The Supreme Court has received quite a few cert. petitions lately asking them to reconsider aspects of the doctrine of qualified immunity, which prevents executive officials from being held liable for some unconstitutional behavior. In one of them, a group of a dozen law professors (including me) filed an amicus brief on Friday urging the Court to take up the issue.

Our brief is signed by me, Karen Blum, Erwin Chemerinsky, Alan Chen, Barry Friedman, Robert Leider, Sheldon Nahmod, Jim Pfander, John Preis, David Rudovsky, Joanna Schwartz, and Fred Smith — a group of scholars from across the ideological and methodological spectrum. And while there are a variety of alternatives to the doctrine, and a variety of historical and policy arguments against it (my own prior article is here) we suggest that there is a growing academic consensus that something should be done about it.

Here is the introduction:

Protecting Americans against abuses of government power was a critical concern of the Founding generation—reflected in the Bill of Rights. In the aftermath of the Civil War, and the adoption of additional constitutional amendments, Congress enacted 42 U.S.C. § 1983 to provide a remedy to vindicate those constitutional protections.

Nearly a century later, this Court recognized a qualified immunity defense to Section 1983 damages claims, holding that Congress’s creation of the cause of action should be construed to incorporate the good-faith defense that, the Court stated, was then available to government officials at common law. See Pierson v. Ray, 386 U.S. 547, 557 (1967).

Subsequently, in Harlow v. Fitzgerald, 457 U.S. 800 (1982), the Court “replac[ed] the inquiry into subjective malice so frequently required at common law with an objective inquiry into the legal reasonableness of the official action.” Anderson v. Creighton, 483 U.S. 635, 645 (1987). Harlow held government officials immune “insofar as their conduct does not violate clearly established statutory or constitutional rights of which a reasonable person would have known.” 457 U.S. at 818.

In the thirty-eight years since Harlow, the Court has provided shifting guidance regarding the “clearly established law” standard. Hope v. Pelzer rejected the lower court’s holding that the plaintiff must identify “cases that are ‘materially similar’” to the case at bar to defeat qualified immunity, instead focusing on whether pre-existing law provided a “fair and clear warning” that the conduct at issue was unlawful, even if arising under “novel factual circumstances.” 536 U.S. 730, 735-736, 741 (2002). More recently, however, the Court held in Ashcroft v. al-Kidd that plaintiffs must identify “existing precedent” that places the legal question “beyond debate” to “every” reasonable officer. 563 U.S. 731, 741 (2011); see also Kisela v. Hughes, 138 S. Ct. 1148, 1152 (2018) (per curiam); Mullenix v. Luna, 136 S. Ct. 305, 308 (2015) (per curiam).

Amici submit that—for multiple reasons—the time has come to reconsider this qualified immunity standard.

Recent scholarship demonstrates that the foundation of the immunity doctrine—the assertion that government officials enjoyed protection from damages liability at common law—is incorrect. No such general immunity existed. Today’s immunity rule compounds that initial error, moreover, because it is far broader than the one the Court (mistakenly) attributed to the common law.

Studies also have determined that the policy justification for the current rule simply is not true. The overwhelming majority of government officials are either indemnified or protected by insurance, and immunity therefore is not required to ensure that they properly perform their duties. And far from reducing litigation costs, the complex procedural labyrinth constructed by immunity doctrine actually increases both the length and cost of Section 1983 lawsuits.

Most importantly, today’s immunity rule has the inevitable real-world effect of diminishing constitutional protections. And in no context is that effect more pronounced, and more directly contrary to the intent of the Constitution’s Framers, than with respect to Fourth Amendment guarantees such as those at issue in this case. 

Many lower courts today dismiss Section 1983 claims on immunity grounds without first determining whether the plaintiff has alleged a violation of his constitutional rights. That significantly hampers development of the law, particularly in cases involving new technologies and new fact patterns. And it means that future constitutional violations will go unremedied for want of a prior precedent declaring the conduct unconstitutional.

Importantly, stare decisis principles do not bar reconsideration of the qualified immunity standard. Although this Court has stated that stare decisis generally has enhanced force with respect to statutory interpretation precedents, it also has held that this rule does not apply where Congress has left it to the courts to “‘give shape to the statute’s broad mandate by drawing on common-law tradition.’” State Oil Co. v. Khan, 522 U.S. 3, 20-21 (1997). The Court’s qualified immunity doctrine rests on just such an exercise of judicial authority.

Finally, scholars have identified a number of alternative immunity rules that would ameliorate the adverse effects of the current standard. And Congress could of course act to address the issue, as it has in the past in response to this Court’s resolution of an immunity issue.

Here is a page about the facts of the case from the Institute for Justice. Or as we put it in the brief:

Indeed, the facts of this case present a particularly striking example of how far qualified immunity has wandered from constitutional principle. A group of government officials deliberating and then deciding to bombard an innocent person’s home with grenades would surely have been answerable to a Founding-era jury. There is neither a historical reason nor a policy justification for that result to be different today.

A response is due in late March, so the Court will likely decide sometime this spring or summer whether to hear the case.

*UPDATE: I’ve been persuaded that the title of this post was too hyperbolic. To be clear, the police used tear-gas canisters, also known as tear-gas grenades, which were fired into the house out of some kind of shotgun. So while they were grenades, I wouldn’t want readers to get a false impression, and perhaps should have written “tear-gassing a house” or “shooting tear gas canisters into a house". Again, you can read more factual detail at the Institute for Justice’s website.