Qualified immunity and constitutional avoidance

Supreme Court Review

Volumn 2009, Issue , 2009, Pages 139-179

  Beermann, Jack M ^a  

^a University School of Law   (United States)

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EID: 81455144356     PISSN: 00819557     EISSN: None     Source Type: Book Series    
DOI: 10.1086/653647     Document Type: Review

References (194)

1. The term "constitutional torts" denotes civil rights cases brought to enforce federal constitutional provisions, and to a lesser extent federal statutes, against state and local officials primarily under statutes passed in the immediate aftermath of the Civil War and to enforce federal constitutional provisions against federal officials under Bivens v Six Unknown Named Agents of Federal Bureau of Narcotics, 403 US 388 (1971).
2. Civil Rights Act of 1871, section 1, 42 USC § 1983. During the October 2008 Term, the Court decided five cases that presented issues arising under section 1983, including immunities, jurisdiction, and availability of the section 1983 action.
3. See Safford Unified School Dist. No. 1 v Redding, 129 S Ct 2633 (2009) (school officials immune from damages for ordering and conducting strip search of student suspected of possession and distribution of ibuprofen)
4. Haywood v Drown, 129 S Ct 2108 (2009) (New York may not limit jurisdiction over section 1983 claims to state court of claims where action is available against state, not individual defendants, and where complete remedies, including punitive damages, are not available)
5. Van de Kamp v Goldstein, 129 S Ct 855 (2009) (supervisory prosecutors have absolute immunity from damages in case involving failure to inform prosecuting attorney of exculpatory evidence)
6. Fitzgerald v Barnstable School Committee, 129 S Ct 788 (2009) (Title IX does not displace section 1983 remedy in case alleging lack of appropriate response to student-to-student sexual harassment)
7. Pearson v Callahan, 129 S Ct 808 (2009) (officials are immune from damages in case involving warrantless search; rule requiring courts to address merits before reaching qualified immunity is overruled).
8. The Bivens action against individual federal officials for damages resulting from constitutional violations was created by the Supreme Court in Bivens, 403 US 388. The Court decided only one Bivens case in the October 2008 Term.
9. See Ashcroft v Iqbal, 129 S Ct 1937 (2009) (supervisory defendant in Bivens action not liable without state of mind required for violation of underlying constitutional standard).
10. Safford, 129 S Ct 2633
11. Pearson, 129 S Ct 808
12. Goldstein, 129 S Ct 855. Although the Court has decided a fair share of cases rejecting immunity, overall the Court has made it difficult for constitutional tort plaintiffs to overcome official immunity.
13. Haywood v Drown, 129 S Ct 2108 (2009). The Court had previously been wary of state attempts to disadvantage constitutional tort claims in state court.
14. See Felder v Casey, 487 US 131 (1988) (rejecting application of state notice of claim statute in section 1983 case brought in state court).
15. Iqbal, 129 S Ct 1937. The Court has rejected government agency and private entity liability under Bivens.
16. See FDIC v Meyer, 510 US 471 (1994) (federal agency cannot be held liable under Bivens)
17. Correctional Services Corporation v Malesko, 534 US 61 (2001) (private corporation cannot be held liable under Bivens). The Iqbal decision, by ruling that supervisory liability is available only when supervisors have the state of mind required for the underlying constitutional violation, went even further than a long line of Second Circuit decisions that rejects constitutional tort liability without the direct personal involvement of the supervisor/defendant.
18. See, for example, Black v United States, 534 F2d 524, 527-28 (2d Cir 1976) (plaintiff in Bivens action must allege defendant's personal involvement in deprivation of rights)
19. Colon v Coughlin, 58 F3d 865, 873 (2d Cir 1995) (same rule applies in section 1983 actions). Sheldon Nahmod points out that the Court adopted its more restrictive view of supervisory liability without briefing or argument on the issue and that the defendants had actually conceded that supervisory liability could be based on knowledge of or deliberate indifference to constitutional violations which is more lenient than the Court's requirement that supervisory defendants have the state of mind of the underlying constitutional violation.
20. See Sheldon Nahmod, Constitutional Torts, Over-Deterrence and Supervisory Liability after Iqbal, 14 Lewis & Clark L Rev 279 (2010). 129 S Ct 808 (2009).
21. 533 US 194 (2001)
22. Egger v Phillips, 710 F2d 292, 314 n 27 (7th Cir 1983) (en banc) ("Although the qualified immunity ground would constitute an adequate basis upon which to affirm the judgment below, we nevertheless consider it appropriate to address the merits of the First Amendment claim. Egger certainly has standing to raise that claim, and to dispose of the case solely on the ground that at the time of the alleged constitutional violation the right in question was not clearly established would leave the status of such a right in limbo.").
23. Even prior to Saucier the Court had stated that in qualified immunity cases the court "must first determine whether the plaintiff has alleged the deprivation of an actual constitutional right at all." Conn v Gabbert, 526 US 286, 290 (1999) (emphasis supplied). However, it was not until Saucier that it became clear that the procedure was really mandatory.
24. See generally Thomas Healy, The Rise of Unnecessary Constitutional Rulings, 83 NC L Rev 847 (2005). The Supreme Court has embraced a strong form of constitutional avoidance in which courts interpret statutes to avoid not only actual unconstitutionality but any serious constitutional question. For an application this Term of the avoidance canon in statutory interpretation
25. see In Northwest Austin Municipal Utility District No. 1 (NAMUDNO) v Holder, 129 S Ct 2504 2009). As Richard Hasen writes, "In NAMUDNO . . . the Court-without objection from a single Justice-embraced a manifestly implausible statutory interpretation to avoid the constitutional question."
26. Richard L. Hasen, Constitutional Avoidance and Anti-Avoidance by the Roberts Court, 2009 Supreme Court Review 182 (2010).
27. In addition to the straightforward avoidance canon under which courts interpret statutes to avoid constitutional issues, there are several doctrines in the justiciability family that are designed to avoid deciding constitutional issues. The best example is Pullman abstention under which federal courts stay proceedings when resolution of state law issues in state court might moot a federal constitutional controversy. See Railroad Commission of Texas v Pullman, 312 US 496 (1941).
28. Pearson v Callahan, 128 S Ct 1702, 1702-03 (2008) (Mem) ("In addition to the questions presented by the petition, the parties are directed to brief and argue the following question
29. 'Whether the Court's decision in Saucier v Katz, 533 US 194 (2001) should be overruled?'").
30. Respected Circuit Judge Pierre Leval even published a law review article attacking mandatory Saucier. See Pierre N. Leval, Judging under the Constitution: Dicta about Dicta, 81 NYU L Rev 1249 (2006).
31. Pearson v Callahan, 129 S Ct 808, 821 (2009).
32. 129 S Ct 2633 (2009) (finding search of student for drugs was unreasonable but holding that right was not clearly established).
33. Civil Rights Act of 1871, section 1, codified at 42 USC § 1983.
34. Tenny v Brandhove, 341 US 367, 376 (1951). The basic principle under which the immunities were recognized is that the Court presumes that Congress intended the general language of this statute, 42 USC § 1983, to incorporate well-established common law doctrines including immunities, principles of causation, and similar doctrines. However, the Court has failed to apply this principle in a coherent fashion, and has only selectively honored instructions from Congress on the matter.
35. See Jack M. Beermann, A Critical Approach to Section 1983 with Special Attention to Sources of Law, 42 Stan L Rev 51 (1989).
36. Tenny, 341 US 367.
37. Pierson v Ray, 386 US 547, 553-55 (1967).
38. The policy bases underlying official immunities relate primarily to the public interest in allowing public officials to take official action free from concern over liability and potentially expensive and time-consuming litigation. A secondary consideration is fairness to public officials who, because of their official duties, must engage in conduct that is likely to provoke litigation. See generally Ronald A. Cass, Damage Suits Against Public Officers, 129 U Pa L Rev 1110 (1981). Relatedly, immunity means that public officials are not distracted from their official duties by the necessity of defending lawsuits based on their official conduct.
39. Sheuer v Rhodes, 416 US 232 (1974) (finding no common law basis for extending absolute immunity to high-level state executive officials including governor).
40. See Butz v Economou, 438 US 478 (1978).
41. See Forrester v White, 484 US 219 (1988).
42. The best example of how difficult it is to distinguish between functions that are protected by absolute immunity and those that receive only qualified immunity is Bogan v Scott-Harris, 523 US 44 (1998). In that case, a discharged city employee sued the mayor and members of the city council alleging race discrimination in her termination, which occurred after the plaintiff complained that another, well-connected, city employee had used racial slurs against her. She argued that firing her was an administrative function and thus the members of the city council and the mayor were not protected by absolute legislative immunity. Because the city council had accomplished the discharge by voting to abolish the plaintiff 's position, the Court held that the firing was a legislative action. The Court was unwilling to look behind the legislative form of the decision.
43. The following pair of Court decisions perhaps best tests and illustrates the limits of the prosecutorial function. In Kalina v Fletcher, 522 US 118 (1997), the Court held unanimously that prosecutors are not absolutely immune from damages for making false statements in a warrant application, on the ground that preparing the warrant application is an investigatory function not sufficiently connected with the judicial function to give rise to absolute immunity.
44. In Burns v Reed, 500 US 478 (1991), the Court held that prosecutors are absolutely immune from damages claims arising from their presentation in court of the factual and legal bases in support of the issuance of a warrant. In Burns, the Court also decided that prosecutors are not absolutely immune from damages for giving unconstitutional advice to police regarding the investigation, in that case concerning whether to hypnotize the suspect in a criminal investigation and whether the police had probable cause to make an arrest. It would be perfectly understandable if, in light of these two decisions, prosecutors are somewhat confused about which of their activities are protected by absolute immunity.
45. 129 S Ct 855 (2009)
46. See Giglio v United States, 405US 150 (1972). Goldstein was convicted of murder based largely on the false testimony of a jailhouse informant. The defense was not informed that the witness had received favorable treatment in exchange for his testimony. Goldstein alleged that the supervising officials in the prosecutor's office failed to provide this information to the prosecutor who actually prosecuted the case and failed to adequately train and supervise the lower-level prosecutors in the office.
47. See Goldstein, 129 S Ct at 860.
48. The parties argued over whether prosecutors' offices are required to establish administrative systems to ensure that all prosecutors in the office are aware of exculpatory evidence. In Giglio, which also involved a failure to share information regarding promises made to a prosecution witness, the Court stated: "To the extent this places a burden on the large prosecution offices, procedures and regulations can be established to carry that burden and to insure communication of all relevant information on each case to every lawyer who deals with it." 405US at 154. The plaintiff in Goldstein argued that the establishment of an information-sharing system was an independent constitutional obligation of an administrative nature.
49. See Brief for Respondent in Van de Kamp v Goldstein, at 16-17. The defendants characterized this argument as "a guarantee of boot-strapped constitutional claims for all aspects of purported prosecutorial misconduct."
50. See Reply Brief for Petitioners at 20. Their point, which ultimately prevailed at the Court, was that the information-management system argued for by the plaintiff was inseparably connected to decisions concerning the manner in which cases are tried, which is the very function protected by absolute immunity. Id.
51. 129 S Ct at 861-62.
52. See Pierson v Ray, 386 US 547 (1967)
53. Healy, 83 NC L Rev at 872-77 (cited in note 12).
54. Pierson, 386 US at 557.
55. Wood v Strickland, 420 US 308, 322 (1975).
56. This standard provided the civil rights plaintiff with two ways of overcoming the immunity-the defendant was liable if she acted with malicious intent to violate the plaintiff 's rights or if she violated a clearly established constitutional right. Because immunity was an affirmative defense, the burden of pleading entitlement to immunity was on the defendant. See Gomez v Toledo, 446 US 635(1980). However, once the defendant claimed immunity, the plaintiff would attempt to overcome the immunity by arguing that the defendant acted maliciously or violated clearly established rights or both.
57. 457 US 800 (1982).
58. Harlow was an action brought against federal officials under the Supreme Court's decision in Bivens which created a cause of action against federal officials parallel to the section 1983 claim against state and local officials. In Harlow, the Court specifically stated that the immunities in Bivens actions and section 1983 actions are the same. Harlow, 45 7 US at 818 n 30.
59. This policy-based expansion of the qualified immunity defense in section 1983 cases points up the lack of true connection to the common law of immunities. The touchstone of the common law qualified immunity was good faith. In fact, even now, more than 25 years after the elimination of the subjective element of the qualified immunity, it is still sometimes referred to as "good faith immunity." See, for example, Harrison v Ash, 5 39 F3d 510, 517 (6th Cir 2008). When the Court eliminated the good faith element of the qualified immunity in Harlow, it severed the connection between the immunity and its common law roots, leaving the legitimacy of applying the immunity in section 1983 cases open to serious question.
60. See Beermann, 42 Stan L Rev at 66-69 (cited in note 19). Because the Bivens action was created by the Court, the application of official immunities in Bivens cases raises no legitimacy question.
61. Since Harlow, the Court has characterized qualified immunity as immunity from suit, not just immunity from damages. See Mitchell v Forsyth, 472 US 511 (1985).
62. For example, claims alleging excessive force in making arrests, like Saucier, are unlikely to arise anywhere but in a damages suit, while claims alleging illegal searches arise frequently in criminal proceedings at suppression hearings. Around the same time as it decided Harlow, the Court tightened the standard for injunctive relief in civil rights cases, making damages actions the only way some claims are likely to be litigated. See Los Angeles v Lyons, 461 US 95(1983).
63. The effects of the change were significant for the very reason that the Court was motivated to eliminate the subjective element of the immunity in Harlow. Before Harlow, plaintiffs were much more likely to get past a motion to dismiss based on qualified immunity by arguing that the defendant acted with malicious intent. The motion to dismiss would have also raised the constitutional issue, both directly on the merits and on whether the rights alleged were clearly established. The denial of the motion based on a live allegation of malicious intent would have included a determination that the plaintiff had alleged a constitutional violation. Otherwise, the motion to dismiss would have been granted on the merits, without regard to immunity. See Healy, 83 NC L Rev at 873-74 (cited in note 12).
64. Egger v Phillips, 710 F2d 292, 314 n 27 (7th Cir 1983) (en banc).
65. See Garcia v Miera, 817 F2d 650, 657 n 8 (10th Cir 1987).
66. The first time the Court applied this procedure, it did so as a matter of logic in decision making, stating that "[a] necessary concomitant to the determination of whether the constitutional right asserted by a plaintiff is 'clearly established' at the time the defendant acted is the determination of whether the plaintiff has asserted a violation of a constitutional right at all." Siegert v Gilley, 500 US 226, 232 (1991).
67. There is language in Siegert implying that this order of decision is normatively desirable, but it is unclear if that is what the Court was really saying. In the next case, however, County of Sacramento v Lewis, 523 US 833, 841 n 5 (1998), the Court made clear that "to escape from uncertainty . . . the better approach is to determine the right before determining whether it was previously established with clarity." Justices Breyer and Stevens expressed misgivings about applying the procedure to "difficult and unresolved" constitutional questions.
68. Id at 859 (Stevens, J, concurring in the judgment)
69. id at 858-59 (Breyer, J, concurring).
70. As noted, the Court first used mandatory language in Conn v Gabbert, 526 US 286, 290 (1999), but it was not until Saucier that it became clear that the Court intended that the procedure be mandatory.
71. Saucier v Katz, 533 US at 201 (2001).
72. For example, in Scott v Harris, 550 US 372 (2007), Justice Breyer called for the Court to overrule Saucier and give courts discretion over whether to decide the constitutional merits in qualified immunity cases, stating that "lower courts should be free to decide the two questions in whatever order makes sense in the context of a particular case."
73. He noted that the First Circuit had criticized the requirement in Dirrane v Brookline Police Dept, 315F3d 65, 69-70 (1st Cir 2002), calling mandatory Saucier "an uncomfortable exercise" when the facts of the case are not fully developed.
74. Thomas Healy's article describes lower court reactions to the Saucier procedure, both before and after the Court made it mandatory. See Healy, 83 NC L Rev at 850, 879-82 (cited in note 12) .
75. See Leval, 81 NYU L Rev (cited in note 15). Judge Leval built his critique of the Saucier procedure around the notion that the determination of the constitutional merits is dicta when it does not affect the outcome of the case.
76. The classic formulation of the doctrine of constitutional avoidance is contained in Justice Brandeis's concurring opinion in Ashwander v Tennessee Valley Auth., 297 US 288, 347 (1936) (Brandeis, J, concurring).
77. See Healy, 83 NC L Rev (cited in note 12). The doctrine of constitutional avoidance has many manifestations, one of which is the practice of construing a statute to avoid the possibility of unconstitutionality.
78. See, for example, Industrial Union Dept, AFL-CIO v American Petroleum Institute (The Benzene Case), 448 US 607 (1980) (plurality opinion)
79. Hasen, 2009 Supreme Court Review (cited in note 12).
80. Healy, 83 NC L Rev (cited in note 12).
81. As is well known, the Justices of the Supreme Court declined, early on, to render advice to the President, proclaiming that rendering advisory opinions would be inconsistent with separation of powers and outside the scope of the judicial power. See Henry P. Johnston, Correspondence and Public Papers of John Jay 486-89 (1981)
82. reprinted in David Currie, Federal Courts: Cases and Materials 10 (3d ed 1982).
83. See also Michael L. Wells, The "Order-of-Battle" in Constitutional Litigation, 60 SMU L Rev 1539, 1541 n 22 (2007).
84. Some state constitutions allow their courts to render advisory opinions, subject to limitations and under specified procedures. See generally Jonathan D. Persky, Note, "Ghosts that Slay": A Contemporary Look at State Advisory Opinions, 37 Conn L Rev 1155 (2005).
85. See Healy, 83 NC L Rev at 902-03, 910-15(cit ed in note 12).
86. Because the Court intends rulings on the constitutional merits to be binding in future litigation, no one claims that the Saucier procedure violates the classic example of an advisory opinion, when another branch of government is free to ignore or revise a judicial pronouncement. See Hayburn's Case, 2 US (2 Dall) 408 (1792)
87. Muskrat v United States, 219 US 346 (1911). Muskrat involved an Act of Congress which purported to affect property shares of American Indians. The statute granted the Court of Claims and the Supreme Court jurisdiction to determine the validity of the act. That judgment might, in turn, affect the outcome of other proceedings concerning the rights of claimants. The Court characterized this jurisdiction to determine the validity of the Act of Congress without an actual controversy between the parties as impermissible jurisdiction to render advisory opinions.
88. See Muskrat, 219 US at 363. In Muskrat, the Court employed the canon of avoidance and construed the relevant statute not to grant the forbidden jurisdiction.
89. Healy, 83 NC L Rev at 912 (cited in note 12).
90. See Sam Kamin, An Article III Defense of Merits-First Decisionmaking, 15Ge o Mason U L Rev 53, 92 (2008).
91. See Healy, 83 NC L Rev at 866-68, 891-95, 897-905, 915-20 (cited in note 12) (discussing mootness, alternative holdings, and harmless error).
92. The dicta/holding distinction has been recently characterized as follows: "A holding consists of those propositions along the chosen decisional path or paths of reasoning that (1) are actually decided, (2) are based upon the facts of the case, and (3) lead to the judgment. If not a holding, a proposition stated in a case counts as dicta." Michael Abramowicz and Maxwell Stearns, Defining Dicta, 57 Stan L Rev 953, 961 (2005). Decisions on the constitutional merits when the defendant is found to be immune are arguably dicta under this definition because they do not "lead to the judgment."
93. See generally Michael C. Dorf, Dicta and Article III, 142 U Pa L Rev 1997 (1994). The reasons against writing and following dicta are directly implicated by the Saucier procedure. The main reason against deciding issues that are not directly presented by the case is that the parties may not have addressed the issue at all, or with the same care as issues that are more likely to affect the outcome of the case. This can lead to erroneous and ill-considered opinions, which also is why dicta should not constitute binding precedent. In qualified immunity cases, the plaintiff must address the constitutional merits because the plaintiff can prevail only if the right exists. The defendant, however, can prevail regardless of the constitutional merits, if it is determined that any right that may exist was not clearly established at the time of the conduct. However, as discussed below, defendants often have strong incentives to address the merits even when they expect to prevail on qualified immunity grounds.
94. Justice Scalia has stated that these decisions are not dicta since they are intended to create clear law "and make unavailable repeated claims of qualified immunity." Bunting v Mellen, 541 US 1019, 1023-24 (2004) (Scalia, J, dissenting from denial of certiorari). He is obviously correct in terms of the intent of the courts issuing the opinions, but it is more accurate to state that this is an authorized violation of the traditional rules against dicta rather than a situation not involving "mere dictum." Judge Guido Calabresi has expressed disagreement with both aspects of Justice Scalia's analysis. In a pre-Saucier decision in which the Second Circuit reached the merits while finding the defendants immune, Judge Calabresi opined that the decision on the merits was nonbinding dicta, although it obviously indicates the direction the court is likely to take if the issue arises again. The function of a merits ruling in a qualified immunity case is, according to Judge Calabresi, "to place government officials on notice that they ignore such 'probable' rights at their peril."
95. Wilkinson ex rel Wilkinson v Russell, 182 F3d 89, 112 (2d Cir 1999) (Calabresi concurring). He flatly denied that merits rulings in such cases create binding law.
96. Dorf's examples illustrate how the Supreme Court often departs from traditional views on dicta. One of Dorf's best examples is Myers v United States, 272 US 52 (1926), in which the Court opined on the constitutionality of substantive statutory restrictions on presidential power to remove executive officials when the case presented only the question whether Congress might require the advice and consent of the Senate before removal.
97. See Dorf, 142 U Pa L Rev at 2015-18 (cited in note 64).
98. A further example of the Court's loose application of the principle against dicta, Middlesex County Sewerage Authority v National Sea Clammers Assn, 453 US 1 (1981), is discussed below.
99. See Dorf, 142 U Pa L Rev at 2049 (cited in note 64). Dorf argues that "a coherent understanding of the rule of law requires that the holding/dictum distinction turn on whether a principle is essential to the rationale of a case, not just its result, and that such a distinction provides a workable framework for implementing the design of Article III."
100. Lisa M. Durham Taylor, Parsing Supreme Court Dicta to Adjudicate Non-Workplace Harms, 57 Drake L Rev 75 (2008).
101. In Middlesex County Sewerage Authority v National Sea Clammers Assn, 45 3US 1, 19 (1981), the Court, on its own, raised and rejected section 1983 as a basis for finding a private right of action in that case even though the plaintiff had not raised it. The resolution of an issue not raised by the parties is arguably dicta since even if a party attempted to raise it at a late stage in the litigation, the Court could avoid addressing it on the ground that it was waived. Despite this curious lineage, Sea Clammers' resolution of this issue quickly became an important precedent for determining when section 1983 provides a basis for a private right of action against state and local violators of federal statutes. This illustrates both that the Court consciously writes what is traditionally thought of as dicta and treats it in some circumstances as authoritative.
102. Scott v Harris, 550 US 372, 387 (2007) (Breyer, J, concurring)
103. Justice Breyer also expressed reservations about the Saucier procedure in several other cases, including Brosseau v Haugen, 543 US 194, 201-02 (2004) (Breyer, J, concurring). Notably, he was joined in that brief concurrence by Justices Ginsburg and Scalia.
104. After Scott, The made the argument against the mandatory Saucier procedure at greater length in Morse v Frederick, 5 5 1US 393, 425-33 (2007) (Breyer, J, concurring). Much of the discussion in that opinion was about why the Court should not have reached the constitutional issue in the particular case, but it also contains general criticisms of the mandatory Saucier procedure.
105. Scott, 550 US at 387-88.
106. Pam Karlan focused on this aspect in her critique of the Saucier procedure. See Pamela S. Karlan, The Paradoxical Structure of Constitutional Litigation, 75Fordham L Rev 1913, 1922-27 (2007).
107. The need to ensure adversary presentation of issues was the primary basis upon which modern standing doctrine was built. Flast v Cohen, 392 US 83, 101 (1968) ("[I]n terms of Article III limitations on federal court jurisdiction, the question of standing is related only to whether the dispute sought to be adjudicated will be presented in an adversary context and in a form historically viewed as capable of judicial resolution.").
108. Later, the Court substituted separation of powers as the primary basis of standing doctrine. See Allen v Wright, 468 US 737, 752 (1984) ("More important, the law of Art. III standing is built on a single basic idea-the idea of separation of powers.").
109. Owen v City of Independence, 445US 622 (1980)
110. Richardson v McKnight, 521 US 399 (1997).
111. Some courts have recognized a common law good faith defense for private defendants. Sheldon Nahmod, The Emerging Section 1983 Private Party Defense, 26 Cardozo L Rev 81 (2004) (discussing private parties' good faith defense in section 1983 cases). This defense seems inconsistent with the Supreme Court's rejection of immunities for private defendants under civil rights laws, but the Court in Richardson did leave open the possibility of a good faith defense.
112. See Richardson v McKnight, 521 US at 413-14
113. Jack M. Beermann, Why Do Plaintiffs Sue Private Parties under Section 1983? 26 Cardozo L Rev 9, 25n 55 (2004) (describing inconsistency between section 1983 immunities jurisprudence and recognition of good faith defense for private defendants).
114. See George A. Bermann, Integrating Governmental and Officer Tort Liability, 77 Colum L Rev 1175, 1188-89 (1977) (discussing statutes requiring indemnification of officials and requiring government to provide officials with legal defense by government attorneys).
115. See McKinney's General Municipal Law § 50-k 2.
116. See also David F. Hamilton, The Importance and Overuse of Policy and Custom Claims: A View from One Trench, 48 DePaul L Rev 723, 730-31 (1999) (discussing indemnification of city employees in civil rights cases). For an interesting discussion of government participation in civil rights litigation against both individual and government-entity defendants
117. see Note, When the Interests of Municipalities and Their Officials Diverge: Municipal Dual Representation and Conflicts of Interest in § 1983 Litigation, 119 Yale L J 86 (2009).
118. See Nancy Leong, The Saucier Qualified Immunity Experiment: An Empirical Analysis, 36 Pepperdine L Rev 667 (2009).
119. Another study that looked at a narrower group of cases found a similar increase in constitutional rulings in favor of defendants, but it also found an increase in rulings favorable to plaintiffs, as compared with cases in which previously the constitutional merits would not have been reached at all. See Paul Hughes, Not a Failed Experiment: Wilson-Saucier Sequencing and the Articulation of Constitutional Rights, 80 U Colo L Rev 101 (2009).
120. Hughes's data indicate that under mandatory Saucier, the articulation of a positive right went way up from 3 or 4 percent of the cases to 19 percent of the cases, while negative constitutional rulings went up also, to 78 percent of all cases from 35percent in the pre-Saucier period. Given this high likelihood of success even under Hughes's data, it is surprising that state governments, in briefs amicus curiae, have overwhelmingly supported making Saucier optional. See Scott v Harris, 550 US 372 (2007), Brief Amicus Curiae for the States of Illinois, Alabama, Alaska, Arizona, Arkansas, California, Colorado, Georgia, Hawaii, Idaho, Indiana, Massachusetts, Michigan, Mississippi, Montana, New Hampshire, North Dakota, Oklahoma, Oregon, Pennsylvania, Rhode Island, South Carolina, Tennessee, Texas, Utah, Vermont, Virginia, and Wyoming, and The Commonwealth of Puerto Rico, as Amici Curiae in Support of Petitioner.
121. See also Wells, 60 SMU L Rev at 1559-60 (cited in note 54).
122. Thomas Healy argues that the Saucier procedure was designed to benefit civil rights plaintiffs and that is why "the more liberal members of the Court-and perhaps even Kennedy-have embraced the Siegert/Saucier approach." Healy, 83 NC L Rev at 881 (cited in note 12). Healy ignores the fact that two of the more liberal members of the Court, Justices Stevens and Breyer, were among the first who expressed misgivings about mandatory Saucier and were among its more vocal critics, while the more conservative members of the Court were largely silent about the procedure. After Healy wrote, even Justice Ginsburg expressed a willingness to reexamine mandatory Saucier.
123. See Scott, 5 5 0 US at 386 (Ginsburg, J, concurring) ("were this case suitable for resolution on qualified immunity grounds, without reaching the constitutional question, Justice Breyer's discussion would be engaging"). Perhaps the liberal members of the Court recognized that the effect of mandatory Saucier was to deny the existence of rights rather than clearly establish them. This may be one of those areas in which the liberals and conservatives agreed initially on a doctrine due to differing views on how it would work out in the long run. In this case, the conservatives were largely correct.
124. See Leong, 36 Pepperdine L Rev at 692-93 (cited in note 76).
125. See Thomas v Roberts, 323 F3d 950, 954 (11th Cir 2003) (only decisions by U.S. Supreme Court, state supreme court, and Court of Appeals for the Eleventh Circuit can create clearly established rights in the Eleventh Circuit)
126. Pabon v Wright, 459 F3d 241, 255 (2d Cir 2006) ("When neither the Supreme Court nor this court has recognized a right, the law of our sister circuits and the holdings of district courts cannot act to render that right clearly established within the Second Circuit")
127. Ted Sampsell-Jones, Reviving Saucier: Prospective Interpretations of Criminal Laws, 14 Geo Mason U L Rev 725, 752 (2007) ("In general, when adjudicating the existence of 'clearly established law,' courts look only to published in-circuit precedent.").
128. But see Ohio Civil Service Employees Assn v Seiter, 85 8 F2d 1171, 1177 (6th Cir 1988) (suggesting that District Court can create binding precedent for itself). Interestingly, courts look beyond their own circuits when they decide, under Saucier's first step, whether the Constitution was violated.
129. See Vinyard v Wilson, 311 F3d 1340, 1348 n 11 (11th Cir 2002) ("Although we cite and examine other circuits' and district courts' decisions under the first prong of Saucier, we point out that these decisions are immaterial to whether the law was 'clearly established' in this circuit for the second prong of Saucier.").
130. Bunting v Mellen, 541 US 1019, 1023-24 (2004) (Scalia, J, dissenting from denial of certiorari). Justice Scalia noted that in two prior cases the Court had "entertained . . . appeals on collateral issues by parties who won below." Id at 1024. Justice Scalia cites two examples of such of appeals, only one of which is really analogous to allowing an immune defendant to appeal an unfavorable ruling on the constitutional merits. In the first example
131. Deposit Guaranty Nat. Bank v Roper, 445US 326 (1980), the Court allowed plaintiffs to appeal the denial of class certification even after they had received complete relief on the merits of their claims, because class certification might allow them to shift litigation costs to other members of the class. Justice Scalia is correct that the class certification issue is collateral to the merits of the case, but the plaintiffs in Roper had a concrete interest in pursuing class certification, similar to the interest a victorious civil rights plaintiff has in appealing the denial of attorneys' fees.
132. In the second example, Electrical Fittings Corp. v Thomas & Betts Co., 307 US 241 (1939), the Court allowed a victorious defendant to appeal a decision on the validity of a patent. The defendant was sued for patent infringement and the Court held that although the patent was valid, the defendant had not infringed it. The defendant appealed, hoping to establish the invalidity of the patent. The Court of Appeals dismissed the appeal on the ground that the defendant had been victorious in the trial court. The Supreme Court reversed, holding that the interest in amending the decree was sufficient to allow the defendant to seek review. This is very similar to the interest defendants in immunity cases have in attacking an unfavorable decision on the constitutional merits, except that the government employers of the immune individual defendants in constitutional tort cases might be the real parties in interest.
133. See Ehrlich v Town of Glastonbury, 348 F3d 48, 58 (2d Cir 2003)
134. Hatfield-Bermudez v Aldanondo-Rivera, 496 F3d 51, 60 & n 6 (1st Cir 2007).
135. Dirrane v Brookline Police Dept, 315F3 d 65, 69 (1st Cir 2002).
136. Koch v Town of Brattleboro, 287 F3d 162, 166 (2d Cir 2002).
137. Egolf v Witmer, 526 F3d 104, 113 (2008) (Smith concurring).
138. Motley v Parks, 432 F3d 1072, 1078 (2005).
139. See, for example, Siegert v Gilley, 500 US 226 (1991)
140. County of Sacramento v Lewis, 523 US 833 (1998).
141. Siegert, 500 US at 232.
142. See County of Sacramento v Lewis, 523 US at 859 (Stevens, J, concurring in the judgment).
143. See Lewis, 523 US at 842 n 5: [I]f the policy of avoidance were always followed in favor of ruling on qualified immunity whenever there was no clearly settled constitutional rule of primary conduct, standards of official conduct would tend to remain uncertain, to the detriment both of officials and individuals. An immunity determination, with nothing more, provides no clear standard, constitutional or nonconstitutional. In practical terms, escape from uncertainty would require the issue to arise in a suit to enjoin future conduct, in an action against a municipality, or in litigating a suppression motion in a criminal proceeding; in none of these instances would qualified immunity be available to block a determination of law. . . . But these avenues would not necessarily be open, and therefore the better approach is to determine the right before determining whether it was previously established with clarity.
144. State v Callahan, 93 P3d 103 (Ut Ct App 2004).
145. The District Court rejected the argument that principles of issue preclusion applied to preclude the officers from relitigating the validity of the search since the officers were not parties to the prosecution. See Callahan v Millard County, 2006 WL 1409130 *5-6 (D Utah 2006).
146. See generally Joshua M. D. Segal, Note, Rebalancing Fairness and Efficiency: The Offensive Use of Collateral Estoppel in § 1983 Actions, 89 BU L Rev 1305(2009).
147. Several circuits had accepted the consent-once-removed doctrine and, at the time of Callahan's arrest, apparently none had rejected it. See Callahan v Millard County, 2006 WL 1409130 *7-8 (D Utah 2006)
148. (citing United States v Pollard, 215F3d 643, 648 (6th Cir 2000)
149. United States v Bramble, 103 F3d 1475(9th Cir 1996)
150. United States v Akinsanya, 53 F3d 852 (7th Cir 1995)
151. United States v Diaz, 814 F2d 454 (7th Cir 1987)
152. and United States v Paul, 808 F2d 645(7th Cir 1986)). The Tenth Circuit, in Callahan, rejected application of the doctrine to an informant, holding that inviting a non-police officer informant into the home does not constitute consent to a police search.
153. Callahan v Millard County, 494 F3d 891 (10th Cir 2007).
154. This distinction seems consistent with the Supreme Court's decision in Georgia v Randolph, 547 US 103 (2006), which held that when two occupants of a residence are present, with one objecting to a search and one consenting, the consent of one occupant is insufficient to render a warrantless search consistent with the Fourth Amendment's warrant requirement. In Randolph, the Court explained its decision with language that seems inconsistent with allowing an informant's presence to constitute consent to a search by the occupant of a home: "This case invites a straightforward application of the rule that a physically present inhabitant's express refusal of consent to a police search is dispositive as to him, regardless of the consent of the fellow occupant."
155. Randolph, 547 US at 122-23. A Court could approve the consent-once-removed doctrine and distinguish Randolph on the basis that the informant is an agent of the police, and thus the occupant had already consented to an entry by police when the informant was allowed into the home. In my view, this is a weak argument, but it is not beyond the realm of possibility.
156. The District Court opined that the Supreme Court would ultimately reject the consent-once-removed doctrine, finding it to be in tension with Georgia v Randolph, 547 US 103 (2006).
157. See Callahan v Millard County, 2006 WL 1409130 *7-8 (D Utah 2006). The District Court predicted that "if confronted with a case squarely presenting the 'consentonce- removed' doctrine, the Supreme Court might well conclude that the objections of an occupant might trump the further warrantless police entry that occurs from an undercover operative or confidential informant originally receiving consent to enter from that occupant." Id. The Court concluded, however, that with multiple Courts of Appealsadopting the doctrine, the officers were entitled to qualified immunity. The Court of Appeals rejected this reasoning, concluding that the decisions of other circuits could not trump the Tenth Circuit's clearly established rule against nonconsensual warrantless searches.
158. Callahan v Millard County, 494 F3d 891, 899 (10th Cir 2007). However, given changes in membership on the Court since Randolph was decided, it is conceivable that the Court would distinguish that case and approve consent-once-removed.
159. Callahan v Millard County, 494 F3d 891, 899 (10th Cir 2007)
160. citing United States v Paul, 808 F2d 645, 648 (7th Cir 1986).
161. Pearson, 129 S Ct at 822-23
162. citing United States v Diaz, 814 F2d 454, 459 (7th Cir)
163. cert denied, 484 US 857 (1987)
164. United States v Bramble, 103 F3d 1475(9th Cir 1996)
165. United States v Pollard, 215F3d 643, 648-49 (6th Cir)
166. cert denied, 531 US 999 (2000)
167. State v Henry, 133 NJ 104, 627 A2d 125(1993)
168. State v Johnston, 184 Wis 2d 794, 518 NW 2d 759 (1994)
169. United States v Paul, 808 F2d 645, 648 (7th Cir 1986).
170. Anderson v Creighton, 483 US 635, 639-40 (1987).
171. Pearson, 129 S Ct at 818.
172. For example, the Eleventh Circuit has stated that deciding the immunity issue in Eighth Amendment excessive force claims entails deciding the constitutional issue because the constitutional standard is clearly established and no reasonable official could violate it. See Danley v Allen, 540 F3d 1298, 1310 (11th Cir 2008)
173. quoting Johnson v Breeden, 280 F3d 1308, 1321-22 (11th Cir 2002) ("'there is no room for qualified immunity' in Eighth . . . Amendment excessive force cases because they require a subjective element that is 'so extreme' that no reasonable person could believe that his actions were lawful.").
174. Lower courts appear to understand that they now have discretion and do not have to provide reasons for reaching or not reaching the constitutional issue. There is some language that indicates that the lower courts may believe that they still have to reach the constitutional merits and that Pearson only grants discretion over the order in which they reach the issues. See Moldowan v City of Warren, 570 F3d 698, 720 (6th Cir 2009) ("In light of Pearson, then, we still are required to address the same questions in conducting our qualified immunity analysis, but now we are free to consider those questions in whatever order is appropriate in light of the issues before us.").
175. However, other courts appear to realize that if they address immunity first and find all defendants immune, they will not go on to decide the constitutional merits. See Rivera v Reisch, 2009 WL 3713674 (8th Cir 2009) (unpublished) ("Putting aside the question whether Rivera alleged a violation of a constitutional right, see Pearson . . . (courts are permitted to exercise their sound discretion in deciding which prong of qualified immunity analysis should be addressed first in light of circumstances of particular case), we conclude that any constitutional right she possessed to different treatment was not so clearly established that a reasonable person in defendants' position would have known that his actions violated her constitutional right in this case").
176. See Siegert v Gilley, 500 US 226 (1991)
177. County of Sacramento v Lewis, 523 US 833 (1998).
178. The legality of searches based on consent-once-removed has been litigated often in the context of motions to suppress the evidence seized as a result of an allegedly illegal search. In Pearson, the Tenth Circuit noted the following cases which accepted consentonce-removed, involving undercover police officers or private informants. United States v Pollard, 215F3d 643 (6th Cir 2000)
179. United States v Diaz, 814 F2d 454 (7th Cir 1987)
180. United States v Bramble, 103 F3d 1475, 1478 (9th Cir 1996)
181. United States v Paul, 808 F2d 645(7th Cir 1986)
182. United States v Yoon, 398 F3d 802 (6th Cir 2005).
183. See Pearson, 129 S Ct at 896.
184. See Safford Unified School Dist. No. 1 v Redding, 129 S Ct 2633 (2009).
185. Id at 2644 (Stevens, J, concurring in part and dissenting in part).
186. Id at 2645(Ginsburg, J, concurring in part and dissenting in part).
187. Id at 2646 (Thomas, J, concurring in the judgment and dissenting in part).
188. 112Wells, 60 SMU L Rev at 1565 (cited in note 54) (discussing Justice Breyer's opinion in Scott v Harris).
189. Most famously, Justice Scalia has developed a narrow standing doctrine in line with his views on separation of powers and the unitary executive theory. See Cass R. Sunstein, What's Standing After Lujan? Of Citizen Suits, Injuries, and Article III, 91 Mich L Rev 163, 215-20 (1992) (discussing Justice Scalia's conception of standing).
190. See Persky, 37 Conn L Rev (cited in note 54).
191. For a table on the number of authorized District Judgeships, see http://www.uscourts.gov/history/tableh.pdf.
192. See cases cited in note 9 (decisions of Supreme Court and Court of Appeals establish clear law for circuits).
193. These include cases in which guidance over permissible actions is needed, Pearson v Ramos, 237 F3d 881, 884 (7th Cir 2001) ("The issue on the merits is important and should be resolved without further delay."); cases in which the issue is unlikely to arise in a context other than a constitutional tort action for damages; cases in which the questions of whether the right is clearly established and whether there is a constitutional violation are bound up so that deciding both is either necessary or relatively costless; and cases that may not otherwise arise in a federal court.
194. See also John M. M. Graebe, Mirabile Dictum!: The Case for "Unnecessary" Constitutional Rulings in Civil Rights Damages Actions, 74 Notre Dame L Rev 403, 407 (1999) ("[M]y primary point is that, because novel constitutional claims brought in civil rights damages actions often involve the use of new technologies and procedures by executive actors who are not constitutional experts and who therefore are not themselves well-equipped to judge the constitutionality of their conduct, the merits rulings I advocate have important notice-giving aspects that should not be overlooked.").