Should Circuit Precedent Deprive Officers of Qualified Immunity?

I recently posted on Carroll v. Carman, which assumed arguendo that circuit precedent could constitute clearly established law. My earlier post discussed some of the case law raising this important and fascinating issue.

In this post, I’ll discuss whether it makes sense for circuit law to deprive officers of qualified immunity.

Circuit law’s optimal effect on qualified immunity largely depends on a single question: whether it is a good idea to protect officers who ignore or second-guess circuit precedent. There are obvious reasons not to protect these officers from civil liability. Circuit courts generate the vast majority of precedential rules applicable to officers, and we generally treat those rules as, well, rules. So it makes a lot of intuitive sense for qualified immunity doctrine to encourage officers’ familiarity with this body of law.

But the issue can look more complicated, particularly if you’re a Supreme Court Justice. Because while the circuit courts are legitimate courts, they don’t always decide things correctly. In fact, circuit courts sometimes get things very badly wrong in the eyes of the Nine. That undeniable fact helps explain unanimous qualified immunity reversals like Reichle and the summary reversals in Carroll and Stanton. As discussed in my last post, those cases not only took circuits to task, but also expressed broader interest in curbing the status of circuit precedent in qualified immunity cases. It may not be a coincidence that cases reversing circuit precedent have also shown interest in demoting it. Justices who feel distrustful of the circuit courts might not want those courts’ rules to have too much effect on officers’ conduct. Rather, the Justices might want to maximize their managerial control by ensuring that only their own precedents penetrate qualified immunity. This point counts double to the extent that some Justices are especially distrustful of particular circuits with a reputation for outlandish (read: frequently reversed) rulings.

This distrustful attitude toward circuit courts calls to mind the standard for habeas relief under AEDPA. That statutory standard generally requires habeas claimants to show a violation of clearly established Supreme Court precedent. Circuit precedent will not do. Yet the two contexts are of course quite different. For one thing, the point of AEDPA was largely to shift responsibility for review of state criminal convictions to state courts. That approach may be right or wrong, but it has a strong tradition in federalism. By contrast, suits for (federal) constitutional wrongs have generally been thought to be the special responsibility of the federal courts.

In the qualified immunity context, skepticism of circuit courts could express itself in different ways. Here are eight possible flavors, each of which has some foothold in the cases discussed in my first post.

On-point circuit precedent could strip qualified immunity:

  • Always.
  • Unless the officer is a national officer.
  • Unless it is inconsistent with earlier Supreme Court precedent.
  • Unless it is inconsistent with the precedent of local state courts.
  • Unless it is inconsistent with the precedent of other jurisdictions.
  • Unless the officer has obtained an expert legal opinion saying otherwise.
  • Unless it is unpersuasive.
  • Never.

In comments to my last post, Howard Wasserman and Will Baude pointed to SCOTUS cases like United States v. Lanier, which say that circuit precedent is at least relevant to qualified immunity. And Jim Pfander made a similar point regarding Camreta v. Greene (also discussed below). These cases suggest that the “Never” option would require overruling precedent. But the other options might be more available.

Of course, it’s possible to combine various options above, and there’s lots of room to play with the standard of legal clarity—for example, the “inconsistent with” standard could be softened or complicated. You could even imagine that the status of circuit precedent might vary by court: circuit courts might treat their own precedents as clearly established law; but if the case reaches the Supreme Court, then only SCOTUS precedent might apply. In that sense, “clearly established” precedent may be in the eye of the beholding court.

Importantly, adopting one option or another might prompt counterbalancing changes in doctrine or judicial behavior. For example, adopting options further down the list might prompt the Supreme Court to hear more constitutional tort cases, thereby mitigating what would otherwise be a system-wide reduction in precedent capable of overcoming qualified immunity. Or, as Andrew Siegel commented, the Court might adopt a looser understanding of how “clear” Supreme Court precedent has to be in order to de-immunize officers.

It’s also worth noting that options further down the list dilute the effect of allowing circuits to reach the merits in qualified immunity cases (as currently permitted by Pearson v. Callahan and related Supreme Court cases). If circuit precedent can never eliminate qualified immunity, for instance, then circuits’ merits decisions in qualified immunity cases won’t have much effect on officers’ future conduct. Yet the Supreme Court often seems to take it for granted that circuits can at least sometimes change officers’ immunity calculus. In Camreta, for instance, a sharply divided Court noted that circuits should often rule on the merits in qualified immunity cases precisely in the hope of “establishing controlling law and preventing invocations of immunity in later cases.” So perhaps the ambiguous status of circuit precedent is tied up with the still-controversial practice of allowing circuit courts to reach the merits after finding qualified immunity.

Michael Dorf recently posted a different take on Carroll and its reservation. The key to Dorf’s analysis is the rule that state courts aren’t bound by (federal) circuit courts. He concludes: “if the state court judges in the quiet of their chambers are free to reach different conclusions from those reached by federal judges, then police officers making snap judgments should not be bound by those same federal decisions.” Dorf explains that this is “probably the right answer,” but he also makes clear that “a respectable argument can be made to go the other way.”

While Dorf’s argument has some force, there is an important relevant difference between state judges and state police: only the police are routinely sued in federal court for violating federal rights, leading to invocations of qualified immunity. To the extent that qualified immunity is, and should be, a central vehicle for holding police to account, it makes sense to fashion that doctrine so as to create desired police incentives. And that pragmatic frame leads to the set of questions and options outlined above.

Another possible reason for excluding circuit precedent from “clearly established law” derives from Supreme Court review. Imagine that a circuit makes a clear holding and, later, that the Supreme Court wants to consider whether that holding is correct. If the Supreme Court disagrees with the circuit and establishes a different rule, then a supposedly “clearly established” bit of law would be no more. Put another way, there is a conceptual tension between saying that circuit precedent is “clearly established law” and saying that it could be rejected at any time by the Supreme Court. This tension would be resolved if the Court clarified that what deprives officers of qualified immunity isn’t clear law so much as clear notice of what is and isn’t immunized. Circuit courts could comfortably provide such notice. Whether circuits should be able to provide that notice is, again, a practical question leading to the analysis above.

All this points toward another, perhaps even more interesting question: If on-point circuit precedent might not be “established” enough to deprive officers of qualified immunity, why should Supreme Court precedent be any different?

Imagine for example that a Supreme Court precedent prohibits Action X, but the precedent in question was highly divisive and poorly reasoned. If you like, further imagine that there now appears to be a majority of the Court prepared to overturn the precedent. An officer might then say: “Action X is precluded by Supreme Court precedent today, but that’s only precedent. The Constitution, properly understood, is on my side.” Would that officer have a plausible claim to qualified immunity, on the ground that no “clearly established law” precludes Action X?

To make the point even sharper, imagine that the officer does Action X and that the Supreme Court then declares that its own apparent precedent against Action X was actually just non-binding dictum–and a potentially erroneous dictum at that. Then the officer gets sued for her prior action. Should that officer have the benefit of qualified immunity? Maybe so, since the Supreme Court itself would have validated the officer’s skepticism of the earlier Supreme Court precedent at issue. (Should it matter whether the officer actually thought through any of this, or sought out a legal opinion on the subject?)

In a 2013 DC Circuit case, Moore v. Hartman, something similar actually happened. To simplify somewhat, an officer seemed to have violated then-extant precedent from the circuit court and perhaps even the Supreme Court, but the Court later suggested (including in Reichle, as it happened) that the relevant legal issue was actually unsettled. After all that had happened, the DC Circuit had to decide whether the officer should get immunity, even though the officer’s alleged conduct (when the conduct was performed) was contrary to on-point circuit precedent. The panel divided 2-1 against immunity. As this case illustrates, the relationship between circuit precedent and qualified immunity is already starting to become an issue in the courts of appeals.

With the Court now repeatedly noting these issues, perhaps the circuit courts will become more attuned to them, creating the possibility of a circuit split–and a cert vehicle that can raise the issues directly.


Filed under Immunity, Procedure, Stare Decisis

7 responses to “Should Circuit Precedent Deprive Officers of Qualified Immunity?

  1. Josh Block

    In addition to issue of overruling precedent, the attempt to rollback circuit precedent from qualified immunity is inconsistent with traditional rules of construction the Court normally uses in determining legislative intent. In Gross v FBL and Univ of Tex v Nasser, the Court said that when Congress amended Title VII to codify the causation standard for mixed motive, its failure to simultaneously amend AEDA and the retaliation prong of Title VII meant that the mixed motive standard shouldn’t be used for the same statutory provisions. Congress in 1996 enacted AEDPA to limit relief to clearly established Supreme Court precedent and amended s 1983 to overrule Pulliam v Allen re judicial immunity in 1983 actions. So Congress clearly knew how to legislate against the backdrop of Supreme Court precedent on this issue and to amend 1983 when it wished to tighten restrictions on relief. But at the same time that it limited precedent in AEDPA to Supreme Court precedent it declined to include a similar limitation in the amendments in made to 1983.

  2. Pingback: An AEDPA Sum Rev on Circuit Precedent and “Clearly Established” Law | Re’s Judicata

  3. Karen M. Blum

    I’m finding this discussion fascinating, so here I go with my first blog post ever! I’ve been writing and talking about qualified immunity for a long time and I have to confess that the jurisprudence surrounding it has become ever more confusing. In a piece I am still working on that will appear in William & Mary Bill of Rts Journal (Section 1983 Litigation: The Maze, the Mud, and the Madness), I talk about this particular aspect (Madness) of qualified immunity in post-Pearson cases. One case I haven’t seen mentioned yet in the blog posting is the Supreme Court’s decision in Lane v. Franks. In that case, although the Court unanimously decides the subpoenaed testimony of the plaintiff was protected speech under the First Amendment, the official who did the firing was afforded qualified immunity because the 11th Cir. law did not clearly establish such speech was protected. In fact, one might say that the 11th Cir. had it all wrong and its law was contrary to Garcetti (as CJ Roberts suggested in oral argument), yet, at least it appears, according to the S. Ct., the official was entitled to rely on Circuit law and could ignore the clear import of the Garcetti decision. I grant that Garcetti left a lot of gray areas, but it was pretty clear that Garcetti removed 1st Amendment protection only for speech that is pursuant to one’s job duties. The testimony given by the official in Lane was not unprotected speech under Garcetti. There are also a number of other interesting cases involving circuit precedent that was clearly wrong given S. Ct. precedent, yet officials who relied on it were granted qualified immunity. In both the 4th and 8th circuits, there are cases where post-Hudson v. McMillian and Wilkins v. Gaddy, officials engaged in conduct that would constitute excessive force under either the 8th amdt or 4th amdt and yet officials were granted qualified immunity because the injury was de minimis and circuit precedent (wrongly) held that there could be no excessive force claim where the injury was only de minimis. And then there are strip search cases, where the strip searches would have been unlawful at the time under most circuits’ precedents pre-Florence, but where qualified immunity was granted because it turns out that subsequent to the the challenged conduct, the S. Ct. disagreed with the majority of circuits on this. I’ll stop here, but thanks for engaging in this discussion!

  4. Welcome, Karen! And thank you for those very interesting points. I think what you describe is somewhat similar to what happened in Reichle, in that officials got the benefit of a broad reading of a prior case whose specific holding clearly did not apply. You seem to have identified an important pattern in that regard, and it might be worth labeling it or giving it a name so as to isolate it for further study. Speaking of which, I will look forward to your treatment of these issues in your paper!

    • Karen M. Blum

      Thanks, Richard. I just find it strange and a bit frustrating to have a doctrine that allows qualified immunity for officers who rely on circuit precedent that is clearly wrong in light of S.Ct. case law and also allows qualified immunity for officers who ignore circuit precedent but turn out to be arguably right in light of subsequent S. Ct. case law. See, e.g., T.S. v. Doe, 742 F.3d 632(6th Cir. 2014). On another aspect mentioned, the relevance of state law, see Sutterfield v. City of Milwaukee, 751 F.3d 542 (7th Cir. 2014), where officers’ conduct was in clear violation of 7th Cir. precedent but consistent with precedent of the Supreme Court of Wisconsin. The officers were afforded qualified immunity, which I don’t have a problem with in that case but it sure adds to the confusion. I do think that if the Supreme Court keeps going on its trend, it will bring qualified immunity in 1983 cases into close alignment with the clearly established law doctrine in habeas. So qualified immunity will in essence become absolute immunity.

  5. Pingback: “Clearly Established” Circuit Law in Good-Faith Suppression Cases | Re’s Judicata

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