In a decision today in McKinney v. City of Middletown, Second Circuit judges Guido Calabresi and Steven Menashi spar over the doctrine of qualified immunity. They disagree first over whether the district court correctly concluded that defendant police officers were entitled to qualified immunity. Menashi’s majority opinion says yes, Calabresi in dissent says no.
Menashi and Calabresi disagree more broadly over whether the Supreme Court should abolish the doctrine of qualified immunity. In a seven-page appendix to his dissent, Calabresi argues that the Court “should do away with this ill-founded, court-made doctrine.” Menashi explains in response (pp. 29-33) why he does “not have as much confidence in those arguments as the dissent evidently does.”
I haven’t yet waded carefully through the competing arguments on this broader question, but will present here some excerpts (citations omitted or simplified).
Judge Calabresi:
As scholars have made clear, and more and more judges have come to recognize, qualified immunity cannot withstand scrutiny. [Long list of citations.]
First, the Court has sometimes grounded qualified immunity in what they said was the common law background to the statute imposing liability on state actors. But scholars have demonstrated that there was no common law background that provided a generalized immunity that was anything like qualified immunity.
Second, the Court has turned more and more to justifying qualified immunity as good policy, even if Congress didn’t enact it. In particular, the Court has argued that qualified immunity strikes a balance between “the need to hold public officials accountable when they exercise power irresponsibly and the need to shield officials from harassment, distraction, and liability when they perform their duties reasonably.”
But there is every reason to doubt that the Court’s created immunity from suit strikes the right balance…. Much of the defense of qualified immunity focuses on the harm liability would do to individual officers. But, in fact, qualified immunity is largely irrelevant to officers’ individual financial liability. In general, individual officers do not pay for their defense or damages if a judgment is entered against them: indemnification is the general rule, and officers rarely pay anything. Moreover, as to any possible concerns about officer distraction due to the possibility of liability, there is a long-recognized better solution: formally make the employer the defendant and the only one who pays.
Judge Menashi:
Some commentators support [the dissent’s] view [that the common law did not recognize qualified immunity]. But other commentators have concluded that historical sources “refute” that position and “confirm[] that the common law around 1871 did recognize a freestanding qualified immunity protecting all government officers’ discretionary duties.” … In our system, “something more than ambiguous historical evidence is required before [the Supreme Court] will flatly overrule a number of major decisions.”
[T]he reconsideration even of a court-made doctrine must account for the full extent of judicial intervention. In the case of qualified immunity, that analysis must include the possible court-made expansion of liability under § 1983. [Quotes Justice Scalia at length regarding massive expansion of § 1983 effected in Monroe v. Pape (1961).] The dissent, in contrast to Justice Scalia, proposes a “one-sided approach to qualified immunity” that “abandons the defense without also reconsidering the source and scope of officers’ liability in the first place.”
[E]ven assuming that indemnification is as universal as the dissent posits, the pocketbooks of individual officers are not the only interests at stake. The doctrine of qualified immunity “reflects concerns about the states’ ability to enforce their laws without undue federal interference.” It “acts to safeguard government, and thereby to protect the public at large, not to benefit its agents.”