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Qualified Immunity Empowers Constitutional Violations, But That Can Change…

SCOTUS has an opportunity to reverse this trend and insist that those who have been constitutionally wronged have some available means to vindicate their violation.

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Ed. note: Please welcome Tyler Broker to our pages here at Above the Law. He will be writing about constitutional law and civil liberties.

What if I told you a statute passed by Congress intended to create a cause of action against public officials for constitutional violations has been transformed by the Supreme Court into a doctrine that immunizes public officials from constitutional violations leaving victims remediless? If this sounds like an obnoxious result to you, I agree. There is hope however, as this next term, the Supreme Court has an opportunity to reverse this trend and insist that those who have been constitutionally wronged have some available means to vindicate their violation.

First, though, let me get into some necessary background. In theory, 42 U.S.C. § 1983 provides a cause of action against public officials who violate the constitutional rights of citizens. In 1967, however, the Supreme Court introduced a so-called “qualified immunity” exception to 1983 liability that has been continually strengthened in each subsequent case ever since. As it stands today, only by demonstrating that a public officials actions violate clearly established Supreme Court precedent can a 1983 claim be maintained. This means evidence than an official was acting in bad faith when they violated a citizens rights is deemed irrelevant to the analysis, only the Supreme Court’s narrow (and rare) precedence matters. Consequently, the qualified immunity exception has created an improbable barrier to attaching liability under a 1983 claim for damages. The fact that no common law or statutory basis for the qualified immunity exception exists only adds insult to the constitutional injury.

Recently, Judge Don Willett authored a concurrence in a Fifth Circuit Court of Appeals case that heavily criticized the qualified immunity exception. In particular, Judge Willett points out that current doctrine allows courts to skip over allegations of serious constitutional violations and simply resolve the case through a ruling that no precedence for the particular violation exists. I’ll let the Judge himself articulate the problem from here:

Important constitutional questions go unanswered precisely because those questions are yet unanswered. Courts then rely on that judicial silence to conclude there’s no equivalent case on the books. No precedent = no clearly established law = no liability. An Escherian Stairwell. Heads defendants win, tails plaintiffs lose. Count me with Chief Justice Marshall: “The government of the United States has been emphatically termed a government of laws, and not of men. It will certainly cease to deserve this high appellation, if the laws furnish no remedy for the violation of a vested legal right.” The current “yes harm, no foul” imbalance leaves victims violated but not vindicated; wrongs are not righted, wrongdoers are not reproached, and those wronged are not redressed. It is indeed curious how qualified immunity excuses constitutional violations by limiting the statute Congress passed to redress constitutional violations.

Judge Willett is not the only one to express this sort of criticism, and some courts have moved away from such a one-sided application of qualified immunity. Until the Supreme Court changes course however, such a result will continue to be extremely rare. The Court has an opportunity this next term to create a more balanced 1983 doctrine, at least as it applies to First Amendment rights.

The case I am referring to is Nieves v. Bartlett, where the Supreme Court is being asked to “decide the ‘elements of the tort’ for a First Amendment retaliatory arrest claim in a damages action under 42 U.S.C. § 1983.” Bartlett alleges that he was arrested because the Officer was offended by his exercise of his First Amendment right not to speak to the police. In discussing this case, I must acknowledge that I have a “horse in this race,” so to speak. I have personally worked on this case and my uncle is the lead attorney for the petitioner Bartlett. Perhaps then, it will come as no surprise to say that I hope the Court finds that Bartlett may seek damages via a 1983 claim.

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Contempt of cop arrests of the kind Bartlett is alleging have long been recognized as a significant problem to the protection of our civil liberties. Creating a precedent that allows lower courts the ability to determine when arrests are conducted as a result of retaliatory animus against protected speech would be a significant step forward in restoring balance to the 1983 standard. Lower courts must then address the serious constitutional concerns raised in such cases instead of leaving “victims violated but not vindicated” as pointed out by Judge Willett.

One final note, just so I am clear: anyone who exercises their right to hurl insults at police simply for doing their jobs is morally repulsive to me personally. However, arrests must be based on crimes, not perceived indignities or insults and allowing public officials, especially the armed kind, to retaliate by stripping citizens of their liberties is even more repugnant. Respect for police is important, but that respect cannot override the very civil liberties the police are sworn to uphold.

Tyler Broker is the Free Expression and Privacy Fellow at the University of Arizona James E. Rogers College of Law. His work has been published in the Gonzaga Law Review and the Albany Law Review. Feel free to email him to discuss his column.

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