Saturday, October 7, 2017

Time to Revisit Qualified Immunity?

Here's a constitutional issue that might unite some on the right and the left: Should the Court revisit the qualified immunity doctrine?

Qualified immunity provides protection for state actors from liability for constitutional torts when the office did not violate "clearly established statutory or constitutional rights of which a reasonable person would have known." The doctrine was created by the Court, not by the plain text of the Constitution or by 42 U.S.C. Sec. 1983, the basis for constitutional tort claims against state officers. It operates as a back-door way to shield an officer from liability (and thus deny a victim a remedy) in cases where a constitutional right hasn't (yet) been established. That leaves a lot of room for immunity. Moreover, a court granting qualified immunity does not necessarily reach the merits, and so never needs to rule on the underlying constitutionality of the officer's act. In other words, under the doctrine an officer could enjoy qualified immunity from liability for a specific act that the courts have not (yet) ruled unconstitutional, and we also don't learn whether it's actually unconstitutional.

Justice Thomas raised concerns about the doctrine in his concurrence last Term in Ziglar v. Abassi. And the ACLU argued this Term in Wesby (as amicus) that the doctrine lacks a firm basis in history and over-protects officers. (The Court heard oral arguments this week in Websy, the Fourth Amendment case involving arrests for unlawful entry after officers raided a house party in D.C. While the Justices asked about the application of qualified immunity, they showed no interest in reevaluating the doctrine itself.) Prof. William Baude explains some of the concerns about the doctrine in this Federalist Society podcast.

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