by Professor Emerita Karen Blum
Following the killing of George Floyd in May 2020, qualified immunity became a newly discovered topic in the mainstream press. Ordinary citizens began to question a doctrine that shields police officers from accountability even when they violate constitutional rights. Although Mr. Floyd’s death led to demonstrations, riots, and promises of change, neither legislatures nor courts have done much to increase police accountability. A right without a remedy is cold comfort. One of the greatest obstacles to providing relief to citizens whose constitutional rights have been violated is the judge-made doctrine of qualified immunity, which stands strong as a barrier to increased police accountability. By evaluating the current landscape of qualified immunity and offering two modest suggestions for change, evolution is possible in both the perception and the reality of the doctrine’s application. First, the federal appellate courts should not shy away from addressing the merits of constitutional claims when confronted with important constitutional questions likely to recur. Second, the U.S. Supreme Court should clarify what law controls when engaging in the “clearly-established-law analysis.” These efforts will assist in the development and enforcement of our constitutional rights.
The Current State of Qualified Immunity Law
In 1871, Congress enacted the Ku Klux Klan Act, codified today as 42 U.S.C. § 1983. The legislation provides a federal remedy for persons whose federal rights have been violated by someone acting under color of state law. No one questions that Congress intended the statute to be a sword, wielded against the atrocities committed by Klan members across the South and made possible only because state and local government actors either knowingly approved, participated in, or silently acquiesced in such wrongdoing. The statute neither creates substantive rights nor provides for any immunity. Section 1983 claims were relatively sparse until Monroe v. Pape, 365 U.S. 167, 180 (1961), held that conduct “under color of state law” included conduct that violated state law but was made possible only because the actor was “clothed with the authority of state law.” The increased availability of the remedy fueled an increased concern about liability being imposed on government actors for conduct performed in good faith and without knowledge or notice of its unlawfulness. The Supreme Court responded to this concern in Pierson v. Ray, 386 U.S. 547, 557 (1967), by incorporating a common law defense of good faith into Section 1983 actions. Years later, the Court gave birth to the modern doctrine of qualified immunity in Harlow v. Fitzgerald, 457 U.S. 800 (1982), jettisoning any inquiry into the subjective good faith1 of the government actor and, instead, making the qualified immunity question a totally objective one. Under this judicially crafted two-pronged defense, an official will be protected from liability for damages unless (1) the official violated a federal right under current law and (2) that right was clearly established at the time in such a way that every reasonable official would have understood that the particular challenged conduct was unlawful under the circumstances. The articulated purpose of the doctrine is to balance the “need to hold public officials accountable when they exercise power irresponsibly and the need to shield officials from harassment, distraction, and liability when they perform their duties reasonably.” Pearson v. Callahan, 555 U.S. 223, 231 (2009). An examination of qualified immunity cases in the Supreme Court since Harlow may cause one to question whether the “balance” sought has in fact been achieved. Since Harlow, the Supreme Court has confronted the qualified immunity issue in roughly 30 cases. Plaintiffs have prevailed in three of those cases.2 No plaintiff has prevailed in the Supreme Court on qualified immunity in a Fourth Amendment excessive force case. Since June 2020, the Supreme Court has denied certiorari in approximately 70 cases where qualified immunity was in issue, demonstrating no interest in modifying or eliminating the doctrine. Until the Supreme Court or Congress says otherwise, it is a doctrine that must be obeyed.3
Examining 67 of the First Circuit’s qualified immunity (QI) decisions between 1997 and 2024,4 four categories of cases emerged: (1) Cases that disposed of a QI claim finding no constitutional violation [9 cases]; (2) Cases that disposed of a QI claim because the law was not clearly established, but leaving the question of whether a constitutional violation occurred unresolved [28 cases]; (3) Cases that found a constitutional violation or concluded that a jury could find a constitutional violation,5 but granted QI because the law was not clearly established [2 cases]; and (4) Cases where QI was denied because the court found the violation of a constitutional right that was clearly established [28 cases]. The large number of cases disposed of on just the clearly-established-law prong results from the Supreme Court’s rejection of the so-called “rigid order of battle” that required lower courts to decide whether the violation of a constitutional right had been asserted before deciding whether the right had been clearly established at the time of the challenged conduct. This path has appealed to many federal judges, including the Supreme Court in two relatively recent per curiam decisions rendered in Fourth Amendment excessive force cases. See Oklahoma v. Bond, 142 S. Ct. 9 (2021); Rivas-Villegas v. Cortesluna, 142 S. Ct. 4 (2021). A number of the First Circuit cases that are disposed of on prong two are excessive force cases, where the particularity of the facts decreased the likelihood of any merits decision serving as a vehicle for formulating a rule that would apply in future cases with dissimilar facts.6 Courts also commonly dispose of QI claims by only deciding whether the conduct was “clearly established” at the time of the violation in First Amendment cases, where the “merits” question is often difficult and fact-dependent and where there is no clear precedent giving fair notice that the challenged conduct was unconstitutional.7
While exercising discretion to jump directly to the “clearly-established-law” prong makes sense in some cases, making this approach the automatic default leaves the state of the law unclear, the development of constitutional standards stagnant, and both citizens and government officials in a state of perpetual ambivalence about the constitutionality of conduct that will no doubt be repeated and be repeatedly challenged until a court chooses to address prong one. To put it simply, a doctrine based on “clearly-established law” requires that courts tell us what the law is. Defaulting to addressing the qualified immunity prongs in order will provide greater clarity and help establish constitutional standards for police and the citizens they serve.
Increasing Clarity of Constitutional Requirements
Adopting a requirement that a court must articulate one of the reasons set out in Pearson8 for not deciding the merits question before deciding a case only on the “clearly-established-law” prong would be helpful in establishing constitutional boundaries and guidance for officials in future cases. Most lower courts are following the lead of the Supreme Court, which has admonished them “to think hard and then think hard again,” Camreta v. Greene, 563 U.S. 692, 707 (2011), before deciding the merits of the constitutional question in the qualified immunity analysis. Despite the Supreme Court’s admonishment, a growing number of appellate courts appear willing to address the merits question even when immunizing officers from liability because the unconstitutional action was not clearly prohibited. In doing so, they rely on other language of the Supreme Court in Pearson that acknowledges “the two-step procedure” as “often beneficial” in “promot[ing] the development of constitutional precedent.” Pearson, 555 U.S. at 236.
For example, in Perry v. Spencer, 94 F.4th 136 (1st Cir. 2024) (en banc), Chief Judge Barron wrote a lengthy opinion in a case challenging a prisoner’s solitary confinement for over 600 days in administrative segregation. The court expressly declined to exercise its discretion to jump to the second prong “because of the stakes involved in the use of prolonged solitary confinement and the concomitant need to provide legal clarity in this area.” Id. at 146. On the merits question, the court clarified “both the circumstances in which the use of solitary confinement results in a deprivation of a liberty interest that the Due Process Clause protects and the process that is due in consequence of such a deprivation.” Id. at 143. While the plaintiff’s solitary confinement in excess of 600 days was determined to be an “atypical and significant hardship” giving rise to a liberty interest requiring due process, and while the requisite due process was not provided, the defendants prevailed on prong two of qualified immunity because it would not have been clear to a reasonable corrections officer that such confinement implicated a state-created liberty interest under the Due Process Clause given the law at the time of the prisoner’s confinement. Id. at 169. While Mr. Perry was not entitled to a remedy, the court established constitutional standards for cases going forward. Doing the hard work of deciding tough constitutional questions is necessary and helpful in the law’s evolvement. Especially where the issue is important and likely to recur, the First Circuit’s approach in Spencer could serve as a model.
Settling the Question of What Law Controls
The question of what law governs the clearly-established-law analysis appeared to have been settled 26-years-ago by the Supreme Court’s decision in Wilson v. Layne, 526 U.S. 603 (1999), where the Court indicated that its decisions, as well as controlling authority from the circuit opinions and opinions of the highest court of the relevant state, would serve as sources of clearly-established law. Absent controlling authority from the Supreme Court or the relevant jurisdiction, the Wilson Court suggested that a plaintiff might point to a “consensus of cases of persuasive authority such that a reasonable officer could not have believed that his actions were lawful.” Id. at 617.
In a recent case, however, the Supreme Court has suggested that “[w]e have not yet decided what precedents — other than our own — qualify as controlling authority for purposes of qualified immunity.” District of Columbia v. Wesby, 138 S. Ct. 577, 591 n. 8 (2018). In contrast, virtually all the circuits are ignoring such hedging and are still relying on the law of the relevant circuit or highest court of the state. Furthermore, the majority of circuits look to a “robust consensus of persuasive authority” in the absence of controlling authority. The First Circuit relied on such a consensus in denying qualified immunity to the officers in Irish v. Fowler, 979 F.3d 65 (1st Cir. 2020), cert. denied, 142 S. Ct. 74 (2021). There, the court found that “widespread acceptance of the state-created danger theory . . . was sufficient to clearly establish that a state official may incur a duty to protect a plaintiff where the official creates or exacerbates a danger to the plaintiff.”9 If the Supreme Court moves in the direction of having only its own decisions count in the clearly-established-law analysis, then qualified immunity is likely to quickly morph into absolute immunity, which will not represent the “balance” the Supreme Court originally intended the doctrine of qualified immunity to achieve.
Conclusion
In sum, the courts of appeals should be encouraged, rather than discouraged, from taking up the first prong of the qualified immunity analysis. The injury of one “free pass” should not become the insult of a continuing “free pass.” Furthermore, in doing the work that prong one requires to establish constitutional standards, appellate courts should be assured by the Supreme Court that their decisions will count in the analysis, either as controlling precedent or as a part of a “robust consensus of persuasive authority.” These are small, incremental steps that federal appellate courts and the Supreme Court could take toward achieving a better balance in application of the qualified immunity doctrine.
Karen Blum is a Professor Emerita and Research Professor of Law at Suffolk University Law School where she taught for over forty years in the areas of Civil Procedure, Federal Courts, and Police Misconduct Litigation. Professor Blum has been a regular faculty participant in Section 1983 Civil Rights Programs and Institutes throughout the United States and still serves as a faculty member for workshops sponsored by the Federal Judicial Center for Federal District Court and Federal Magistrate Judges. She is a co-author of the treatise POLICE MISCONDUCT: LAW AND LITIGATION.
[1] In confirming the grant of qualified immunity to prison officials who implemented a standard operating procedure (“SOP”) that provided for opening and photocopying prisoners’ nonprivileged incoming mail, the Massachusetts Appeals Court referenced the defendants’ “good faith belief that the SOP was reasonable and lawful,” but also noted that plaintiff pointed to no law that prohibited the defendants’ conduct. Wright v. Turco, 105 Mass. App. Ct. 1105 (2024) (memorandum and order pursuant to Rule 23.0). In Harlow, the Court indicated that there may be some cases where, although the law was clearly established, “if the official pleading the defense claims extraordinary circumstances and can prove that he neither knew nor should have known of the relevant legal standard, the defense should be sustained.” 457 U.S. at 819. This “extraordinary circumstances” exception is applied rarely and generally in the situation where the defendant official has relied on advice of counsel or on a statute, ordinance, or regulation that is presumptively constitutional.
2 Taylor v. Riojas, 592 U.S. 7 (2020) (clearly established that horrific conditions of confinement violated the 8th Amendment); Groh v. Ramirez, 540 U.S. 551 (2004) (violation of the plain language of the “particularity” requirement of the Fourth Amendment); Hope v. Pelzer, 536 U.S. 730 (2002) (placing Alabama prisoner on hitching post all day in hot sun with no bathroom or water breaks was clear violation of 8th Amendment).
3 There is nothing the Commonwealth can do to directly effect a change in the operation of federal civil rights law under 42 U.S.C. §1983, but changes could be made on the state level to state civil rights laws. The doctrine of qualified immunity that applies to state civil rights claims under Massachusetts law mimics the judicially-created doctrine that is applied by federal courts to Section 1983 claims. See Rodriques v. Furtado, 410 Mass. 878 (1991); see also Williams v. O’Brien, 78 Mass. App. Ct. 169 (2010). Proposals to abolish qualified immunity have met with great resistance. While Colorado, New Mexico, and New York City have succeeded in passing reform legislation that eliminates the qualified immunity defense as a matter of state or local law, elsewhere, including in the Commonwealth, such proposals have generally failed or stalled. See https://statecourtreport.org/our-work/analysis-opinion/legislative-efforts-abolish-qualified-immunity-yield-mixed-results#:~:text=The%20Massachusetts%20legislature%20in%202021,commission%20overseeing%20peace%20officer%20standards.
4 While serving on a BBA task force in the wake of George Floyd’s murder, I examined a number of cases from the First Circuit that confronted qualified immunity. The cases spanned from 1997 up to 2020. The survey now includes cases through 2024. My survey does not purport to be all inclusive, but rather is focused on police misconduct cases I deemed noteworthy and that resulted in a published opinion. Not surprisingly, the First Circuit has the fewest number of qualified immunity appeals compared with other circuits. On the other hand, the First Circuit appears to have the highest percentage of published opinions on qualified immunity (86%). A fascinating comparison of qualified immunity appeals in the circuits over an eleven- year period, 2010-2020, was done by the Institute for Justice. See https://ij.org/wp-content/uploads/2023/11/Unaccountable-qualified-immunity-web.pdf.
5 See, e.g., Gray v. Cummings, 917 F.3d 1 (1st Cir. 2019) (While plaintiff presented sufficient evidence to make out a jury question as to whether officer used excessive force, law was not clearly established that use of Taser under the circumstances was unlawful).
6 See, e.g., Segrain v. Duffy, 118 F.4th 45 (1st Cir. 2024) (not clearly established that correctional officer’s use of leg-sweep under the circumstances violated the 8th Amendment); Penate v. Sullivan, 73 F.4th 10 (1st Cir. 2023) (not clearly established in 2016 that pointing gun for “several seconds” upon warranted entry to apartment suspected of containing a firearm, and possibly armed suspect, constituted excessive force); Estate of Rahim by Rahim v. Doe, 51 F.4th 402 (1st Cir. 2022) (not clearly established that use of deadly force on knife-wielding suspected terrorist was excessive under the circumstances).
7 See, e.g., Ciarametaro v. City of Gloucester, 87 F.4th 83, 90 (1st Cir. 2023) (eschewing an inquiry into the “difficult and fact-bound” analysis of the First Amendment question where Plaintiff harbormaster identified no precedent clearly establishing that city officials, at the time of the challenged action, could not restrict his expert testimony to preserve relationships with Gloucester fishing community); Eves v. LePage, 927 F.3d 575, 584, 588, 590 (1st Cir. 2019) (en banc) (moving “directly to the second step of the qualified immunity analysis” and granting qualified immunity in a case involving discrimination based on political affiliation). Accord Jakuttis v. Town of Dracut, 95 F.4th 22, 30-33 (1st Cir. 2024) (First Amendment retaliation claim disposed of on prong two).
8 See Pearson, 555 U.S. at 236-41, where the Court enumerates reasons why a court might choose to not address the merits question in resolving qualified immunity.
9 Irish v. Fowler, 979 F.3d 65, 76-80 (1st Cir. 2020). But see Fisher v. Moore, 73 F.4th 367, 371-75 (5th Cir. 2023) (denying reh’g en banc and amending opinion), cert. denied, 144 S. Ct. 569 (2024) (The mere fact that a large number of courts had recognized the existence of a right to be free from state-created danger in some circumstances is insufficient to clearly establish the theory of liability in our circuit.).
