Amicus Curiae Brief — Alexander L. Baxter, Petitioner v. Brad Bracey, et al.

Supreme Court briefMay 31, 2019

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No. 18-1287

In the Supreme Court of the United States

ALEXANDER L. BAXTER,

Petitioner,

BRAD BRACEY AND SPENCER R. HARRIS,

Respondents.

On Petition for a Writ of Certiorari to

the United States Court of Appeals

for the Sixth Circuit

BRIEF OF LEGAL SCHOLARS AS

AMICI CURIAE IN SUPPORT OF PETITIONER

ANDREW J. PINCUS

Counsel of Record

Mayer Brown LLP

1999 K Street, NW

Washington, DC 20006

(202) 263-3000

apincus@mayerbrown.com

Counsel for Amici Curiae

TABLE OF CONTENTS

Page

TABLE OF AUTHORITIES....................................... ii

INTEREST OF THE AMICI CURIAE .......................1

INTRODUCTION AND SUMMARY OF

ARGUMENT ...............................................................2

ARGUMENT ...............................................................5

The Court Should Reconsider The Standard

For Qualified Immunity.........................................5

A. The Qualified Immunity Rule Has No

Basis In Congress’s Enactment Of

Section 1983. .....................................................6

B. Policy Considerations Do Not Justify

The Qualified Immunity Standard. ............... 11

C. The Qualified Immunity Standard Is

Eroding Constitutional Protections

Against Abuse Of Government Power. .......... 15

D. Stare Decisis Principles Permit

Reconsideration Of The Qualified

Immunity Standard. ....................................... 19

E. Scholars Have Suggested A Variety Of

Approaches To Qualified Immunity

That Could Be Considered By This

Court. .............................................................. 20

CONCLUSION .......................................................... 24

TABLE OF AUTHORITIES

Page(s)

Cases

A.M. v. Holmes,

830 F.3d 1123 (10th Cir. 2016), cert.

denied, 137 S. Ct. 2151 (2017) ............................. 20

Anderson v. Creighton,

483 U.S. 635 (1987) ................................................ 2

Ashcroft v. Iqbal,

556 U.S. 662 (2009) .............................................. 14

Ashcroft v. al-Kidd,

563 U.S. 731 (2011) ................................................ 3

Bivens v. Six Unknown Named Agents of

Fed. Bureau of Narcotics,

403 U.S. 388 (1971) .............................................. 13

Board of Cty. Comm’rs of Bryan Cty. v. Brown,

520 U.S. 397 (1997) .............................................. 13

Buckley v. Fitzsimmons,

509 U.S. 259 (1993) ................................................ 6

California v. Acevedo,

500 U.S. 565 (1991) .............................................. 17

Crawford-El v. Britton,

523 U.S. 574 (1998) .............................................. 10

Entick v. Carrington (1765)

95 Eng. Rep. 807 .................................................. 17

Filarsky v. Delia,

566 U.S. 377 (2012) ................................................ 8

Forrester v. White,

484 U.S. 219 (1988) .............................................. 11

Harlow v. Fitzgerald,

457 U.S. 800 (1982) ...................................... 2, 3, 11

iii

Cases—continued

Hope v. Pelzer,

536 U.S. 730 (2002) .......................................... 3, 10

Kimble v. Marvel Entm’t, LLC,

135 S. Ct. 2401 (2015) .......................................... 19

Kisela v. Hughes,

138 S. Ct. 1148 (2018) (per curiam) .................. 3, 5

Little v. Barreme,

6 U.S. (2 Cranch) 170 (1804) ............................. 6, 7

Marianna Flora,

24 U.S. 1 (1825) ...................................................... 9

Monell v. Department of Soc. Servs.,

436 U.S. 658 (1978) .............................................. 19

Monroe v. Pape,

365 U.S. 167 (1961) ........................................ 10, 19

Mullenix v. Luna,

136 S. Ct. 305 (2015) (per curiam) .................. 3, 16

Myers v. Anderson,

238 U.S. 368 (1915) ................................................ 7

Osborn v. Haley,

549 U.S. 225 (2007) .............................................. 21

Owen v. City of Indep.,

445 U.S. 622 (1980) .............................................. 14

Pearson v. Callahan,

555 U.S. 223 (2009) .............................................. 16

Pierson v. Ray,

386 U.S. 547 (1967) ........................................ 2, 6, 9

Richardson v. McKnight,

521 U.S. 399 (1997) .............................................. 14

State Oil Co. v. Khan,

522 U.S. 3 (1997) .............................................. 4, 19

Cases—continued

Tracy v. Swartwout,

35 U.S. 80 (1836) .................................................. 12

United States v. Chadwick,

433 U.S. 1 (1977) .................................................. 17

Wasson v. Mitchell,

18 Iowa 153 (1864) ............................................. 8, 9

Westfall v. Erwin,

484 U.S. 292 (1988) .............................................. 21

Wilkes v. Wood (1763)

98 Eng. Rep. 489 .................................................. 17

Wyatt v. Cole,

504 U.S. 158 (1992) .......................................... 5, 22

Ziglar v. Abbasi,

137 S. Ct. 1843 (2017) ...................................... 5, 21

Statutes

18 U.S.C. § 242 .......................................................... 10

42 U.S.C. § 1983 ................................................ passim

Federal Employees Liability Reform and

Tort Compensation Act, Pub. L. No. 100694, 102 Stat. 4563 (1988) ................................... 21

Other Authorities

5 The Complete Anti-Federalist (Herbert J.

Storing ed., 1981) ................................................. 18

Akhil Reed Amar, The Fourth Amendment,

Boston, and the Writs of Assistance, 30

Suffolk U. L. Rev. (1996)...................................... 17

Akhil Reed Amar, Fourth Amendment First

Principles, 107 Harv. L. Rev. 757 (1994) ...... 18, 19

Other Authorities—continued

Akhil Reed Amar, Of Sovereignty and

Federalism, 96 Yale L.J. 1425 (1987) .................... 7

William Baude, Is Qualified Immunity

Unlawful?, 106 Cal. L. Rev. 45 (2018) ........ passim

William Baude & James Y. Stern, The Positive Law Model of the Fourth Amendment,

129 Harv. L. Rev. 1821 (2016) ............................. 19

Karen M. Blum, Qualified Immunity: Time

to Change the Message, 93 Notre Dame L.

Rev. 1887 (2018) ............................................. 16, 22

Thomas Y. Davies, Recovering the Original

Fourth Amendment, 98 Mich. L. Rev. 547

(1999) ...................................................................... 9

David E. Engdahl, Immunity and

Accountability for Positive Governmental

Wrongs, 44 U. Colo. L. Rev. 1 (1972) ................. 6, 7

Essays by a Farmer (I) (Feb. 15, 1788)..................... 18

John C. Jeffries, Jr., The Liability Rule for

Constitutional Torts, 99 Va. L. Rev. 207

(2013) ...................................................................... 6

James E. Pfander, Alexander A. Reinert &

Joanna C. Schwartz, The Myth of Personal Liability: Who Pays When Bivens

Claims Succeed (forthcoming 2020) .............. 13, 14

James E. Pfander & Jonathan L. Hunt,

Public Wrongs and Private Bills:

Indemnification and Government

Accountability in the Early Republic, 85

N.Y.U. L. Rev. 1862 (2010) .............................. 6, 12

Joanna C. Schwartz, How Qualified

Immunity Fails, 127 Yale L.J. 2 (2017) .............. 15

Other Authorities—continued

Joanna C. Schwartz, Police Indemnification,

89 N.Y.U. L. Rev. 885 (2014) ......................... 12, 13

Joanna C. Schwartz, The Case Against

Qualified Immunity, 93 Notre Dame L.

Rev. 1797 (2018) ....................................... 15, 16, 22

David M. Shapiro & Charles Hogle, The

Horror Chamber: Unqualified Impunity

in Prison, 93 Notre Dame L. Rev. 2021

(2018) .................................................................... 14

Michael L. Wells, Qualified Immunity After

Ziglar v. Abbasi: The Case for a Categorical Approach, 68 Am. U. L. Rev. 379

(2018) .................................................................... 14

INTEREST OF THE AMICI CURIAE

Amici curiae, listed below, are scholars at universities across the United States with expertise in the

law of qualified immunity. They submit this brief to

demonstrate that in light of the legal and practical

justifications advanced in support of qualified immunity and the current state of this Court’s qualified immunity jurisprudence, the Court should reconsider

the standards governing qualified immunity.1

Amici curiae are:2

William Baude, Professor of Law, The University

of Chicago Law School

Karen M. Blum, Professor Emerita of Law, Suffolk University Law School

Alan Chen, Professor of Law, University of Denver, Strum College of Law

Barry Friedman, Jacob D. Fuchsberg Professor of

Law, New York University School of Law

Pursuant to Rule 37.6, amici affirm that no counsel for a party

authored this brief in whole or in part and that no person other

than amici and their counsel made a monetary contribution to

its preparation or submission. Counsel of record for all parties

received notice at least ten days prior to the due date of the intention of amici to file this brief. The parties’ consents to the filing of this brief have been filed with the Clerk’s office.

Titles and institutions are listed for identification purposes

only. The listing of these affiliations does not imply any endorsement by those institutions of the views expressed in this brief.

John F. Preis, Professor of Law and Associate

Dean of Academic Affairs, University of Richmond

School of Law

Joanna C. Schwartz, Professor of Law and Vice

Dean for Faculty Development, UCLA School of

Law

Fred O. Smith Jr., Associate Professor of Law,

Emory University School of Law

INTRODUCTION AND

SUMMARY OF ARGUMENT

Protecting Americans against abuses of government power was a critical concern of the Founding

generation—reflected in the Bill of Rights. In the aftermath of the Civil War, and the adoption of additional constitutional amendments, Congress enacted

42 U.S.C. § 1983 to provide a remedy to vindicate

those constitutional protections.

Nearly a century later, this Court recognized a

qualified immunity defense to Section 1983 damages

claims, holding that Congress’s creation of the cause

of action should be construed to incorporate the goodfaith defense that, the Court stated, was then available to government officials at common law. See

Pierson v. Ray, 386 U.S. 547, 557 (1967).

Subsequently, in Harlow v. Fitzgerald, 457 U.S.

800 (1982), the Court “replac[ed] the inquiry into subjective malice so frequently required at common law

with an objective inquiry into the legal reasonableness of the official action.” Anderson v. Creighton, 483

U.S. 635, 645 (1987). Harlow held government officials immune “insofar as their conduct does not violate

clearly established statutory or constitutional rights

of which a reasonable person would have known.” 457

U.S. at 818.

In the thirty-seven years since Harlow, the Court

has provided shifting guidance regarding the “clearly

established law” standard. Hope v. Pelzer rejected the

lower court’s holding that the plaintiff must identify

“cases that are ‘materially similar’” to the case at bar

to defeat qualified immunity, instead focusing on

whether pre-existing law provided a “fair and clear

warning” that the conduct at issue was unlawful, even

if arising under “novel factual circumstances.” 536

U.S. 730, 735-736, 741 (2002). More recently, however, the Court held in Ashcroft v. al-Kidd that plaintiffs must identify “existing precedent” that places the

legal question “beyond debate” to “every” reasonable

officer. 563 U.S. 731, 741 (2011); see also Kisela v.

Hughes, 138 S. Ct. 1148, 1152 (2018) (per curiam);

Mullenix v. Luna, 136 S. Ct. 305, 308 (2015) (per curiam).

Amici submit that—for multiple reasons—the

time has come to reconsider this qualified immunity

standard.

Recent scholarship demonstrates that the foundation of the immunity doctrine—the assertion that government officials enjoyed protection from damages liability at common law—is incorrect. No such immunity existed. Today’s immunity rule compounds that initial error, moreover, because it is far broader than the

one the Court (mistakenly) attributed to the common

law.

Studies also have determined that the policy justification for the current rule simply is not true. The

overwhelming majority of government officials are ei-

ther indemnified or protected by insurance, and immunity therefore is not required to ensure that they

properly perform their duties. And far from reducing

litigation costs, the complex procedural labyrinth constructed by immunity doctrine actually increases both

the length and cost of Section 1983 lawsuits.

Most importantly, today’s immunity rule has the

inevitable real-world effect of diminishing constitutional protections. And in no context is that effect

more pronounced, and more directly contrary to the

intent of the Constitution’s Framers, than with respect to Fourth Amendment guarantees such as those

at issue in this case.

Many lower courts today dismiss Section 1983

claims on immunity grounds without first determining whether the plaintiff has alleged a violation of his

constitutional rights. That significantly hampers development of the law, particularly in cases involving

new technologies and new fact patterns. And it means

that future constitutional violations will go unremedied for want of a prior precedent declaring the conduct unconstitutional.

Importantly, stare decisis principles do not bar reconsideration of the qualified immunity standard. Although this Court has stated that stare decisis generally has enhanced force with respect to statutory interpretation precedents, it also has held that this rule

does not apply where Congress has left it to the courts

to “‘give shape to the statute’s broad mandate by

drawing on common-law tradition.’” State Oil Co. v.

Khan, 522 U.S. 3, 20-21 (1997). The Court’s qualified

immunity doctrine rests on just such an exercise of judicial authority.

Finally, scholars have identified a number of alternative immunity rules that would ameliorate the

adverse effects of the current standard. And Congress

could of course act to address the issue, as it has in the

past in response to this Court’s resolution of an immunity issue.

ARGUMENT

The Court Should Reconsider The Standard

For Qualified Immunity.

The current standard governing government officials’ immunity from damages liability in Section 1983

actions should be reconsidered. It cannot be justified

on the theory that Congress incorporated pre-existing

immunity doctrine in enacting Section 1983 or by reference to the policy considerations invoked by the

Court. And the immunity rule significantly diminishes the Constitution’s protections against abuse of

government authority.

Indeed, several current and former Members of

this Court have questioned the current qualified immunity standard. See Ziglar v. Abbasi, 137 S. Ct.

1843, 1871-1872 (2017) (Thomas, J., concurring in

part and concurring in the judgment); Wyatt v. Cole,

504 U.S. 158, 171-172 (1992) (Kennedy, J., joined by

Scalia, J., concurring); see also Kisela v. Hughes, 138

S. Ct. 1148, 1162 (Sotomayor, J., joined by Ginsburg,

J., dissenting).

Justice Thomas stated that “[i]n an appropriate

case,” the Court “should reconsider our qualified immunity jurisprudence.” Ziglar, 137 S. Ct. at 1872. The

Court should grant the petition to address this important issue.

A. The Qualified Immunity Rule Has No Basis In Congress’s Enactment Of Section

1983.

The Court has justified its immunity decisions

principally by reference to the common-law background against which Congress enacted Section 1983:

“Certain immunities were so well established in 1871

* * * that ‘we presume that Congress would have specifically so provided had it wished to abolish’ them.”

Buckley v. Fitzsimmons, 509 U.S. 259, 268 (1993)

(quoting Pierson v. Ray, 386 U.S. 547, 555 (1967)).

But recent scholarship has demonstrated that

“there was no well-established, good-faith defense in

suits about constitutional violations when Section

1983 was enacted, nor in Section 1983 suits early after

its enactment.” William Baude, Is Qualified Immunity

Unlawful?, 106 Cal. L. Rev. 45, 55 (2018); see also

John C. Jeffries, Jr., The Liability Rule for Constitutional Torts, 99 Va. L. Rev. 207 (2013); James E.

Pfander & Jonathan L. Hunt, Public Wrongs and Private Bills: Indemnification and Government Accountability in the Early Republic, 85 N.Y.U. L. Rev. 1862,

1863-1887 (2010); David E. Engdahl, Immunity and

Accountability for Positive Governmental Wrongs, 44

U. Colo. L. Rev. 1, 14-21 (1972).

Chief Justice John Marshall addressed the question of official liability in Little v. Barreme, 6 U.S. (2

Cranch) 170 (1804). The case involved a suit in trespass for damages against a naval captain who had

seized a Danish ship. The Court held that the relevant

federal law authorized only seizure of ships headed to

a French port, but Captain Little had acted in reliance

on orders from the Secretary of the Navy to seize ships

departing from—as well as sailing to—French ports.

The Court asked: “Is the officer who obeys [such

orders] liable for damages sustained by this misconstruction of the act, or will his orders excuse him? If

his instructions afford him no protection, then the law

must take its course, and he must pay such damages

as are legally awarded against him.” 6 U.S. at 178.

Even though Captain Little had acted “with pure intention” in reliance on the orders (id. at 179), he nonetheless was liable for damages.

Indeed, Chief Justice Marshall, in his opinion for

the Court, “confess[ed]” that “the first bias of [his]

mind was very strong in favor of the opinion that

though the instructions of the executive could not give

a right, they might yet excuse from damages,” but he

was “convinced that [he] was mistaken” and concluded that good-faith reliance on the orders could not

prevent the imposition of damages liability. 6 U.S. at

179. That “personal aside” shows “the deep roots of”

the liability principle. Baude, 106 Cal. L. Rev. at 56.

Little is not at all unique. Damages actions

against executive officials were a staple of litigation—

and damages were imposed when the official acted unlawfully. Engdahl, 44 U. Colo. L. Rev. at 16-21 (collecting cases); Akhil Reed Amar, Of Sovereignty and

Federalism, 96 Yale L.J. 1425, 1506 (1987).

The general background principle of strict liability

for executive officials’ illegal and unconstitutional acts

remained in force when Section 1983 was enacted in

1871.

Myers v. Anderson, 238 U.S. 368 (1915), involved

a damages claim against government officials who

had refused to register the plaintiffs to vote because

state law barred registration of African Americans.

The defendants argued that the damages judgment

should be set aside because—among other reasons—

they had acted with the good-faith belief that the statute was constitutional. This Court noted that argument, but upheld the judgment against the state officials. See Baude, 106 Cal. L. Rev. at 57-58.

Common-law tort principles similarly fail to support a broadly applicable official immunity rule. “Even

to the extent that [tort] cases could be imported to the

cause of action under Section 1983, they generally do

not describe a freestanding common-law defense, like

state sovereign immunity. Instead, those cases mostly

describe the individual elements of particular common-law torts.” Baude, 106 Cal. L. Rev. at 58-59.

For example, Wasson v. Mitchell, 18 Iowa 153

(1864)—a case cited by this Court in addressing a

qualified immunity question in Filarsky v. Delia, 566

U.S. 377, 383 (2012)—was a suit against a board of

supervisors for approving the bond provided by a constable that subsequently was found to contain forged

signatures of the sureties. The Iowa court recognized

a rule of immunity limited to that particular factual

context, analogizing the board’s action to a judicial

function:

If, in the fair exercise of their judgment, they

are of opinion that the sureties on a bond are

solvent, they are not civilly liable if they

should be mistaken; but would be thus liable

if they approved a bond whose sureties were

known to them to be worthless. * * * [W]e believe this to be the true rule, viz., exempting

the board of supervisors, in the approval of

bonds, from honest mistake and errors of judgment, whether of law or fact, but holding them

at the same time personally liable for negligence, carelessness and official misconduct

such as are alleged in the petition.

18 Iowa at 156-157.

In other contexts, courts modified substantive

rules of liability to circumscribe liability. Thus, in Marianna Flora, 24 U.S. 1, 52 (1825), the Court held that

an official’s decision to retain a captured ship for adjudication would not subject him to liability where “he

acted with honourable motives, and from a sense of

duty to his government” and not “with gross negligence or malignity, [or] a wanton abuse of power.” A

similar process led courts to hold that law enforcement officers could not be held liable in tort for an arrest as long as the officer acted with probable cause—

even if the arrestee was subsequently exonerated. See

Thomas Y. Davies, Recovering the Original Fourth

Amendment, 98 Mich. L. Rev. 547, 634-639 (1999).3

But there was no immunity rule applicable across

the board to all government officials and no rule that

immunized officials who acted in bad faith. Baude,

106 Cal. L. Rev. at 60-61. Tort precedents therefore

cannot justify today’s immunity rule, which turns

solely on objective factors and therefore can protect officials acting in bad faith, and which applies to all

claims against all officials, without regard to whether

the tort analog of the constitutional violation incorporated any sort of immunity defense.

Two other justifications for today’s immunity rule

are equally deficient.

This Court cited that principle in Pierson v. Ray, 386 U.S. 547,

555 (1967)—but relied on twentieth century authorities. See

ibid. (referring to “the prevailing view in this country”).

Justice Scalia, in his dissenting opinion in Crawford-El v. Britton, 523 U.S. 574 (1998), recognized that

the Court’s qualified immunity rule could not be justified by reference to principles of non-liability at the

time of Section 1983’s enactment. See id. at 611-612.

But he concluded that the rule was nonetheless appropriate because Section 1983 had been interpreted erroneously to reach acts not authorized by state law (in

Monroe v. Pape, 365 U.S. 167 (1961)), and the “essentially legislative” immunity rule cabined what he

viewed as Monroe’s overbroad interpretation of the

law. 523 U.S. at 611-612 (Scalia, J., dissenting).

But Monroe was correct. The statutory phrase

“under color of law” is best understood as a legal term

of art encompassing both legal and illegal acts. See

Baude, 106 Cal. L. Rev. at 64-65 & nn.110-114. And

even if Monroe were wrong, the qualified immunity

rule would not correct its supposed error. Under Justice Scalia’s critique of Monroe, federal immunity is

justified in cases where officers are not immunized by

state law; there should generally be either state or

federal liability for an illegal act. Instead, the current

doctrine tracks state law closely—immunity is most

easily denied, in other words, when an official is already liable under state law. Today’s doctrine is thus

the mirror image of what Justice Scalia’s theory would

dictate. See id. at 68.

The final justification for today’s qualified immunity standard is the Court’s observation in Hope v.

Pelzer that Section 1983 defendants “have the same

right to fair notice” as criminal defendants charged

under 18 U.S.C. § 242, which criminalizes willful violations of constitutional rights. See 536 U.S. at 739.

But principles of “fair notice” and lenity do not apply to ordinary civil causes of action. And the exceptions to those rules—such as where the same statute

has both civil and criminal application or where the

civil statute imposes especially harsh consequences—

are inapplicable here. Baude, 106 Cal. L. Rev. at 6974.

In sum, the current qualified immunity rule

simply cannot be justified by reference to the intent of

the Congress that enacted Section 1983 or any principle of statutory interpretation.

B. Policy Considerations Do Not Justify

The Qualified Immunity Standard.

The Court has frequently cited policy considerations in explaining the need for its qualified immunity

rule. In particular, it has referenced the concern that

government officials would not properly exercise their

responsibilities for fear that they would be subject to

damages liability, and that involvement in litigation

would distract them from their official duties: “[P]ublic officers require this protection to shield them from

undue interference with their duties and from potentially disabling threats of liability.” Harlow, 457 U.S.

at 806; see also Forrester v. White, 484 U.S. 219, 223

(1988) (explaining that the immunity rule ensures

that “the threat of liability” does not create “perverse

incentives that operate to inhibit officials in the

proper performance of their duties”).

The threat of damages liability was not a concern

in the early nineteenth century because government

employees were indemnified. As this Court explained

in 1836, “[s]ome personal inconvenience may be experienced by an officer who shall be held responsible in

damages for illegal acts done under instructions of a

superior; but, as the government in such cases is

bound to indemnify the officer, there can be no eventual hardship.” Tracy v. Swartwout, 35 U.S. 80, 98-99

(1836).

Thus, a comprehensive study of the indemnification process at the federal level found that “nineteenth-century legislators viewed reimbursement of a

well-founded claim more as a matter of right than as

a matter of legislative grace.” Pfander & Hart, 85

N.Y.U. L. Rev. at 1867. Accordingly, “[c]ourts were to

decide whether the conduct in litigation was lawful

and award damages against the officer if it was not”;

Congress was “to decide whether the officer had acted

for the government within the scope of his agency, in

good faith, and in circumstances that suggested the

government should bear responsibility for the loss.”

Id. at 1868. Courts “simply addressed the issue of legality and left Congress in charge of calibrating the

incentives of government officials”—which Congress

did by “offer[ing] government employees a mix of salary, fees, and forfeitures to ward off bribery and ensure zealous enforcement” and “by indemnifying from

any liability only those government officials who acted

in good faith.” Id. at 1870.

Indemnification is similarly widespread today. A

comprehensive study of indemnification in the context

of claims against police officers over a five-year period

(from 2006 to 2011) found that law enforcement officers “almost never contributed to settlements and judgments in police misconduct lawsuits during the study

period.” Joanna C. Schwartz, Police Indemnification,

89 N.Y.U. L. Rev. 885, 912 (2014). In particular:



“Approximately 9225 civil rights cases were

resolved with payments to plaintiffs between

2006 and 2011 in the forty-four largest jurisdictions in [the] study. Officers financially

contributed to settlements or judgments in approximately .41% of those cases.”



“Indemnification practices in the thirty-seven

small and mid-sized jurisdictions in [the]

study are consistent with practices in the

larger departments. None of the 8141 officers

employed by these thirty-seven jurisdictions

contributed to a settlement or judgment in

any type of civil claim resolved from 2006 to

2011.”



Among the few officers who made payments,

the median amount was $2,250 and no individual paid more than $25,000.

Id. at 912, 915, 939.

Law enforcement officers are not unique. As Justice Breyer recognized, many states have statutes that

authorize indemnification of state and local officials

from damages for Section 1983 actions. See Board of

Cty. Comm’rs of Bryan Cty. v. Brown, 520 U.S. 397,

436 (1997) (Breyer, J., dissenting). Federal agencies

have followed suit. Between 2007 and 2017, employees of the Federal Bureau of Prisons and their insurers paid only 0.32% of the entire amount paid to plaintiffs who brought claims against the employees pursuant to Bivens v. Six Unknown Named Agents of Federal Bureau of Narcotics, 403 U.S. 388 (1971). See

James E. Pfander, Alexander A. Reinert & Joanna C.

Schwartz, The Myth of Personal Liability: Who Pays

When Bivens Claims Succeed, at 5-6 (forthcoming

2020), https://papers.ssrn.com/sol3/papers.-cfm?abstract_id=3343800. In total, “the federal government

effectively held their officers harmless in over 95% of

the successful cases brought against them, and paid

well over 99% of the compensation received by plaintiffs in these cases.” Id. at 6. That means the current

standard imposes significant costs on plaintiffs, costs

that could discourage the filing of meritorious claims,

without providing benefits.

There is accordingly every reason to believe that

indemnification is the rule, not the exception, for public officials of all kinds. See Michael L. Wells, Qualified Immunity After Ziglar v. Abbasi: The Case for a

Categorical Approach, 68 Am. U. L. Rev. 379, 404 &

n.145, 406 (2018) (collecting studies on indemnification of public officials and “suspect[ing]” that findings

specific to police officers “are valid across the whole

field of constitutional tort litigation”); David M.

Shapiro & Charles Hogle, The Horror Chamber: Unqualified Impunity in Prison, 93 Notre Dame L. Rev.

2021, 2058-2059 (2018) (stating that “there is reason

to believe that personal liability is just as mythical in

prison cases as it is in police cases”).

The Court has recognized that employee indemnification “reduces the employment-discouraging fear of

unwarranted liability.” Richardson v. McKnight, 521

U.S. 399, 411 (1997). There is little cause for concern

about state officials’ discretion and ardor in the field

“when the damages award comes not from the official’s pocket, but from the public treasury.” Owen v.

City of Indep., 445 U.S. 622, 654 (1980). Indemnification therefore eliminates this justification for an immunity defense.

A second policy justification is the concern that

the burdens associated with defending oneself in litigation will distract government officials from their duties. See Ashcroft v. Iqbal, 556 U.S. 662, 685 (2009)

(describing “basic thrust” of qualified immunity as

freeing officials from “the concerns of litigation,” including “‘disruptive’” discovery).

But the complex qualified immunity standard

makes lawsuits more burdensome by creating multiple pre-trial proceedings in which the defense may be

raised—as well as the possibility of multiple pre-trial

appeals. Perhaps these costs would be merited if qualified immunity regularly achieved its intended goal of

dismissing insubstantial cases before discovery or

trial. But one study of almost 1,200 cases found that

only 8.6% of qualified immunity motions resulted in

dismissal. In the other 91.4% of cases, there were increased litigation costs without any benefit to the defendant. Joanna C. Schwartz, How Qualified Immunity Fails, 127 Yale L.J. 2, 60 (2017).

Finally, there is substantial reason to doubt that

anyone is deterred from becoming a public official, or

from exercising their duties properly, because of the

threat of litigation. Studies of law enforcement officers have shown that the threat of a lawsuit does not

influence the way they perform in their jobs. See

Schwartz, 93 Notre Dame L. Rev. at 1811-1813.

Thus, the policy considerations invoked by the

Court do not justify the broad qualified immunity

rule.

C. The Qualified Immunity Standard Is

Eroding

Constitutional

Protections

Against Abuse Of Government Power.

The practical effect of the qualified immunity rule

is to erode critical constitutional protections.

First, many lower courts today dismiss Section

1983 claims on immunity grounds without first determining whether the plaintiff has alleged a violation of

his constitutional rights, as permitted by Pearson v.

Callahan, 555 U.S. 223, 227 (2009). See Mullenix v.

Luna, 136 S. Ct. 305, 308 (2015) (per curiam); Karen

M. Blum, Qualified Immunity: Time to Change the

Message, 93 Notre Dame L. Rev. 1887, 1893 & n.36,

1896 & n.57 (2018).

That approach hampers development of the law,

particularly in cases involving new technologies and

new fact patterns. And it means that subsequent constitutional violations cannot be remedied due to the

absence of a prior precedent declaring the conduct unconstitutional. Blum, 93 Notre Dame L. Rev. at 19021903; Joanna C. Schwartz, The Case Against Qualified Immunity, 93 Notre Dame L. Rev. 1797, 18171818 (2018).

Second, this effect is particularly pronounced with

respect to the protections provided by the Fourth

Amendment.

By their nature, Fourth Amendment claims are

fact-specific: whether an officer possessed probable

cause; whether facts constituted exigent circumstances; or whether an officer used excessive force.

When courts do not address whether particular allegations, or facts adduced at summary judgment, constitute a Fourth Amendment violation—and instead

simply hold that there was no relevant “clearly established law”—that means there is no addition to the

body of law circumscribing unlawful conduct.

Third, there are particular reasons to reconsider

the qualified immunity standard as it applies to

Fourth Amendment claims.

The Fourth Amendment “grew in large measure

out of the colonists’ experience with the writs of assis-

tance and their memories of the general warrants formerly in use in England” (United States v. Chadwick,

433 U.S. 1, 7-8 (1977), abrogated by California v.

Acevedo, 500 U.S. 565 (1991))—and that history is

highly relevant in interpreting the Amendment and

configuring the remedies available when Fourth

Amendment rights are violated.

The Founding generation’s aversion to general

warrants was rooted in the celebrated Wilkes and Entick cases,4 described by one scholar as “the most famous colonial-era cases in all America—the O.J.

Simpson and Rodney King cases of their day.” Akhil

Reed Amar, The Fourth Amendment, Boston, and the

Writs of Assistance, 30 Suffolk U. L. Rev. 53, 65 (1996).

In these tort actions seeking damages for trespass for

officers acting pursuant to general warrants, the English courts held that the warrants did not provide a

defense against liability.

The Framers of the Fourth Amendment therefore

anticipated that damages actions would be the means

by which the Amendment was enforced. Indeed, the

Anti-Federalists who agitated for an express amendment to the Constitution protecting against general

warrants stated that damages awards by juries would

be the mechanism by which that protection would be

enforced:

[S]uppose for instance, that an officer of the

United States should force the house, the asylum of a citizen, by virtue of a general warrant, I would ask, are general warrants illegal

by the [C]onstitution of the United States?

* * * [N]o remedy has yet been found equal to

Wilkes v. Wood (1763) 98 Eng. Rep. 489; Entick v. Carrington

(1765) 95 Eng. Rep. 807.

the task of deterring and curbing the insolence of office, but a jury—[i]t has become an

invariable maxim of English juries, to give ruinous damages whenever an officer had deviated from the rigid letter of the law, or been

guilty of any unnecessary act of insolence or

oppression. * * * [By contrast,] an American

judge, who will be judge and jury too[,] [will

probably] spare the public purse, if not favour

a brother officer.

Essays by a Farmer (I) (Feb. 15, 1788), reprinted in 5

The Complete Anti-Federalist 14 (Herbert J. Storing

ed., 1981); see also Akhil Reed Amar, Fourth Amendment First Principles, 107 Harv. L. Rev. 757, 777

(1994) (“Notes from a speech delivered by Marylander

Samuel Chase suggest that the future Justice likewise

saw juries and warrants as linked and stressed the

need for civil juries in trespass suits against government ‘officers.’”) (citing Notes of Samuel Chase (IIB),

reprinted in 5 The Complete Anti-Federalist 82 (Herbert J. Storing ed., 1981))).

That is precisely how the Amendment was enforced:

[A]ny official who searched or seized could be

sued by the citizen target in an ordinary trespass suit—with both parties represented at

trial and a jury deciding between the government and the citizen. If the jury deemed the

search or seizure unreasonable—and reasonableness was a classic jury question—the citizen plaintiff would win and the official would

be obliged to pay (often heavy) damages. Any

federal defense that the official might try to

claim would collapse, trumped by the finding

that the federal action was unreasonable, and

thus unconstitutional under the Fourth

Amendment, and thus no defense at all.

Akhil Reed Amar, 107 Harv. L. Rev. at 774; see also

William Baude & James Y. Stern, The Positive Law

Model of the Fourth Amendment, 129 Harv. L. Rev.

1821, 1837-1841 (2016).

D. Stare Decisis Principles Permit Reconsideration Of The Qualified Immunity

Standard.

Ordinarily, the Court has said, “stare decisis carries enhanced force when a decision * * * interprets a

statute.” Kimble v. Marvel Entm’t, LLC, 135 S. Ct.

2401, 2409 (2015). But that rule need not apply with

respect to the Harlow immunity standard for several

reasons.

To begin with, Harlow itself overturned a settled

precedent—the qualified immunity rule set forth in

Pierson and reaffirmed in multiple decisions, which itself overturned earlier precedents. And Monell v. Department of Social Services, 436 U.S. 658 (1978), overruled the holding of Monroe v. Pape, 365 U.S. 167

(1961), regarding the Section 1983 liability of municipalities. That significantly reduces the role of stare

decisis in this context.

In addition, the Court has stated that the statutory stare decisis rule does not apply if “Congress ‘expected the courts to give shape to the statute’s broad

mandate by drawing on common-law tradition.’” State

Oil Co. v. Khan, 522 U.S. 3, 20-21 (1997). The Court

has “reconsidered its decisions construing the Sherman Act when the theoretical underpinnings of those

decisions are called into serious question.” Id. at 21.

Just as the Court has interpreted the Sherman Act to

delegate to the courts the authority to use the methods of the common law to shape the Act’s prohibition,

so too has it construed Section 1983 to delegate to the

courts the task of shaping the contours of Section

1983’s remedial scheme. Indeed, Harlow expressly did

just that—significantly revising the qualified immunity standard prescribed in Pierson and its progeny

based on the Court’s perception of the relevant policy

considerations.

While a full discussion of stare decisis should

await merits briefing, it is clear that stare decisis is

not a barrier to reconsideration of the qualified immunity standard if the theoretical underpinnings of

those decisions are called into serious question.

E. Scholars Have Suggested A Variety Of

Approaches To Qualified Immunity That

Could Be Considered By This Court.

Recent years have seen a large quantity of empirical analysis and other scholarship relating to qualified immunity doctrine. That body of work provides

the Court with a variety of possible approaches to the

immunity question.

The Court could more clearly delineate the

“clearly established” requirement, explaining that a

reasonable officer would understand that what he is

doing violates a right when the relevant decisions all

point in that direction, even if there is no ruling directly on point. See A.M. v. Holmes, 830 F.3d 1123,

1170 (10th Cir. 2016) (Gorsuch, J., dissenting) (concluding that prior decisions addressing punishment

for student disruption in classroom provided clearly

established law governing punishment of student who

burped in classroom), cert. denied, 137 S. Ct. 2151

(2017).

Another approach could be to conform the immunity defense more closely to the common-law principles

prevailing in 1871. That could include revisiting Harlow’s elimination of consideration of the defendant’s

subjective intent. Or the Court could limit the immunity defense to the particular claims for which it was

available at common law. Or it could return to the rule

of Myers v. Anderson that unlawful government action

is sufficient to trigger liability.

To the extent policy concerns might dictate different or more expansive immunity protection than that

available in 1871, “[t]he Constitution assigns this

kind of balancing to Congress, not the Courts.” Ziglar,

137 S. Ct. at 1872 (Thomas, J., concurring in part and

concurring in the judgment). And recent history

demonstrates that Congress is willing and able to address such issues.

In Westfall v. Erwin, 484 U.S. 292, 300 (1988), the

Court held that federal employees were immune from

tort liability for acts within the scope of their employment only if the challenged conduct was discretionary

in nature. Congress responded swiftly—the President

signed the Federal Employees Liability Reform and

Tort Compensation Act of 1988, Pub. L. No. 100-694,

102 Stat. 4563, only ten months after this Court’s ruling. The Act “accords federal employees absolute immunity from common-law tort claims arising out of

acts they undertake in the course of their official duties,” substitutes the United States as a defendant,

and provides that the litigation thereafter is governed

by the Federal Tort Claims Act. Osborn v. Haley, 549

U.S. 225, 229 (2007).

If Congress concludes that a proper interpretation

of Section 1983 does not provide appropriate immunity protection, it can similarly weigh the relevant policy concerns and prescribe the appropriate rule.

Alternatively, the Court could address some of the

procedural rules relating to qualified immunity. It

could encourage lower courts to address whether

there has been a constitutional violation—or at least

to consider the benefits of addressing that issue in

each case, and to provide a case-specific justification

for declining to do so. See Blum, 93 Notre Dame L.

Rev. at 1905.

The Court also could reconsider whether the

availability of interlocutory appeals does anything

other than compound litigation costs for plaintiffs and

litigation burdens for defendants. See Baude, 106 Cal.

L. Rev. at 84; Blum, 93 Notre Dame L. Rev. at 19161917. The judgment below is directly premised on

such an interlocutory appeal.

Finally, the Harlow Court justified its elimination

of the bad-faith factor by pointing to the need to promote pre-trial termination of unjustified claims. But

any contribution Harlow may have had to reducing

litigation costs has been superseded by subsequent

changes to pleading and summary judgment standards. See Wyatt, 504 U.S. at 171 (Kennedy, J., concurring); Schwartz, 93 Notre Dame L. Rev. at 1808-1811

(reviewing evidence confirming Justice Kennedy’s

view in Wyatt that changes to pleading, summary

judgment, and other liability standards “largely obviate the need for qualified immunity doctrine to screen

out cases before trial”); id. at 1831-1832 (reviewing evidence showing that qualified immunity fails as a prefiling filter). Thus, the only effect of the Harlow test

may be to make it harder for victims of constitutional

violations to plead their case.

There are thus a variety of ways in which the

Court could formulate an immunity rule that conforms to congressional intent and also strikes the appropriate balance between protecting government officials and providing redress for citizens injured by the

abuse of government power.

CONCLUSION

The petition for a writ of certiorari should be

granted.

Respectfully submitted.