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Litigation Journal

Winter 2022: Tribunals


Kenneth R Berman


  • It’s one thing for courts to narrow a statute by interpreting its words or looking at it under a constitutional microscope.
  •  It’s quite another to narrow it by the simple stroke of a judicial pen.
  • The people have not elected federal judges or endowed them with authority to overwrite those statutes.
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Should judges create legal exceptions? If so, when and why? And by what authority?

When judges decree an exception to a statute, critics call it judicial activism. Others argue that, when laws lead to harsh or unfair outcomes, seemingly unintended, courts should use their inherent powers to fix, disable, or avoid them. They call that doing equity.

Let’s look at the gestational moment of a famous judicially created exception—qualified immunity from civil rights violations—and then look at a later mutation of it. Its genetic material offers important clues about whether the judicial practice of creating exceptions is a good thing.

In 1871, Congress passed the Ku Klux Klan Act, which included what is now 42 U.S.C. § 1983:

Every person who, under color of any statute, ordinance, regulation, custom, or usage, of any State or Territory or the District of Columbia, subjects, or causes to be subjected, any citizen of the United States or other person within the jurisdiction thereof to the deprivation of any rights, privileges, or immunities secured by the Constitution and laws, shall be liable to the party injured.

The purpose was noble. Congress was concerned that government actors were applying laws in ways that violated civil rights, especially the rights of former slaves and their descendants. As Congress passed it, the statute includes no exceptions.

A century later, the Supreme Court created one. The case, Pierson v. Ray, 386 U.S. 547 (1967), stemmed from the 1961 arrest of Black ministers who entered a clearly marked “White Waiting Room Only” in a Mississippi bus terminal. A state statute made it a misdemeanor to gather with others in ways that could create a breach of the peace if the person failed to “move on” when a law enforcement officer so ordered.

“[T]he ministers entered the waiting room peacefully and engaged in no boisterous or objectionable conduct while in the ‘White Only’ area,” the Court noted. According to the police, though, some 25–30 people followed them into the waiting room “in a very dissatisfied and ugly mood, . . . mumbling and making unspecified threatening gestures.”

Rather than arrest the unruly followers, the police arrested the ministers. A judge found the ministers guilty and sentenced them to the statutory maximum—four months in jail. On a retrial after appeal, the charges were thrown out or dropped. The ministers sued the arresting officers under section 1983.

As the Supreme Court framed the issue, could the police officers be held liable if they had acted in good faith and with probable cause? In its analysis, the Court showed some sympathy for the police:

A policeman’s lot is not so unhappy that he must choose between being charged with dereliction of duty if he does not arrest when he has probable cause, and being mulcted in damages if he does. Although the matter is not entirely free from doubt, the same consideration would seem to require excusing him from liability for acting under a statute that he reasonably believed to be valid but that was later held unconstitutional on its face or as applied.

In an earlier case, the Court had held that a section 1983 complaint against police officers should not be dismissed for failing to allege a specific intent to deprive the plaintiff of a constitutional right. The Court noted how that earlier case had said that section 1983 “should be read against the background of tort liability that makes a man responsible for the natural consequences of his actions.”

Having thus connected section 1983 to tort law in the past, the Court imported a tort defense into section 1983, creating an exception to the statute’s application:

Part of the background of tort liability, in the case of police officers making an arrest, is the defense of good faith and probable cause. We hold that the defense of good faith and probable cause, which the Court of Appeals found available to the officers in the common-law action for false arrest and imprisonment, is also available to them in the action under § 1983.

It did so based on legislative inaction, noting that in enacting section 1983, Congress had not shown any intent to abandon that tort defense.

In fairness though, Congress had shown no intent to adopt that defense either. Still, the Court remanded the case for resolution of a fact issue: Did the police arrest the ministers to enforce segregation, as the ministers claimed, or instead—as the officers claimed—to prevent violence? In words that cannot be reconciled with the statute’s text, the Court proclaimed: “If the jury believe[s] the testimony of the officers and disbelieve[s] that of the ministers, and if the jury [finds] that the officers reasonably believed in good faith that the arrest was constitutional, then a verdict for the officers would follow even though the arrest was in fact unconstitutional.”

Qualified Immunity

There it was—qualified immunity. Police would have a defense if they had a reasonable, good-faith belief that their unconstitutional conduct was constitutional.

Was that approach sound? Was it wise? Was it appropriate?

Statutes create rights and remedies not found in the common law, fixing problems the common law doesn’t address. They supersede the common law, are superior to it, and are presumed valid unless they exceed or conflict with a higher law—the Constitution. But in Pierson, rather than looking to the higher law to see whether section 1983 exceeded constitutional limits, the Court looked to a lower law and uploaded a common-law doctrine, creating an exception that Congress had not provided.

Although the statute was supposed to dictate the outcome of the legal dispute, on that issue the outcome dictated the reach of the statute. Simply put, the Court decided it was more important to protect police who violated others’ rights than to compensate those others—the victims of police misconduct—for the resulting harm. Though Congress could have enacted some form of qualified immunity, it hadn’t done so. Yet, the Court thought some form of immunity was needed and that Congress must have meant for police to have that immunity, so it found a way to engraft that exception onto the statute.

Without qualified immunity, officers could be liable for doing the wrong thing while thinking they were doing the right thing. But the risk of liability for wrongful decisions or actions wasn’t unique to police work. Most people who work face that risk. Should everyone escape tort liability if they reasonably believe in good faith that their conduct isn’t tortious?

Typically, a reasonable, good-faith belief in the propriety of one’s conduct won’t excuse one’s tortious behavior. Someone who releases toxic liquids into groundwater is liable for environmental contamination, even if the person knew nothing about pollution statutes or reasonably thought the liquid was water. Someone who copies and commercializes another’s work is liable for copyright infringement, even if the person knew nothing about copyrights or reasonably thought the work was in the public domain.

For governmental actors under section 1983, though, the Court provided a safe harbor if those actors subjectively believed in the rectitude of their conduct. Ignorance of the law sends convicts to jail, but under Pierson, it shields government actors from liability for their constitutional torts.

“Under Color Of”

The Pierson opinion showed that the Court feared an outcome under just one scenario—when police enforce a statute before a court invalidates it. But unconstitutional conduct is not necessarily limited to acting under an unconstitutional statute. Even when trying to enforce constitutional statutes, police still violate the constitution if they arrest someone without probable cause, search someone’s home without a warrant, or administer punishment on the spot.

In fact, section 1983 specifically provides that liability will attach when acting “under color of any statute, ordinance, regulation, custom, or usage.” The “under color of” requirement shows two things. First, there needn’t be a statute for liability to attach. Liability can attach for a constitutional violation committed merely under color of a custom or usage.

Second, Congress did not distinguish between constitutional and unconstitutional statutes, or between statutes before they are declared unconstitutional and those declared unconstitutional later. When an actor claims to have been enforcing a statute on the books at the time of the violation, such a claim simply concedes the “under color of” requirement, regardless of the statute’s constitutional status.

So if the Court was focused narrowly on how the statute affected police officers when enforcing a statute later declared unconstitutional, why did it reach broadly for a solution? Why did it craft a qualified immunity exception that applied to all unconstitutional behavior?

The Court simply could have held that a section 1983 claim will not lie when an officer’s conduct is constitutional in all respects except when the statute the officer is enforcing has yet to be declared unconstitutional. That holding could have been justified based on statutory interpretation: Until the statute is declared unconstitutional, a plaintiff, perhaps, isn’t yet deprived of a right “secured” by the Constitution. On the other hand, any other constitutional violation while enforcing a law—say, by arresting people for peaceably assembling instead of arresting the unruly mob or by making arrests to enforce racial segregation—would trigger section 1983 liability.

So why did the Court bypass an available, narrow solution—justifiable as an exercise of statutory interpretation—to craft a broad exception that Congress had not enacted but could have?

Sometimes courts can’t resist the impulse to tinker with statutes, to remold them into what they think is a better, fairer, smarter law. The Constitution doesn’t specifically say that courts can’t do that. But it does say something. Article 1 vests all legislative powers with Congress. When courts create statutory exceptions, are they appropriating a power given to Congress, not the judiciary? And if so, what drives them to do that? Generally, it’s some top-of-mind issue, when they think Congress could have done a better job or forgot something.

With section 1983, the Court was concerned about a perceived dilemma facing police officers. Why wasn’t the Court similarly concerned about the Black ministers? They were entitled to equal protection under the law and were arrested for assembling peaceably, while the crowd that followed them in an ugly mood with threatening gestures was spared.

Where was the concern that police officers enforce the law in a proper manner? Or that government officials not use the color of law to deprive citizens of their constitutional rights? Why wasn’t the Court concerned about the very thing that concerned Congress: making government officials accountable for their constitutional violations, in the hope that, by doing so, those violations would diminish and ultimately vanish?

Judicially created qualified immunity has evolved. In Harlow v. Fitzgerald, 457 U.S. 800 (1982), the Court noted how qualified immunity had depended on a defendant’s state of mind, which often required broad discovery. In the Court’s view, that made it harder for defendants to win on summary judgment, keeping them tied up in court and disrupting their work for the government. So the Court replaced the Pierson subjective standard with an objective one. Government officials would be immune if their conduct did not “violate clearly established statutory or constitutional rights [that] a reasonable person would have known [about] . . . as measured by reference to clearly established law.”

How did that revision have anything to do with congressional intent, constitutional limits, or common-law requirements? It seems it was driven purely for convenience, to “avoid excessive disruption of government and permit the resolution of many insubstantial claims on summary judgment.” It was as if the Court forgot that, when it first created qualified immunity in Pierson, it did so on some semblance of a legal foundation—the common-law doctrine involving false arrests.

Harlow didn’t even have that. The Court simply concluded that the Pierson version wasn’t weeding out meritless claims fast enough, so it invented a different mousetrap, one that, to the Court, seemed logical and would limit the liability of government actors more efficiently. Harlow involved federal officials, and the tort claim was thus based directly on the Constitution, not on section 1983. But the Court said that “immunity law” should not distinguish between the two.

As it played out, the “clearly established law” requirement fulfilled the Harlow Court’s vision, making it much harder for civil rights plaintiffs to win. After Harlow, unless a plaintiff showed some governing legal precedent with nearly identical facts, defendants almost always managed to distinguish their cases from the closest precedent and to argue successfully that the constitutional right was not “clearly established.”

When courts create exceptions, they’re redefining legal boundaries. Before Pierson, police officers who made an unconstitutional arrest would have been liable under the statute. Pierson moved the boundary of that liability, and Harlow moved it further. For expediency, the Court basically modified the statute, making the pool of defendants who would be liable smaller and the pool of uncompensated victims larger. The outcome was far different from where Congress drew the line.

It’s one thing for courts to narrow a statute by interpreting its words or looking at it under a constitutional microscope. It’s quite another to narrow it by the simple stroke of a judicial pen. The people elect senators and representatives, accountable at the ballot box, to be their statutory architects. The people have not elected federal judges, much less endowed them with authority to overwrite those statutes. Nor are federal judges, who sit for life, accountable to anyone.

It’s not satisfactory to say that, if it wants to, Congress can amend the statute to undo the Court’s handiwork. Such congressional action takes effort, hearings, investigations, research, debate, coalition building, and compromise. It’s unrealistic to expect that Congress can so easily react to and undo what a court can so easily create. It would instead be better for courts simply to identify the purported statutory flaw and defer to Congress to fix it.

Martin Luther King Jr. said that the arc of the moral universe is long, but it bends toward justice. That may be so, but with judicially created exceptions to acts of Congress, the arc of the legal universe is short, and it seems to bend toward what some find justified in the moment. The aftereffects, though, can run deep and last a long time.