In 1871, Congress enacted the Ku Klux Klan Act, one provision of which—now codified at 42 U.S.C. § 1983—authorizes any person alleging that a government official deprived him or her of “any rights, privileges, or immunities secured by the Constitution” to sue the government official for damages or other relief. Despite the categorical language of Section 1983, the Supreme Court has developed a number of limitations not found in its text. No such limitation is more significant than the doctrine of “qualified immunity,” which allows that a government official can escape damages liability even if the official did violate the plaintiff’s constitutional rights, so long as the official did not violate the plaintiff’s clearly established constitutional rights.
The principle of qualified immunity rests on the acknowledgment that the precise contours of constitutional rights are often unclear until fully litigated. Accordingly, it would seem unfair to make government officials pay damages for guessing wrong about constitutional questions about which even skilled lawyers disagree. But the unfairness may be more apparent than real because in practice the sorts of government officials who are frequently sued—such as prison guards and police officers—typically have indemnification agreements with their employers that ensure that they themselves do not pay out of pocket.
Yet qualified immunity rests on another consideration that cannot be so readily dismissed. Fear of liability can lead government officials to perform their duties less than zealously, even if any money judgment would ultimately be paid by others. Just as fear of medical malpractice liability may lead doctors to engage in therapeutically dubious defensive medicine despite the availability of malpractice insurance, so too, the practice of indemnification of government officials leaves in place the risk of over-deterrence. Some measure of qualified immunity can be justified as a response to that risk.
In recent years, however, the Court has defined qualified immunity so broadly as to undermine the core purpose of Section 1983 itself—to remedy and deter violations of constitutional rights. Monday’s ruling in Taylor v. Barkes illustrates the breadth of qualified immunity and the concomitant threat to constitutional rights. The fact that the ruling was unanimous underscores how far the Court has drifted from the concerns that animated Congress to enact the Ku Klux Klan Act in the first place.
The Barkes Case
Christopher Barkes was arrested for violating his probation and taken to a Wilmington, Delaware, jail, where a contract nurse performed a psychiatric evaluation. Although Barkes had a history of mental illness and suicide attempts—one of which he disclosed to the nurse—he was judged not to be at risk for suicide, partly because he disclaimed any current suicidal feelings. The jail took no special measures to prevent suicide.
The next day, Barkes killed himself in his cell. His widow brought a Section 1983 suit against the warden and the state department of corrections commissioner, alleging that their failure to adequately train and supervise the medical personnel responsible for intake amounted to deliberate indifference to his medical needs in violation of the Eighth Amendment. The federal district court and the U.S. Court of Appeals for the Third Circuit permitted the case to go forward, but the Supreme Court reversed. According to the Court, the case should have been dismissed based on qualified immunity.
The bottom line in the Barkes case is not necessarily wrong. As the Court recounts, the night before he hanged himself with his bedsheet, Barkes told his wife that he intended to kill himself, but she did not convey that information to the jail authorities. Based on what the nurse and other staff at the jail knew, the decision not to take suicide precautions, though tragic in hindsight, was arguably excusable at the time.
However, the Supreme Court did not say that Ms. Barkes should lose her case because of her own contributory negligence. Nor did the Court say that the jail’s suicide prevention measures were generally adequate, but that no system is foolproof. Instead, the Court held that even if the jail’s suicide prevention protocol was unconstitutionally defective and even if its defects directly caused the failure to prevent the suicide of Mr. Barkes, qualified immunity blocks the lawsuit.
Indeed, the Supreme Court appeared to say that even if a jail had no suicide prevention protocol at all, its leaders would still be protected by qualified immunity.
When Is a Right Clearly Established?
In previous cases, the Court has made clear that in order for a Section 1983 plaintiff to overcome a defendant’s qualified immunity, the plaintiff must do more than show that the general contours of the right are clearly established. Instead, as the Court repeated in the Barkes case “a right must be sufficiently clear that every reasonable official would have understood that what he is doing violates that right.”
That standard might sound appropriate, but in practice it means that defendants may exploit even the slightest ambiguities in the case law to avoid liability. Consider the 2009 case of Safford Unified School Dist. # 1 v. Redding. A middle school assistant principal ordered that a 13-year-old girl be strip-searched on suspicion of having either ibuprofen or naproxen pills—mild painkillers—hidden on her person. (She did not.) The Supreme Court held that the search violated the Fourth Amendment prohibition on unreasonable searches, but that the school officials nonetheless had qualified immunity. Why? Because the lower court cases did not uniformly condemn school strip-searches.
In Barkes the Court found similar ambiguity regarding suicide prevention. Noting that the Supreme Court’s own case law did not expressly establish a right to adequate suicide screening and prevention, the Justices again pointed to disagreement among the lower courts.
In principle, lower court disagreement about a right indicates that the right is not clearly established. After all, if it were clear to every reasonable official that his conduct violates a constitutional right, then it should also be clear to every federal judge.
But that line of reasoning assumes that every federal judge is reasonable. Cases like Safford indicate that some judges sometimes reach unreasonable conclusions.
The Order of Battle
When a court dismisses a Section 1983 case on qualified immunity grounds, it holds only that the plaintiff’s clearly established constitutional rights have not been violated. Such a holding is consistent with the possibility that the plaintiff’s constitutional rights nonetheless were violated. But having dismissed the claim on qualified immunity grounds, the court has no occasion to decide whether the plaintiff actually suffered a violation of his or her constitutional rights, and as a consequence, the court never establishes whether any constitutional rights were violated. The same problem will then befall the next plaintiff and each one ever after.
In response to this problem, the Supreme Court held in the in the 2001 case of Saucier v. Katz that courts should first consider whether the plaintiff’s allegations, if true, would prove a rights violation, and only if so should they proceed to inquire whether the defendant nevertheless is entitled to qualified immunity. As Justice Kennedy explained in Saucier, “the law might be deprived of this explanation were a court simply to skip ahead to the question whether the law clearly established that the officer’s conduct was unlawful in the circumstances of the case.” The Saucier procedure prevented the qualified immunity doctrine from blocking the development of constitutional law.
Unfortunately, however, the Court overruled Saucier’s “order of battle” in the 2009 case of Pearson v. Callahan. Although Justice Alito, writing for the Court, made clear that district judges retain discretion to decide the substantive constitutional issue first before proceeding to the qualified immunity question, crowded dockets give judges incentives to choose the easiest ground for decision, and often that is qualified immunity.
Indeed, the Supreme Court itself declined to exercise its discretion to decide the substantive constitutional question at issue in Barkes, even though the petition for a writ of certiorari asked the Court to consider the substantive scope of supervisory liability. Post-Saucier, that approach of deciding qualified immunity without addressing the substantive constitutional issue is common in the lower courts as well.
Inadequate Alternatives
In Pearson, Justice Alito suggested that overruling Saucier would not freeze the development of the law because the issues avoided by qualified immunity rulings will arise again in other settings, such as criminal cases, lawsuits against municipalities, and suits for injunctive relief. Yet these alternatives are often illusory.
Many issues—like those in Safford and Barkes—will not in fact recur in criminal settings. Some of the most serious abuses of government power have nothing to do with any criminal prosecution. A drug dealer alleging that he was searched without probable cause can move to suppress the drugs at his criminal trial. An innocent person who is beaten or shot by the police can only sue for damages.
Justice Alito was right that a municipality cannot plead qualified immunity, but there is a different obstacle to recovery against a municipality. A successful claim against a municipality requires proof that the plaintiff’s rights were violated pursuant to a policy or practice of the municipality. Proving policy or practice can be as difficult as overcoming qualified immunity.
And what about injunctive relief—i.e., suits seeking prospective changes rather than retrospective damages? Although qualified immunity does not protect government officials against suits for injunctive relief, a combination of judge-made doctrines such as standing and statutory obstacles like the Prison Litigation Reform Act severely limit the availability of injunctive relief.
Thus, in many circumstances, it is damages or nothing. As the Barkes case illustrates, increasingly that means nothing.
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