Law & the Courts

Congressional Action Is the Best Way to Fix Qualified Immunity

Protesters sit in the street facing a line of riot policemen during nationwide protests following the death in Minneapolis police custody of George Floyd in Raleigh, N.C., May 31, 2020. (Jonathan Drake/Reuters)
Whatever the Supreme Court does going forward, a 150-year-old law needs a rewrite as the nation clamors for greater police accountability.

As cities across the country descend into chaos in response to a clear case of police misconduct, there’s a lot of pressure on the Supreme Court to reconsider a doctrine known as “qualified immunity.”

Under federal law, police officers who infringe on civilians’ constitutional rights can be sued in federal court, but the qualified-immunity doctrine shields them from such suits unless their actions violated “clearly established law.” In other words, plaintiffs have to show not only that their rights were violated, but also that the officer’s conduct had been addressed in similar previous cases and found to be unconstitutional. If no previous case involving the disputed conduct exists, as often happens because each case is unique, the officer is immune.

The Court has been reluctant to reconsider this doctrine, but it’s currently mulling whether to hear several relevant cases. These cases could have huge ramifications, because qualified immunity had come under intense fire for the last several years, starting long before the death of George Floyd. Many legal scholars say the doctrine should go entirely. And at minimum, it’s clear from a string of incidents in which courts gave cops immunity despite flagrant wrongdoing that the rule needs reform.

The Court should take up this matter. But it should not have the final word. Going forward, Congress should rewrite the law at issue to resolve the countless problems that have arisen from it in the 150 years since it was passed. The fair treatment of both civilians and police officers is at stake, and only Congress can reform qualified immunity in a way that fully addresses our current situation and concerns. Courts are limited to applying the law as it currently exists, and we need more than that right now.

*    *    *

Let’s start with a brief overview of the relevant history. My purpose here is not to argue for any particular interpretation of the statute, but simply to establish that this is a murky, old, and confused area of the law.

The story begins in the wake of the Civil War. States in the South were doing everything in their power to oppress former slaves, and the 14th Amendment had recently empowered Congress to stop them from doing so. An enforcement act passed in 1871 allowed victims whose constitutional rights were violated to sue in federal court. This is the key language of that provision, Section 1983, as it currently stands (the section has been adjusted only mildly in the century and a half since its enactment):

Every person who, under color of any statute, ordinance, regulation, custom, or usage . . . subjects, or causes to be subjected, any citizen of the United States or other person within the jurisdiction thereof to the deprivation of any rights, privileges, or immunities secured by the Constitution and laws, shall be liable to the party injured in an action at law, suit in equity, or other proper proceeding for redress.

This rule didn’t have much of an immediate impact. Very few 1983 suits were filed for nearly a century, in part because it took a long time for the Supreme Court to “incorporate” the Bill of Rights so that it applied to the states, making far more state-level official misconduct count as a violation of the federal Constitution. The floodgates didn’t truly open until the 1961 decision Monroe v. Pape.

This case involved an enormous issue that apparently had gone unresolved for 90 years: When someone sues a government official under 1983, does he have to show that the official’s conduct was sanctioned by a specific “statute, ordinance, regulation, custom, or usage,” or is it assumed that anything a government official does while on duty is done “under color of” the law? The Court adopted the latter interpretation, meaning that henceforth, any violation of the Constitution by a police officer could be addressed in federal court.

Quickly, however, the Court scaled back this liability. In 1967, it allowed officers to assert a “good faith” defense. This rule eventually solidified into a two-part test: Immunity was available unless the officer “knew or reasonably should have known that the action he took” would violate constitutional rights or he “took the action with the malicious intention to cause a deprivation of constitutional rights or other injury.” But in 1982, unhappy with how often these cases were still going to trial, the Court eliminated that test and replaced it with a new one: Officials are immune unless their conduct violates “clearly established law.”

None of these immunity rules came from the text of the law itself. But as it issued them, the Court offered a variety of justifications. For one thing, laws in 1871 often did not explicitly lay out the defenses that could be invoked by those sued for the infractions they established; instead, lawmakers counted on judges to apply widely accepted common-law rules — and one such rule, the Court argued, was immunity for public officials who discharged their duties in good faith. Second, since police officers have to make fast decisions — and since even judges can disagree after the fact as to whether a cop’s conduct was unconstitutional — it would be unfair to hold them liable for actions they reasonably believed were legal. And third, the Court openly admitted that it was relying in part on “public policy” considerations, including a desire to give government officials space to do their jobs vigorously. “A policeman’s lot is not so unhappy,” the 1967 decision declared, “that he must choose between being charged with dereliction of duty if he does not arrest when he has probable cause and being mulcted in damages if he does.”

The complications have only continued to pile up in more recent years. In 1996, Congress added some language to Section 1983 that did nothing to undermine qualified immunity, taking a kind of legislative action that courts have sometimes interpreted as a tacit endorsement of the jurisprudential status quo over the years. In cases in 2001 and 2009, the Court waffled on the question of whether courts should decide if conduct is unconstitutional before deciding if its constitutionality is clearly established, ultimately giving lower courts discretion over the matter. (When a court decides that the constitutionality of an action isn’t clearly established, but doesn’t also rule on whether the conduct is constitutional, the case fails to clearly establish a binding precedent for similar cases in the future.)

Meanwhile, a series of incredibly stupid cases pushed the issue of qualified immunity into the spotlight. Courts have begun to interpret “clearly established” in a highly exacting way, demanding that plaintiffs show a previous case where a cop did precisely the same thing that happened to them — and tossing common sense out the window. In one classic example, cops were accused of stealing someone’s belongings they’d confiscated during a search, but they couldn’t be held liable under Section 1983 because no previous case had clearly established that it’s an unreasonable search and seizure for cops to flat-out commit theft. A Ninth Circuit panel actually published these words: “At the time of the incident, there was no clearly established law holding that officers violate the Fourth or Fourteenth Amendment when they steal property that is seized pursuant to a warrant.”

There have been academic developments, too. Most prominently, the legal scholar Willam Baude published the seminal article “Is Qualified Immunity Unlawful?” He offers a sweeping case against the practice: Monroe v. Pape, he argues, was correct in interpreting the term “under color of” broadly, and there was not, in fact, a common-law “good faith” immunity in 1871 that would have applied to Section 1983. Even concerns about cops’ being held liable for conduct they reasonably thought was legal aren’t warranted, he says, because, among other reasons, such leeway isn’t given to non-cops in many situations.

After Baude made his case, Aaron L. Nielson and Christopher J. Walker highlighted some of its weaknesses in “A Qualified Defense of Qualified Immunity.” They’re not so sure about Monroe v. Pape, and they write that if qualified immunity is on the chopping block, that decision should be reconsidered as well. (Overruling Monroe would make it much harder to file a 1983 suit at all, and thereby reduce the need for cops to assert immunity against such suits.) They think there’s at least some evidence of a relevant good-faith immunity in the common law, and that it’s a legitimate concern whether cops have fair notice that their conduct is illegal before they’re held liable. And because all of this is so murky, they think there’s a solid case for letting existing precedent mostly stand.

*    *    *

The courts hear cases and have to rule on them based on existing law, in this case a statute passed 150 years ago and resurrected in 1961. They have to take their best shot at deciphering the text and history of the law and deciding how much weight to give to their own previous decisions. Good luck to them as they wade through the resulting mess. But going forward, there is a better way for our country to decide how its police officers are to be punished when they violate the Constitution.

This is the year 2020. As you may have noticed, holding police accountable matters a lot to a whole lot of people right now. We need a fair way of doing that, with buy-in from lawmakers and the public. Why would we instead allow our policy to hinge on what nine unelected judges think the term “under color of” meant in 1871? On what they think the common-law “backdrop” constituted back then? On how much deference they feel like giving to the last 60 years’ worth of their Court’s own precedents? Congress needs to debate these issues and decide how to resolve them on policy grounds, without regard to how a different Congress, dealing with different issues, handled the matter after the Civil War.

I have my own views on how to do this, of course. I don’t trust states to hold police accountable even when cops violate state law, so I would continue to allow federal lawsuits in these cases. I don’t think it’s right to tell cops that a court can retroactively decide their conduct was unconstitutional and hold them personally liable, even though they reasonably believed they were within the bounds of existing law, so I would maintain a good-faith exception — though one far narrower than the one we have today. Finally, in cases where qualified immunity protects officers, I would encourage courts to rule on the constitutionality of the disputed conduct so it’s clear going forward what the law is.

Congress might do that or it might do something else. Representative Justin Amash has proposed a bill to end qualified immunity entirely, and Senator Cory Booker is working on legislation to reform it. But whatever policy Congress settles on, it will be one the people’s representatives created to address the present crisis. And that is what the country needs.

Most Popular

Why Trump’s Losing

President Trump pulled an inside straight to win in 2016, and now he needs another one. The good news for Trump is that his approval rating has stopped falling recently. The bad news is that it has stabilized in the low 40s. Election-watcher Harry Enten points out that no president since Harry Truman has won ... Read More

Why Trump’s Losing

President Trump pulled an inside straight to win in 2016, and now he needs another one. The good news for Trump is that his approval rating has stopped falling recently. The bad news is that it has stabilized in the low 40s. Election-watcher Harry Enten points out that no president since Harry Truman has won ... Read More
U.S.

A Stay-at-Home Mom on Her Reasons for Leaving Portland

While covering events (see here and here) in Portland, Ore., National Review writer Luther Abel sat down with Joanna -- a college-educated, stay-at-home mom and now Trump voter -- who feels it is no longer safe or healthy to live there. They discussed the change that has happened in the city politically, the ... Read More
U.S.

A Stay-at-Home Mom on Her Reasons for Leaving Portland

While covering events (see here and here) in Portland, Ore., National Review writer Luther Abel sat down with Joanna -- a college-educated, stay-at-home mom and now Trump voter -- who feels it is no longer safe or healthy to live there. They discussed the change that has happened in the city politically, the ... Read More
U.S.

Baby Please Come Back, Says Andrew Cuomo

Then-Mayor Mike Bloomberg famously described New York City in 2003 as a “luxury product,” and therefore priced accordingly. The price hasn’t changed, except to go up slightly — taxes, rents, everything. But few would argue that the product New York offers remains first-rate. The theaters are closed. The ... Read More
U.S.

Baby Please Come Back, Says Andrew Cuomo

Then-Mayor Mike Bloomberg famously described New York City in 2003 as a “luxury product,” and therefore priced accordingly. The price hasn’t changed, except to go up slightly — taxes, rents, everything. But few would argue that the product New York offers remains first-rate. The theaters are closed. The ... Read More
Law & the Courts

New York’s Lawless NRA Lawsuit

The latest bananas news from the banana republic that is the State of New York: The attorney general, a political enemy of the National Rifle Association, is seeking to have the advocacy organization legally dissolved. The pretext is financial corruption and self-dealing on the part of the NRA’s ... Read More
Law & the Courts

New York’s Lawless NRA Lawsuit

The latest bananas news from the banana republic that is the State of New York: The attorney general, a political enemy of the National Rifle Association, is seeking to have the advocacy organization legally dissolved. The pretext is financial corruption and self-dealing on the part of the NRA’s ... Read More
Elections

Joe Biden’s Authoritarian VP Finalist

Last year, Senator Kamala Harris may have become the first presidential candidate in history to laugh derisively at the idea that the Constitution limits what a president can do. When former Vice President Joe Biden said that her plan for gun control by executive fiat didn’t pass constitutional muster, she ... Read More
Elections

Joe Biden’s Authoritarian VP Finalist

Last year, Senator Kamala Harris may have become the first presidential candidate in history to laugh derisively at the idea that the Constitution limits what a president can do. When former Vice President Joe Biden said that her plan for gun control by executive fiat didn’t pass constitutional muster, she ... Read More