Qualified Immunity: Unclear, Unestablished, and Unreasonable

Consider the following: Dr. Patch Adams, a medical doctor in Texas, whose constitutional rights were violated, but received no redress. While Dr. Adams was out of office, Texas Medical Board officials (“Officials”) attempted to execute an administrative search subpoena. Officials approached Dr. Adams’ receptionist and demanded they search the medical offices. Officials even threatened to take Dr. Adams’ medical license if unpermitted to search. One went as far as following a doctor to a back office for search inquiries. The Drug Enforcement Agency was investigating Dr. Adams for suspected pain killer violations which subjected Dr. Adams to administrative hearings by Texas’ Administrative Hearings Office (“AHO”). However, AHO violated their administrative rules when issuing the search subpoena because Dr. Adams received no subpoena hearing or prior notice of the search. 

Accordingly, Dr. Adams sued Officials for violating his constitutional rights to prevent future similar violations. Specifically, unreasonable search under the Fourth Amendment. Well, Dr. Adams lost.[1] The U.S. Fifth Circuit Court of Appeals held that the administrative search was unconstitutional, and that the Officials’ unlawful conduct was a reasonable mistake because no law or previous case clearly established that their administrative search violated Dr. Adams’ constitutional rights.[2] Here, Dr. Patch Adams’ only laughter is the kind that leads to crying; “say it ain’t so doc.” Forgive my frivolity. Can an American citizen sue the State or a public official? Section 1983 (42 U.S.C. § 1983) allows persons in the U.S. to bring a civil action against a State or public official. However, public officials often escape liability through qualified immunity.

42 U.S.C. § 1983 History and Meaning

Section 1983 provides a civil remedy for a plaintiff who has suffered a constitutional violation at the hands of state or local officials acting under color of law. Originally, as part of the Civil Rights Act of 1871[3]—formerly the Ku Klux Klan Act of 1871—the Act sought to enforce Fourteenth Amendment provisions. The bill intended to protect recently freed African Americans and Republican lawmakers against the “Klan’s reign of terror” across the south.[4] The American terror perpetrated by the Klan included whipping, threatening, and murdering Blacks, southern Whites, and State officials who disagreed with the Klan. [5] Markedly, klansmen prohibited both Black and White anti-klan Republicans from voting in elections.[6] Senator Oliver P. Morton of Indiana asserted that  “klansmen systematically perjured themselves in court, infiltrated juries, and intimidated law enforcement and judges” to acquit fellow klansmen.[7] Democrats at the time claimed that evidence implicating the Klan was unreliable hearsay and rumors.[8] Overall, the law would pass and protect the rights of all citizens against state-sponsored unconstitutional conduct.[9]

Historically, § 1983 received bi-partisan support in 1871.[10] Yes, just years after the Civil War. Section 1983 was the only portion of the Enforcement Acts to receive bi-partisan support. Many legislatures were against criminal redressability, but believed that interference from the Federal Government was valid where the State clearly and persistently failed to protect U.S. citizens in their rights, privileges, or immunities.[11]  Representative William Roberts stated, “No Higher duty can exist than to protect its [citizens] . . . in their equal rights to life, liberty, and property. Be they white or black, they must have free speech, a free ballot, and a safe home.”[12] Failing to afford protection equally for all is to deny the same. Because a State may by positive enactment, suppress the right to vote, testify or seek redress in court. [13] The effect of such an enactment would reward the suppressor and treat the other as a nonentity. Thus, for the 42nd Congress, protecting citizen rights was a duty to be fulfilled regardless of the cost.[14]

Qualified Immunity

Then there was “good old” qualified immunity. Pun intended. Government officials performing discretionary functions are entitled to qualified immunity. Qualified immunity attaches when “an official’s conduct does not violate clearly established statutory or constitutional rights of which a reasonable person would have known.”[15] The reasonableness of the officer’s conduct is interpreted against the law at the time of the conduct.[16] Qualified immunity is meant to balance two interests: (1) the need to hold officials accountable when they exercise power irresponsibly and (2) the need to shield officials from harassment, distraction and liability when they perform their duties reasonably.[17] However, the doctrine’s effect diminishes a citizen’s right to a civil remedy under § 1983, as the Dr. Patch Adams example demonstrates.

The doctrine of qualified immunity protects government officials from liability for civil damages afforded in § 1983 unless a plaintiff pleads facts showing (1) that the official violated a statutory or constitutional right, and (2) that the right was clearly established at the time of the challenged conduct.[18] Further, the Supreme Court held in Pearson v. Callahan that courts may decide which of qualified immunity’s two prongs should be addressed first. Here, the second prong ransacks § 1983 claims. Even if the violated right was clearly established at the time of the violation, it may be difficult for these officials to determine how the law will apply to their factual situation. Therefore, “if the official’s mistake as to legal requirements are reasonable then the official is entitled to qualified immunity.”[19] I’ll address the judicial discretionary prong arrangement in the next article. But can you see the ransacking of § 1983 claims, when applying prong two against any case facts? 

Qualified Immunity Case Example

Maybe here: On the morning of Nov. 23, 2004, Malaika Brooks was driving her 11-year-old son to school when Seattle police pulled her over for speeding. Believing she was wrongly pulled over, Brooks refused to sign the ticket thinking, mistakenly, that her signature was an admission of guilt. The officers threatened to throw her in jail, Brooks still refused, and a sergeant ordered her arrest. Refusal to sign a ticket is nonjailable.

To effectuate the arrest, one of the officers pulled out a Taser and asked her if she knew what it was. She didn’t, but told the officer she was seven months pregnant. In front of her, the officers discussed which part of her body they would tase. One stated, “well, don’t do it in her stomach,” the other stated, “do it in her thigh.” The officers twisted Brooks’s arm behind her back and tased her three separate times—first on her thigh, then in the arm, and then in the neck—before dragging her into the street, laying her face down, and cuffing her.

Brooks sued the officers under § 1983. Six federal judges agreed that the officers’ use of severe force absent any threat to their safety violated the U.S. Constitution. Ultimately, refusing to sign the ticket after traveling 32 miles per hour in a 20 miles per hour zone, was not a serious offense under the Graham factors. But those same judges dismissed her case, holding that her right was not clearly established to a reasonable officer in their position under the factual situation. In the U.S. Supreme Court’s own words, qualified immunity protects “all but the plainly incompetent or those who knowingly violate the law.” Pause for reflection here. Importantly, Brooks was able to prevail over qualified immunity under her state law claims of negligence.

Conclusion (for now)

Qualified immunity, in part, is supposed to balance holding public officials accountable for exercising power irresponsibly and the need to shield officials from harassment, distraction, and liability for performing their duties reasonably. Constitutional violations like unreasonable searches and excessive use of force are not distractions and resulting lawsuits are not harassment, but actions requiring remedy for aggrieved citizens. Limiting or eliminating qualified immunity has received diverse support. Both the American Civil Liberties Union and Americans for Prosperity (a conservative and libertarian group by the Koch brothers) support this endeavor.[20] The Constitution provides no basis for qualified immunity, and, on its face, the language of § 1983 “admits of no immunities.[21] The common law that existed when Congress passed Section 1983 as part of the 1871 Ku Klux Act did not provide for the type of sweeping defense that qualified immunity has become.[22] Thus, qualified immunity shall be limited or eliminated. Until next time, peace and love. Please go vote.

– D. Horton

Interested in Learning More? Consider taking Civil Rights Litigation with  Michelle Badaruddin & Melissa Hartigan. 

[1] The narrative reflects the facts and holding of Zadeh v. Robinson, 928 F.3d 457 (5th Cir. 2019). Only the doctor’s name differs.

[2]   Id. at 468, 470 (emphasis added). 172

[3] Ch. 22, 17 Stat.13 (42nd Cong., 1st Sess.). See, also, Monroe v. Pape, 365 U.S. 167, -87 (1961).

[4] Virginia v. Black, 538 U.S. 343, 347, 123 S. Ct. 1536, 1541, 155 L.Ed.2d 535, 548 (2003).

[5] CONG. GLOBE, 42nd Cong., 1st Sess., 375, 436-40 (1871) (Rep. Clinton Cobb).

[6] 42 (1) Globe, 375, 441-51 (1871).

[7] 42 (1) Globe app. 251 (1871).

[8] Id. at 464-66 (Sen. Casserly, Stockton, and Thurman).

[9] Id. at 335, 374-76 (1871) (emphasis boldly added).

[10] Everette Swinney, Suppressing the Ku Klux Klan: The Enforcement of the Reconstruction Amendments, 1870-1877 (Ph.D. Dissertation, Univ. of Tex. at Austin, 1966), 154-79 (details the Enforcement Act debates of 1871).

[11] 42 (1) Globe, 375, 1st Sess., at 501.

[12] David Achtenberg, Legal Theory, Immunity Under 42 U.S.C. § 1983: Interpretive Approach and the Search for The Legislative Will, 86 Nw. U. L. REV. 497, 541 n. 323 (1992) (emphasis passionately added).

[13] CONG. GLOBE, 42nd Cong., 1st Sess., 459 (1871). (Rep. John Coburn, Indiana Republican and ex-judge relying on J. Marshall’s opinion in Cohens v. Virginia, 19 U.S. (6 Wheat.) 264 (1821)).

[14] 42 (1) Globe, 375, 1st Sess., at 541-42.

[15] Kisela v. Hughes, 138 S. Ct. 1148, 1152 (2018).

[16] Id. at 1152 (quotation marks and citation omitted).

[17] Pearson v. Callahan, 555 U.S. 223, 231 (2009), overruled in part on other grounds by Pearson, 555 U.S. at 236.

[18] Ashcroft v. al-Kidd, 563 U.S. 731, 735 (2011) (the U.S. Supreme Court granted U.S. Attorney General John D. Ashcroft qualified immunity for his involvement in the detention of a Muslim U.S. citizen after the 9/11 attacks).

[19] Saucier, 533 U.S. at 205; Kennedy, 439 F.3d at 1061.

[20] Various Amicus Curiae briefs this term illustrate this uncommon union of ideas.

[21] Id. at 36, nn. 74-80.

[22] Id.

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