Read the original article: Qualified Immunity and the Plea for Accountability
Following the tragic death of Breonna Taylor, the City of Louisville, Kentucky, settled a wrongful-death lawsuit brought by her family. The city not only agreed to pay $12 million but also took the remarkable step of agreeing to implement numerous police reforms, including creating an early-action warning system to identify officers with red flags, implementing mandatory commanding officer reviews of all search warrants, and hiring a team of social workers to assist with dispatched runs. The terms were remarkable because such structural reforms are typically achieved, if at all, through consent decrees entered into with the U.S. Department of Justice rather than suits brought by individual plaintiffs. As civil rights litigation goes, the Taylor settlement represents the gold standard.
Yet, despite the seemingly unprecedented terms of the settlement, pleas for accountability persist. Such pleas echo the sentiment of Eric Garner’s family following their $5.9 million settlement with the City of New York, when they stated, “Justice is when somebody is held accountable for what they do.”
Accountability, in this context, is shorthand for criminal prosecutions and disciplinary proceedings. If indictments and firings are considered the only acceptable form of accountability, civil actions simply do not bring about those ends, and the legal community should be candid about whether any reforms to constitutional tort law, including the elimination of the qualified immunity doctrine, can achieve meaningful accountability. In other words, lawmakers focused on revamping civil rights litigation must be as focused on remedies law as they are on privileges and immunities if they hope to accomplish transformational change.
The Labyrinth of Constitutional Tort Law
Personal-injury actions based on officials’ violations of individual rights guaranteed by the Constitution are commonly referred to as constitutional tort law. While tort principles have long been bedrock tenets of American jurisprudence, constitutional tort law is a relatively recent phenomenon. It was not until 1961, in Monroe v. Pape, that the Supreme Court held that the federal statute codified as 42 U.S.C. § 1983 “should be read against the background of tort liability that makes a [person] responsible for the natural consequences of his actions,” so as to impose liability on municipal officials for constitutional rights violations. Ten years later, the court recognized an implied cause of action for certain constitutional infractions committed by federal actors in Bivens v. Six Unknown Named Agents of Federal Bureau of Narcotics.
As many jurists and scholars have lamented, what constitutional tort law lacks in longevity it makes up for in complexity. As the Supreme Court sought to harmonize the nascent jurisprudence with traditional constitutional principles, the legislative history surrounding § 1983, and competing policy considerations, constitutional tort law quickly descended into a labyrinth of varying immunities and countervailing doctrines. These complexities have compelled several justices to advocate for a reexamination of earlier rulings.
No complexity has frustrated the judiciary and academia as much as qualified immunity. This judicially created doctrine was conceived as a means of striking the proper balance between permitting compensation for victims of mistreatment by officials, while not punishing those officers who, in good faith, did not realize that their conduct was violating victims’ constitutional rights. Initially, the courts applied this doctrine so that courts were required to undertake a subjective assessment of whether the official in question acted with the requisite intent or understanding. The Supreme Court later found the subjective element of the good-faith defense incompatible with its concern that well-intentioned officers often had to endure the stresses and burdens of a fact-intensive investigation, extensive discovery and a trial. Casting aside the subjective standard, the court devised an objective test, which asked whether the officer’s conduct violated “clearly established statutory or constitutional rights of which a reasonable person would have known.”
The basic premise that a constitutional right be “clearly established” may appear innocuous enough—lest the official be financially responsible for conduct for which there was no reasonable basis to know it would subsequently be deemed unconstitutional. However, the Supreme Court later substantially narrowed the test for what counts as a clearly established right, thus broadening the scope of qualified immunity. Specifically, it ruled that prior court rulings about the sort of conduct that violates rights must be sufficiently specific to provide officers with clear notice that conduct they are about to engage in is prohibited. As a result, courts are tasked with determining whether “every reasonable official would have understood that what he is doing violates that right.” In other words, the fact that the conduct was unconstitutional must be “beyond debate.” Given that each encounter with law enforcement is to some degree factually unique, and that courts do not need to resolve the issue of whether the conduct was indeed constitutional before concluding that the immunity applies, the doctrine has been chastised as protecting “all but the plainly incompetent or those who knowingly violate the law.”
The Rationale for Constitutional Tort Law
The Supreme Court has said that “the basic purpose of a § 1983 damages award should be to compensate persons for injuries caused by the deprivation of constitutional rights.” In Bivens, the court similarly found an implied cause of action within the federal constitution based on the belief that constitutional infractions mandate federal equitable relief. While the famous pronouncement in Marbury v. Madison that “every right, when withheld, must have a remedy” has historically not resulted in monetary damages for every constitutional infraction, the Bivens court recognized that when other remedies, such as habeas and the exclusionary rule, are unavailable, a compensatory regime may be the only available alternative.
If compensating injured parties was the sole purpose of constitutional tort law, the rationale would best be effectuated through a remedial regime akin to what Justice Lewis Powell referred to as strict liability in Owens v. City of Independence, Missouri (1980)—that is, liability for constitutional violations without the ability of the defendant to raise immunities, privileges or good-faith defenses. Under such a regime, immunities (absolute or qualified) would be antithetical to the pursuit of perfect synergy between violations and remedies. In the same vein, punitive damages would not be warranted for constitutional wrongs, as only compensatory damages are necessary to make plaintiffs “whole.”
The elimination of qualified immunity can be couched in this purely compensatory model: Injured parties whose constitutional rights have been violated should be entitled to a corrective remedy. And, while monetary damages is not a perfect method for making an injured party “whole,” it is the best system we’ve conceptualized to date. Numerous policy considerations would remain, including which constitutional rights violations necessitate monetary awards, but the culpability of the officer would be removed from the equat
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Read the original article: Qualified Immunity and the Plea for Accountability