officers often are not informed of recent binding federal opinions. Notwithstanding Schwartz's findings, this Article asserts that these findings do not necessarily resolve whether government officials should be aware of the law governing their conduct. Rather, this inquiry warrants a nuanced interpretation of Harlow.

This Article argues that Harlow v. Fitzgerald is best understood as setting forth both positive and normative notions. Although it is improbable that government officials know the law governing their conduct, they nevertheless are obligated to do so. Through careful grammatical analysis, Part I carefully dissects the Court's standard in Harlow. This Article argues that because the Court heavily relies on the modal verbs "should" and "would," Harlow is subject to multiple interpretations. Part I concludes "should," in the phrase "a reasonable competent public official should know the law governing his conduct," is intended to reflect an obligation, or a normative standard. In contrast, the Court's use of the modal verb "would"-when it defines clearly established law--is intended to denote probability or a more positive notion.

Part II then uses empirical data to better understand whether officials actually know the law. This Part details the results of surveys sent to twenty United States police departments to determine if and how officers were informed of federal judicial decisions regarding the Fourth and/or Fourteenth Amendments of the United States Constitution.

Finally, Part III discusses, more generally, normative and positive notions and applies these concepts to Harlow}* Part III concludes that although Harlow sets forth a normative notion by holding that reasonable officials should know the law, its aims are undermined by the positive statement that police officials are unaware of many of the specific cases that govern their conduct. The result is a qualified immunity standard that distorts both positive and normative notions of the reasonable official. This creates a conflict between the fundamental assumptions of qualified immunity for reasonable officials--courts assume reasonable police know the law governing their conduct but that these same officials are incapable of understanding whether their conduct is legal.

1. HARLOW V. FITZGERALD: THE MAKING OF AMORPHOUS LAW

   Harlow v. Fitzgerald'is the seminal case on qualified immunity. (16) There, the Court lays out qualified immunity analysis as follows: (17)

   [G]overnment officials performing discretionary functions generally are shielded from liability for civil damages insofar as their conduct does not violate clearly established statutory or constitutional rights of which a reasonable person would have known .... If the law at that time was not clearly established, an official could not reasonably be expected to anticipate subsequent legal developments, nor could he fairly be said to "know" that the law forbade conduct not previously identified as unlawful .... If the law was clearly established, the immunity defense ordinarily should fail, since a reasonably competent public official should know the law governing his conduct. Nevertheless, if the official pleading the defense claims extraordinary circumstances and can prove that he neither knew nor should have known of the relevant legal standard, the defense should be sustained. But again, the defense would turn primarily on objective factors. (18) Harlow, essentially, lays out a three-part test: (1) whether the defendant was performing discretionary functions; (2) if so, whether the law was clearly established; and (3) if so, whether there were extraordinary standards that excuse the officials' ignorance of the law. (I9) Although the inquiries build upon one another, courts seldom give much consideration to either the first or third points. (20) Part I considers each of these prongs.

   1. "DISCRETIONARY FUNCTIONS"

      Under Harlow, the Court holds that qualified immunity is only available to government officials who are performing a discretionary function. Although this reads as a threshold inquiry, courts seldom address this point. Nevertheless, it continues as an articulated aspect of the qualified immunity analysis. (21)

      At common law, when an executive official claimed immunity for his (in)action, the distinction between ministerial and discretionary duties was integral to the court's determination. (22) A government official was liable to the party injured when he failed to perform "mandatory ministerial duties." (23) On the other hand, an official would be immune from liability for harms he caused while reasonably executing a discretionary function. (24) One treatise rationalized official immunity for discretionary duties as follows:

      When the law, in words or by implication, commits any officer the duty of looking into facts, and acting upon them, not in a way it specifically directs, but after a discretion in its nature judicial, the function is termed quasi-judicial; and he is responsible to one injured by his wrongdoing only if it is negligent, or malicious, or both. (25) The treatise then explains that the immunity is inherently linked to the discretionary function and offers the following rationale: the law requires officials to use discretion; humans may err; therefore, the law which requires him to exercise "his own judgment" should also protect him from liability if he acted honestly and carefully. (26)

      Thus, under common law, governmental immunity depended on several factors. First, whether the relevant act was ministerial or discretionary. If the act was ministerial, then whether the injury was a consequence of performance or non-performance. If the act was discretionary, then whether the official acted reasonably. Accordingly, one might depict the common law analysis for quasi-judicial immunity inquiries as follows:

      Under the common law, government authority clearly did not give officials an absolute shield. (27) There were two routes to liability and two corresponding routes to immunity. Whether the defendant was immune depended, in part, upon whether he performed a ministerial or discretionary function. (28) The challenge, of course, is how to distinguish discretionary functions from mandatory (or ministerial) functions. (29)

      Although the discretionary prong was well understood at common law, the Court has done little to develop this aspect of the qualified immunity doctrine. (30) In Harlow, the Court briefly touched upon the idea of discretionary functions. (31) The Court stated, "judgments surrounding discretionary action almost inevitably are influenced by the...