SEATTLE UNIVERSITY LAW REVIEWVolume 37, No. 3, SPRING 2014
Qualified Immunity and Statutory Interpretation
Ilan Wurman(fn*)
INTRODUCTION
Before the 1989 case of Graham v. Connor, excessive force cases were pursued under either state law or the insuperable "shocks the con-science" test of the Fourteenth Amendment. Only after Graham did excessive force cases-now under the Fourth Amendment and 42 U.S.C. § 1983-inundate the federal courts, which had by then granted far-reaching immunities to officers for their constitutional torts. As a result of federal qualified immunity doctrine, which many states have adopted for themselves, excessive force cases rarely get to trial, plaintiffs often cannot recover, and courts struggle to find principled distinctions from one qualified immunity case to the next.
In Part I of this Article, I describe the evolution of excessive force cases in the federal courts through § 1983 and Bivens actions. Part II de-scribes the evolution of qualified immunity doctrine and demonstrates how common law immunities were traditionally held to have been incor-porated into § 1983 by the Congress of 1871 as a matter of statutory interpretation. It claims that only when the Court began hearing feder-al Bivens actions and created an immunity doctrine untethered from stat-utory interpretation, the common law approach was lost and the modern, nearly insurmountable, qualified immunity doctrine was adopted. Part II thus establishes the historical importance of common law interpretation to § 1983 suits.
Part III shows how differently excessive force cases would have to be treated were the court to return to the common law interpretive meth-ods in § 1983 cases. At common law, excessive force actions were quite common and more liberal toward plaintiffs seeking redress, officers were expected to pay damages for any unnecessary force, and it was the prov-ince of the jury to determine such questions.
Finally, Part IV and Part V make the theoretical case under both constitutional and statutory interpretation for replacing modern qualified immunity doctrine with a return to its common law variety in excessive-force actions-an approach that would also be far more judicially work-able than the current doctrine. Once we approach excessive force cases from a common law perspective, the immunity and Graham inquiries are each modified somewhat into a single inquiry that is to be determined by a jury.
I. EXCESSIVE FORCE IN THE MODERN ERA
This Part describes the evolution of excessive force cases in the federal courts through § 1983 and Bivens actions. Today, these cases are analyzed under the Graham v. Connor(fn1) three-part (or four-part) standard to determine if there has been a constitutional violation.(fn2) The test re-quires courts to undertake an objective analysis of the circumstances sur-rounding the use of force.(fn3) Even if a court decides that the use of force was unreasonable and thus unconstitutional, the second step of the in-quiry is the qualified immunity analysis: Was it "clearly established" that this kind of force in this kind of circumstance is unconstitutional?(fn4) If not, the officer escapes liability.(fn5) The implications of this two-step approach are significant in light of the traditional common law method for trying such cases.
First, the modern approach removes power from the jury who tradi-tionally decided whether the use of force was excessive. However, under the qualified immunity analysis, the first prong of the inquiry is usually a prerequisite to the second prong,(fn6) which gives power to the courts to de-cide whether the force was excessive as a matter of law.(fn7) If at the second prong the court decides that it was clearly established that the use of force was unconstitutional, then-as a matter of law-the officer is lia-ble, and the case still logically should not get to a jury.(fn8)
Second, the "clearly established" prong's inquiry into qualified immunity is contrary to the common law. As will be discussed in Part II, immunity doctrine traditionally looked to the common law to derive immunities in § 1983 cases.(fn9) This approach was lost, quite possibly as a result of historical accident as the Court began to hear Bivens actions directly under the Constitution and not under any statute. I believe the common law approach is theoretically more satisfying as a matter of statutory interpretation.
Finally, once we approach excessive force cases from a common law perspective, the immunity and Graham inquiries are each modified somewhat into a single inquiry that is to be determined by a jury. This Article argues that in § 1983 actions under the civil rights statute and in Bivens actions directly under the Constitution, the common law approach is more consistent with original understanding and principles of interpretation.
A. Excessive Force Before and After Graham
Before 1989 most federal courts addressed claims of excessive force under the Due Process Clause of the Fourteenth Amendment.(fn10) Those depending on the Due Process Clause took the lead from Judge Friendly's opinion in Johnson v. Glick,(fn11) a pretrial detainee case. Finding that the facts did not fit neatly under either the Fourth or the Eighth Amendment, Judge Friendly held that the right to be free from police brutality was protected more generally by the Fourteenth Amendment's due process Protections.(fn12) Judge Friendly wrote that the factors relevant to determine whether the police conduct "shocks the conscience" and thus violates due process arethe need for the application of force, the relationship between the need and the amount of force that was used, the extent of injury in-flicted, and whether force was applied in a good faith effort to maintain or restore discipline[,] or maliciously and sadistically for the very purpose of causing harm.(fn13)
As one commentator wrote in the late-1980s, this standard had "until recently enjoyed unanimous if unreflective approval in the federal district and circuit courts. These courts have applied this standard mechani-cally-to the claims of prisoners, pretrial detainees, suspects[,] and free citizens alike-regardless of the surrounding circumstances or the specific constitutional right implicated by the use of force."(fn14) Some courts did, however, analyze excessive force cases in situations such as apprehend-ing criminals under the Fourth Amendment, as the Supreme Court did in the case of officers shooting a fleeing suspect.(fn15)
The Glick test posed a challenge for plaintiffs. It is difficult to prove that an officer acted maliciously and without good faith. Because many instances of force may be excessive but very few will truly "shock the conscience," Glick was an effective bar to recovery. Graham v. Connor(fn16)-the decision that changed the standard for all excessive force cas-es-demonstrates these propositions.
In Graham, the plaintiff (Graham) had his friend take him to a store to resolve a blood sugar problem.(fn17) Because the line in the store was too long, he ran out of the store back to his friend.(fn18) Officers who saw him grew suspicious and detained him while another officer went to investi-gate.(fn19) The officers refused his friend's request to give him orange juice, though Graham was manifestly having some reaction.(fn20) When they learned that nothing was wrong the officers drove Graham home, but Graham had by then "sustained a broken foot, cuts on his wrists, a bruised forehead, . . . an injured shoulder[, and] developed a loud ringing in his right ear that continues to this day."(fn21)
Few who read the Court's fuil opinion can doubt that the officers acted excessively and unreasonably. Of course, they probably did not intend to act unreasonably, but surely they should have known better? Under Glick that question hardly matters: even if their acts were unrea-sonable, they were not acting maliciously or sadistically, and they were acting on a good faith belief that Graham may have committed a crime at the store he had hastily exited.
That is exactly what the district court, relying on Glick, found in Graham?(fn22) The trial had even proceeded to a jury, but the district judge granted the officers' motion for a directed verdict.(fn23) Graham did not have a claim as a matter of law because the court found that the use of force was "'appropriate under the circumstances,' that '[t]here was no discern-able injury inflicted,' and that the force used 'was not applied malicious-ly or sadistically for the very purpose of causing harm,' but in 'a good faith effort to maintain or restore order in the face of a potentially explosive situation.'"(fn24)
The Supreme Court reversed and held that all excessive force cases arising out of arrests or investigatory stops must be analyzed under the Fourth Amendment, the proper textual home for them.(fn25) The Court eliminated the subjective components of the excessive-force inquiry in favor of an objective multi-factor test to determine the reasonableness of the application of force. The proper application of the testrequires careful attention to the facts and circumstances of each par-ticular case, including [1] the severity of the crime at issue, [2] whether the suspect poses an immediate threat to the safety of the officers or others, and [3] whether he is actively resisting arrest or attempting to evade arrest by flight.(fn26) This is an explicitly objective test, with...
