QUALIFIED IMMUNITY: WHERE DO WE GO FROM HERE?

• Author: Crump, David

Imagine that a group of city police officers enters a home in search of a resident who is a fugitive, without a warrant identifying the premises. The officers have some degree of information suggesting that this home might be harboring the fugitives they are seeking. While inside, the officers obtain evidence that is used to convict the sought-after resident of a crime. But several years after the event, the Supreme Court happens to decide that the entry into the home and the seizure of evidence violated the Fourth Amendment. The Court's decision is made by the slimmest of margins: a five-to-four vote. The convictions are vacated.

Next, imagine that the accused resident promptly switches from being a defendant and becomes a plaintiff. He files suit against the officers under 42 U.S.C. [section] 1983, (1) which provides remedies for violations of rights secured under federal law. The officers, of course, are surprised to find that they are defendants in multi-million-dollar litigation for what they believed was the carrying out of their duties. The plaintiff, however, sees his suit as a claim for the vindication of his rights since the entry into the home has been adjudicated a violation of those rights.

This issue of Albany Law Review is centered upon what are called "miscarriages of justice." Often, police officers are publicly denounced as having promoted miscarriages of justice, only to be vindicated by fact-centered investigations. (2) The phrase, "miscarriage of justice," is, in fact, probably misleading in that it compresses into three words situations that often are debatable. To those who believe that police officers frequently act illegally, this imaginary case must seem ironic. If these officers were accused of misconduct, a miscarriage of justice would indeed occur--but it would be a miscarriage suffered by the police officers.

In any event, this hypothetical scenario typifies the litigation that gives rise to some kinds of claims of qualified immunity. (3) This complex body (4) of immunity law has been described as embodying a compromise between the expectations of the public officials in question and the claims of the people like the hypothetical plaintiff who was the victim of an improper search and seizure. (5) The history of qualified immunity includes a series of fits and starts in which the Supreme Court has attempted to fine-tune the compromise. (6) The difficulty of the Court's task is illustrated by the absence of consideration by Congress, when it adopted section 1983, of the possibility of any defense that might protect officers acting reasonably and in good faith in cases like the scenario above. (7)

This article is an attempt to sketch where the law is at present and to guess where it might be going under contemporary proposals for change. The First Part of the article briefly describes the doctrine of qualified immunity, to serve as background to the development of the issues. The Second Part deals with arguable defects in the current doctrine. The Third Part considers contemporary proposals for amendment, particularly as expressed in the idea of replacing qualified immunity with a defense depending on a requirement such as recklessness.

The Third Part also offers an amendment to the law of qualified immunity. This amendment contains compromise language that could allow government officials acting reasonably and in good faith to be protected both from lengthy litigation and from the fear of crushing damages while still allowing more suits that are meritorious against government officials than can survive at present. A final section sets out the author's conclusions, which include criticism of the most visible legislative solution to date--that of replacing qualified immunity with a recklessness element--on the ground that it would defeat the purposes of the qualified immunity doctrine. The suggested compromise amendment, however, would not have that effect.

1. THE DOCTRINE OF QUALIFIED IMMUNITY

   Qualified immunity is a defensive doctrine responsive to various theories of recovery against government officers. (8) The most frequently asserted kind of immunity, probably, arises in response to claims under 42 U.S.C. [section] 1983, which provides as follows:

   Every person who, under color of any statute, ordinance, regulation, custom, or usage, of any State..., subjects... any citizen of the United States or other person... to the deprivation of any rights, privileges, or immunities secured by the Constitution and laws, shall be liable to the party injured in an action at law, suit in equity, or other proper proceeding for redress.... (9) Thus, the statute provides a remedy for actions under "color of state law." (10) This requirement means that the defendant in a section 1983 action must have exercised power "possessed by virtue of state law and made possible only because the wrongdoer is clothed with the authority of state law." (11) Furthermore, the actions must be undertaken by a "person" (12) who subjects another person to the "deprivation" of federally secured rights. (13)

   The meaning of these provisions is not facially obvious. For example, the courts have held that a governmental entity, such as a municipal corporation, can be liable under section 1983 for actions under an official custom or policy, (14) but a state cannot be. (15) The types of claims that cause a sufficient "deprivation" of federal rights are not expressly defined either. One might guess that a negligent deprivation by a state official might qualify, but the Supreme Court has rejected this theory as a general rule. (16) The Court seems to have held that a mental state close to intent, but not actually requiring intent, is necessary to invoke the statute, but that the precise definition of this element depends on the context of the right at issue. (17) For a failure to supply medical services to a person in custody, for example, the standard is, "deliberate indifference to serious medical needs." (18)

   More to the point of this article, the statute does not provide for defensive limits on its reach. (19) The courts have held that the elements of the statute are requirements for its invocation, and defenses, therefore, must be affirmative defenses, (20) although they are affirmative defenses of peculiar nature. (21) The Supreme Court recognized the defense that became today's qualified immunity in the case of Pierson v. Ray. (22)

   Pierson was a case from a different constitutional era. Pierson was one of a group of black and white citizens who sought to use segregated bus facilities in Jackson, Mississippi. (23) Ray was one of a group of police officers who arrested Pierson and others for the offense of congregating with others in a public place under circumstances such that a breach of the peace might be occasioned thereby (24) and refusing to move on when ordered to do so by a police officer. (25) The defendants were convicted in municipal court but then, on trial de novo in county court, Defendant Jones moved for and was granted a directed verdict, (26) after which the city moved to dismiss prosecutions against the other defendants. (27)

   The defendants then became plaintiffs and, under authority of section 1983, sued Ray and other officers who had arrested them. (28) Later, the United States Supreme Court held in Thomas v. Mississippi, under similar facts, that the Mississippi code section upon which the arrest had been based was unconstitutional. (29) This development meant that the newly minted defendants, Ray and others, were subject to the claims under section 1983 (30) and had no recognized defense. (31) Accordingly, although Thomas was decided years after the arrest that was the subject of the suit, the trial court held that the police officers would be liable under section 1983 (32) for an unconstitutional arrest even though they had acted in good faith and with probable cause under the statute that they reasonably believed was controlling, (33) a result that the Supreme Court understandably described as "stern." (34)

   The Court proceeded to fashion a common law defense applicable to the officers' situation. A second claim had been asserted by the plaintiffs under the common law for false arrest, (35) and this claim was subject to a defense on behalf of an officer acting in good faith and with probable cause. (36) The Court extended this defense also to the claim under section 1983. (37) The defense was not one of absolute immunity, said the Court, although that kind of full immunity applied to some categories of defendants, such as judges. (38) It was a qualified immunity, applicable only if an officer, in fact, acted in good faith and with probable cause. (39) "A policeman's lot," said the Court, "is not so unhappy that he must choose between being charged with dereliction of duty if he does not arrest when he has probable cause, and being mulcted in damages if he does." (40)

   This, then, is the origin of the defense of qualified immunity. Since its inception, the doctrine has undergone many changes, including fundamental alterations. (41) It has grown into a potent protection for honest officers who act reasonably, even if their actions happen to impair federally secured rights of others. (42)

   The Supreme Court's decision in Harlow v. Fitzgerald (43) provides an example of the growth of the doctrine of qualified immunity. There, the plaintiff sued for allegedly wrongful termination from the Air Force, naming presidential aides as defendants. (44) The Court held that the defendants were not entitled to the defense of absolute immunity (45)--which would have resulted in rejection of suits for performance in office regardless of the circumstances (46)--but rather, they could assert the less comprehensive defense of qualified immunity. (47) The Court stated that "in general," governmental officials merit qualified immunity rather than the absolute defense. (48)

   But Harlow also established aspects...