Qualified Immunity: The Ultimate Product of Judicial Activism

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Congress will soon take up multiple bills to pull back the doctrine of Qualified Immunity. In the House, a bill has been introduced that would roll back Qualified Immunity as it relates to law enforcement and corrections officers. In the Senate, a bill is pending that would roll back qualified immunity as applied to an even broader class of government workers. In either event, the rollback of qualified immunity is an important step for increased government accountability. In this brief post, I will discuss what qualified immunity is and how it came about. Then I will briefly make the case that qualified immunity should be rolled back significantly if not entirely.

A Brief History of QI

Qualified immunity is a recent innovation in the law and is entirely a creature of case law. The right to sue government officials for the violation of constitutional rights originated in the passage of a ku klux klan bill of 1871. The relevant language is codified in 42 USC § 1983, which provides a private cause of action for those whose rights are violated by a government official. The law existed for nearly 100 years before the doctrine of qualified immunity emerged by case law, in Pierson v. Ray (1967). Pierson established that certain government officials enjoy a measure of protection from suit. Specifically,“under the prevailing view in this country a peace officer who arrests someone with probable cause is not liable for false arrest simply because the innocence of the suspect is later proved.” The next and most significant step toward qualified immunity came in 1982 in Harlow v. Fitzgerald. In Harlow, the Court held that “Henceforth, government officials performing discretionary functions generally are shielded from 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.”

Where Things Stand

After Harlow, it has become exceedingly difficult for a plaintiff to prevail in a civil rights action. An officer who knowingly violates someone’s constitutional rights will generally be protected from suit unless the victim can identify previous judicial opinions that addressed the specific context and conduct. And that case must fit the exact contexts and action down to a high degree of specificity. There is a degree of circularity at play in this doctrine. How does the law ever change if a plaintiff must show a previously-exact case in order to pierce qualified immunity?

In a ninth circuit case, for instance, police attempted to steal $225,000 after a raid. The officers were protected by qualified immunity because “there was no clearly established law holding that officers violate the Fourth or Fourteenth Amendment when they steal property seized pursuant to a warrant.” Even if stealing is wrong, no law held that stealing money violated a constitutional right. And the officers were shielded from liability.

Why QI Should be Rolled Back

Justice Clarence Thomas appears to favor a rollback of qualified immunity to Pierson. And here is why it is important to turn the clock back to where it stood before Harlow. Criminal prosecution is not a good instrument for law enforcement reform. It is a huge ask to demand prosecutors to prosecute the officers who prepare their cases. And juries have been reluctant to indict, much less convict, law enforcement officers. To be sure, the standard for conviction beyond a reasonable doubt is difficult to prove. However, the preponderance standard for a civil rights violation is easier to meet and likely less of an ask for jurors. Furthermore, the civil standard creates a financial incentive for lawyers to bring suit before jurors whose jobs do not depend on shielding law enforcement. States and municipalities will bear a financial incentive to safeguard civil rights, as insurance premiums will depend upon hiring, retaining, disciplining, and training offices to protect the civil rights of those with whom they come in contact.

Bills currently pending in Congress are a good move toward a regime that will reduce police mistreatment and brutality. Increased public

An Expanded Direction of Practice (Inspired by a Bout of Insomnia)

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(pardon the typos. It’s 2:17 a.m.)

The quarantine has been a time of reflection. I think I remember what a courtroom looks like. And if quarantine were not bad enough, the steady stream of political and racial upheaval fed to me all over the news and various social media outlets has me itching for a trial. Alas, trials aren’t happening. I read somewhere that one judge tried to have a trial, and a Coronavirus flare-up happened. Another judge tried to do a trial by Zoom, and a juror took a phone call during trial. We have been good over here. We’ve efiled things left and right. And we’ve received a steady stream of orders.

Away from the press of court dates and with a relaxed set of deadlines, I have had the opportunity to reflect. And I am pleased to make an announcement. I am expanding into the are of plaintiff’s personal injury at the appellate and trial level (with an emphasis on the trial part). Allow me to explain a bit.

  • I miss the courtroom. In the Spring and Summer of 2018, I tried two cases to verdict. One was a major felony in a state court. The other was a major drug conspiracy in Federal Court. In the last few months, I have opened two major felony trial-level cases. I’ll always love and do appeals. But it can be a bit frustrating to discover how things went badly as I read about them in a transcript. These trial-level cases feel like something of a blank canvas waiting to be created.
  • I’m ready to do something new and for renewal. I love the writing of Shunryi Suzuki. Since I read it years ago, there is seldom a day when I do not think of his work, Zen Mind, Beginner’s Mind. “In the beginner’s mind there are many possibilities, but in the expert’s there are few.” He explains, speaking of Zen, “The same thing will happen in your other Zen practices. For a while you will keep your beginner’s mind, but if you continue to practice one, two, three years or more, although you will improve some, you are liable to lose the limitless meaning of original mind.” I will continue to quote Suzuki, because he’s just that good. “Our ‘original mind’ includes everything within itself. You should not lose your self-sufficient state of mind. This doesn’t mean a closed mind, but actually an empty mind and a ready mind. If your mind is empty, it is always ready for anything; it is open to everything. In the beginner’s mind there are many possibilities; in the expert’s mind there are few.” I recall my days of beginner’s mind in criminal practice. They started when I was a 3L and worked up a major felony file for two seasoned lawyers to try. I had big a clunky laptop. And I spend an entire weekend calling each of the State’s witnesses one by one. I took careful notes of what they told me. And I learned some things about the case that the prosecution and the cops didn’t know. Armed with that knowledge and with their skill, I watched that weekend of work contribute to an acquittal. I remember my first jury trial — a very minor misdemeanor that felt like the OJ trial to me. I remember hearing the not guilty verdict. My career thus far has had many such moments — receiving an opinion from the court, clicking the link, and discovering that I not only won but that the case changed the law for the better. But lately I’ve felt a bit like Bill Murray’s character in the movie Groundhog Day (living in the fourth year of the Trump administration and the 7,000th day of quarantine hasn’t helped this feeling). I think it’s time for something new. I sit and type and recall what beginner’s mind felt like. For what I do, I’ve become an expert. But expertise should never get in the way of beginner’s mind. And I think when we spark beginner’s mind, the way of Zen pervades even the areas of expertise.
  • I Love the Practice Model. For the criminal defense attorney in private practice, there is a harsh reality. The clients you often would most like to help cannot afford to fund the kind of defense you can provide. And if you start making a bunch of exceptions you won’t’ be able to provide that level of defense to those who can pay. So, for every client I take, 8-10 are turned away or can’t fund the work. In addition, the gods don’t always hand out great facts. And financially the client and I often find ourselves on opposite sides of the table based upon money. In the P.I. world, because compensation is tied to what is recovered, the client functions as kind of a partner. And the case is taken based upon merit rather than the ability to pay (seasoned plaintiff’s attorneys will email me on this point and accuse me of being a bit Pollyanna about all of this. But they likely are taking it from a position of expertise).
  • A Career in Criminal Trial and Appellate Practice has Prepared me for Such a Time as This. A buddy and colleague of mine made the leap from criminal to P.I. several years ago. And I’ve annoyed mercilessly about all of this. He’s been a remarkable sport. He assures me that all of the jury trials and oral arguments I’ve done over my career (I’ve lost track of the number of both at this point), has built up better chops than those who did not come over from the criminal arena. Also, I am not at all afraid to lose. You develop a thick skin for loss in nearly two decades doing criminal appeals or you will literally die. If you want to win in criminal litigation, go interview to be a DA. Not that I haven’t won a lot. I have. But it’s all relative.
  • Speaking of the Times, the Times are Calling. If our nation survives the things that make me appalled every time I turn on the news, are going to usher in a society more willing to hold people accountable in the arena of torts. There is a legitimate push to drop qualified immunity in civil rights cases. I’m not holding my breath. But it’s an interesting thing to behold. Sitting in quarantine watching the parade of truly disgusting things in the news, I think that the prospect of helping victims become successful plaintiffs is intriguing.

To be sure, I am not quitting any of the things I currently do. And I still re on fire for my current clientele. But I’m ready to be more selective about those cases in the future. And a new acquisition of beginner’s mind will help me in these areas as well.

So, there you have it. At 2:10 a.m. as the news shows us the cities burning and in the midst of a global pandemic, I feel inspired to new horizons. I’m not sure where the cases are. There are a bunch of click tv ads and billboards. But I don’t want to be a volume guy necessarily. As I set out, I am confident the horizon is out there ready to be pursued. And Somewhere between here and there is the beginner’s mind.

 

 

 

It’s Okay to Turn off the News

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Before all the CoVid-19 stuff, I read the news exactly once per week. I experienced the entire Trump impeachment episode in weekly installments at brunch. I allowed myself the Sunday New York Times and the Sunday Atlanta Journal. Also, I did not allow myself to click on any “news” shared over social media. My only other requirement was alcohol. News is best experienced with an extremely spicy bloody mary or incredibly fizzy mimosa. If I made an exception it would be for a very local newspaper.

When I entered quarantine, I started breaking my own rules. And I allowed the news to creep back in, first on television and then from links shared in angry or snarky Facebook Posts or Tweets. Over Friday and Saturday night, I was sucked into images of reporters on the ground in big cites showing clashes with police, tear gas, and riots. I’m not saying that there isn’t a civic duty to be informed. But that civic duty does not require staring at the phone and feeling panic and despair.

Yesterday, I decided to reimpose the Sunday-only rule. Except brunch places aren’t open. And I was hanging out with my ten-year-old son. I turned off the news. I’m happy to report that I survived to tell the tale.

Here’s what we did instead of watching the news. I made a batch of cold brew coffee — a huge batch.

 

I found that making something, even a highly caffeinated beverage, was far superior to the news. And I was able to package some of this delicious concentrate up and give it away. We then headed out to the park to throw a football. I noticed that the park had a picnic area with a sail shade covering. I think I like the concept of sail shades. I took pictures.

From there, we were off to my office. While it wasn’t Disney World, I’ve always found an empty law office to be a fun place for kids. Even a pretentious leather office chair can be remade if you sit in it and read a Spiderman magazine.

About a block away from my office is a small independent bookstore. We discovered that they’re open for business provided that you mask up and douse yourself in hand sanitizer at the front door, which we were all too happy to do.

After spending a bit too much money at the bookstore (we chose books to harken back to a more positive time in D.C.), the next stop was a local sushi place. They give out these nifty little things to help kids use chopsticks. I’d only ever seen the rubber band thing before yesterday.

We were on a roll — actually two.

Later that evening, I decided to get in some miles. My goal was eight miles (no Eminem jokes please). But it was hot, and I went four. There was a protest happening in my town. I ran by the perimeter of it. Everything seemed peaceful. I even saw a law student of mine and waved.

I’m not sure if this is considered cheating or not. But we did watch the Dragon space capsule dock with the International Space Station. And we watched the launch on Saturday.

I don’t know if this is considered news or not. But it was a positive story. It was pretty cool. With all that said, these are no doubt troubling and tumultuous times. There is some responsibility for engagement. But that engagement need not be constant. In fact, there may be a bit of diminishing returns to constant attention to the news and constant back and forth about it on Facebook.

One of the books I bought yesterday was Austin Kleon’s Keep Going. I found something apt in my new book:

A friend of mine said he didn’t know how long he could wake up to such horrible news every day. I suggested he shouldn’t wake up to the news at all, and neither should anyone else. There’s almost nothing in the news that any of us need to read in the first hour of the day. When you reach for your phone or your laptop upon waking, you’re immediately inviting anxiety and chaos into your life. You’re also bidding adieu to some of the most potentially fertile moments in the life of a creative person

So, there you have it. On probably the worst news weekend of my life, I took a break from it all and regulated the part I let in my life. NASA, in partnership with a private company, launched humans into space again — for the first time in recent memory. I made some good coffee. Oh, I did cheat one other time, but only to pull a recipe for ice cream from the New York Times.

It turns out great. And it mixes well with home-made cold brew.

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