In 2003, the assistant principal at 13-year-old Savana Redding’s middle school pulled her out of math class to question her about the discovery of five prescription-strength anti-inflammatory pills, which she denied knowing anything about. After telling Savana that he heard “a report” that she was giving pills to other students, the assistant principal instructed a school nurse and administrative assistant to conduct a strip search. They forced Savana to remove all of her clothing except for her bra and underpants and, finding nothing, told her to stretch out her bra and pull out her underpants, exposing her breasts and pelvic area to their view. They found no pills.
Savana sued the school personnel who conducted the search under 42 U.S.C. § 1983 for violating her Fourth Amendment right to be free from unreasonable searches. The U.S. Supreme Court unanimously concluded that the officials had violated Savana’s constitutional rights. But by a 5–4 vote, the Court held that the officials could not be held liable for their conduct because they were entitled to “qualified immunity.” Safford Unified School District No. 1 v. Redding, 557 U.S. 364, 379 (2009). Qualified immunity is an affirmative defense that protects federal, state, or local officials who are sued for damages when they have violated the Constitution (constitutional tort claims filed under 42 U.S.C. § 1983 or Bivens v. Six Unknown Named Agents of Federal Bureau of Narcotics, 403 U.S. 388, 392–97 (1971)). It bars suits from proceeding unless the plaintiff can demonstrate that the officials’ conduct violated “clearly established . . . constitutional rights of which a reasonable person would have known.” Harlow v. Fitzgerald, 457 U.S. 800, 818 (1982). In Savana’s case, the Supreme Court held that the prevailing legal standard, which required school officials to balance the need to conduct the search against the intrusion on students’ privacy, was not so clearly defined that the officials could be said to have committed an obvious Fourth Amendment violation. As the majority observed, “cases viewing school strip searches differently from the way we see them are numerous enough, with well-reasoned majority and dissenting opinions, to counsel doubt that we were sufficiently clear in the prior statement of law.” Safford, 557 U.S. at 378–79.
Savana is far from alone. Every year, the federal courts turn away the constitutional tort claims of numerous plaintiffs who allege they have been injured by a government official’s unconstitutional conduct. Qualified immunity provides broad protection to government employers, law enforcement officers, prison and jail guards, school teachers and administrators, social workers, and a vast array of other officials whose authority places them in a position that could lead to constitutional violations. Although most lawyers recall Marbury v. Madison’s storied language “that every right, when withheld, must have a remedy,” 5 U.S. 137, 147 (1803), qualified immunity has become one of the most impenetrable barriers to liability for constitutional violations. Indeed, the Court has shaped the doctrine in ways that make it more closely resemble absolute immunity. Alan K. Chen, The Facts About Qualified Immunity, 55 Emory L.J. 229, 262 (2006).
The Court has justified the qualified immunity doctrine on several distinct policy grounds. Despite the importance of enforcing the Constitution, the Court has asserted that lawsuits against public officials have substantial costs. First, it has claimed that lawsuits against public officials for performing their discretionary duties may be unfair, particularly in the sense that those officials are usually not lawyers and the boundaries of constitutional law are often unclear. Wood v. Strickland, 420 U.S. 308, 319–22 (1975). Second, it has asserted that the fear of civil rights lawsuits may cause officials to be “overdeterred.” Harlow, 457 U.S. at 806–07. That is, they will be chilled not only from violating the Constitution, but also from engaging in lawful, publicly beneficial conduct. Id. Finally, the Court has more recently emphasized a third rationale—constitutional litigation imposes high social costs, including the government’s litigation expenses and the diversion of officials’ attention toward defending lawsuits rather than performing their duties. Id. at 814. These costs can be substantial, the Court says, because it assumes that a significant percentage of constitutional tort claims are frivolous. Id.
Critics of qualified immunity point out that the breadth of the doctrine’s protection means that people like Savana Redding whose rights have been violated will go without compensation. Contrary to Marbury’s admonition, their rights can be violated, but they will receive no remedy. But there are broader social costs associated with qualified immunity as well. Because of the way the doctrine is structured, courts can decide an official is entitled to qualified immunity by concluding that he or she has not violated a “clearly established” right without ever answering the question of whether his or her conduct did, in fact, violate the Constitution. This means that courts can dismiss constitutional rights claims without precisely clarifying the scope of the law. Constitutional doctrine, like the common law, evolves and is refined through series of court decisions. But qualified immunity interferes with this law-pronouncing function of the federal courts and reduces the amount of guidance about the meaning of the Constitution for both government officials and the public at large. John C. Jeffries Jr., The Right-Remedy Gap in Constitutional Law, 109 Yale L.J. 87, 99–100 (1999).
To address this concern, the Court at one point instructed lower courts to order their decision making so that they first addressed whether the official’s conduct violated the Constitution before deciding whether he or she had immunity from suit. Saucier v. Katz, 533 U.S. 194, 200 (2001). Thus, as in Savana Redding’s case, while she might not have benefited from the articulation of the relevant constitutional rule, at least similarly situated future plaintiffs could have benefited. But just a few years later, the Court reversed course and restored the lower courts’ discretion to determine in which order to decide those questions. Pearson v. Callahan, 555 U.S. 223, 242 (2009). There was some skepticism about how often lower courts addressed the merits question first, even under the Saucier regime, Alan K. Chen, Rosy Pictures and Renegade Officials: The Slow Death of Monroe v. Pape, 78 UMKC L. Rev. 889, 927 n.247 (2010), or if, when they did, they recognized a previously unarticulated constitutional right. Nancy Leong, The Saucier Qualified Immunity Experiment: An Empirical Analysis, 36 Pepp . L. Rev. 667, 692– 93 (2009). In any event, lower courts now have a green light to avoid the “harder” constitutional law question and simply decide that defendants are entitled to immunity whether or not they violated the Constitution.
What this means is that in cases involving cutting-edge issues of constitutional law, qualified immunity may itself prevent the law from ever becoming clearly established. A couple of examples will help illustrate this phenomenon. One area of First Amendment doctrine that is not yet fully developed is whether or not citizens have a right to surreptitiously record police officers during the course of their duties. In Kelly v. Borough of Carlisle, 622 F.3d 248, 259 (3d Cir. 2010), the court reviewed the First Amendment claim of an automobile passenger who attempted to videotape a police officer during a traffic stop. After discovering the passenger’s conduct, the officer arrested him and confiscated his camera. Id. at 251–52. Rather than address the merits of the passenger’s First Amendment claim, the Third Circuit instead found that the right to record police officers was not clearly established and affirmed the officer’s claim that he was entitled to qualified immunity. Id. at 262. Other federal courts have followed this same practice, thus failing to clarify or advance the relevant First Amendment law. See Szymecki v. Houck, 353 F. App’x 852, 852–53 (4th Cir. 2009).
The law of free speech could also benefit from further articulation in the context of candidates for public office excluding persons from their campaign rallies based on their political viewpoint. In Weise v. Casper, 593 F.3d 1163, 1165 (10th Cir. 2010), the Tenth Circuit rejected the appeal of protesters who were excluded from a rally for President George W. Bush because campaign aides had observed that their car had a bumper sticker declaring “No More Blood for Oil.” Citing Pearson, the court opted not to address the question of whether this conduct violated the protestors’ First Amendment rights, deciding instead that the law governing this type of exclusion from a campaign event was not clearly established. Id. at 1167–70. In his dissent, Judge Holloway identified the problem with the majority’s choice to bypass a merits ruling.
I am persuaded that this is a case in which the issue of whether a right has been violated should be addressed at the outset. In recent years there have been several cases across the nation in which citizens have sought redress for alleged infringement of their fundamental liberties under somewhat similar circumstances. Because the right of free speech on matters of public concern is so vital to our democracy, these are important cases, and the judiciary has a valid and vital role in our society’s response. The importance of the issues raised in this appeal should weigh heavily in favor of our consideration of them on the merits.
Id. at 1172–73 (Holloway, J., dissenting). Indeed, Justices Ginsburg and Sotomayor dissented from the Supreme Court’s denial of certiorari in this case on the ground that the defendants had committed a clear violation of the First Amendment. Weise v. Casper, 562 U.S. 976, 976–77 (2010) (Ginsburg, J., dissenting from denial of certiorari).
In addition to qualified immunity’s broad impact on the development of constitutional law, it has introduced a high level of complexity into civil rights litigation. For instance, there is a great deal of confusion about procedural standards governing such claims, including questions about which party bears the burden of persuasion on disputed facts on the immunity claim. Teressa E. Ravenell, Hammering in Screws: Why the Court Should Look Beyond Summary Judgment When Resolving § 1983 Qualified Immunity Disputes, 52 Vill. L. Rev. 135, 136 (2007). Moreover, because of the factual complexity associated with most constitutional tort suits, litigation costs may actually be exacerbated by the proliferation of qualified immunity claims. Alan K. Chen, The Burdens of Qualified Immunity: Summary Judgment and the Role of Facts in Constitutional Tort Law, 47 Am. U. L. Rev. 1, 101 (1997).
A final critique of qualified immunity is one that is difficult to prove empirically. Because of the many costs associated with this defense that I have identified above, plaintiffs and their attorneys may find that the game is not worth the candle. To prevail on a constitutional tort claim, which may not necessarily involve a large monetary recovery, the plaintiff must navigate the difficult path that the qualified immunity doctrine has hewn. They may be tied down for years litigating qualified immunity and defending multiple interlocutory appeals should they initially prevail on the qualified immunity claim in the trial court. Even with the incentive of attorney fee shifting under 42 U.S.C. § 1988, many plaintiffs may simply be discouraged from ever filing a constitutional tort claim because they anticipate that they will be drawn into a protracted and time consuming dispute. The suppression of potentially meritorious civil rights claims is a cost of qualified immunity that impedes access to justice in profound and troubling ways.
The author would like to thank Ellen Giarratana, J.D. candidate, University of Denver Sturm College of Law, for helpful research assistance.