A Reasonable Person Standard for Qualified Immunity

• Publication year: 2022

55 Creighton L. Rev. 33. A REASONABLE PERSON STANDARD FOR QUALIFIED IMMUNITY

A REASONABLE PERSON STANDARD FOR QUALIFIED IMMUNITY

BAILEY D. BARNES ^[*]

I. INTRODUCTION ................................... 33

II. HISTORY & DEVELOPMENT OF SECTION 1983 . . 36

A. HISTORY OF SECTION 1983 ....................... 36

B. DEVELOPMENT OF SECTION 1983 JURISPRUDENCE .................................. 39

III. DEBATE OVER QUALIFIED IMMUNITY ........... 45

A. ARGUMENTS FOR QUALIFIED IMMUNITY ............ 45

B. ARGUMENTS AGAINST QUALIFIED IMMUNITY ....... 47

IV. THE REAL COST OF QUALIFIED IMMUNITY..... 51

V. A RETURN TO OBJECTIVE REASONABLENESS (AND REALITY) .................................... 59

VI. CONCLUSION ..................................... 73

I. INTRODUCTION

Ahmaud Arbery, Jacob Blake, Rayshard Brooks, George Floyd, Daniel Prude, Breonna Taylor. ^[1] In 2020, the United States' longstanding problem of police brutality, especially related to officer encounters with minorities, was on full display. ^[2] The names listed here are only a snapshot of those cases that garnered the most significant media attention. ^[3] Though in admittedly differing circumstances, each of these cases demonstrates that both on-duty and off-duty police interactions can have dire, even deadly, consequences. Yet, these situations are only those that resulted in death or severe injury. Invariably, there are numerous other instances where law enforcement, clothed with the state's authority, caused harm to those with whom officers come into contact.

Despite this risk of injury and rampant police brutality, there are often little-to-no consequences for these wrongful police actions. ^[4] It is exceedingly rare for officers to be charged or indicted for harming people in the course of their work. ^[5] Compounding this injustice, the civil justice system is also inadequate at compensating parties who are injured at the hands of those sworn to protect them. The primary litigation vehicle through which suffering parties may bring actions against officers for their misdeeds is a civil rights action pursuant to 42 U.S.C. §1983. Unfortunately, judicially-created defenses to liability often bar the injured party from recovering from the officers who injured them. ^[6] Through qualified immunity, officers are often immune not only from monetary liability, but also from even being required to participate in the lawsuit. ^[7] Once an officer raises the defense of qualified immunity, the burden moves to the injured party to prove that the defendant officer violated a "clearly established constitutional right" in their conduct that caused the plaintiff's suffering. ^[8] In practice, this prohibits a vast number of claims against law enforcement personnel. ^[9]

This Article takes aim at qualified immunity. Certainly, ridding United States jurisprudence of the defense altogether is the most preferable outcome for those who wish to see injured parties compensated for the harm they suffered at the hands of the arms of the state. This type of reform is not likely to occur, however. ^[10] With that in mind, this Article argues that the "clearly established right" standard is unworkable, unduly burdensome, and out of step with reality. It is plainly unrealistic to maintain that police officers are amply familiar with constitutional law and criminal procedure that law enforcement may ever be deemed on notice of established precedent in those areas of the law. The woeful lack of training given to officers in these doctrines makes it difficult to maintain that law enforcement personnel are aware that their actions violate the constitutional rights of those with whom they are interacting. Given this near-axiomatic proposition, Congress or the Supreme Court of the United States should provide a more workable standard that does not leave injured citizens holding the bag.

Accordingly, this Article offers a simple alternative that is grounded in multiple areas of the law already-a "reasonable person" test. Under this standard, an officer is not entitled to qualified immunity if a reasonable person, not a reasonable officer, would believe that the officer's action violated the plaintiff's constitutional rights. This standard is objective, looks to common knowledge held in the community, and still offers a viable defense to the police. Moreover, this Article proposes that qualified immunity should cease serving as an immunity to suit but should remain an immunity from liability if proven. ^[11] The proper procedure for granting qualified immunity is also changed under this system to permit the finder of fact, not the court on summary judgment, to determine the thoughts of a reasonable person.

This Article tackles this issue in multiple parts. Part II discusses the history of Section 1983. This survey includes the impetus behind the legislation and how the Supreme Court has interpreted and applied the act. Part III summarizes the arguments for and against qualified immunity. Part IV offers three case examples of the real harms suffered by plaintiffs at the hands of police, as well as the compounding injustice of qualified immunity when applied to those circumstances. Part V outlines the proposed reformation of the clearly established right formula for qualified immunity. Finally, Part VI concludes by reviewing the above sections and looking forward to opportunities for reform.

II. HISTORY & DEVELOPMENT OF SECTION 1983

A. HISTORY OF SECTION 1983

Following the United States Civil War and the ratification of the Thirteenth and Fourteenth Amendments to the Constitution of the United States in 1865 and 1868 respectively, the nation embarked on the Reconstruction Era. ^[12] The Fourteenth Amendment expressly granted to Congress the power to enforce the rights enshrined in that Amendment. ^[13] In relevant part, the Fourteenth Amendment states, "No State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor . . . deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws." ^[14] During Reconstruction, black men were entitled to vote and some served in public office. ^[15] In fact, as noted by Professor Eric Foner, over six hundred black men were elected to serve in state legislatures during Reconstruction. ^[16] Against this backdrop, and the stinging Confederate loss in the Civil War, the Ku Klux Klan organized in Tennessee. ^[17]

The Ku Klux Klan, a collection of disgruntled, racist, and bigoted white militants, used terror tactics against recently freed slaves, their families, and those white politicians and leaders who supported the cause of Reconstruction. ^[18] Revoltingly, the Ku Klux Klan employed "shootings, lynchings, and whippings, in addition to more ghoulishly inventive crimes" to achieve its reign of terror. ^[19] While appalling, the Ku Klux Klan was not the only perpetrator of repulsive actions against freed slaves and those white people who supported them. As Congressman Aaron F. Perry of Ohio explained to the United States House of Representatives, sheriffs, judges, witnesses, grand and petit jurors all conspired to ensure that the vigilantism of the Ku Klux Klan went unpunished. ^[20] Eloquently, Representative Perry described that "[s]heriffs, having eyes to see, see not; judges, having ears to hear, hear not; witnesses conceal the truth or falsify it; grand and petit jurors act as if they might be accomplices." ^[21] Perry chastised the state and local governments who "[i]n the presence of these gangs . . . skulk away as if government and justice were crimes and feared detection." ^[22]

To attempt to remedy this evil vigilantism and the state and local government apathy, if not support toward it, Congress passed the Civil Rights Act of 1871, also commonly, and appropriately, known as the Ku Klux Klan Act of 1871, at President Ulysses S. Grant's request. ^[23] The first provision of the Act, which is now codified as 42 U.S.C. §1983, authorized civil actions against individuals acting under color of state law who deprived a citizen of their constitutional rights. ^[24] According to the Supreme Court of the United States, Congress intended this provision to "restore peace and justice to the [South] through the subtle power of civil enforcement." ^[25] The Court has added, "[t]he very purpose of Section 1983 was to interpose the federal courts between the States and the people, as guardians of the people's federal rights-to protect the people from unconstitutional action under color of state law." ^[26] While it may be reasonable to assume that the Civil Rights Act of 1871's enactment into law stymied the Ku Klux Klan and continued the legal racial progress of Reconstruction, this unfortunately is not true.

B. DEVELOPMENT OF SECTION 1983 JURISPRUDENCE

After its passage in 1871, Section 1983 laid dormant for decades because of the Supreme Court's narrow interpretation of the state action requirement in the Fourteenth Amendment and consequently the Civil Rights Act. ^[27] In fact, only twenty-one cases were filed under Section 1983 in the first fifty years after its enactment. ^[28] However, following the Second World War, the many racial discrimination cases that arose in the mid-twentieth century, and the selective...