I’ve blogged several times now about Cato’s ongoing campaign to challenge the doctrine of qualified immunity. This judge-made doctrine – invented out of whole cloth, at odds with the text of Section 1983, and unsupported by the common-law history against which that statute was passed – shields public officials from liability for unlawful misconduct, unless the plaintiff can show that the misconduct violated “clearly established law.” This standard is incredibly difficult for civil rights plaintiffs to overcome, because courts generally require not just a clear legal rule, but a prior case on the books with functionally identical facts. Not only does this doctrine deny relief to victims whose rights have been violated, but at a structural level, it also erodes accountability for government agents (especially law enforcement).

I’m thrilled to report, however, that in the last 36 hours, we’ve had three promising developments in this front:

First, in a Section 1983 case in the Eastern District of New York, Judge Jack Weinstein denied qualified immunity to police officers alleged to have beaten up a man after he refused to allow them to enter his home without a warrant. His comprehensive opinion not only denied immunity in this case, but also discussed recent criticisms of the doctrine, both on legal and policy grounds, and suggested that the law “must return to a state where some effective remedy is available for serious infringement of constitutional rights.” Judge Weinstein thus joins other lower court judges, like Lynn Adelman of the Eastern District of Wisconsin and Jon O. Newman of the Second Circuit, who have criticized the Supreme Court’s qualified immunity jurisprudence. Lower court judges are, of course, obliged to follow Supreme Court precedent with direct application, but this is exactly the kind of criticism and commentary that can help explain to the Court why that precedent should be reconsidered.

Second, Joanna Schwartz, a law professor at UCLA, has just put up on SSRN a forthcoming article in the Notre Dame Law Review, titled The Case Against Qualified Immunity. Professor Schwartz previously published an influential article in the Yale Law Journal called How Qualified Immunity Fails, which empirically demonstrates how the doctrine of qualified immunity is failing to achieve its professed purposes. But her latest piece weaves together the legal, historical, and prudential arguments against the doctrine, and argues that the Supreme Court can and should reconsider it. We know that the Supreme Court pays attention to scholarship in this area, as both Justice Thomas and Justice Sotomayor have recently cited Will Baude’s article Is Qualified Immunity Unlawful?, so I have every expectation that Professor Schwartz’s comprehensive broadside will likewise be taken seriously by the courts. (Professor Schwartz is also blogging about her new article at the Volokh Conspiracy this week.)

Third, this morning the Supreme Court ordered a response to the cert petition in Allah v. Milling, which explicitly asks the Court to reconsider the doctrine of qualified immunity. This is the case I recently blogged about, and in which Cato filed an amicus brief, where a pretrial detainee was kept in extreme solitary confinement for nearly seven months, for no legitimate reason. Although every single judge in his case agreed that Mr. Allah’s constitutional rights were violated, a split panel of the Second Circuit granted qualified immunity to the prison officials, simply because there was no prior case holding that the “particular practice” used by this prison was unlawful. The case is an ideal vehicle for the Court to reconsider the doctrine of qualified immunity, because there are no disputed facts, and Mr. Allah has already won a judgment at trial, so the outcome turns solely on the legal question of whether the defendants should get immunity for their unlawful misconduct.

“Calling for a response” doesn’t necessarily mean that the Court is going to hear the case, but it’s a sign that they’re looking at it closely. The defendants in this case tried to waive their right to respond to the cert petition (a common practice, because respondents want to avoid signaling that the case is important), but the Court basically said “no, this is important enough that we want to hear your argument about why we shouldn’t take the case.” The defendants will therefore be required to put forward actual legal justifications for qualified immunity – so we’ll see what they come up with. The response is due July 11th, and Mr. Allah will then get the chance to file a reply, so I’ll be sure to cover those briefs when they come in.

Overall then, the fight continues, but we’ve got some promising signs of real progress.