Sunday, August 12, 2007

Has the Second Circuit been misapplying qualified immunity all these years?

Government defendants receive a particular cushion when they are sued for constitutional violations under 42 U.S.C. 1983, the omnibus civil rights law that allows aggrieved citizens to recover damages for civil rights abuses, i.e., censorship in violation of the First Amendment or false arrest in violation of the Fourth Amendment. That cushion is "qualified immunity." This cushion is not merely academic; it can make the difference between victory for the plaintiff or the court throwing out the case without a jury ever hearing it.

This is because public officials accused of violating civil rights are entitled to immunity from the lawsuit if they can show certain facts or legal circumstances that would allow the court to give them the benefit of the doubt. We call it "qualified" immunity because that immunity is qualified, not absolute, like the absolute immunity that judges and prosecutors enjoy from lawsuits of any kind.

Anyone who handles civil rights cases for a living can recite by memory the standard governing qualified immunity. It goes something like this:

Defendants are entitled to qualified immunity unless their conduct violated clearly established statutory or constitutional rights of which a reasonable person would have known. If it would be clear to a reasonable officer that his conduct was unlawful in the situation he confronted, then qualified immunity does not apply. But if officers of reasonable competence could disagree on the issue, immunity should be recognized.

The above language breaks down the qualified immunity equation into two parts: the "clearly established" prong and the "officers of reasonable competence" prong. The "clearly established prong" is easy to explain: if the state of the law (as determined by existing precedent or past case law) was unclear at the time of the civil rights violation, then the defendant cannot be forced to pay out damages to the plaintiff. This means that a unique or esoteric civil rights case might be dismissed before trial because the case law at the time of the civil rights violation did not place the defendant on notice that his actions might have violated the law. It may be that 20/20 hindsight convinces the court that the defendant did in fact violate the First Amendment or the Fourth Amendment, but since the defendant cannot be expected to predict how a future court will interpret his actions in a unique case, the case will be dismissed. Fortunately for plaintiffs, qualified immunity will not apply even if case law was not directly on point, so long as the unlawfulness of the violation was apparant.

The other prong governing qualified immunity is the "good faith" element, shown if officers of reasonable competence could disagree on the unlawfulness of the challenged action or decision. What this means is that even if the state of the law was clear at the time of the violation, the defendant could still win the case if he acted in good faith and it was objectively reasonable for him to act as he did.

This second prong of the qualified immunity is a last gasp way to win qualified immunity. We have all cited this standard in our legal briefs and argued it in court. It never occured to us that this second prong might be incorrect and unnecessary and not actually endorsed by the U.S. Supreme Court. But it has occured to Judge Sonia Sotomayor of the Second Circuit Court of Appeals.

In a case decided on August 1 by the Second Circuit, Walczyk v. Rio, the Court of Appeals resolved a civil rights case against law enforcement officials who searched someone's house on a bad search warrant. One of the plaintiffs could not show the warrant was obtained without probable cause as he made threats to the police suggesting that he was about to commit violence. The other plaintiff won the right to jury trial because the police searched her house looking for her son who had not lived there for many years. The officers did not win qualified immunity for mom because the jury could find that they did not act in good faith in obtaining the warrant.

Judge Sotomayor concurred in the judgment, summarizing the state of qualified immunity law in the Second Circuit and suggesting that the Court of Appeals has been getting it wrong for years. She points out that while the Second Circuit articulates the qualified immunity test in two parts ("clearly established law" and "good faith" or "objective reasonableness"), the Supreme Court has not quite broken it down that way. While the Supreme Court has repeatedly endorsed determining if the state of law was sufficiently clear to place the defendant public official on notice that his actions were illegal, it has not -- contrary to widespread belief in the lower Federal courts -- given public officials a second bite from the qualified immunity apple in allowing them to avoid suit if their otherwise illegal actions were objectively reasonable at the time.

The objective reasonableness test flows from a Supreme Court ruling, Malley v. Briggs, 475 U.S. 335 (1986), which does use that language in describing the entitlement to qualified immunity. But as Judge Sotomayor points out, that language has not appeared in any of the Supreme Court's majority opinions since then. I did a quick check on Lexis, and Judge Sotomayor is right. The Supreme Court's most recent qualified immunity case, Hope v. Pelzer, 536 U.S. 730 (2002), does not cite that language, and the dissenting Justices chide the majority for that omission. The dissenters state:

The Court correctly states that respondents are entitled to qualified immunity unless their conduct violated "clearly established statutory or constitutional rights of which a reasonable person would have known." But the Court then fails either to discuss or to apply the following important principles. Qualified immunity protects "all but the plainly incompetent or those who knowingly violate the law." If "it would be clear to a reasonable officer that his conduct was unlawful in the situation he confronted," then qualified immunity does not apply. But if, on the other hand, "officers of reasonable competence could disagree on the issue, immunity should be recognized."

The dissenters cited Malley for the final part of the above language. But that language in Malley may have been dicta, or musings from the Court with no legal significance. Assuming the majority in Hope v. Pelzer read the dissent before issuing their decision, we have to assume that they understood the dissenters' objections and ignored them because the dissenters did not accuarately describe the state of the law governing qualified immunity. Yet, the courts continue to cite it and apply it, occasionally dismissing lawsuits on the basis that, although the law was clear when the defendant violated the plaintiff's rights, officers of reasonable competence could have disagreed on whether the conduct was unlawful.

Judge Sotomayor summarizes her objection to the Second Circuit's qualified immunity analysis by suggesting that "departs from Supreme Court dictates and unjustifiably raises the bar to liability for violations of constitutional rights." For now, however, Judge Sotomayor is in the minority on this one. It is not unusual for the Federal Courts of Appeal to read more into the language of Supreme Court decisions than the Supreme Court intended. The Second Circuit's two-part qualified immunity analysis is the law in this Circuit. It will take a Supreme Court ruling to change that. Until now, I doubt anyone even noticed how far removed from Supreme Court precedent the Second (and other) Circuits were in applying qualified immunity.

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