Qualified Immunity
posted by Gerard Magliocca
Students who are looking for paper topics sometimes ask me where I get my ideas. The creative process is mysterious. If I really knew how to be creative, I’d be an inventor or a scientist. Nevertheless, there are some tendencies that I can identify. First, ideas can develop organically from a prior project. In other words, while working on something you come across something else interesting and get an idea. Second, ideas can form in response to a specific event (a new case or statute) that gets you exercised. Third, there may be something that bugs you or feels wrong. Then you explore that topic and discover something new.
With respect to the last of these categories, I’ve long been troubled by the state of qualified immunity doctrine. This is a subject of enormous practical importance for anyone seeking to sue public officials for violations of civil rights or other injuries. Most of the rules that govern these suits were made by judges in just the last 30 years and have almost no connection to historical practice or precedent in the sense that they give far greater deference to government wrongdoing than was true in the past. Strangely enough, this does not seem to have aroused much sustained academic criticism (at least as far as I can find). So now I’m poking around to see if I should write something about this. Perhaps my hunch or feeling will turn out to be without foundation. We’ll see.
October 21, 2009 at 1:17 pm
Posted in: Tort Law
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Responses (6)
Orin Kerr - October 21, 2009 at 1:50 pm
“Most of the rules that govern these suits were made by judges in just the last 30 years and have almost no connection to historical practice or precedent in the sense that they give far greater deference to government wrongdoing than was true in the past.”
What past did you have in mind, Gerard? My sense is that the qualified immunity doctrines are largely a response to the mid-20th century expansion in tort liability for government actors. The law began to recognize that tort liability, and then QI quickly followed. But there wasn’t much time when there was liability but no QI. For example, in the Fourth Amendment setting, the great majority of civil tort cases are excessive force claims. But there was no Fourth Amendment excessive force doctrine until Tennessee v. Garner, 471 U.S. 1 (1985).
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Gerard Magliocca - October 21, 2009 at 2:31 pm
Hi Orin,
Well, I agree with your explanation of why qualified immunity looks the way it does. At the Founding, though, government officials had far less immunity for their alleged wrongs than is true today. Granted, there were fewer things that you could sue those government officials for, but I’m not sure that justifies the recent limitations. I’m also not clear the current qualified immunity doctrine is consistent with the intent of the authors of Sec. 1983 or the other remedial statutes passed during Reconstruction.
Max Kennerly - October 21, 2009 at 8:22 pm
“The law began to recognize that tort liability, and then QI quickly followed” explains the policy origins of QI, but not the legal gounding thereof. It’s typically not the job of the courts to invent new legal rules to constrain the liability of particular classes of defendants to an arbitrary acceptable level.
In most fields, once the courts recognizes a new claim or type of claim, they leave it up to the legislature to create new immunities thereto. Congress chose not to amend, say, 42 USC 1983 in the wake of Tennessee v. Garner (or any other case) to create QI. What basis did the courts have doing such amendment themselves?
Orin Kerr - October 21, 2009 at 9:44 pm
Maz Kennerly writes: “It’s typically not the job of the courts to invent new legal rules to constrain the liability of particular classes of defendants to an arbitrary acceptable level.”
But shouldn’t that rule go both ways, or do you see it okay for the Supreme Court to expand liability but not constrict it? As I recall my federal courts class, the Supreme Court essentially invented Section 1983 liability in 1961, in Monroe v. Pape, when it quite dramatically reconstrued the century-old statute. The same Court then created a federal cause of action for federal officias in Bivens a few years later by inventing the cause of action without a statute. So it was the courts that created the theories of liability in the first place, and then the courts that (in the midst of this) narrowed their own creations through qualified immunity. (Although I vaguely recall that qualified immunity is older, maybe 1920s or so, I beleve it took on its modern form later.)
Max Kennerly - October 22, 2009 at 4:37 am
You may have a point on Bivens, but not as much of one on 1983. If Congress was unhappy with the way its own statute was re-interpreted then it could have amended the statute accordingly. Indeed, if it had, then Bivens might not exist at all, since Bivens was predicated on the existence of 1983.
Although the Court certainly could have created 1983-like claims on constitutional grounds (and really might have had Congress amended 1983 in response to Monroe v. Pape), that’s not what actually happened. What happened was a broader reinterpretation of an existing statute, then the addition of surplusage of qualified immunity to take some of the wind out of the statute’s sails and to slow appellate review and organic development of the law.
In retort, you could point out that qualified immunity might itself have a constitutional basis. But I think that goes to Gerard’s ultimate point: it’s frustrating and unsettling how these doctrines developed.
Orin Kerr - October 23, 2009 at 12:54 pm
Max,
By that same theory, if Congress was unhappy with qualified immunity doctrine, couldn’t Congress overturn it? If so, I’m not sure why you say Congress is responsible for one area of judge-made law (because it has not overturned those precedents) but not another.
As for whether it is frustrating and unsettling as to how these doctrines developed, I am not sure: I suppose it depends on what alternative paths of development you have in mind.
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