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The Qualified Immunity Conundrum

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A federal statute, 42 U.S.C. §1983, allows civil suits against state and local officers for violations of federal rights.  That sounds fine except for the fact that those rights are so vaguely defined that in many contexts we won't know whether an action was proper or a violation until a judge rules years later.  We don't want cops walking on eggs for fear of being sued on every marginal judgment call so that they don't protect us from the bad guys.

The Supreme Court's solution to this is "qualified immunity."  The cop can't be held personally liable unless it was "clearly established" at the time of the act that it was a violation.

Okay, but how does the law become clearly established?  Sometimes a precedent may be set by another kind of case, such as a motion to suppress evidence, but some issues don't come up this way.  For example, excessive force in an otherwise proper arrest does not typically produce any evidence to suppress.

If decisions in §1983 actions followed the usual course, the court would decide that it is not clearly established that Action X violates a constitutional right and not reach the question of whether Action X actually does violate a constitutional right.  That is how it works in habeas retroactivity issues under Teague v. Lane.  If a new rule proposed by the habeas petitioner would not apply in his case, the habeas court cannot decide whether his proposal really is a constitutional rule.  That is not a big problem in habeas, because the Supreme Court can always decide the underlying question in a case on direct review.  For example, the issue not decided in Teague was resolved shortly thereafter in Holland v. Illinois.  (It does, however, prevent the federal courts of appeals from making new rules that are binding de facto on state courts, which was precisely the idea.)

But there is no analogous alternate channel for the §1983 suits.  So the Supreme Court has permitted a departure from the normal course of adjudication to permit a court to first decide whether a right has been violated and then decide if the plaintiff has any remedy for the violation.  This course of decision was first permitted in the discretion of the court, then it was mandatory for 8 years, and now it is discretionary again.  The effect of a "wrong without remedy" holding is to establish a precedent such that an officer who does the same thing in the future is subject to suit.

What can officers, and their employers, do if a federal court of appeals issues such a ruling and they do not believe they did anything wrong?  They cannot continue doing an action that they believe is legal and is a proper discharge of their duty to protect the public with the threat of liability hanging over their heads.  Can they appeal such a ruling to the Supreme Court, even though they won the case in the sense of not having to pay damages?

Odd as it may seem for a winning party to appeal (technically, petition for a writ of certiorari), the Supreme Court permitted this today in Camreta v. Greene, No. 09-1454.  Justice Kagan's opinion for the Court is joined by only a bare majority.  One of those, Justice Scalia, indicates he is ready to throw the whole practice of "wrong without remedy" decisions over the side as soon as a party asks.  (None did in this case.)  Justices Kennedy and Thomas, dissenting, appear to be on board with that as well.  Presumably, we would then have a rule for §1983 similar to what we have in habeas -- a new rule can't be made in any case where it would not provide relief.

So how would the new rules get made?  The answer may be in an expanded view of municipal liability.  The municipality has no immunity, but it is not liable for isolated acts, only "policy or custom."  But the Court hinted earlier this term in Los Angeles v. Humphries that "policy or custom" is shorthand for a broader concept.  If Action X is happening all the time in a city's police department, then the city can be liable for damages if Action X is determined to be unconstitutional.

As a side note, I think today's decision slightly improves the chance that CJLF's position will prevail in Davis v. United States.  In that case, Davis (represented by Orin Kerr) claims that evidence should be suppressed even though the police obeyed case law in effect at the time of the search but subsequently overruled.  The reason, Kerr says, is to enable review of issues otherwise immune from review.  Each avenue for reviewing Fourth Amendment issues that the Court opens up diminishes the force of this argument.

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One never wants to underestimate the utility of appealling to the Court's gargantuan sense of self-importance, but I think Orin is taking it a step further than it will go in the Davis case. The problem is that, in order to get to the inside-baseball issue of reviewability, the Court would need to finesse the embarrassingly obvious fact that the police officers would have had to be clairvoyant. That's a bridge too far -- I think.

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