QUALIFIED IMMUNITY: TIME TO CHANGE THE MESSAGE.

• Author: Blum, Karen M.
• Position: Symposium: The Future of Qualified Immunity

INTRODUCTION

If messages sent by the Supreme Court to the lower federal courts were in the form of tweets, there would be a slew of them under #welovequalifiedimmunity. Since Harlow v. Fitzgerald, (1) the Supreme Court has confronted the issue of qualified immunity in over thirty cases. (2) Plaintiffs have prevailed in two of those cases: Hope v. Pelzer (3) and Groh v. Ramirez. (4) In eight of the cases, including Kisela v. Hughes, (5) the Court reversed denials of qualified immunity in per curiam summary dispositions. (6) Five of the eight per curiam decisions were unanimous. (7) Justice Sotomayor, joined by Justice Ginsburg, dissented in Kisela. (8) In Mullenix v. Luna, (9) there was a lone dissent by Justice Sotomayor, and in Brosseau v. Haugen, (10) only Justice Stevens dissented. In eleven cases between 2012 and 2018, the Court exercised its discretion to jump to the second prong of the qualified immunity analysis, (11) granting qualified immunity because the law was not clearly established and leaving unresolved the "merits" question of prong one. (12) In four cases, the Court granted certiorari, vacated, and remanded for reconsideration of the qualified immunity determination in light of Mullenix or Pauly. (13) In three of those cases, the respective circuits granted immunity on reconsideration. (14) In short, the Court that once criticized the Eleventh Circuit for putting a "rigid gloss" on the qualified immunity analysis by insisting on a case that was "materially similar" to the situation before the court in order to defeat immunity, (15) is now "tweeting" through per curiam opinions (e.g., Brosseau and Mullenix) that plaintiffs best produce precedent that "squarely governs" (16) in the "specific context" (17) of this case if they hope to get by summary judgment. (18) The message is clear. As Judge Browning recently observed, "the Supreme Court has crafted their recent qualified immunity jurisprudence to effectively eliminate [section] 1983 claims by requiring an indistinguishable case and by encouraging courts to go straight to the clearly established prong." (19)

Judge Lynn Adelman has been similarly outspoken about the impact of the Court's qualified immunity jurisprudence on civil rights litigation, noting that "[t]he Supreme Court's message to lower courts is clear: think twice before allowing a government official to be sued for violating an individual's constitutional rights. As a result, the lower federal courts are disposing of casesbased on qualified immunity at an astonishing rate." (20) Professor William Baude has questioned the legal justification for the doctrine, (21) while ProfessorJoanna Schwartz has documented how the doctrine works to provide unnecessary protection from liability to officers who are indemnified for theirwrongdoing in the overwhelming majority of cases, (22) and has highlighted itsfailure in achieving the stated goal of shielding government officials from burdens of pretrial discovery and trial. (23) Also noteworthy is the fact that the Cato Institute, a conservative, libertarian think tank, has launched a full blown assault on the doctrine of qualified immunity. (24) And, in Ziglar v. Abbasi, Justice Thomas has called on the Court to reconsider its qualified immunity jurisprudence, "shift[ing] the focus of [its] inquiry to whether immunity existed at common law." (25) The call for reconsideration is welltaken, but this author would like to see the focus shift to align the doctrine more with common sense than with common law. The Court's policy-driven qualifiedimmunity approach has (1) stifled the development of constitutional standards while creating a confusing and divisive debate about what constitutes "clearly established" law; (2) imposed substantial burdens and costs on the litigation of civil rights claims by encouraging multiple and often frivolous or meritless interlocutory appeals; and (3) resulted in judges displacing jurors as fact finders.

In 1999, this Law Review devoted its Federal Courts, Practice & Procedure Issue to articles analyzing and criticizing the much overused Rooker-Feldman doctrine. (26) It may have seemed strange to concentrate so much time and attentionon an obscure limitation on federal court subject matter jurisdiction. But, in 2005, the Supreme Court followed with Exxon Mobil Corp. v. SaudiBasic Industries Corp., (27) a decision reining in the lower courts' expansion of the doctrine and restoring the jurisdictional limitation to its proper functionand place in our federal system. For those unfamiliar with the qualified immunity defense, it might likewise seem odd to dedicate an entire issue to a defense available only to certain defendants (28) in a limited category (29) of civil rights litigation. However, recent Supreme Court cases, as well as lower court decisions,all too clearly and similarly demonstrate that this tail has undoubtedly come to wag the dog.

In an effort to shore up the dog and bring the tail under control, this Essay will proceed in four parts. Parts I, II, and III will highlight, through some recent illustrative cases, areas where the qualified immunity defense has been especially ineffective and inefficient by: (Part I) hampering the development of constitutional law and impeding the redress of constitutional wrongs;(Part II) draining resources of litigants and courts through interlocutory appealsthat are frequently without merit and often jurisdictionally suspect; and (Part III) breeding confusion into the roles of the judge and the jury in our judicial system, effectively enhancing the judge's role at the expenseof the constitutional right to jury trial. Each criticism will be followed by a brief recommendation for change to the current doctrine that might ameliorate some of the problems identified in each Part. (30)

But, my conclusion, in Part IV, consistent with that of Professor Chen's in this Issue, is that the doctrine of qualified immunity is beyond repair. (31) Thus, I urge the Court to make the reformation of its qualified immunity doctrine unnecessary by revisiting and revamping another of its confusing creations, the doctrine of municipal liability under Section 1983. (32)

1. POST-PEARSON: ARRESTED DEVELOPMENT OF CONSTITUTIONAL PRINCIPLES AND WRONGS WITHOUT REMEDIES

   Since the Supreme Court in Pearson v. Callahan (33) released lower federal courts from the "rigid order of battle" demanded by Saucier v. Katz, (34) and madeaddressing the "merits" question in prong one of the qualified immunity defense discretionary, (35) most courts have been happy to forgo diving intotough constitutional questions when prong two has presented an obvious escape route. (36) There are well-founded criticisms leveled at the mandatorytwo-step approach, and the Court carefully set out the most compelling concerns in Pearson: (1) deciding the constitutional question first often results in substantial expenditures of resources by litigants and courts on "questions that have no effect on the outcome of the case"; (37) (2) the development of constitutional doctrine is not furthered by decisions that are "so factbound that the decision provides little guidance for future cases"; (38) (3) it is senseless to force lower courts to decide a constitutional question that is pending in a higher court or before an en banc panel; (39) (4) it does little to further the development of constitutional precedent to mandate a decision that depends on "an uncertain interpretation of state law"; (40) (5) requiring a constitutional decision at the pleading stage based on bare-bones allegationsof fact, or one at the summary judgment stage resting on "woefully inadequate" briefs, "create[s] a risk of bad decisionmaking"; (41) (6) the mandated two-step analysis will often shield constitutional decisions from appellate review when the defendant loses on the "merits" question but prevails on the clearly established law prong of the analysis; (42) and finally, (7) the approach requires unnecessary determinations of constitutional law and "departs from the general rule of constitutional avoidance." (43)

   The concerns identified by the Court are legitimate ones, but too often play little or no role in the exercise of discretion by courts under Pearson, or, if they do, are left unidentified by a court choosing to exercise its discretion not to decide. (44) Indeed, in four cases, including Pearson itself, where the Supreme Court jumped to the second prong and left the merits question undecided, the reasons for doing so were not articulated in terms of a Pearson justificationand each case resulted in leaving both officials and citizens without guidanceon important constitutional questions. (45) In Pearson, the question left unanswered was whether the "consent-once-removed" doctrine (46) applies when a warrantless entry is made by police upon a signal given by a confidential informant, rather than an undercover police officer, who has entered the home with consent and observes contraband in plain view. (47) In Reichle v. Howards, (48) the Court left for another day the question of "whether a First Amendment retaliatory arrest claim may lie despite the presence of probable cause to support the arrest." (49) Likewise, in Stanton v. Sims, (50) even after noting that federal and state courts were "sharply divided" on the issue, the Court inexplicably left unanswered the question of "whether an officer with probable cause to arrest a suspect for a misdemeanor may enter a home without a warrant while in hot pursuit of that suspect." (51) Finally, in Carroll v. Carman, (52) the Court reversed the Third Circuit, addressing only the second prong of the qualified immunity analysis and eschewing the question of "whether a police officer may conduct a 'knock and talk' at any entrance that is open to visitors rather than only the front door." (53) These four cases presentedimportant issues of constitutional law, issues that were not particularly fact bound...