AuthorJaicomo, Patrick

INTRODUCTION. 107 I. SUITS FOR DAMAGES AGAINST GOVERNMENT OFFICIALS HAVE BEEN THE CORNERSTONE OF GOVERNMENT ACCOUNTABILITY SINCE AMERICA'S FOUNDING. 110 A. The Availability of Suits Against Individual Government Officials Animated American Constitutional Design. 111 B. Early American Courts Applied Strict Liability Against Government Officials Who Violated Individual Rights. 112 C. Congress Historically Considered Policy in Determining the Need for Indemnity and Immunity from Damages. 116 D. The Historical Rule of Strict Liability was the Law of the Land in 1871 when Congress Enacted Section 1983, and Courts Continuously Enforced it well into the Twentieth Century. 119 II. THE SUPREME COURT'S CREATION OF QUALIFIED IMMUNITY BROKE WITH CENTURIES OF AMERICAN JURISPRUDENCE AND SWAPPED THE JUDICIAL AND LEGISLATIVE ROLES. 121 A. In 1967, the Court Announced an Exception to Strict Liability by Shielding Government Officials who Acted Reasonably and in Good Faith. 121 B. With the Creation of Qualified Immunity in 1982, the Supreme Court Erased the Historical Rule of Strict Liability and Shielded even Bad-Faith Actors from the Consequences of their Lawless Conduct. 123 1. By Announcing the Doctrine of Qualified Immunity the Court Acted as a Policymaking Body. 123 2. The Court has Expanded Qualified Immunity by Repeatedly Restricting the Definition of Clearly Established Law. 126 3. Qualified Immunity now Regularly Facilitates Egregious Constitutional Violations. 127 III. THREE RECENT DECISIONS SIGNAL THAT THE SUPREME COURT MAY BE ON ITS WAY TO RECALIBRATING QUALIFIED IMMUNITY. 130 A. The Recent Decisions in Taylor v. Riojas and McCoy v. Alamu Suggest that the Court may be Adjusting the Application of the Clearly Established Test. 132 B. Tanzin v. Tanvir Casts Doubt on the Foundations of Qualified Immunity. 135 CONCLUSION. 140 APPENDIX. 141 INTRODUCTION

In the spring 2020, several high-profile police killings captured the nation's attention. In March, Louisville police executing a late-night, noknock raid shot Breonna Taylor to death in her apartment. (3) Two months later, Minneapolis police killed George Floyd, kneeling on his neck in the street for nearly nine-and-a-half minutes. (4) Those incidents and others like them inspired widespread outrage and provoked calls for police reform. (5) In the subsequent public discussion, a complex legal doctrine called qualified immunity was recognized as a chief mechanism by which police avoid accountability for constitutional violations.

In 1982, the Supreme Court created the qualified immunity doctrine through its decision in Harlow v. Fitzgerald? Qualified immunity shields all government officials--including police--from damages when they violate the Constitution. Under the doctrine, a government official is immune by default. To overcome immunity, a victim of government abuse must prove that the government official who caused the harm harmed violated "clearly established" law, (7) which has come to mean that a plaintiff must point to a prior Supreme Court or circuit court opinion that held nearly identical behavior unconstitutional. (8) An officer's subjective intent does not matter. Even if an officer behaves in bad faith, qualified immunity can still provide a shield.

Policy, not law, drove the Supreme Court's adoption of qualified immunity. (9) Concerned that liability and litigation could chill the behavior of government officials, Harlow largely exempted them from both. (10) The doctrine metastasized from there, eating away at government accountability almost completely. (11) Today, even victims of the most outrageous unconstitutional conduct are often left without a remedy. (12)

Harlow's approach to official liability would have been unrecognizable to the founders. For the first two centuries of this nation's history, the Supreme Court, relying largely on the English common-law precedent, met the unlawful acts of government officials with strict liability. (13) This liability ensured effective constitutional limits on governmental authority and the separation of powers. (14) The Court addressed law--adjudicating claims and applying remedies to victims of rights violations--while Congress addressed policy--adjusting incentives by crafting immunities and indemnifying government officials who made justifiable mistakes. (15) In 1824, Justice Story articulated those distinct roles in The Apollon, writing that policy is for Congress; "this Court can only look to the questions, whether the laws have been violated; and if they were, justice demands, that the injured party should receive a suitable redress." (16)

Harlow swapped the judicial and legislative roles, which resulted in a decades-long period of hostility toward valid constitutional claims brought against individual government defendants. (17) But there are recent signs that the Court may be recalibrating on qualified immunity. Three decisions stand out from the 2020 term. In its November decision, Taylor v. Riojas, the Supreme Court took the rare step of reversing a grant of qualified immunity. (18)

Three months later, it did so again in McCoy v. Alatnu. (19) Between those cases, the Court offered the most promising sign that it may be rethinking qualified immunity in December 2020, through its unanimous decision in Tanzin v. Tanvir. (20)

Authored by Justice Thomas, Tanzin addressed whether damages against government officials are "appropriate relief under the Religious Freedom Restoration Act. (21) The decision did not reach the issue of qualified immunity, (22) but its historical analysis of government official liability directly undermines the reasoning cited in Harlow to create qualified immunity. And Tanzin explicitly rejected, despite the government's best efforts to convince it to the contrary, (23) the Court's ability to carve out policy-based exceptions into government liability. Mirroring the words of Justice Story nearly two centuries earlier in The Apollon, Justice Thomas wrote in Tanzin, "To the extent the Government asks us to create a ... policy-based presumption against damages against individual officials, we are not at liberty to do so." (24)

Tanzin, Taylor, and McCoy provide hope that the Court may be recalibrating qualified immunity to better reflect the historic availability of damages for constitutional violations. The availability of damages against government officials animated the American founding and prevailed through the time Congress passed America's most significant civil rights legislation: 42U.S.C. [section] 1983. (25)

Part I describes the legal history of official immunity and its unyieldingly confined nature through the eighteenth, nineteenth, and first half of the twentieth centuries. Part II addresses the Supreme Court's twostep creation of qualified immunity and abandonment of historical government liability beginning in 1967. And Part III discusses how Tanzin, Taylor, and McCoy show the current Court's discomfort with qualified immunity in both theory and practice. Although the Court turned down the opportunity to revisit qualified immunity in its 2019 term, (26) it did so twice in its 2020 term and, through Tanzin, signaled strongly that the foundations of qualified immunity are in doubt.


    For most of American history, suits for damages against government officials were at the heart of a constitutional system that prided itself on government accountability. (27) "In the early Republic, an array of writs ... allowed individuals to test the legality of government conduct by filing suit against government officials for money damages payable by the officer." (28) This not only ensured the accountability of the government and its agents, but it ensured that every right was met with a corresponding remedy.

    Rather than worry about policy concerns, such as whether potential liability would chill the conduct of government officials, courts focused on whether rights were violated and, if they were, providing a suitable remedy. (29) The legislature's job, on the other hand, was to weigh policy considerations and fashion indemnities and immunities to address them. (30)

    This allocation of responsibility allowed each branch to perform its constitutional duties within the system of checks and balances. Judges, tasked with deciding cases in law and equity, interpreted the law, evaluated whether it was violated, and ordered appropriate relief. (31) Legislators, in charge of the government's purse and matters of public policy, calibrated incentives, ensuring that government officials were protected from, or subject to, liability. (32)


      Suits against government officials date back to English common law, (33) where they grew from the maxim, "the king can do no wrong." (34) By the eighteenth century, courts interpreted that fiction to mean: because the king was incapable of wrongdoing, any wrong done in the king's name was attributable to the individual government officials responsible. (35) But those officials--unlike the king--could be sued. (36)

      At the core of this long tradition was the concern that without enforcement, there is no accountability, and without accountability, there are no rights. Thus, in Ashby v. White, the House of Lords allowed a suit for damages against a commissioner who prevented an individual from voting in a local election. (37) According to Lord Chief Justice Holt, whose dissent the House of Lords later upheld, the ability to file such a suit would not only "make publick officers more careful," but would also vindicate the principle that if "the plaintiff is obstructed of his right, [he] shall therefore have his action." (38) "[Dndeed it is a vain thing to imagine a right without a remedy." (39)

      The famous search-and-seizure...

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