Academic journal article Notre Dame Law Review

Formalism, Ferguson, and the Future of Qualified Immunity

Academic journal article Notre Dame Law Review

Formalism, Ferguson, and the Future of Qualified Immunity

Article excerpt

INTRODUCTION

Over the past four decades, the story of suing governments and their agents for money damages is a story marked by change and challenge. Most doctrines in that story have either undergone substantial revisions during that period or faced sharp criticism. The doctrine of state sovereign immunity, for example, has slowly expanded, even as commentators and jurists have sharply questioned its basic tenets and legitimacy. (1) Leading scholars in the field of federal courts have undermined the capacious nature of prosecutorial immunity, (2) and the Supreme Court seemed close to narrowing the doctrine only a few terms ago. (3) Bivens--the doctrine that allows suits against federal officials for constitutional violations--has faced increased scrutiny at One First Street, becoming narrower virtually each time the Court touches it. (4) The Court has also narrowed the class of cases allowed against local governments, (5) even as other Justices and many scholars have insisted that the class of cases should actually be broader.

By comparison, qualified immunity is an anomaly, in that its basic tenets went largely unchallenged by leading scholars and Justices for decades. To be sure, there have been fights at the Court about how the doctrine should apply in given cases. (6) And scholars have sometimes questioned whether some circuits apply it too stringently, (7) whether it should apply to suits for nominal damages, (8) and whether courts should have to answer whether an official's actions are unconstitutional even when said official is entitled to qualified immunity. (9) But the basics of the doctrine have gone largely unquestioned since the Supreme Court's 1982 case of Harlow v. Fitzgerald. (10) There, the Court held that qualified immunity is an objective test, not a subjective one. (11) Since that decision, it has been the law that a government official is entitled to qualified immunity in claims for money damages unless she has violated a clearly established right that a reasonable person would have known at the time of the violation. (12) This has been generally accepted with relative unanimity.

Until now. In recent years, federal courts scholars have undermined some of the basic empirical and legal assumptions undergirding qualified immunity, (13) and in 2017, one Justice expressed a willingness to reopen this uncommonly stable doctrine. (14) Indeed, the doctrine seems anachronistic in light of two legal and social moments. First, we are in an age of formalism with respect to federal jurisdiction, as the Court is expressing increased skepticism about court-created causes of action and court-created limits on federal judicial power. Second, we are in an age of "Ferguson" or "post-Ferguson"--the town that arrested the nation's attention as its racially discriminatory policing practices came to light. (15) There is a palpable sense that contemporary social movements are demanding greater accountability for violations of rights, especially on matters at the intersection of criminal justice and race. (16) And scholars such as Dean Erwin Chemerinsky have argued that qualified immunity is to blame, in part, for the absence of proper accountability in this area. (17)

Both moments leave qualified immunity on uneasy ground. If it is the case that courts lack the authority to decline to exercise jurisdiction for prudential reasons, as the Court has strongly suggested in the past few years, how can it be that qualified immunity roars on unabated? The doctrine is utterly untethered from the text or history of Section 1983, for example. (18) And what is more, scholars such as Joanna Schwartz have shown that many of the empirical assumptions that purportedly justify this lack of accountability are wrong. (19) Further, if it is the case that unconstitutional uses of force are in need of a more significant range of deterrent remedies, a doctrine that forgives unreasonable--albeit "reasonably unreasonable"--uses of deadly force stands as an inevitable target. …

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