Channels, Fall 2017

Page 70 Minich • The Right Balance: Qualified Immunity and Section 1983 Current Questions in Qualified Immunity As these recent cases make clear, the Court is still wrestling with the processes and consequences behind qualified immunity jurisprudence. The main concerns in the era of Camreta and Ashcroft are 1) remaining appellate insulation, 2) rights articulation and constitutional avoidance, 3) standards for reaching the merits and 4) particularity. The trends in these areas are mixed—by opening a door to appellate review for prevailing parties, Camreta dealt with a large portion of the appellate insulation problem. It also emphasized the importance of rights articulation and its position on the precedent/dicta boundary, clearing the way for courts to establish rights even when granting immunity. Furthermore, it arguably took a step toward increased guidance for lower courts on when to reach the merits and when to address only immunity. However, the Court’s positions in Camreta are neither unanimous nor irrevocable. It is possible that the Court will shift positions again, trading the current concerns about flouting constitutional avoidance norms for the opposite concern of stagnating constitutional rights articulation. While Camreta works in favor of plaintiffs by increasing rights articulation, Ashcroft works against plaintiffs by making lawsuits much more difficult to win. As Sheehan , Mullenix , and White demonstrate, the current construction of particularity makes establishing liability extraordinarily difficult. In other words, under Ashcroft , qualified immunity protection has expanded as § 1983 remedy for right violations has contracted. Although this expansion presents itself as most disconcerting in cases that involve alarming fact patterns, the real question is how qualified immunity ought to apply broadly—whether an increased application of qualified immunity continues to uphold the balance between protection of officers and the § 1983 remedy. This question is distinctly important because qualified immunity is a “judge-made rule” 97 and does not carry the legal weight of a Congressionally- passed federal law. Yet, it works against § 1983 as a limiting factor, justified mainly by the fact that § 1983 did not explicitly repeal common-law immunities that might limit it. 98 As qualified immunity expands, it encroaches more and more on the effective use of § 1983, making this judicially-created norm a powerful force to stymie § 1983 actions. 99 Even absent practical concerns or disturbing facts, this encroachment on the separation of powers should be closely watched. Contrary to the particularity standards once supported in Hope v. Peltzer that focused on fair notice for officers and rejected the idea that cases had to be factually similar in order to apply, it is clear from the cases following Ashcroft that particularity standards have shifted toward a focus on factual similarity. 100 This tips the scales away from remedy for violations and puts plaintiffs in a bind if they are unable to match their factual circumstances with precedents, even when a right has clearly been violated. 101 97 Pearson v. Callahan at 816. 98 Pierson v. Ray at 554-555. 99 See Kinports at 78. 100 Hope v. Pelzer at 741 (quoting United States v. Lanier , 73 F. 3d 1380, 1393 (CA6 1996)) (“officials can still be on notice that their conduct violates established law even in novel factual circumstances. Indeed, in Lanier, we expressly rejected a requirement that previous cases be ‘fundamentally similar.’”). 101 Aaron Belzer illustrates this using the case Kerns v. Bader . See Belzer, supra , note 55; Hope v. Pelzer .