THE BRANCH BEST QUALIFIED TO ABOLISH IMMUNITY.

• Author: Michelman, Scott
• Position: Symposium: The Future of Qualified Immunity

INTRODUCTION

The critics and critiques of qualified immunity--the legal doctrine that shields government officials from suit for constitutional violations unless the right they violate is "sufficiently clear that every reasonable official would have understood that what he is doing violates that right" (1)--are by now legion. The Supreme Court has several times revised the doctrine in responseto criticism and concern; each of these efforts has opened the doctrine up to new criticisms or exacerbated preexisting problems. Qualified immunity has been attacked as ahistorical; unjustified as a matter of statutory interpretation; grounded on inaccurate factual assumptions; antithetical to thepurposes of official accountability and of the statute of which it is putatively apart; unadministrable; regularly misapplied; a hindrance to the development of constitutional law; a basis for strategic manipulation by judges; and a source of jurisdictional problems. (2) As Professor Baude has noted, the chorus of dissent from the doctrine is growing louder of late:

Recently publicized episodes of police misconduct vividly illustrate the costs of unaccountability. Indeed, the NAACP Legal Defense Fund has explicitly calledfor "re-examining the legal standards governing... qualified immunity." Thelegal director of the ACLU of Massachusetts has named the doctrine of qualified immunity as among the policing precedents that "we must seekto tear down." Judge Jon Newman has argued that "the defense of qualified immunity should be abolished" by Congress. (3) Amidst these concerns, qualified immunity appears ripe for yet another revision or perhaps even abolition. Surprisingly little attention, however, has been paid to the question of how significant doctrinal reform should be achieved--and specifically which branch of the federal government is best situated to devise and implement such reform.

The answer is not immediately clear. Many of the Supreme Court's refinementsto the doctrine over the years have been in the nature of common-law tweaks and glosses; the last major change was in the adjudicatory process for qualified immunity, (4) not the substance of the qualified-immunity test, so it might be considered mainly an exercise of the Supreme Court's supervisory authority over the federal courts. The last major substantive amendment to the doctrine resulted from a Supreme Court decision more than thirty-five years ago--without discussion of the propriety of judicial reformulation or separation of powers. (5) Since that revision, the Supreme Court has professed increasing concern about trenching on congressional prerogatives when it comes to defining remedies for civil rights violations. (6) But Congress has barely touched [section] 1983 in the half-century since the Court began recognizing the qualified immunity defense. (7) Thus, the precise locus of responsibility for modifying or abolishing qualified immunity has been left unclear.

This Essay poses the question squarely: If qualified immunity is to be changed, corrected, or abolished, which branch should do it?

The question is one that requires the application of familiar separation ofpowers and institutional-competence arguments in the context of an unusual doctrinewith an unusual history. Ordinarily, given that qualified immunity is a product of statutory interpretation rather than constitutional elaboration,changes to its substance would be the responsibility and prerogative of Congress. The Supreme Court has expressed a special reluctance to overrule its decisions concerning the interpretation of a statute. (8) And as noted,the Court has been increasingly hesitant to expand civil rights remedies in the absence of express direction from Congress.

Nonetheless, I argue that characteristics peculiar to qualified immunity renderthe Supreme Court specially--though not, to be clear, exclusively-qualified to apply substantive reforms or even abolish the doctrine. Part I sets the stage for my argument by tracing the evolution of qualified immunity and showing how the Court both created the doctrine and has been entirely responsiblefor its refinement and amendment. Part I concludes by summarizing the critiques of the doctrine that I take as the jumping-off point for the questionI seek to answer: If qualified immunity is to be reformed or abolished, which branch of government should undertake that task?

PartII argues that, in light of the unusual history of judicial activism-and concomitant congressional passivity--in the development of qualified immunity, the doctrine has effectively become a special province of the Court, and therefore separation-of-powers concerns are less salient than in thecontext of most precedents concerning statutory interpretation. Relatedly, theCourt has a special responsibility concerning constitutional enforcement generally, and civil rights actions to enforce the Constitution are a critical part of both defining constitutional rights and ensuring that they remain a meaningful and not merely theoretical restraint on government conduct. For these reasons, the Court's standard reluctance to overrule its statutoryinterpretations in light of the possibility of congressional intervention carries less weight here.

InPart III, I consider the related question of whether qualified immunity satisfies the Court's standard criteria for abandoning precedent. Although strict, they are not insurmountable, and I demonstrate that (again taking as a baseline the numerous critiques of qualified immunity) qualified immunity meets these criteria--the legal principles of the doctrine have eroded(or most accurately are in regular flux); the factual premises underlying the doctrine have been undermined; it has proven unworkable; and it anchors no reliance interest that the Court should recognize as legitimate.

Part IV considers and responds to counterarguments arising out of the separation of powers and considers what Congress's role should be. Part V concludes with a call for the Supreme Court to face squarely and decide the question whether qualified immunity should be reformed or abolished altogether.

1. THE RISE OF QUALIFIED IMMUNITY AS COMMON LAW

   When the Court revitalized and expanded the scope of 42 U.S.C. [section] 1983 in 1961, (9) the words "qualified immunity" (and its predecessor, the defense of "good faith and probable cause") would have been relatively unfamiliar to a reader of the Federal Reporter and were essentially absent from the pages of the Supreme Court Reporter. The text of [section] 1983 itself sets forth no defenses or exceptions. (10) Accordingly, the rise of qualified immunity was by no means a foregone conclusion.

   Nonetheless, in 1967, in Pierson v. Ray, (11) the Supreme Court declared that "[t]he legislative record gives no clear indication that Congress meant to abolish wholesale all common-law immunities," and the Court "presume[d] that Congress would have specifically so provided had it wished to abolish" these immunities. (12) Accordingly, the Court held in Pierson that [section] 1983 had implicitly incorporated absolute immunity for judges and, for police officers, the defense of "good faith and probable cause" that was to become known as qualified immunity. (13)

   For the first decade and a half of the doctrine's existence, the Court fleshed out and tinkered with the "good faith and probable cause" defense, and then gave it its first major overhaul in 1982. The tinkering took various forms.In Scheuer v. Rhodes, (14) for instance, the Court implied that the contours of qualified immunity might vary depending on the responsibilities of the particular officer alleged to have violated the law. (15) That suggestion came to little, and the standard today does not vary based on an official's levelof responsibility. In Wood v. Strickland, (16) the Court made clear that qualified immunity was available not only to police officers but to other non--law enforcementpersonnel as well, such as school officials. (17) In Butz v. Economou, (18) the Court extended qualified immunity to federal officials. (19)

   The Court's major revision came in Harlow v. Fitzgerald. (20) Previously, qualified immunity had consisted of two alternative prongs, one subjective andone objective. Qualified immunity could be defeated either by a showing that the officer acted in bad faith--a subjective inquiry into the officer's own motivations--or by a showing that the officer "knew or reasonably should have known that the action he took within his sphere of official responsibility would violate the constitutional rights of the [plaintiff]"--an objective question. (21) In Harlow, the Court confronted what it viewed as problemsinherent in the "subjective prong": that questions regarding a government official'smotive would shield insubstantial claims from early resolution and subject government officials to wide-ranging and distracting discovery. (22) The Court's solution to this problem was simply to abolish the "subjective prong" of qualified immunity entirely (23)--or, in historical terms, tolop off the first half of the "defense of good faith and probable cause"-leaving plaintiffs with only one route to overcome qualified immunity: a showing that the defendant's conduct "violate[d] clearly established statutory or constitutional rights of which a reasonable person would have known." (24) The Court cited no basis in the statutory text or legislative history for this change.

   The doctrine evolved still further, virtually always in favor of government defendants and to the disadvantage of civil rights plaintiffs. The construct of "a reasonable officer," by which the reasonableness of a defendant's conduct wasto be judged, became "any reasonable officer" or "every reasonable official" (25)--thus implying that in order for a plaintiff to overcome qualified immunity,the right violated must be so clear that its violation in the plaintiff's case would have been obvious not just to...