SCOTUS for law students (sponsored by Bloomberg Law): Qualified immunity
on Feb 17, 2014 at 1:18 pm
The question of when public officials are entitled to qualified immunity from lawsuits for damages is a recurring one for the Supreme Court: during this Term the Court is scheduled to hear oral arguments in three cases that involve questions of qualified immunity, and recent Terms have seen more such appeals.
The outcome of cases involving qualified immunity has enormous practical importance. On the one hand, qualified immunity protects public officials, allowing them to do their jobs without fear of liability. But on the other hand, it can limit the ability of individuals to recover damages in many cases involving civil rights and civil liberties.
Although the subject of qualified immunity may only be raised in law school classes on civil rights or federal courts, it is also important to an understanding of constitutional law, criminal procedure, state and local government law, remedies, and other subjects.
The concept and basic legal rule of qualified immunity are not complicated. Qualified immunity protects a government official from being sued for civil damages as long as he does not violate constitutional or legal rights that are clearly established. The Court has made clear that, if an official is entitled to qualified immunity, a lawsuit against him must be dismissed entirely at the earliest possible stage of the litigation so that he does not have to submit to discovery, let alone trial.
The rule may sound straightforward, but its application raises a number of legal issues that must be resolved from one case to the next. Foremost among these issues is the question of how to determine whether or when a constitutional or statutory right was clearly established. The Court has held that this question should be measured by what the reasonable person would have known of the constitutional or statutory rules at the time. Reframing the issue in more practical terms, a government official who reasonably believes he is acting lawfully should be entitled to qualified immunity.
Using the reasonable person or some other standard, there will always have to be a case-by-case determination of when rights were clearly established. The answer has important consequences, for the Court has recently held that lower courts may determine that a claimed right was not clearly established even before they determine what the dimensions of the right are. This order streamlines the litigation process and minimizes its disruptive impact on government officials. In other words, if finding that a right was not clearly established and, therefore, that an official is entitled to qualified immunity will lead to dismissal of a lawsuit, then a judge may start with that determination without having to actually decide whether the official violated a constitutional right.
Cases currently before the Court shed some light on how the process works and why it is important. On March 26, the Justices will hear arguments in Wood v. Moss, a lawsuit in which critics of President George W. Bush allege that Secret Service agents violated their First Amendment rights during the 2004 presidential campaign. Specifically, the lawsuit alleges that the agents engaged in unconstitutional viewpoint discrimination when they moved anti-Bush protesters to a distance where the president would not see and hear them while permitting pro-Bush demonstrators to remain closer to the chief executive. The Secret Service agents contended that the move was made purely for security reasons.
After a number of lower court rulings, the U.S. Court of Appeals for the Ninth Circuit agreed with a federal district court and rejected the agents’ motion to dismiss the lawsuit. Those courts agreed that the agents were not entitled to qualified immunity prior to trial. The Ninth Circuit also rejected (and ordered dismissed) a companion claim that local law enforcement officials used excessive force in moving the protesters.
The decision divided the Ninth Circuit, demonstrating the difficulty and divisiveness of qualified immunity issues. In a dissent from denial of rehearing en banc, Judge Diarmuid O’Scannlain accused the panel of giving too much weight to the protesters’ allegations and too little appreciation to the arguments for qualified immunity. The decision, he complained, “renders the protections of qualified immunity toothless.” Judge Marsha Berzon, the author of the panel opinion, countered that because the case involved pretrial motions to dismiss, the dissent was making up “hypothetical” explanations for why the Secret Service agents treated the pro- and anti-Bush protesters differently.
In another case, Plumhoff v. Rickard, scheduled for oral argument on March 4, the issue is whether police officers, after a high-speed chase, used unconstitutionally excessive force when they fired a large number of gunshots at a fleeing vehicle that then crashed, killing both Donald Rickard, the driver of the car, and Kelly Allen, a passenger. Rickard’s and Allen’s estates filed suit against Vance Plumhoff, a policeman, and other officers involved in the chase and shooting. Again there were complicated procedural maneuvers in federal district court, but the court eventually denied qualified immunity at the summary judgment stage and found that the estates had made a case for violation of the Fourth Amendment.
The U.S. Court of Appeals for the Sixth Circuit agreed that, as a matter of summary judgment, the district court had correctly denied the claim of qualified immunity, because there were still disputed factual issues that could affect the qualified immunity determination. The police officers appealed to the Supreme Court.
The plaintiff in a third case, Lane v. Franks, scheduled for oral argument on April 28, is a former employee of Central Alabama Community College. He filed a lawsuit in which he alleged that he was fired in retaliation for testifying against a state legislator who was charged with fraud. A federal district court granted summary judgment to Steve Franks, the president of the college who fired Lane. The district court relied on qualified immunity to rule for Franks but also found that Lane had spoken in his capacity as a public employee, which deprived him of First Amendment protection.
The Sixth Circuit agreed with the district court that Lane’s speech was not protected. The appeals court applied the Supreme Court’s rule that the speech of public employees is protected only when the employee is speaking as a citizen and about a matter of public concern. The Sixth Circuit spent no time considering the qualified immunity issue, and it is unclear whether the Supreme Court will reach qualified immunity questions in this case. (Note: Goldstein & Russell, P.C., whose attorneys contribute to this blog in various capacities, serves as counsel to the petitioner in this case. The blog’s policy is that regular blog contributors not comment on the merits of the firm’s cases, so the discussion of Lane is only descriptive of the case.)
But even if the Court does not say anything about qualified immunity in Lane, the Justices have ample opportunity to wrestle with the important and difficult challenges presented by qualified immunity issues. There is clearly much room for the Court to clarify how qualified immunity cases should be decided.