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.
In their preference for a policy that protects police, conservatives abandon their commitment to textualism and embrace pro-government judicial activism.
If you haven’t watched the video of (former) Minneapolis police officer Derek Chauvin killing George Floyd by jamming his knee into Floyd’s cervical spine for nearly nine minutes until he loses consciousness, you really should. And if you can’t understand why large swaths of urban America have been in flames these last few nights, do two more things: (1) instead of George Floyd, who you probably don’t know, imagine the person pinned under Chauvin’s knee—prone, handcuffed, unresisting, and begging for mercy—was someone you love; and (2) listen to conservative pundits dissecting Chauvin’s merciless assault on Floyd with all the sangfroid of a referee performing an instant replay review to see whether the runner’s knee was down when the ball came loose. No wonder it seems as though the country is coming apart at the seams.
In determining the relationship between government and governed, one of the most important decisions a society can make is how accountable those who wield official power must be to those against whom that power is wielded. Congress made a clear choice in that regard when it passed the Enforcement Act of 1871, which we now call “Section 1983” after its location in the U.S. Code. Simply put, Section 1983 creates a standard of strict liability by providing that state actors “shall be liable to the party injured” for “the deprivation of any rights.” Thus, if a police officer walks up to your house and peeks inside one of your windows without a warrant—a clear violation of your Fourth Amendment right against unreasonable searches—he is liable to you for the violation of that right.
But many conservatives do an odd thing: In their preference for a more forgiving policy that gives police and other government officials substantial leeway in the exercise of discretion, they abandon their stated commitment to textualism and embrace an “interpretation” of Section 1983 that is utterly divorced from its text. The vehicle for this conservative brand of what we might call “living statutory interpretivism” is the Supreme Court’s qualified immunity doctrine, which judicially amends Section 1983 to provide that the standard for liability will no longer be the deprivation of “any rights”—as Congress expressly provided—but rather the deprivation of any “clearly established” rights.
As documented in considerable detail on Cato’s Unlawful Shield website, those two words—“clearly established”—do an extraordinary amount of work in keeping meritorious cases out of court and ensuring that plaintiffs whose rights have been violated by police or other state actors will receive no recovery unless they can find a pre-existing case in the jurisdiction with nearly identical facts. But that is plainly not the statute that Congress wrote, nor is it the standard of accountability that Congress chose. Moreover, as Professor Will Baude demonstrates in his masterful article, “Is Qualified Immunity Unlawful?,” there is no credible textual or historical basis for the qualified immunity doctrine; it is a blatant act of pro-government judicial policymaking—activism, if you will—and nothing more.
So now back to the killing of George Floyd. Watching that horrific video, one cannot help but notice the look of utter complacency on the face of Derek Chauvin as he drives his knee into Floyd’s neck. There is no life-or-death struggle—indeed, no struggle at all; nor is there any evident anger or passion—there is simply the banality of a man wearing a badge, surrounded and supported by other men with badges, methodically squeezing the life out of another human being.
It is well known that prosecutors rarely bring criminal charges against police officers, and indeed it seems unlikely Chauvin would have been charged had his assault on George Floyd not been captured on a viral video. That means the only avenue of accountability for most victims of police misconduct is a civil rights lawsuit that they themselves can initiate without the largesse of some prosecutor or citizen review board. But the Supreme Court has largely gutted that remedy with a judicially confected gloss that transforms the legislatively chosen policy of strict liability into one of near-zero accountability.
Cities are burning, and many people are venting their rage—yet again—about how cavalier police have become with the use of force, including lethal force, against the very citizens they are sworn to protect. Those people are right to be angry, and they’d probably be even angrier if they understood that it was never supposed to be like this—that Congress specifically chose a system of robust government accountability that was repudiated and perverted by the Supreme Court.
This Monday we will find out whether the Court will take the unprecedented opportunity it now has to revisit qualified immunity. It will be particularly interesting to see which self-styled conservatives—on and off the Court—place their stated commitment to textualism and judicial deference above whatever personal preference they may have for continuing our half-century experiment in near-zero accountability for law enforcement.