This column often addresses a recent Supreme Court or Second Circuit opinion on significant civil rights issues of the day. Today, though, we consider an important, recent law review article by Prof. William Baude: “Is Qualified Immunity Unlawful?,” 106 Cal. L. Rev. 45 (2018). Qualified immunity is often asserted and litigated in §1983 cases. But some conservative scholars now argue that the doctrine is lawless. This column discusses why.

Section 1983

First, a review. 42 U.S.C. §1983 provides: “Every person who, under color of any statute, ordinance, regulation, custom, or usage, of any State … , 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.” If, for example, a police officer beats a civilian, the officer is liable in a §1983 damages action for violation of the Fourth Amendment prohibition against unreasonable seizures.

One might think that if a “person … under color of [State law] … subjects … any citizen of the United States or other person … to the deprivation of any rights … secured by the Constitution and laws, [s/he] shall be liable.” But that is not the case. The Supreme Court has substantially weakened the statute by infusing it with a whole series of immunities for various state actors.

“On its face Section 1983 admits no immunities.” Tower v. Glover, 467 U.S. 914, 920 (1984). Notwithstanding the plain language of the statute, the Supreme Court has held that §1983, sub silentio, incorporates common law immunities that existed at the time of its enactment in 1871. Applying this historical analysis, if an official was immune in a common law action in 1871, the official is immune under §1983. Congress' “presumed legislative intent not to eliminate traditional immunities” is the court's “only justification for limiting the categorical language of the statute.” Burns v. Reed, 500 U.S. 478, 498 (1991) (Scalia, J., concurring in the judgment in part and dissenting in part).

Qualified Immunity

The Supreme Court has held that qualified immunity is one such historical immunity. It is the right of government officials performing discretionary functions to be shielded from liability for civil damages, even if they violate the law, as long as they do not violate “clearly established statutory or constitutional rights of which a reasonable person would have known.” The court determines whether the law was clearly established at the time an action occurred. If it was n­ot, “an official could not reasonably be expected to anticipate subsequent legal developments, nor could he fairly be said to 'know' that the law forbade conduct not previously identified as unlawful.” But if the law was clearly established, “the immunity defense ordinarily should fail, since a reasonably competent public official should know the law governing his conduct.” Harlow v. Fitzgerald, 457 U.S. 800, 818-19 (1982) (internal citation omitted).

The qualified immunity doctrine is an exception to the maxim: “ignorance of the law is no defense.” Criminal defendants and civil litigants are presumed to know and required to follow the law. If they violate th­e law, they face criminal and/or civil consequences. Under the qualified immunity doctrine, however, people who act under color of state law suffer no civil consequence under §1983 even if they violate the law, so long as that law was not clearly established. Officers whose job is to enforce the law (for example, police) are not, in §1983 cases, expected to know the law unless it is clearly established. Civilians, however, are expected to know and follow the law, whether clearly established or not.

Is Qualified Immunity Unlawful?

In his law review article, Professor Baude notes that §1983 itself make no reference to immunity. “Yet that is not the end of the matter … . 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.” However, “[s]uch defenses come from other legal sources and must be justified on their own legal terms.” 106 Cal. L. Rev. 45 at 50.

The primary justification for qualified immunity is that it “derives from a putative common-law rule that existed when Section 1983 was adopted.” William Baude & Stephen E. Sachs, “The Law of Interpretation,” 130 Harv. L. Rev. 1079 (2017) at 133-34. But according to Professor Baude, “this argument does not withstand historical scrutiny.” 106 Cal. L. Rev. at 51.

Modern qualified immunity doctrine began with Pierson v. Ray, 386 U.S. 547 (1967), in which the Supreme Court held that in a common law suit, “a peace officer who arrests someone with probable cause is not liable for false arrest simply because the innocence of the suspect is later proved,” a principle that could “excus[e] him from liability for acting under a statute that he reasonably believed to be valid but that was later held unconstitutional.” Pierson v. Ray, 386 U.S. 547, 555 (1967). Similarly, §1983 “should be read against the background of tort liability that makes a man responsible for the natural consequences of his actions … . We hold that the defense of good faith and probable cause, which the Court of Appeals found available to the officers in the common-law action for false arrest and imprisonment, is also available to them in the action under [§]1983.” Id. at 556-57 (quoting Monroe v. Pape, 365 U.S. 167, 187 (1961)).

As Professor Baude points out, though “one might have expected this reasoning to be limited to false arrests or other torts with similar elements, … the Court rapidly expanded it to executive action generally.” 106 Cal. L. Rev. at 53. One might also have expected this reasoning to support a subjective defense of good faith, but the court has since transformed it into an objective analysis of “the objective reasonableness of an official's conduct, as measured by reference to clearly established law.”

The Historical Record

In any event, the problem with this entire analysis, according to Professor Baude, is that the Supreme Court made it up. “[L]lawsuits against officials for constitutional violations did not generally permit a good-faith defense during the early years of the Republic.” Id. at 55.

In Chief Justice Marshall's 1804 opinion in Little v. Barreme, for example, a naval captain, relying on explicit instructions from President Adams, illegally captured a Danish boat. Could the captains's reliance on the president's instructions “excuse him” from being sued for an unlawful seizure? The answer was no: “the instructions cannot change the nature of the transaction, or legalize an act which without those instructions would have been a plain trespass.” Little v. Barreme, 6 U.S. 170, 179 (1804). Legality, not good faith reliance, was all that mattered. The “strict rule of personal official liability, even though its harshness to officials was quite clear, was a fixture of the founding era.” 106 Cal. L. Rev. at 56 (internal citation omitted).

Much like today, this strict rule of liability was “mediated by a related practice … officials also regularly petitioned Congress for indemnification and succeeded in securing indemnifying private legislation in roughly sixty percent of cases in which they petitioned.” Id. at 56-57 (internal citation omitted).

In Myers v. Anderson, 238 U.S. 368 (1915), the Supreme Court held that a state statute violated the Fifteenth Amendment's ban on racial discrimination in voting. State officials argued “that they could not be liable for money damages” under §1983 “if they had in good faith thought the statute constitutional. Section 1983, they claimed, was intended to preserve 'traditional limits' such as a common-law requirement 'that malice be alleged' in voting rights cases.” Id. at 57. The court rejected the argument “in the light of the inherently operative force of the 15th Amendment as stated in the case referred to.” Myers v. Anderson, 238 U.S. 368, 379 (1915). The lower court was more explicit: “Any one who does enforce [a state law that violates the Constitution] does so at his known peril and is made liable to an action for damages by the simple act of enforcing a void law to the injury of the plaintiff in the suit, and no allegation of malice need be alleged or proved.” Myers v. Anderson, 182 F. 223, 230 (C.C.D. Md. 1910).

As Professor Baude notes, to the extent federal courts have even attempted to graft common law immunities into §1983, they have not done so faithfully. At best, in 1871 some (but not all) common law torts analogous to §1983 claims had a subjective good faith defense, yet we have now ended up with an objective qualified immunity defense for all §1983 claims: “even if one were to grant the existence of a good-faith defense and import it to constitutional claims, modern immunity cases have distorted those common-law rules to a troubling degree. First, qualified immunity is now applied 'across the board' to all constitutional claims—and perhaps to statutory claims as well regardless of 'the precise character of the particular rights,' rather than being limited to the kinds of claims where good faith was traditionally relevant. Second, instead of the subjective inquiry into intent or motive that marked the good-faith inquiry, qualified immunity has become an objective standard based on case law. This means that even the official who acts in bad faith is entitled to the defense if a different official could have reasonably made the mistake.” 106 Cal. L. Rev. at 60-61.

No wonder, as Professor Baude observes, that a number of Supreme Court justices—including Justices Kennedy and Thomas—believe qualified immunity jurisprudence today diverges “to a substantial degree from the historical standards.” Id. at 61.

Qualified Immunity and the Rule of Lenity

If qualified immunity has no historical justification, does it have any justification? One possible justification is “lenity theory.” The somewhat-parallel criminal analogue to §1983 is 18 U.S.C. §242, which provides: “Whoever, under color of any law, statute, ordinance, regulation, or custom, willfully subjects any person in any State, Territory, Commonwealth, Possession, or District to the deprivation of any rights, privileges, or immunities secured or protected by the Constitution or laws of the United States, or to different punishments, pains, or penalties, on account of such person being an alien, or by reason of his color, or race, than are prescribed for the punishment of citizens, shall be fined under this title or imprisoned.”

The statute criminalizes the violation of some constitutional rights. This arguably creates a problem of fair warning, when constitutional interpretation is subject to change and development through our system of common law. “The theory of lenity and fair warning imagines a state official [in a §1983 case] as akin to a criminal defendant in need of special solicitude before being punished.” Id. at 71. But there are a number of problems with this argument. First, the consequences in a criminal action are far greater than in a civil action: loss of liberty versus (usually) loss of money (assuming the defendant is not indemnified). Second, “[q]ualified immunity doctrine has come to bear little practical resemblance to the rules applicable to criminal defendants.” For example, though a circuit split on a legal issue almost invariably leads to qualified immunity for the civil defendant, it rarely triggers the rule of lenity in a criminal case. Id. at 74. “The Justices regularly empathize with officials subject to [a §1983] suit, asking if the official can really be expected to anticipate constitutional rulings that even federal appellate judges did not. But one rarely sees a similar empathy for regular criminal defendants, and indeed the Court's decisions do not bear it out.” Id. at 77. The rule of lenity in criminal cases is much more modest than qualified immunity in civil cases.

Conclusion

The qualified immunity doctrine has increasing pride of place on the Supreme Court docket. In the last 35 years, the court found immunity in 26 of 30 qualified immunity cases. Id. at 82. The court has also repeatedly issued qualified-immunity summary reversals. Qualified immunity is slowly but surely swallowing up §1983 itself.

Yet qualified immunity is arguably lawless in two respects. First, it allows government officials, including law enforcement officers, to violate the law without fear of civil remedy, unless the law is clearly established. Second, the doctrine itself has no basis in law. Perhaps, then, now is the time for courts to revisit whether this immunity doctrine should exist at all.

Ilann M. Maazel is a partner at Emery Celli Brinckerhoff & Abady.