December 31, 2015

Closing the Courthouse Doors

by Erwin Chermerinsky

The  Roberts Court has made it much harder to hold the government and government officers accountable for constitutional violations and to compensate those injured by unconstitutional conduct. Long ago, in Marbury v. Madison, 5 U.S. (1 Cranch) 137 (1803), Chief Justice John Marshall wrote that “[t]he very essence of civil liberty certainly consists in the right of every individual to claim the protection of the laws, whenever he receives an injury.” The Court said that “[t]he government of the United States has been emphatically termed a government of laws, and not of men.” The Court thus powerfully declared that no one, not even the government or its top officials, is above the law, and that it is elemental that the law must provide a remedy to those who have been injured.

But in a series of decisions, the Roberts Court has made it much harder to sue government officials for their unconstitutional actions. This often leaves the victims with no remedy at all, preventing compensation for the injuries suffered and meaning that there is little deterrent to wrongdoing. Suing individual government officers is often the only way that injured persons can recover for constitutional violations. Suits against government entities are often difficult, if not impossible. Both the federal and state governments are protected by sovereign immunity, which greatly limits suits against them for damages. Local governments can be held liable for civil rights violations only if there is a municipal policy or custom that led to the injury.

Absolute Immunity

The Supreme Court, however, has said that all government officials, when sued for money damages, may raise “immunity” as a defense. Some government officers have absolute immunity to suits for money damages: judges performing judicial tasks, prosecutors performing prosecutorial tasks, legislators performing legislative tasks, police officers testifying as witnesses, and the president for acts taken in office. Absolute immunity means that these individuals cannot be held liable for money damages, no matter how egregious their actions.

The Roberts Court has expanded the scope of absolute immunity for some of these tasks. For example, in Van De Kamp v. Goldstein, 555 U.S. 335 (2009), it held that a man who spent over 23 years in prison for a murder that he did not commit could not sue the district attorney’s office, even though the prosecutors did not disclose key evidence, in violation of the Constitution. The wrongly convicted individual sued the district attorney for a failure to create policies and practices to ensure that such material is disclosed. But the Supreme Court ruled that absolute immunity precluded liability.

Similarly, in Rehberg v. Paulk, 132 S. Ct. 1497 (2012), an investigator in a prosecutor’s office went to court, lied, and had a person indicted. In fact, the investigator went to three grand juries and lied to each, getting an indictment each time that was ultimately dismissed by a trial judge as lacking an evidentiary basis. The investigator apparently did this in retaliation for the person’s criticism of the management of a local hospital.

The wrongly indicted individual sued for malicious prosecution in violation of the Fourth Amendment. This should have been an easy case. The investigator abused his power by lying three times before a grand jury to get an innocent person indicted. The falsely indicted individual incurred financial costs for the lawyer he had to retain and for the emotional costs of being thrice falsely indicted. But the Supreme Court unanimously ruled that the investigator was protected by absolute immunity and could not be sued for money damages, even though the investigator repeatedly lied in court.

Qualified Immunity

All other government officers have qualified immunity when they are sued for money damages. In Harlow v. Fitzgerald, 457 U.S. 800 (1982), the Court held that “government officials performing discretionary functions liability for civil damages insofar as their conduct does not violate clearly established statutory or constitutional rights of which a reasonable person would have known.”

But in Ashcroft v. al-Kidd, 132 S. Ct. 2074 (2011), the Roberts Court changed this standard and made it much harder to sue government officials. Abdullah al-Kidd, a U.S. citizen and a married man with two children, was arrested at a Dulles International Airport ticket counter. Over the next 16 days, he was confined in high-security cells lit 24 hours a day in Virginia, Oklahoma, and then Idaho, during which he was strip-searched on multiple occasions. Each time he was transferred to a different facility, al-Kidd was handcuffed and shackled about his wrists, legs, and waist. He was released on “house arrest” and subjected to numerous restrictions on his freedom. By the time al-Kidd’s confinement and supervision ended, 15 months after his arrest, al-Kidd had been fired from his job as an employee of a government contractor and had separated from his wife.

Al-Kidd was not arrested and detained because he had committed a crime or even because there was probable cause that he had committed a crime. Rather, al-Kidd was held under the federal material witness statute, which allows the government to hold a material witness who has essential testimony and who otherwise is likely to be unavailable to testify. But the government was not holding al- Kidd because they wanted to secure his testimony, as that statute requires. His detention had absolutely nothing to do with obtaining testimony from him. Rather, al-Kidd was detained in order to investigate him and the material witness statute was used because the government did not have enough evidence to arrest him on suspicion of any crime.

Al-Kidd was never charged with any crime, nor ever used as a material witness. He sued Attorney General

John Ashcroft, who had authorized the detention. Ashcroft claimed that he was protected by qualified immunity and moved to dismiss the lawsuit. The federal court of appeals rejected this, saying that any government official, and especially the Attorney General of the United States, should know that it violates the Fourth Amendment to arrest and detain a person as a material witness if there is no desire to use the person as a witness and no probable cause that the person has committed any crime.

The Supreme Court, however, reversed and held that al-Kidd had no claim upon which he could recover. Justice Scalia’s majority opinion changed the law of qualified immunity. Writing for the Court, he declared: “A Government official’s conduct violates clearly established law when, at the time of the challenged conduct, ‘[t]he contours of [a] right [are] sufficiently clear’ that every ‘reasonable official would have understood that what he is doing violates that right.’ We do not require a case directly on point, but existing precedent must have placed the statutory or constitutional question beyond debate.” Never before had the Supreme Court said that the test is whether “every reasonable official” would have known that the conduct was impermissible. Never before had the Court said that a plaintiff could recover for a constitutional violation only if existing law placed the question “beyond debate.”

Since Harlow, courts have struggled with how to determine if there is “clearly established” law that the “reasonable person would have known.” Must there be a case on point to say that there is such clearly established law?

In Hope v. Pelzer, 536 U.S. 730 (2002), the Court seemingly resolved this, holding that there need not be a prior decision on point in order for plaintiffs to show clearly established law exists. Rather, officers can be held liable if they had “fair warning” that their conduct was impermissible.

In the decade since Hope v. Pelzer, the Court repeatedly has found, even in recent cases, qualified immunity based on the absence of a case on point. The Court has not overruled Hope v. Pelzer or even distinguished it; the Court has simply ignored it. In the process, the Court has made it much harder for plaintiffs to overcome qualified immunity and hold government officers liable for constitutional violations.

In Lane v. Franks, 134 S. Ct. 2369 (2014), the Court unanimously held that a government employee’s First Amendment rights were violated when he was fired for truthful testimony he gave in court pursuant to a subpoena. Of course, it is wrong to fire a person for testifying honestly in a criminal trial, especially when the individual had no choice because of a subpoena.

 Nonetheless, the Court found that the defendant responsible for the firing was protected by qualified immunity. The Court reviewed precedents, especially from the Eleventh Circuit, and found that none clearly held that this violates the First Amendment. But Hope v. Pelzer said that a case on point is not necessary; should not every government officer know that it is wrong to fire a person for truthfully testifying in court?

In Plumhoff v. Rickard, 134 S. Ct. 2012 (2014), the Court again found that government officials were protected by qualified immunity. Officers pulled over a vehicle because it had only one operating headlight. An officer asked the driver to step out of the car, but the driver sped away.

A high-speed chase lasting five minutes and reaching speeds of over 100 miles per hour then ensued. At one point, the officers appeared to have the car pinned. But when the car pulled away, officers fired three shots into it. As the car attempted to speed away, the police fired another 12 shots. Both the driver and the passenger were killed. The Sixth Circuit concluded that the police used excessive force and violated the Fourth Amendment.

The Supreme Court unanimously reversed. Justice Alito wrote for the Court and held that there was no Fourth Amendment violation. The Court said that the driver’s conduct posed a “grave public safety risk,” and the police were justified in shooting at the car to stop it. The Court said, “the officers need not stop shooting until the threat has ended.” Moreover, the Court said that even if there were a Fourth Amendment violation, the officers were protected by qualified immunity because the law was not clearly established that the conduct violated the Fourth Amendment.

This is a disturbing holding. The Supreme Court now has said that whenever there is a high-speed chase that officers perceive could injure others— and that would seem to be true of virtually all high-speed chases— the police can shoot at the vehicle and keep shooting until it stops. This car was stopped for having only one working headlight. If the driver refused to stop, why not just let the car go and track the driver down later? Why should death be the punishment for making the extremely poor choice to begin a high-speed chase?

Finally, in Wood v. Moss, 134 S. Ct. 2056 (2014), the Court found that Secret Service agents were protected by qualified immunity when they engaged in viewpoint discrimination with regard to speakers. In Oregon, Secret Service agents allowed supporters of President George W. Bush to be closer to him and pushed his opponents further away. The law under the First Amendment is clear that the government cannot discriminate among speakers based on their views unless strict scrutiny is met.

Nonetheless, the Court, in a unanimous decision with the majority opinion written by Justice Ginsburg, found that the Secret Service agents were protected by qualified immunity because there were no cases on point concerning when Secret Service agents violate the First Amendment. But why must there be cases that specific when the law is clearly established that viewpoint discrimination violates the First Amendment?

All of these cases were unanimous. All found qualified immunity because of the absence of a case on point. Together, they show a Court that is very protective of government officials who are sued for money damages and that has made it very difficult for victims of constitutional violations to recover.


Decisions about absolute and qualified immunity receive little media attention. But these are enormously important doctrines that keep injured individuals from recovering. The promise of Marbury v. Madison— that “[t]he very essence of civil liberty certainly consists in the right of every individual to claim the protection of the laws, whenever he receives an injury”—is rendered empty when absolute or qualified immunity precludes any remedy. The Roberts Court has expanded both absolute and qualified immunity and thus has undermined government accountability.

Erwin Chermerinsky

Erwin Chemerinsky is dean, Distinguished Professor of Law, and the Raymond Prkye Professor of First Amendment Law at University of California, Irvine School of Law.