Washington Lawyer - November/December 2020 - 32

FEATURE
Despite his obvious sympathy for Jamison's experience and a clear frustration with the law's restrictions, Judge Reeves dismissed Jamison's
suit against police officer Nick McClendon. Noting that the court was
compelled to apply the law as stated by the U.S. Supreme Court, Reeves
asked that people not be fooled by legal jargon. "Immunity is not exoneration," he said. "And the harm in this case to one man sheds light on
the harm done to the nation by this manufactured doctrine."
The doctrine in question is qualified immunity, a judicial tenet that
shields government employees from liability for actions undertaken in
the course of duty that, even if wrongful, were not clearly unconstitutional at the time. Established by the Supreme Court in the case of
Pierson v. Ray and later developed in Harlow v. Fitzgerald, the doctrine
does not appear in the statutory code and, in many ways, directly contradicts or limits the Civil Rights Act of 1871, also called the Ku Klux Klan
Act. Implemented in response to violence in the Reconstruction South
by the Klan, many of whose members were law enforcement officers, the
act permits citizens to sue public officials who violate their legal rights.
Qualified immunity has, since its implementation, shielded officers from
liability for wrongful arrests and shootings. In a 2019 case involving
a police raid in Fresno, California, officers received immunity when
accused of stealing almost a quarter million dollars in cash and rare coins
from the subjects of their search.
As the public's attention turned to the question of police reform during
the summer of 2020, activists and legal experts advanced a wide variety
of propositions to reduce incidences involving violence and abuse of
authority by officers of the law. Calls have been made to defund, restructure, and otherwise fundamentally change policing in this country. Many
of the propositions are contentious, require complicated implementation, and leave several open questions regarding their potential for unintended impacts.
The elimination of the qualified immunity doctrine, however, presents
much fewer complications. The doctrine's thin justification for its existence, the multiple methods available to modify or eliminate the protection, and the large and diverse group of critics of the doctrine all make
its elimination an attractive opportunity to meaningfully address social
justice issues.

CONSERVATIVES' CASE AGAINST IMMUNITY
There are two courses by which the doctrine might be eliminated. The
Supreme Court could choose to erase the doctrine of its own creation
by issuing a precedential decision to that effect, or Congress could pass
a law explicitly doing away with qualified immunity. In recent months
there has been movement on both fronts, with conservative voices
often speaking out most loudly for the tenet's eradication.
Which is why the argument to end qualified immunity has a peculiar
advantage: Critics come from all points of the political spectrum. For
years Scott Michelman, legal director of the American Civil Liberties
Union's D.C. chapter (ACLU-DC), has been working on the issue in coalition with organizations such as the libertarian Cato Institute, the conservative Institute for Justice, and others, leveraging a shared perspective
on the need for accountability for constitutional violations.
"The doctrine is ahistorical, is not needed to achieve its purported goals,
and, worst of all, undermines the rule of law by eviscerating accountability for wrongdoing by government actors," according to Michelman.

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William Baude, a professor at the University of Chicago Law School, is
responsible for penning a set of documents for the Cato Institute in 2019
arguing for the elimination of qualified immunity. He says the doctrine
presents multiple issues from a rule of law perspective. "As a formal, technical matter, it wasn't something that was in the law before, and it wasn't
something that Congress authorized; it was something that the judiciary
added to the law, and that's not normally how we're supposed to make
law in our system," Baude says. "Secondly, it says that government officials, and executive officials especially, don't have to comply with the
Constitution."
Baude notes that, from a conservative perspective, this is entirely unacceptable. "Public officials should know and obey the law at least as much
as the rest of us. Qualified immunity is offensive to that basic proposition," he says.
Brian Fitzpatrick is a self-described conservative and a former judicial
clerk for Supreme Court Justice Antonin Scalia. Now on the Vanderbilt
Law School faculty, Fitzpatrick says that qualified immunity is offensive
to core conservative values. "It is a totally made-up doctrine . . . why we
wouldn't want to be able to sue the government when the government
tramples on our rights is really hard to fathom from a conservative perspective." He adds that conservatives traditionally favor government
restraint, and that qualified immunity insulates government agents from
liability for their trampling of American rights.
Conservative criticism of qualified immunity extends beyond academia.
Critics can be found at the highest levels of government, including
Congress and the Supreme Court. Rep. Justin Amash, a libertarian representing Michigan's third district, introduced the Ending Qualified
Immunity Act to the House of Representatives in June, citing the killing
of George Floyd among other incidents of egregious police misconduct.
"This pattern continues because the police are legally, politically, and
culturally insulated from consequences for violating the rights of the
people whom they have sworn to serve. That must change so that these
incidents of brutality stop happening," Amash said in June.
Supreme Court Justice Clarence Thomas has also criticized the doctrine.
His dissent of a June Court order denying certiorari in the case of Baxter
v. Bracey recounts the doctrine's development, quoting his own opinion
in stating that the Court's qualified immunity analysis "is no longer
grounded in the common-law backdrop against which Congress
enacted the 1871 Act." He concludes with an expression of strong doubt
regarding the doctrine, and states that given the importance of the
question, he would have granted certiorari. The issue is one of the few
in which he and Justice Sonia Sotomayor are in agreement.

REBUTTING THE SUPPORTERS
These arguments raise the question of why the doctrine persists. The
answer is uncertain. Despite the wide array of critics, the doctrine is not
without supporters. Opponents of police reform argue that the potential
exposure to liability could drive prospective law enforcement officers
away from the career, while others say that without the doctrine's protections, police will be vulnerable to frivolous and harassing lawsuits.
Michelman points out that these counterarguments fail to account for
the other protections present in our legal system. Officers exposed to a
monetary judgment on account of their actions in the course of duty are,
in virtually all circumstances, indemnified by the state, so it is highly

Washington Lawyer - November/December 2020

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