Qualified Immunity Reform
Last month I wrote about how the current state of qualified immunity doctrine troubled me for a reason that I could not articulate. After working through some of the cases on damage actions for official misconduct, I think I know what the problem is.
The test for qualified immunity was established in Harlow v. Fitzgerald, a 1982 Supreme Court decision holding that “government officials performing discretionary functions, generally are shielded from liability for civil damages insofar as their conduct does not violate clearly established statutory or constitutional rights of which a reasonable person would have known.” The rationale for this standard is that officials should have some substantive immunity for difficult choices made under uncertain conditions and should be free of the burdens of litigation as they carry out their other duties.
One criticism of this approach is that it requires courts to resolve factual disputes before the record is fully developed. For example, how can one know whether someone’s rights are violated in a typical civil rights case without discovery? Qualified immunity, however, is partly designed to shut down this sort of inquiry. Another problem that I encountered in a case I worked on during my clerkship is that certain rights are assessed based on the reasonableness of official conduct. As a result, the qualified immunity examination in those cases requires a court to ask if someone could reasonably believe that they were acting reasonably, which is an incoherent standard.
This leads me to wonder whether the qualified immunity inquiry at the pleading stage ought to be limited to an assessment of whether the right at issue is “clear.” The question of objective reasonableness, as is often the case in tort law, would then be resolved by the jury at trial. After all, the current test conflates the two goals of qualified immunity. An official does have a right to substantive protection and a right to be free from the burdens of litigation, but not necessarily at the same time.
Where did I get this idea? Well, this is basically how things used to work in the 19th century. Ann Woolhandler wrote an excellent article in the mid-1980s pointing out that there was no “good faith” exception for official misconduct at the Founding. Courts just looked at whether the act at issue was illegal or not. The jury then got to decide whether punitive damages were appropriate, which often changed the case from one involving nominal damages to a remedy with bite. This is not the same as what I’m suggesting, but it does capture the spirit of the balance that I’d like to see restored to s. 1983. Anyway, it’s just a tentative line of thought at this point.