Qualified Immunity Gets More Teeth

I was getting ready to board a trans-contintental flight the other day when an email arrived: "Saucier v. Katz" has just been over-ruled." I was overjoyed for a distracted moment, and then a small voice asked: "What was it that Erwin Chemerinsky said?"

Saucier v. Katz, 533 U.S. 194 (2001), is one of those cases I simply do not understand. Oh, I get the case's holding all right, and I understand the rule of law it announces: Unreasonable force claims against police officers are subject to qualified immunity. What I do not understand is how the court reached the decision it did. Here's the problem:

To prevail on an unreasonable force claim against a cop arising under 42 U.S.C. Section 1983, you most show that the use of force by a police officer is objectively unreasonable. In other words, you must show that a reasonable police officer would not have believe he was justified in, let's say, clocking an unresisting kid in the head with a nightstick. Such claims are typically proven by contrasting an officer's training with his behavior.

Often these cases turn on whether the plaintiff was resisting arrest. Plaintiff: "I was just standing there when the officer belted me." Defendant: "The subject struggled and I applied reasonable measures for officer safety." There's a dispute of fact threre that should require a jury to sort it all out.

But not so fast. Qualified immunity is a judicial doctrine the gives the benefit of the doubt to police officers in close cases and immunizes them from a law suit. Think of a board game. We're all pawns on life's board; what we can do to one another is defined and limited by the rule of law. Those folks making the rules say some pieces can't be touched; those pieces enjoy immunity. In legalspeak, one way to get qualified immunity is if reasonable officers disagree about whether the conduct in question was unlawful. Another is to prove that the right they are said to have violated was not clearly established at the time.

Head hurting yet? Try this on for size. There is no doubt that unreasonable force violates the constitution. Even so, in Saucier v. Katz the Court concluded that objectively unreasonable conduct might be reasonable after all, at least in the mind of some officers. Hence, the general rule is swallowed by a particular opinion. Put another way, sometimes it is reasonable to be unreasonable. I struggle with this.

So the thought of Saucier being overruled delighted me. But then I recalled hearing Chemerinsky speak last year at Georgetown's annual CLE on 1983 litigation. He warned that Pearson v. Callahan was yet to be decided. This case would, he concluded, resolve the so-called "order of battle" problem. (P.S. This year's Georgetown seminar is April 16 and April 17 in Washington, D.C. It is well worth attending.)

This is legal arcania, but it matters in the hurly-burly of litigation. Saucier required Court's reviewing claims of police misconduct to first decide whether there are facts making out a constitutional violation. Once that was done, courts could turn to whther the unlawfulness of the conduct was clearly established. This required cases to linger on the docket some while lawyers developed facts to support their claims.

No more, said the Supreme Court. District Courts are now free to parse claims as they see fit. Police need not be encumbered quite so often by the inconvenience of answering questions about their conduct.

This might not seem like such a big deal to non-lawyers, but it will matter greatly to civil rights lawyers. What the Supreme Court has said is that it is all right for lower courts to cut to the chase without a complete factual record. In other words, qualified immunity just got a whole lot easier to grant, and, as a result, the ability to hold police officers accountable for civil rights violations just got a whole lot more difficult.

I've avoided writing about this for several weeks because it has the feel of commenting on a necessary piece of dental works. It hurts; it is foreseeable; there is nothing that can be done about it. The decisions trickling out of the Court this term are an authoritarian's dream come true.


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