Tuesday, June 10, 2014

'Qualified Immunity and Constitutional-Norm Generation in the Post-Saucier Era: 'Clearly Establishing' the Law Through Civilian Oversight of Police'

The title of this post comes from this recent paper, the abstract of which states:

The Supreme Court has prescribed a two-pronged analysis for qualified immunity claims that asks (1) whether the claimant’s allegations state a violation of a constitutional right and (2) whether the constitutional right in question was “clearly established” at the time of the officer’s acts. Over the past decade, the Court has vacillated on the appropriate order of analysis: In 2001, the Court in Saucier v. Katz mandated that lower courts first reach the question of whether the claimant had articulated a constitutional violation, and only then proceed to assess whether the right was “clearly established” at the relevant time; then, in 2009, the Court in Pearson v. Callahan unanimously rejected Saucier’s fixed order of analysis in favor of a discretionary approach. The reason for the Court’s equivocation: The conflict between the role of qualified immunity analysis in developing constitutional norms and concerns for judicial economy and the principle of constitutional avoidance. Despite the Court’s repeated affirmations of the value of constitutional merits adjudication, though, there is ample evidence that the end of mandatory Saucier sequencing threatens to grind the gears of constitutional rights articulation to a halt.

However, a glimmer of hope appears in the Court’s enigmatic approach to “clearly established” law. In a series of cases in early 2000s, the Court signaled its willingness to consider non-decisional law in determining whether a right was “clearly established” and, correspondingly, whether an official had fair notice of the unconstitutionality of her conduct. Consistent with these rulings, lower federal courts have cited to a vast array of non-decisional law in qualified immunity decisions, ranging from internal guidelines to reports of compliance agencies. Identifying this jurisprudential space and recognizing the parallels between the fact-intensive, legally oriented work of police oversight agencies and the non-judicial sources of law endorsed by federal courts, Mr. Meltzer advocates for the findings of civilian external investigatory oversight bodies to assume a prominent role in the qualified immunity analysis. In particular, Mr. Meltzer proposes that the investigative findings and policy recommendations of agencies like New York's Civilian Complaint Review Board (CCRB) be given at least the same weight as internal police regulations and advisory reports by external compliance agencies, and possibly as much weight as regional appellate court opinions, in the assessment of “clearly established” law.

Parts I and II provide the theoretical framework for this proposal: Part I explains the purpose and the structure of constitutional civil rights litigation and highlights the post-Saucier dilemma of constitutional stagnation. Part II describes the process of constitutional-norm generation occurring in civilian external investigatory bodies, taking the CCRB as an exemplar, and explores the jurisprudential foundations for treating the findings of oversight bodies as a source of “clearly established” constitutional law. Part III sketches the proposal, arguing in favor of using civilian external investigatory oversight findings to promote the development of constitutional rights and prove “clearly established” law in a § 1983 claim.


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