Archives: 08/2019

Dissenters in Fifth Circuit Qualified Immunity Case Misunderstand the Relationship between “Originalism” and Section 1983

Yesterday I wrote about two recent en banc decisions from the Fifth and Eighth Circuits on the subject of qualified immunity, and how those cases fit into the rising tide of opposition to the doctrine generally. But I wanted to expand upon a point of disagreement between two of the dissents in Cole v. Hunter (the Fifth Circuit case), which may prove to be one of the central questions if and when the Supreme Court decides to reconsider the doctrine – namely, the relationship between qualified immunity, Section 1983, and originalism. I’ll note that both Josh Blackman and Damon Root have already written about this aspect of the Cole decision, but as someone who’s spent the better part of the last two years waging a campaign against qualified immunity I wanted to offer my take on the many ways in which Judges James Ho and Andrew Oldham seriously misunderstand qualified immunity, Section 1983, and originalism itself.  

As I noted previously, Judge Don Willett – a Trump appointee and one of the judges on his shortlist for the Supreme Court – has emerged as a prominent critic of qualified immunity, and has now repeatedly urged the Supreme Court to reconsider the doctrine. A few months ago, in Zadeh v. Robinson, he explained how “[t]o some observers, qualified immunity smacks of unqualified impunity, letting public officials duck consequences for bad behavior—no matter how palpably unreasonable—as long as they were the first to behave badly.” Judge Willett again picked up this theme in his separate dissent in Cole, beginning his opinion with the assertion that “[t]he entrenched, judge-invented qualified immunity regime ought not be immune from thoughtful reappraisal.” (Note that Judge Willett agreed with the other dissenters that, under current precedent, the defendants in Cole were entitled to immunity, which is why his opinion was also a dissent, even though it takes a very different approach.)

Perhaps sensing that the tide is turning against qualified immunity, Judges Ho and Oldman – both Trump appointees themselves – wrote separately to respond to the general idea that qualified immunity should be reconsidered. In particular, they say the following about the “originalist” critique of qualified immunity – i.e., the historical fact that the common law of 1871 (when Section 1983 was first passed) provided absolutely nothing like the sweeping, across-the-board defense for state officials that characterizes qualified immunity today:

[S]ome have criticized the doctrine of qualified immunity as ahistorical and contrary to the Founders’ Constitution… . As originalists, we welcome the discussion. But separate and apart from the fact that we are bound as a lower court to follow Supreme Court precedent, a principled commitment to originalism provides no basis for subjecting these officers to trial.

The originalist debate over qualified immunity may seem fashionable to some today. But it is in fact an old debate. Over two decades ago, Justices Scalia and Thomas noted originalist concerns with qualified immunity. But they also explained how a principled originalist would re-evaluate established doctrines. See Crawford-El v. Britton, 523 U.S. 574, 611–12 (1998) (Scalia, J., joined by Thomas, J., dissenting).

A principled originalist would not cherry pick which rules to revisit based on popular whim. A principled originalist would fairly review decisions that favor plaintiffs as well as police officers. As Justice Scalia explained in a dissent joined by Justice Thomas, a principled originalist would evenhandedly examine disputed precedents that expand, as well as limit, § 1983 liability:

“[O]ur treatment of qualified immunity under 42 U.S.C. § 1983 has not purported to be faithful to the common-law immunities that existed when § 1983 was enacted … . [But] [t]he § 1983 that the Court created in 1961 bears scant resemblance to what Congress enacted almost a century earlier. I refer, of course, to the holding of Monroe v. Pape, 365 U.S. 167 (1961), which converted an 1871 statute covering constitutional violations committed “under color of any statute, ordinance, regulation, custom, or usage of any State,” Rev. Stat. § 1979, 42 U.S.C. § 1983 (emphasis added), into a statute covering constitutional violations committed without the authority of any statute, ordinance, regulation, custom, or usage of any State, and indeed even constitutional violations committed in stark violation of state civil or criminal law.”

In other words, qualified immunity may well lack any plausible textual or historical basis. But because, say Judges Ho and Oldham, the Supreme Court erroneously expanded the reach of Section 1983 in Monroe v. Pape (by holding that state officials could be sued even when they were acting contrary to a state’s own laws), then two wrongs make a right, and we should just keep qualified immunity as is, as a kind of compensating error. Indeed, they conclude this section of the opinion by saying: “If we’re not going to do it right, then perhaps we shouldn’t do it at all” – with “it” here meaning, actually interpret statutes as written.

Lest this argument seem like an abstruse, academic rejoinder, I can personally attest, having now participated in or observed several debates on qualified immunity, that this is the most frequently and fervently raised rebuttal to the otherwise insurmountable assertion that modern qualified immunity lacks any plausible historical basis. But despite its veneer of reasonableness, this “two wrongs make a right” argument is so deeply, fundamentally flawed, on so many levels, that it’s worth spelling out each of them in detail:

First, perhaps a pedantic point, but Judges Ho and Oldman’s august reference to the “Founder’s Constitution” is out of place in this discussion. Qualified immunity is not a constitutional doctrine; it is, nominally, a gloss on the statute currently codified at 42 USC § 1983, but which was originally enacted by the Reconstruction Congress in 1871. And as even the Supreme Court has acknowledged, “the statute on its face does not provide for any immunities.” Malley v. Briggs, 475 U.S. 335, 342 (1986). Thus, the only conceivable legal basis for qualified immunity is the Supreme Court’s false assertion that “[c]ertain immunities were so well established in 1871, when § 1983 was enacted, that ‘we presume that Congress would have specifically so provided had it wished to abolish’ them.” Buckley v. Fitzsimmons, 509 U.S. 259, 268 (1993). I will not go into detail here explaining why this defense of the doctrine fails utterly as a matter of actual historical fact, but Will Baude has addressed the question extensively, and I summarize the issue here. Suffice to say, the debate here isn’t over “originalism” as an overarching theory of constitutional interpretation, and isn’t really about the Constitution at all – we’re talking about how to correctly interpret and apply a particular statute.

Second, Judges Ho and Oldman (and Justice Scalia, in his Crawford-El opinion) seem to take it as a given that Monroe v. Pape was wrongly decided, which is what gives them justification to accept the obvious (but in their view, counter-balancing) errors with qualified immunity itself. But that assumption simply isn’t justified – indeed, there’s a very good originalist argument that Monroe was, in fact, correctly decided, which of course would entirely negate this “two wrongs make a right” defense of qualified immunity. To restate Justice Scalia’s (and by extension, Judges Ho and Oldman’s) criticism of Monroe: The text of Section 1983 creates liability for those who act “under color of any statute, ordinance, regulation, custom, or usage of any State.” Thus, in Justice Scalia’s view, a state official can only be liable under Section 1983 if they were, in fact, acting in accordance with state law. Therefore, by holding that state officials could be liable even when their actions were not authorized by state law, the Monroe Court massively expanded liability under Section 1983, in contravention of the statutory language.

Though superficially plausible, the problem with this argument is that it glosses over the meaning of the phrase “under color of.” After all, the statute could have been written to cover violations committed “in accordance with any statute, ordinance, regulation, custom, or usage, of any State.” If that were what the statute said, Justice Scalia’s criticism of Monroe would be well taken. But, as a historical, originalist matter, that is simply not what the phrase “under color of” means. To the contrary, this phrase is actually a longstanding term-of-art which was well understood to encompass false claims to authority. As detailed by Steven Winter in an article on exactly this subject, the use of this phrase goes back more than 500 years, to an English bail bond statute that voided obligations taken by sheriffs “by colour of their offices,” if they failed to comply with statutory requirements. In other words, it encompassed illegal acts by government agents who abused or exceeded their statutory authority – which is exactly the sort of unlawful conduct recognized by Monroe. Therefore, contra Justice Scalia’s suggestion in Crawford-El, a faithfully originalist understanding of Section 1983 would seem to support the result in Monroe. And if that’s the case, then obviously the whole “two wrongs make a right” theory collapses.

Third, let’s assume – as I do not think is the case – that Monroe v. Pape was incorrectly decided. If we are unwilling to revisit that decision on “originalist” grounds, is that a sufficient reason to refuse to reconsider qualified immunity as well? Absolutely not. For one, even if Monroe were wrong, it meets absolutely all the traditional criteria for respect as precedent – even if incorrect, the question is at the very least a close call, in light of the textual/historical argument I noted above; it has produced a clear, unambiguous rule, which lower courts routinely apply without any confusion or disagreement; and it has been thoroughly accepted by both the judiciary and the general public as legitimate and appropriate.

In sharp contrast, modern qualified immunity doctrine is at the opposite end of the spectrum on all of these criteria. No one – absolutely no one – will look you in the eye with a straight face and tell you that contemporary qualified immunity doctrine represents the best interpretation of the text and history Section 1983. As evidenced by Justice Scalia’s Crawford-El opinion and Judges Ho and Oldham’s dissent in Cole, the judicial defenders of qualified immunity aren’t even trying to make this argument. Indeed, the most robust defense of the doctrine that I’m aware of is the recent piece by Aaron Nielson and Chris Walker, appropriately titled “A Qualified Defense of Qualified Immunity” – and even there, the most they argue is that the historical evidence isn’t quite as one-sided as Will Baude suggests, and that while some form of qualified immunity might be justified, the Court’s current doctrine is still in need of correction.

Moreover, in contrast to the clear rule from Monroe, the Court’s “clearly established law” standard has proven hopelessly amorphous, malleable, and incapable of consistent, predictable application in lower courts. And as evidenced by the diverse and growing chorus of judges, academics, and public-policy voices calling for the Supreme Court to revise or abolish the doctrine, it has hardly been accepted as legitimate. Far from being a mere technical error, this noxious doctrine regularly denies relief to victims of egregious state misconduct, undermines accountability for government agents at a structural level, and exacerbates the national crisis of confidence in law enforcement generally. Thus, even if both Monroe and qualified immunity merit originalist criticism, there is a far, far stronger case for reexamining the latter than the former.

Fourth, setting aside the object-level questions of whether Monroe was correct, how bad it is compared to qualified immunity, etc., we should reject the “two wrongs make a right” approach to judicial decision-making at a fundamental level. Yes, the Supreme Court sometimes reaches the wrong answer. Yes, sometimes those wrong answers will distort other areas of law. But in a world where we’re going to predictably disagree on which cases are correct or not, “you got this case wrong so I’m allowed to get this other case wrong” is a license for endless, unresolvable turmoil. If qualified immunity has gone “too far” in correcting for the supposed mistake in Monroe, are judges allowed to distort the meaning of other statutes to fix this problem? What compensating errors will be necessary to address the distortion to those statutes? If we all agree the Supreme Court has made some mistakes, then “two wrongs make a right” becomes a fully general argument for defending flawed legal conclusions, so long as they can plausibly be tied to a past alleged mistake. That way lies madness, not the rule of law.

More generally, Judges Ho and Oldham suggest that, if we’re going to reconsider qualified immunity on originalist grounds, we’re somehow honor-bound to reconsider Monroe as well. But that’s just not how doctrine is developed in our adversarial system. The Supreme Court doesn’t act as a regulatory body, issuing advisory opinions on several related subjects simultaneously so as to ensure general harmony in the case law; rather, it resolves disputes in the individual cases it decides to take. Textualism and originalism, at their best, aim to provide a principled, predictable, value-neutral means of deciding cases. Of course, some questions will still be hard even under this approach, and how originalists should deal with non-originalist precedent is a famously thorny problem. But the best that judges can do is try to get the right answer in each case that comes before them – and the “two wrongs make a right” theory renders this principled approach impossible.

* * *

In my view, the opponents of qualified immunity have made a persuasive argument that the doctrine is utterly without legal or historical justification, that it is impossible to apply with the consistency or predictability that generally warrant respect for precedent in the first place, and that is actively corrupting what would otherwise be the best means we have of ensuring accountability for government agents. That argument deserves to be met on its own terms. If the defenders of qualified immunity think Monroe is wrong too, then fine. Let them make that argument. Let them engage in the detailed textual and historical analysis that would actually be necessary to justify it. Let them convince the judiciary and the public at large that this error is so egregious and harmful that it warrants reconsideration. I’m quite skeptical these folks actually want to make such an argument, but if they do, it deserves to be met on its own terms as well. But it is cowardly, unprincipled, and decidedly anti-originalist to refuse to meet the challenge to qualified immunity face-to-face, just because there’s some other alleged mistake to hide behind.

The Times I Met David Koch

People ask if I crossed paths with philanthropist David Koch, whose death is being mourned today, and the answer is yes.

When I resolved to sample New York City’s high culture in my thirties on a modest salary, I went to performances of the popular-priced City Opera in its Lincoln Center home, the David Koch Theater. It gave me joy.

Years later, when I went to Johns Hopkins Hospital in Baltimore to pursue cancer treatment, the first building I saw after I parked my car was the giant David Koch Cancer Research Pavilion. It gave me hope.

And everywhere I went in the liberty movement over forty years, where there was a good cause, David Koch seemed to be somewhere in the background giving support, whether it was economic liberty, peace between nations, free trade, freedom to marry, or free speech. It gave me inspiration.

His death leaves the world poorer.

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Remembering David Koch

The directors and staff of the Cato Institute, and indeed friends of liberty throughout the world, are saddened by the passing of David Koch.

David’s accomplishments as a businessman and philanthropist are estimable. But we most remember and admire him for his efforts to advance liberty in the United States and around the world, and his steadfast dedication to libertarian principles.

David is a director emeritus of Cato, having joined our board of directors in 1986 and serving for nearly 30 years. Over this time, the Institute, the Cato community, and our work benefited greatly from his service, insight, generosity, and example. We will not forget the many ways in which he contributed to our mission.

Because the quality of our civil discourse has deteriorated in recent years, David’s dedication to our principles often earned him unfair criticism and excoriation in the public arena. But like us, he was motivated by a firm belief that liberty is the means to human flourishing, through which every individual is able to live a prosperous, meaningful life in a country and world at peace. He also believed strongly that the rights granted to us by nature and protected by the Constitution cannot be denied to any American for any reason. That he bore such unwarranted public criticism with dignity, and that it did not deter him from his work in advancing freedom, merits great respect from all of us.

We have no doubt that David’s partnership will be missed by so many of the causes to which he dedicated himself, not least of which is the cause of liberty. But of course, he will be missed most of all by his family, to whom we extend our heartfelt sympathy and to whom we turn our thoughts at this difficult time.

Robert A. Levy
Chairman of the Board of Directors
Cato Institute
Peter N. Goettler
President and Chief Executive Officer
Cato Institute

Homicides in Mexico Tripled But Fewer Mexicans Came Illegally

Since 2007, Mexico has seen a massive surge of gang warfare and violence unlike anything it has witnessed since the 1980s. Intuitively, this fact should lead more Mexicans to want to flee to the United States. Yet that hasn’t happened. In fact, illegal immigration from Mexico has all but disappeared. In 2019, Central Americans have now far outnumbered their more populous neighbor.

Figure 1 illustrates the relationship between the homicide rate in Mexico and the rate at which Border Patrol agents apprehended Mexicans. The number of apprehensions per agent is the best available measure of total illegal crossings because it controls for the level of enforcement. More agents will lead to more apprehensions without more crossings.

As violence dwindled in the late 1990s and early 2000s—from its peak of 21 homicides per 100,000 residents in 1986 to 8 in 2007—Mexican crossings fell precipitously as well, dropping from a 1986 peak of 510 apprehensions per agent to 60 in 2007. Suddenly, in 2008, the homicide rate jumped and remained at least twice as high as 2007, currently standing at three times the rate that year and the highest rate of the entire period. Yet Mexican illegal crossings continued to fall and have not returned. 

Figure 1: Mexican Apprehensions per Agent

The most important change related to Mexican immigration to the United States was the large increases in temporary work visas issued under the H-2A agricultural and H-2B nonagricultural programs. Figure 2 shows the number of H-2 and H-2B workers admitted from Mexico for each year from 1979 to 2019. In the late 1990s, the number of guest workers admitted legally started to rise, and in the post-2009 recession period, they have skyrocketed. Now that workers have a way to cross legally, they don’t need to cross illegally.

Figure 2: Mexican Apprehensions Per Agent and Mexican H-2 workers admitted, 1979-2019

Most of the uptick in violence in Mexico is from gangs. Guest workers allow normal Mexican workers to obtain enough resources to relocate their families or otherwise insulate themselves from the gang wars. It also makes more violent communities more tolerable if adequate food and shelter are not also an issue, leading fewer to seek to enter illegally. Overall, this economic-focused strategy has clearly succeeded, and as I point out in my recent policy analysis, Congress should look to replicate it for Central America.

For More U.S.-Flag Ships, Lift the Domestic-Build Requirement

Cape Ray

Maritime Administrator Mark Buzby has a problem. As head of the Maritime Administration he is charged with crewing and operating the Ready Reserve Force (RRF), a government-owned fleet used for the rapid deployment of U.S. military forces. Speaking at a Navy League-sponsored breakfast earlier this week, however, Buzby expressed worry there aren’t enough mariners to operate these ships. The RRF, while used in a military role, relies upon civilian mariners to operate them in wartime scenarios. And those mariners are in short supply.

In fact, a 2017 government report found that for a sustained sealift campaign the United States faces a deficit of approximately 1,800 mariners for those needed to crew the RRF and maintain commercial fleet operations—and that’s in a best-case scenario. The obvious remedy according to Buzby: increase the number of U.S.-flag ships to provide more employment opportunities.

“We believe we’re around 1,800 mariners short. So how do you make that up? That’s the question I get asked every single time. We need more places for people to work in peacetime. We need more…we need a larger U.S.-flag fleet by probably about 45 ships.”

Notably, Buzby is an ardent supporter of the Jones Act, the 1920 law which restricts the domestic waterborne transport of goods to vessels that are U.S.-built, U.S.-flagged, at least 75 percent U.S.-crewed, and at least 75 percent U.S.-owned. Indeed, at the same event he listed defending the law remains as among his top priorities. Yet the Jones Act’s U.S.-build requirement is a direct impediment to realizing the goal of more U.S.-flag ships.

That’s because commercial ships built in U.S. shipyards are expensive—frightfully so. A May 2019 Congressional Research Service report found that a U.S.-built tanker is roughly quadruple the price of a foreign-built vessel, while a U.S.-built container ship may be quintuple the price of one constructed abroad. For perspective, the same report said that the cost premium attached to U.S.-built ships shortly after the Jones Act’s passage was 20 percent.

This rise in price has correlated with a pronounced decline in the number of Jones Act-compliant ships. Fewer ships means fewer mariners to crew the RRF fleet.

CRS chart

It stands to reason that if Americans had access to cheaper ships that there would be more of them. But don’t take my word for it—U.S. shipyards themselves admit that high prices are a deterrent to the use of the ships they build.

In 2007 the Metal Trades Department of the AFL-CIO filed suit against the U.S. Coast Guard over its ruling allowing the use of foreign-built equipment modules in the construction of ships deemed to be U.S.-built. Unsurprisingly, U.S. shipyards sided with the Coast Guard. Preventing the use of foreign-built components, Aker Philadelphia Shipyard and General Dynamics-NASSCO argued, would make U.S.-built ships more costly and less attractive to purchase. That would mean both less shipbuilding and fewer vessels in the Jones Act fleet.

As Aker (now known as the Philly Shipyard) stated:

[p]reventing shipbuilders from using more efficient methods in constructing vessels will increase the vessel owners’ capital cost. This in turn will increase the rates that the vessel owners must charge, decreasing their competitiveness and further reducing their share of the domestic transportation market. The lower market share will lead to a reduction in the size and number of vessels needed to fulfill the demand for domestic shipping.

If more expensive ships means fewer ships, the reverse logically holds true—cheaper ships means more of them. And the cheapest solution of all would be to allow Americans to transport goods using ships built in other countries, just as they can for all other forms of transportation. That’s not just a good way to expand the U.S.-flag fleet, it’s what free people should be allowed to do.

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Two Recent en banc Decisions Exemplify the Injustice, Impracticality, and Persistent Confusion Inherent to Qualified Immunity

In the last week, the Fifth and the Eighth Circuits, sitting en banc, have each issued major, fractured decisions on the subject of qualified immunity – the judge-made defense to civil rights claims under Section 1983, which shields state actors from liability for their misconduct, even when they break the law. In Cole v. Hunter, decided yesterday, the Fifth Circuit, in an 11-7 decision, affirmed the denial of summary judgment for two defendant police officers, who shot a teenage boy and then lied about what happened. The lawsuit brought by the victim and his family will therefore be able to go to trial, making this one of the rare instances where a civil rights plaintiff is able to overcome qualified immuniity. But in Kelsay v. Ernst, decided last week, the Eighth Circuit held, 8-4, that a police officer was entitled to qualified immunity, after he had grabbed a small woman in a bear hug and slammed her to ground – because she walked away from him. Although the courts here reached different outcomes, both cases amply illustrate the legal, practical, and moral infirmities with qualified immunity. The fractured decisions and many separate opinions in both cases also make clear that the doctrine is on increasingly shaky footing with both the judiciary and the general public.

I. Cole v. Hunter: A rare but narrow victory for a victim of egregious police misconduct

This Fifth Circuit case arose out of an incident in Garland, Texas in October 2010, when police were looking for Ryan Cole, then a 17-year-old boy, who had reportedly been walking around the neighborhood with a handgun. Ryan was seen by some officers and ordered to stop, but Ryan pointed the gun at his own head and walked away toward a wooded area. When Ryan reemerged, a group of officers observed him for about five seconds and did not announce themselves or give any warning. Then, while Ryan was facing away from them with the gun still pointed at his head, one or more of the officers fired at him, striking him several times and causing him to involuntary discharge his own gun into his skull and brain. When two of the officers were questioned after the shooting, they falsely claimed that Ryan had turned to face them and pointed his gun at them before they fired – an assertion belied by ample forensic and physical evidence (specifically, the location of Ryan’s bullet wounds, and the location of shell casings and Ryan’s blood).

Ryan and his family brought a civil rights suit against these officers, claiming that they used excessive force and fabricated evidence in violation of Ryan’s Fourth and Fourteenth Amendment rights. The district court denied qualified immunity to the defendants at summary judgment, a panel of the Fifth Circuit affirmed, and the Fifth Circuit then agreed to rehear the case en banc. The court then held, 11-7, that a reasonable jury could have found that Ryan posed no threat to the officers, and that it was clearly established that “shooting a mentally disturbed teenager, who was pointing a gun the entire time at his own head and facing away from the officer, in an open outdoor area, and who was unaware of the officer’s presence because no warning was given prior to the officer opening fire, was unlawful.” Although the defendants presented a starkly different view of the facts, the majority correctly recognized – as courts often fail to do in qualified immunity cases! – that it lacked jurisdiction to consider the officers’ competing factual narrative in this appeal. Rather, the disputed facts would have to be resolved by a jury.

Seven judges dissented, however. The principal dissent, by Judge Edith Jones, accused the majority of defining “clearly established law” at too high a level of generality, arguing that even if the facts clearly established that Ryan posed no threat (and thus that shooting him violated the Fourth Amendment) the relevant question for purposes of qualified immunity was “whether every reasonable officer in this factual context would have known he could not use deadly force” – and then arguing that no prior cases involved this precise factual context. This framing in the abstract is dutiful to the Supreme Court’s qualilfied immunity jurisprudence, but in application, it’s clear that the degree of specificity employed by the dissent would be practically impossible to overcome. To wit, the dissent went on to say:

[T[he importance of grounding the inquiry in a specific factual context cannot be overstated. In this case, if Officer Hunter had stood a hundred feet away from Cole, or Cole had not been turning toward the officers, or Cole had put the handgun in his pocket and wasn’t touching it, the analysis of qualified immunity could be quite different.

On the one hand, the dissent is correct that the Supreme Court has insisted that immunity analysis be “particularized” to the facts of individual cases. On the other, the example of factual distinctions used by the dissent here plainly illustrate that there will never be a prior case involving all of the potentially relevant facts – and even the Supreme Court has purported to say that a case exactly on point is unnecessary. Thus, while the dissent’s analysis is not a wholly unreasonable application of existing precedent, it demonstrates how the “clearly established law” standard is inherently amorphous, and incapable of consistent, predictable application.

Most notably, Judge Don Willett filed a separate dissent in this case. Although he would have held that “the Supreme Court’s unflinching, increasingly emphatic application of ‘clearly established law’ compel[led] dismissal,” the bulk of his opinion is devoted to explaining that “[t]he entrenched, judge-invented qualified immunity regime ought not be immune from thoughtful reappraisal.” Judge Willett’s dissent therefore echoes his recent criticisms of qualified immunity in Zadeh v. Robinson, although he did stress that the Supreme Court has “several ‘mend it, don’t end it’ options,” which would substantially revise the doctrine without eliminating it entirely. Also, he again discussed the Cato-organized cross-ideological amicus brief from Doe v. Woodard, noting that “perhaps the most ideologically diverse amici ever assembled” were urging the Supreme Court to reconsider qualified immunity.

II. Kelsay v. Ernst: Greenlighting egregious and unnecessary police violence against the supposed victim of a crime

Melanie Kelsay, her three children, and an adult friend of hers were swimming at a public pool in Wymore, Nebraska. She and her friend were engaged in what she called “horseplay,” but some onlookers thought he might be assaulting her and called the police. The police arrested her friend and put him a patrol vehicle, even though she repeatedly told them he hadn’t assaulted her; they then decided to arrest her, the alleged victim of this non-crime, because she was “getting in the way of the patrol vehicle door.” While talking with Deputy Matt Ernst, Kelsay saw that her daughter had gotten into an argument with a bystander, and tried to go check on her. Ernst grabbed her arm and told her to “get back here,” but released her. Kelsay then said she needed to go check on her daughter, and again began walking toward her. At that point, without giving any further instructions, Ernst ran up behind her, grabbed her, and slammed her to the ground in a “blind body slam” maneuver, knocking her unconscious and breaking her collarbone.

Kelsay then brought a Section 1983 suit against Ernst, and the district court denied qualified immunity, but a panel of the Eighth Circuit reversed, 2-1. The Eighth Circuit then agreed to rehear the case en banc, and affirmed the panel’s grant of qualified immunity, in an 8-4 decision. The majority, of course, relied on the idea that there were no prior cases involving the “particular circumstances” of this case; i.e., no prior cases specifically held that “a deputy was forbidden to use a takedown maneuver to arrest a suspect who ignored the deputy’s instruction to ‘get back here’ and continued to walk away from the officer.” No case exactly on point, qualified immunity, Q.E.D. The principal dissent by Chief Judge Lavenski Smith correctly noted that that the Supreme Court has never required “a case directly at point,” and that here, an ample body of case law would have “put a reasonable officer on notice that the use of force against a non-threatening misdemeanant who was not fleeing, resisting arrest, or ignoring other commands violates that individual’s right to be free from excessive force.”

To make matters worse, the majority refused even to decide whether Ernst’s conduct did, in fact, violate Kelsay’s Fourth Amendment rights. So any officer could engage in exactly the same misconduct tomorrow, and it still would not be “clearly established” that the conduct was unlawful. Judge Steven Grasz wrote a separate dissent taking issue with this particular aspect of the court’s decision. Though acknowledging that courts have discretion under Pearson v. Callahan to grant immunity without deciding the merits, he argued that the exercise of such discretion was  “inappropriate in this case as it perpetuates the very state of affairs used to defeat Ms. Kelsay’s attempt to assert her constitutional rights.” Judge Grasz clearly grasps the circular nature of qualified immunity, noting that the judiciary’s persistent refusal to decide constitutional questions under Section 1983 “imposes a judicially created exception to a federal statute that effectively prevents claimants from vindicating their constitutional rights.”

III. The rising tide of opposition to qualified immunity

Two circuit courts recently decided to take qualified immunity cases en banc, even though neither case involved any new legal questions or suggested reversals of circuit precedent; that fact itself is a testament to how important this issue has become, and how much rising pressure there is to modify or abolish this doctrine. Cole and Kelsay hardly stand alone as examples of recent or ongoing high-profile qualified immunity cases. Just last month, the Eleventh Circuit issued a truly appalling decision in Corbitt v. Vickers, granting immunity to a deputy sheriff who shot a ten-year-old child lying on the ground, while repeatedly attempting to shoot a pet dog that wasn’t posing any threat. The Supreme Court unfortunately denied cert in Doe v. Woodard at the end of its last term, but there’s another outstanding cert petition explicitly calling for the Court to reconsider qualified immunity (Baxter v. Bracey), which will be considered at the long conference on October 1st. And there will probably be additional cert petitions challenging one or more of the decisions in CorbittKelsay, and Cole.

In other words, this issue isn’t going away. Day by day, more and more lower court judges add their voices to the growing chorus calling upon the Supreme Court to reconsider this noxious doctrine, and agitation by public policy groups across the ideological spectrum continues to grow. Some of the Democratic presidential candidates have even started to call for the abolition of qualified immunity. The day of reckoning may well be coming soon.

Really, It’s True: Creditors, Predators Not Same Thing

Between the print version of Rebecca Traister’s August 5 New York magazine profile of Elizabeth Warren, and the version now online, there can be spotted an amusing correction. Print version:

Clip of 8/4/19 NY mag "predators"

Online version

Clip, NY mag 8/4/19 online, "creditors"

Let’s hope editors in the nation’s leading financial center continue to keep in mind that lending money to someone doesn’t necessarily make you a predator. 

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