Channels, Fall 2017

Page 74 Minich • The Right Balance: Qualified Immunity and Section 1983 Litigant-Led Change In the absence of Court-mandated changes, James Pfander has recommended the use of lawsuits for nominal damages in order to clarify the law without presenting a threat to individual officers. 117 This has an advantage over declaratory judgment suits in that they need not be prospective (requiring the plaintiff to show that the action in question will likely be repeated). And since nominal damages claims would not serve to impose a substantial personal liability on officers, Pfander argues, they should not give rise to qualified immunity claims. Clearly, this method would have to rely on special interest groups and nonprofits to fund monetarily unprofitable litigation. However, this method could be extraordinarily effective in helping to establish rights in the absence of Court rulings that prioritize rights articulation. This is especially important if indeed, “The shift from Pearson to Camreta thus signals disfavor toward merits rulings and a broad new range of circumstances under which the merits cannot be reached.” 118 However, this solution would require courts to accept this method because it is not an established method for avoiding qualified immunity. Naturally, these solutions do not establish a perfect system. However, that can be expected in the legal context, which carries the difficult requirement of handling wildly differing factual scenarios and problems. Radical Solutions: More Drawbacks Than Benefits “Efforts to reform doctrine always raise the possibility that a court is simply trading one problem for another.” 119 Because of this, and because qualified immunity jurisprudence is not hopelessly broken, violent revisions of the system are neither necessary nor desirable. One such solution is to abolish qualified immunity and create a system in which juries determine which alleged facts are true and the judge determines the reasonableness of the officers’ actions based on the jury’s findings. 120 This approach would place the emphasis on a reasonableness standard rather than the Harlow standards, resolving the ambiguity of “clearly established” jurisprudence. It would also ensure that juries and judges played their proper roles—judges determining law and juries determining facts. However, it also destroys the purpose of qualified immunity, which is to ensure that police officers are not made less effective by either the threat or the actuality of being embroiled in litigation. This would also be an extremely abrupt reversal of well-established jurisprudence, meaning that the Court would likely not consider such a solution. Other solutions involve outsourcing the legal questions. Instead of courts, Civilian Complaint Review Boards could have authority to investigate complaints, clearly establish 117 James E. Pfander, “Resolving the Qualified Immunity Dilemma: Constitutional Tort Claims for Nominal Damages,” Columbia Law Review 111, no. 7 (2011): 1601-1639. 118 Kirkpatrick at 670. 119 Ibid., 667-70. 120 Philip Sheng, “An ‘Objectively Reasonable’ Criticism of the Doctrine of Qualified Immunity in Excessive Force Cases Brought Under 42 U.S.C. § 1983,” BYU Journal of Public Law 26, no. 1 (2011): 99-110.