Qualified immunity still long way from being eliminated, West Virginia legal experts believe

“Qualified immunity protects a government official from lawsuits alleging that the official violated a plaintiff’s rights, only allowing suits where officials violated a ‘clearly established’ statutory or constitutional right,” according to the Legal Information Institute.

“When determining whether or not a right was ‘clearly established,’ courts consider whether a hypothetical reasonable official would have known that the defendant’s conduct violated the plaintiff’s rights. Courts conducting this analysis apply the law that was in force at the time of the alleged violation, not the law in effect when the court considers the case,” according to the Legal Information Institute.

“Qualified immunity is not immunity from having to pay money damages, but rather immunity from having to go through the costs of a trial at all,” according to the Legal Information Institute of Cornell Law School.

The USA Today opinion piece focused on the Dec. 10 U.S. Supreme Court opinion in Tanzin vs. Tanvir.

Part of that opinion read:

“To the extent the Government asks us to create a new policy-based presumption against damages against individual officials, we are not at liberty to do so. Congress is best suited to create such a policy. Our task is simply to interpret the law as an ordinary person would. Although background presumptions can inform the understanding of a word or phrase, those presumptions must exist at the time of enactment. We cannot manufacture a new presumption now and retroactively impose it on a Congress that acted 27 years ago.”

Anya Bidwell and Patrick Jaicomo, attorneys at the Institute for Justice, wrote of the ruling: “Now that the Court has confirmed its job is to do law, not policy, the foundation for qualified immunity is gone. The Court has paved the way toward repealing that doctrine and restoring constitutional accountability. We hope it does.”

Bridgeport attorney David Mirhoseini noted a November per curiam decision by the high court, Taylor vs. Riojas, sheds more light on the matter.

The language in Tanzin vs. Tanvir “is basically the same criticism levied at the Supreme Court for creating by fiat based on ‘public policy’ some 50 years ago the doctrine of qualified immunity for government actors. However, the issue before the Court in Tanzin was whether money damages were potentially available to a plaintiff suing a government actor in their individual capacity under the Religious Freedom Restoration Act (RFRA), and the issue of qualified immunity was not squarely before the Court because, as indicated in a footnote on page 7 of the opinion, both parties agreed that the affirmative defense of qualified immunity would be available to a government defendant in a suit for money damages under the RFRA,” according to Mirhoseini.

“While the Court’s decision in Tanzin could have been interpreted as perhaps signaling the Court’s willingness to revisit and maybe retreat from its prior precedent on the doctrine of qualified immunity if it was subsequently deciding a case where the doctrine of qualified immunity was squarely at issue,” there also was the November decision in Taylor v. Riojas, “a case where the doctrine of qualified immunity was squarely at issue, and a case that was decided based on qualified immunity precedent,” according to Mirhoseini.

“So, while I do think Taylor can be interpreted as the high court sending another signal to lower courts regarding how the doctrine of qualified immunity should be applied in cases, it seems to me the Supreme Court is also signaling that the doctrine of qualified immunity is still entrenched after Tanzin,” according to Mirhoseini.

“So, I am skeptical that the Court’s criticism expressed in Tanzin of being asked to interpret the law with ‘public policy’ considerations in mind may be paving the way for the Court itself to abrogate or modify in a significant way the doctrine of qualified immunity. In my opinion, an abrogation or a significant modification of the doctrine of qualified immunity remains for Congress to do with legislation,” according to Mirhoseini.

Robert M. Bastress, John W. Fisher II professor of law at the West Virginia University College of Law, doesn’t see Tanzin vs. Tanvir “as anything more than a straightforward, and not surprising, interpretation of RFRA.”

Contrary to the USA Today opinion piece, Tanzin vs. Tanzir “in no way augurs anything about changes in the qualified immunity doctrine. Indeed, the opinion’s only meaningful reference to qualified immunity is a footnote that says the parties agree that individually sued officials would be entitled to the traditional qualified immunity that would protect them from liability unless the violation was ‘clearly established’ at the time that it occurred,” according to Bastsress.

“The Court’s reference to the fact that it is Congress’s role to set policy, not the Court’s, merely noted that Congress wrote RFRA and can change it, if it wants. The Taylor vs. Riojas decision merely concluded that the 5th Circuit had erroneously applied the clearly established standard. It, too, did not portend any doctrinal changes,” according to Bastress.

“There have been some recent hints from the Court, particularly Justice [Clarence] Thomas, about revisiting the qualified immunity doctrine, but I don’t see Tanzin and Rojas as adding to that conjecture,” according to Bastress.

Lonnie C. Simmons, attorney at DiPiero Simmons McGinley & Bastress PLLC in Charleston, said the commentary in USA Today “may be wishful thinking. But I don’t read that opinion as getting rid of qualified immunity. And some of the articles that you read out there, suggest that that will be the next part of that case, is the assertion of qualified immunity.”

“... I’m sure that there’s pro and con. But there’s certainly a bunch of academics who don’t think we need qualified immunity anymore. It makes civil rights cases very unpredictable. But I don’t see this decision as in any way suggesting that the court is going to go away from their qualified immunity analysis that has been built up over the years,” Simmons said.

As for Taylor vs. Riojas, “this is a case where they have applied qualified immunity. And in this case, it appears that they held that any reasonable officer should have realized that the conditions of confinement offended the Constitution, and therefore it looks like they reversed the Fifth Circuit,” Simmons said.

“The Fifth Circuit must have upheld qualified immunity. And it ... looks like this has to do with an inmate in a very, very unsanitary cell. And if you read the facts, it’s all fairly gross. But this is just sort of your your typical application of qualified immunity. ... A lot of times these civil rights cases are thrown out of court on qualified immunity and the U.S. Supreme Court, historically, upholds a lot of qualified immunity, so I guess the nice thing about this case is, this is an example where the court found that qualified immunity was not appropriate,” Simmons said.

As for whether the principal of qualified immunity could be eliminated judicially in the decades to come, “I guess the way I look at it, I think there would have to be a major change in our U.S. Supreme Court,” Simmons said.

Meanwhile, “there’s a whole bunch of law professors out there writing articles about why we should get rid of qualified immunity. Maybe one of these days, the justices will accept those arguments,” Simmons said.

Joanna C. Schwartz, professor of law at UCLA School of Law and a Yale Law School graduate, believes Taylor vs. Riojas is promising for those who find qualified immunity too rigid.

The “summary reversal in Taylor v. Riojas is a big deal. In it, SCOTUS breathed new life into the notion that qualified immunity should be denied if the constitutional violation is obvious — a ruling the Court made almost 20 years ago but has ignored until today.”

“One of the most damaging aspects of qualified immunity is the notion that plaintiff must find a prior court decision with virtually identical facts to establish officers were on notice of their misconduct. It’s a nearly impossible standard to meet — and ridiculous to boot because officers aren’t actually educated about the facts and holdings of these cases (so they aren’t actually on notice of these decisions),” according to Schwartz.

“But there was a SCOTUS decision in 2002, Hope vs. Pelzer, in which the Court said a prior decision was unnecessary when the violation was obvious. This decision has been largely ignored by the Court until ... its decision in Taylor v. Riojas,” according to Schwartz.

“Taylor vs. Riojas is a shocking case — a prisoner was kept in a cell covered with feces for six days. It may feel like a small victory to have SCOTUS reverse dismissal. But the Court also makes clear in its decision that Hope is still good law. I have thought — and written — that SCOTUS’s concerns about stare decisis might lead it not to reverse qualified immunity as a formal matter, but to ease up on the message it is sending to lower courts about the need for prior precedent on point. Taylor does just that,” according to Schwartz.