Is Qualified Immunity Unlawful? by William Baude

This inquiry is timely—perhaps even urgent. Over the past several decades, the Court has been slowly changing the doctrinal formula for qualified immunity. Most recently, it has begun to strengthen qualified immunity’s protection in another way: by giving qualified immunity cases pride of place on the Court’s docket. It exercises jurisdiction in cases that would not otherwise satisfy the certiorari criteria and reaches out to summarily reverse lower courts at an unusual pace. Essentially, the Court’s agenda is to especially ensure that lower courts do not improperly deny any immunity. This approach sends a strong signal to lower courts and elevates official-protective qualified immunity cases to a level of attention exceeded only by the Court’s state-protective habeas docket. While the Court doubles down on qualified immunity, the doctrine has also come under increasing outside criticism. Recently publicized episodes of police misconduct vividly illustrate the costs of unaccountability. Indeed, the NAACP Legal Defense Fund has explicitly called for “re-examining the legal standards governing . . . qualified immunity.”10 The legal director of the ACLU of Massachusetts has named the doctrine of qualified immunity as among the policing precedents that “we must seek to tear down.”11 Judge Jon Newman has argued that “the defense of qualified immunity should be abolished” by Congress.12 These calls make it all the more important to figure out whether the modern doctrine of qualified immunity has a legal basis in the first place.

THE LEGAL JUSTIFICATIONS FOR QUALIFIED IMMUNITY

The statute colloquially known as “Section 1983,” because it is codified at 42 U.S.C. § 1983, makes liable state actors who violate constitutional or other legal rights. It was first enacted during Reconstruction as a section of the 1871 Ku Klux Act, part of a suite of “Enforcement Acts” designed to help combat lawlessness and civil rights violations in the southern states. The statute originally provided: That any person who, under color of any law, statute, ordinance, regulation, custom, or usage of any State, shall subject, or cause to be subjected, any person within the jurisdiction of the United States to the deprivation of any rights, privileges, or immunities secured by the Constitution of the United States, shall, any such law, statute, ordinance, regulation, custom, or usage of the State to the contrary notwithstanding, be liable to the party injured in any action at law, suit in equity, or other proper proceeding for redress; such proceeding to be prosecuted in the several district or circuit courts of the United States, with and subject to the same rights of appeal, review upon error, and other remedies provided in like cases in such courts, under theprovisions of the act of the ninth of April, eighteen hundred and sixty-six, entitled “An act to protect all persons in the United States in their civil rights, and to furnish the means of their vindication”; and the other remedial law of the United States which are in their nature applicable in such cases.13As currently codified in the U.S. Code, the statute provides: Every person who, under color of any statute, ordinance, regulation, custom, or usage, of any State or Territory or the District of Columbia, subjects, or causes to be subjected, any citizen of the United States or other person within the jurisdiction thereof to the deprivation of any rights, privileges, or immunities secured by the Constitution and laws shall be liable to the party injured in an action at law, suit in equity, or other proper proceeding for redress, except that in any action brought against a judicial officer for an act or omission taken in such officer’s judicial capacity, injunctive relief shall not be granted unless a declaratory decree was violated or declaratory relief was unavailable. For the purposes of this section, any Act of Congress applicable exclusively to the District of Columbia shall be considered to be a statute of the District of Columbia.14

Neither version of the text, you will notice if you wade through them, makes any reference to immunity. (The reference to the “same rights” and “other remedies” in the original statute pointed to the 1866 Civil Rights Act, which provided broad federal remedial authority, Supreme Court review, and presidential authority to direct prosecutions and use the military to enforce the Act.)

50 CALIFORNIA LAW REVIEW[Vol. 106:45 shall be liable to the party injured in an action at law, suit in equity, or other proper proceeding for redress, except that in any action brought against a judicial officer for an act or omission taken in such officer’s judicial capacity, injunctive relief shall not be granted unless a declaratory decree was violated or declaratory relief was unavailable. For the purposes of this section, any Act of Congress applicable exclusively to the District of Columbia shall be considered to be a statute of the District of Columbia.14Neither version of the text, you will notice if you wade through them, makes any reference to immunity. (The reference to the “same rights” and “other remedies” in the original statute pointed to the 1866 Civil Rights Act, which provided broad federal remedial authority, Supreme Court review, and presidential authority to direct prosecutions and use the military to enforce the Act.)15Yet that is not the end of the matter. Legal texts that seem categorical on their faces are frequently “defeasible”—that is, they are subject to implicit exceptions made by other rules of law.16 “No vehicles in the park” might forbid ambulances from entering, but a separate rule of law may nonetheless provide an exception for government vehicles or for responses to an emergency.17Perhaps more to the point, legal provisions are often subject to defenses derived from common law. For example, the common-law rules of self-defense, duress, and necessity can all apply to criminal statutes that do not even mention them.18 Similarly, I have elsewhere defended the current doctrine of state sovereign immunity even though it, too, is an unwritten defense that goes almost unmentioned in the text of the Constitution.19 So perhaps Section 198320 permits such an unwritten immunity defense despite its seemingly categorical provisions for liability. To say that an unwritten defense can exist, however, is not to say that any particular unwritten defense is in fact legally justified. Such defenses come from other legal sources and must be justified on their own legal terms.

Section 1983 changed this framework. It created a direct cause of action against state officials for “the deprivation of any rights . . . secured by the Constitution”25 and thus eliminated the need to first allege a common-law claim or damages. In Hohfeld’s terms,26 most constitutional rights went from being treated as rules about power to being treated as duties.27 As a result, Section 1983 raised questions about how the new constitutional claims related to the old common-law claims, and whether the common law had any role to play in the new constitutional suits.

 

Human Development in Scripture

Walter Brueggemann, one of my favorite Scripture scholars, brilliantly connects the development of the Hebrew Scriptures with the development of human consciousness. [1]

Brueggemann says there are three major parts of the Hebrew Scriptures: the Torah, the Prophets, and the Wisdom Literature. The Torah, or the first five books, corresponds to the first half of life. This is the period in which the people of Israel were given their identity through law, tradition, structure, certitude, group ritual, clarity, and chosenness. As individuals, we each must begin with some clear structure and predictability for normal healthy development (a la Maria Montessori). That’s what parents are giving their little ones—containment, security, safety, specialness. Ideally, you first learn you are beloved by being mirrored in the loving gaze of your parents and those around you. You realize you are special and life is good—and thus you feel safe.

The second major section of the Hebrew Scriptures, the Prophets, introduces the necessary suffering, “stumbling stones,” and failures that initiate you into the second half of life. Prophetic thinking is the capacity for healthy self-criticism, the ability to recognize your own dark side. Without failure, suffering, and shadowboxing, most people (and most of religion) never move beyond narcissism and clannish thinking (egoism extended to the group). This has been most of human history up to now, which is why war has been the norm. But healthy self-criticism helps you realize you are not that good and neither is your group. It begins to break down either/or, dualistic thinking as you realize all things are both good and bad. This makes idolatry, and the delusions that go with it, impossible.

My mother could give me “prophetic criticism” and discipline me and it didn’t hurt me indefinitely because she gave me all the loving and kissing and holding in advance. I knew the beloved status first of all, and because of that I could take being criticized and told I wasn’t the center of the world.

The leaven of self-criticism, added to the certainty of your own specialness, will allow you to move to the third section of the Hebrew Scriptures: the Wisdom Literature (many of the Psalms, Ecclesiastes, the Song of Songs, and the Book of Job). Here you discover the language of mystery and paradox. This is the second half of life. You are strong enough now to hold together contradictions in yourself and others with compassion, forgiveness, and patience. You realize that your chosenness is for the sake of letting others know they are also chosen. You have moved from the Torah’s exclusivity and “separation as holiness” to inclusivity and allowing everything to belong.

Trump Lawyer Takes Communications Role Parrying Congressional Oversight

White House is assigning one of its lawyers to a new communications role to handle the stepped-up oversight coming from Democratic-led congressional committees, among other issues, a White House official said Thursday.

Steven Groves, now an assistant special counsel in the White House, will become a deputy press secretary under a broader realignment of duties in President Trump’s press and communications operations, the official said.

.. Mr. Groves had been working under Emmet Flood, the White House special counsel dealing with the Russia investigation.

Before coming to the White House, he worked at the Heritage Foundation and the Senate’s Permanent Subcommittee on Investigations.

“He speaks law, which will help,” the White House official said.

Antinomianism: against laws or legalism and moral, religious, or social norms

Antinomianism (from the Greek: ἀντί, “against” + νόμος, “law”), is any view which rejects laws or legalism and is against moral, religious, or social norms (Latin: mores), or is at least considered to do so.[1]

In Christianity, an antinomian is one who takes the principle of salvation by faith and divine grace to the point of asserting that the saved are not bound to follow the moral law contained in the Ten Commandments.[2][3] The distinction between antinomian and other Christian views on moral law is that antinomians believe that obedience to the law is motivated by an internal principle flowing from belief rather than from any external compulsion.[4]

Examples of antinomians being confronted by the religious establishment include Martin Luther’s critique of antinomianism and the Antinomian Controversy of the seventeenth-century Massachusetts Bay Colony. In the Lutheran Churches and Methodist Churches, antinomianism is considered a heresy.[5][6]

Outside of Christianity, the tenth-century Sufi mystic Mansur Al-Hallaj was accused of antinomianism and the term is also used to describe certain practices or traditions in Buddhism and Hinduism, such as the transgressive aspects of Vajrayana and Hindu Tantra which include sexual elements.[7][8]