REBALANCING HARLOW: A NEW APPROACH TO QUALIFIED IMMUNITY IN THE FOURTH AMENDMENT.

• Author: Silverstein, Michael
• Position: Note

CONTENTS INTRODUCTION I. THE DEVELOPMENT OF QUALIFIED IMMUNITY A. Qualified Immunity: What Is It? B. Before Harlow C. Harlow and the Elimination of Subjectivity D. The Saucier Experiment: The Interest in Constitutional Development E. Qualified Immunity and the Fourth Amendment II. Critiques of Qualified Immunity A. Qualified Immunity--Generally Weighing Heavily for the Government 1. Inappropriately Defining Clearly Established Law 2. Inappropriate Fact-Finding 3. Lack of Constitutional Development 4. Lack of Subjectivity B. Qualified Immunity and the Fourth Amendment 1. Double Reasonableness Protection 2. Difficulty in Enforcing the Fourth Amendment 3. Clearly Established Law Defined by Case Law Is Inappropriate. 4. The Lens for Interpreting Facts Is the Same Lens as the Fourth Amendment 5. Financial Costs and Deterrence Claims Are Unfounded III. A NEW BALANCE TO QUALIFIED IMMUNITY IN THE FOURTH AMENDMENT A. Why the Fourth Amendment Deserves Its Own Qualified-Immunity Standard B. The New Balance 1. Removing the Constitutional Question 2. The Three-Pronged Balancing Test 3. Balancing the Factors IV. COMPARISON TO OTHER PROPOSALS A. Changing the Standard to a Rule B. "Clearly Unconstitutional" C. Expanding the Definition of Clearly Established Law CONCLUSION INTRODUCTION

On July 6, 2016. Philando Castile was killed by a police officer in St. Paul, Minnesota during a traffic stop for a broken tail light. (2) Once pulled over, Castile told the officer that he had a firearm on him. (3) The officer asked him not to reach for it, and Castile said he was not. Nevertheless, the officer shot Castile. Castile's girlfriend, Diamond Reynolds, immediately began streaming the aftermath on Facebook. (4) As Castile slumped in his seat, his shirt soaked in blood, Reynolds stated, "You shot four bullets into him, sir. He was just getting his license and registration, sir." (5) The officer later claimed that he "feared for his life." (6) The city settled a lawsuit filed against it by Castile's family 10 days after a jury acquitted the officer of all charges in the shooting. (7)

On March 13, 2009, Jamie Lockard was pulled over for traffic violations in Lawrenceburg, Indiana, and the officer, upon talking to Lockard, believed Lockard was intoxicated. (8) Lockard registered a blood alcohol concentration of 0.07% and refused to submit to a chemical test. (9) The officer obtained a search warrant to gather a blood and urine sample from Lockard. (10) The blood sample was obtained without any problem, but Lockard was unable to provide a urine sample because he "didn't have to go right then." (11) At this point, someone--either the officers or a doctor, but it is unclear who--ordered a catheterization. (12) The officers handcuffed Lockard to a bed and grabbed his ankles while the nurse pulled down his pants, despite Lockard's telling the nurse he did not want to be catheterized. (13) Lockard said it "felt like something twisting where it ain't supposed to be twisting." (14)

Lockard sued the officers for violating his Fourth Amendment rights, but the district court ruled that the officers were entitled to qualified immunity. (15) After an extensive review of the case law surrounding the Fourth Amendment and forced catheterization, the court concluded that "the existence and/or direction of any discernable trend in the law concerning forcible catheterizations is far from clear." (16) Therefore, the court could not hold the officers liable for their "bad guesses" in a "gray area." (17)

Qualified immunity presents a seemingly insurmountable obstacle for plaintiffs like Lockard and Philando Castile's family if and when they decide to sue individual officers. (18) When plaintiffs sue government officials for violating their constitutional rights, the government officials can assert that they are qualifiedly immune from the suit. This immunity, according to the Supreme Court, protects "government officials performing discretionary functions ... insofar as their conduct does not violate 'clearly established' statutory or constitutional rights of which a reasonable person would have known." (19) The Harlow v. Fitzgerald (20) Court--which created the modern qualified immunity doctrine--hoped these words would create a balance between public and governmental interests, (21) but, as currently applied, qualified immunity tips too far in favor of the government. This is especially true in Fourth Amendment cases, where the standards are already deferential to government officials. The combination of qualified immunity and Fourth Amendment standards has made it extraordinarily difficult for plaintiffs to argue the merits.

This is partly by design. One of the main objectives of the current qualified-immunity regime is preventing too many cases from proceeding to the merits. (22) However, the pursuit of this goal has gone too far. The Supreme Court, under the current standard, has heard 28 qualified immunity cases. (23) Of those 28 cases, Fourth Amendment claims pervaded 21 of them. (24) Of those 21, the Court found immunity in all but three. (25) The Court certainly has legitimate interests in qualified immunity, but the strength the Court has given the doctrine presents too great an obstacle for plaintiffs who potentially have meritorious claims. Too many cases are being denied their day in court.

The Harlow standard, therefore, needs rebalancing. This Note argues that in order to strike the appropriate balance the Supreme Court attempted to find in Harlow, qualified immunity for Fourth Amendment claims should be determined through a case-by-case balancing test. Before beginning the analysis, a judge would assume there is a constitutional violation and then weigh an objective-reasonableness factor, a subjective-standard factor, and, finally, a constitutional-development factor, which will encourage judges to determine the potential benefits to constitutional development if the case goes to trial.

Part I traces the development of qualified immunity both generally and in the context of the Fourth Amendment. Part II discusses various critiques of qualified immunity. Part III presents the proposed alternative to qualified immunity for the Fourth Amendment. Finally, Part IV presents and compares several other proposed alternatives to the balancing test.

1. THE DEVELOPMENT OF QUALIFIED IMMUNITY

   This Section focuses on the development of the current qualified-immunity doctrine and how its evolution was motivated by certain themes and interests repeated by the Supreme Court. The first Subsection lays out the current iteration of the doctrine. The subsequent Subsections focus on the development of qualified immunity, with particular attention to cases that represented shifts in the doctrine. The final Subsection traces the development of qualified immunity in the context of the Fourth Amendment.

   1. Qualified Immunity: What Is It?

      Qualified immunity is a type of immunity government officials can assert when being sued for violating constitutional rights. (26) It is an immunity from suit, not just an immunity from paying damages. (27) The immunity is qualified--as opposed to absolute--because it applies unless: (1) the official violated the plaintiff's constitutional rights, and (2) the right the official violated was clearly established. (28) Those conditions may be addressed in either order. (29) The court has labeled these conditions as the constitutional question and the qualified-immunity question, respectively. (30) The clearly established right cannot be defined "at a high level of generality," meaning, for example, that the right cannot simply be the language of the Fourth Amendment. (31) Furthermore, the right is clearly established if "[t]he contours of the right [are] sufficiently clear [so] that a reasonable official would understand that what he is doing violates that right." (32) The doctrine aims to "give[] government officials breathing room to make reasonable but mistaken judgments about open legal questions." (33) The qualified-immunity question, therefore, is an objective analysis, asking how a reasonable government official would act. (34)

   2. Before Harlow

      Before Harlow, the Supreme Court defined qualified immunity as a good-faith immunity that had both an objective and subjective element. (35) The pre-Harlow objective prong is similar to the qualified-immunity question established by Harlow. The Supreme Court used such phrases as "reasonably appeared at the time," (36) "reasonable grounds for the belief formed at the time and in light of all the circumstances," (37) and "clearly established constitutional rule." (38) These phrases represent one of the cores of qualified immunity: if a reasonable government official would have believed they were not violating the Constitution, then that official deserves immunity. (39) In addition to this objective standard, courts gave equal weight to the official's "good-faith belief" that what they were doing did not violate the Constitution. (40) The Supreme Court repeatedly emphasized the importance of this subjective analysis, stating that "the official himself must be acting sincerely and with a belief that he is doing right." (41)

      The Court viewed these questions as two sides of the same immunity coin. Neither question was more important than the other. (42) It would make no sense for an official to knowingly and willfully disregard someone's constitutional rights yet be immune, and it would make no sense for an official to be immune when any other official would have known their actions were not constitutional. (43) Both objective good faith and subjective good faith must be present. (44)

      One important pre-Harlow case developing this standard is Scheuer v. Rhodes. (45) Scheuer specifically sheds light on the reasoning and interests behind this analysis, and qualified immunity in general. In Scheuer, the Court heard an appeal from the dismissal of a claim by the families of three students...