Chemerinsky: Hurt by a government official? SCOTUS is making it harder and harder to sue
Erwin Chemerinsky.
In a series of cases this term, the U.S. Supreme Court has made it much more difficult for plaintiffs to recover for civil rights violations. These decisions continue a pattern in recent years of the Supreme Court significantly expanding the immunity accorded to government officials sued for violating the Constitution.
Suing individual government officers is often the only way that an injured person can recover for constitutional violations. Yet suits against government entities are often difficult, if not impossible, to win. Both the federal and state governments are protected by sovereign immunity, which greatly limits suits against them for damages. Local governments may be held liable for civil rights violations only if there is a municipal policy or custom that led to the injury.
State and local government officials may be sued for constitutional violations pursuant to 42 U.S. Code Sec. 1983, and federal officers may be sued pursuant to the Supreme Court’s 1971 decision, Bivens v. Six Unknown Agents of the Federal Bureau of Narcotics. The Supreme Court, however, has said that all government officials sued for money damages may raise immunity as a defense. Some government officers have absolute immunity to suits for money damages: among them are judges performing judicial tasks, prosecutors performing prosecutorial tasks, legislators performing legislative tasks, police officers testifying as witness, and the president for acts taken in office.
All other government officers have qualified immunity. In Harlow v. Fitzgerald, the Supreme Court held in 1982 that “government officials performing discretionary functions generally are shielded from liability for civil damages insofar as their conduct does not violate clearly established statutory or constitutional rights of which a reasonable person would have known.”
In the 30 years since Harlow, courts have struggled with how to determine if there is a clearly established law that the “reasonable person would have known.” Must there be a case on point to say that there is such clearly established law?
In Hope v. Pelzer, the court in 2002 seemingly resolved this and held that there need not be a prior decision on point for the plaintiff to show the existence of clearly established law. Rather, officers may be held liable so long as they had fair warning that their conduct was impermissible.
The case involved a prisoner who was tied to a hitching post and left in the hot sun. The federal court of appeals found that this was cruel and unusual punishment, but that the officers were protected by qualified immunity because there was no case on point holding that such use of the hitching post violated the Constitution. The Supreme Court reversed and said that a case on point is sufficient to show clearly established law, but it is not necessary.
In the decade since Hope v. Pelzer, including three cases this term, the Supreme Court repeatedly has found qualified immunity based on the absence of a case on point. The court has not overruled Hope v. Pelzer or even distinguished it; the court has simply ignored it. In the process, the court has made it much harder for plaintiffs to overcome qualified immunity and hold government officers liable for constitutional violations.
In Lane v. Franks, issued June 19, the court unanimously held that a government employee’s First Amendment rights were violated when he was fired for truthful testimony he gave pursuant to a subpoena. This result seems so obvious: of course it is wrong to fire a person for testifying honestly in a criminal trial, especially when the individual had no choice but to testify because of a subpoena.
Nonetheless, the court found that the defendant responsible for the firing was protected from liability by qualified immunity. Justice Sonia Sotomayor, writing for the court, said that “[t]he relevant question for qualified immunity purposes is this: Could Franks reasonably have believed, at the time he fired Lane, that a government employer could fire an employee on account of testimony the employee gave, under oath and outside the scope of his ordinary job responsibilities?” The court reviewed precedents, especially from the 11th U.S. Circuit Court of Appeals, which earlier ruled on the case, and found that none had clearly held that this violates the First Amendment. But Hope v. Pelzer said that a case on point is not necessary: Shouldn’t every government officer know that it is wrong to fire a person for truthfully testifying in court?
In Plumhoff v. Rickard, decided on May 27, the court again found that government officials were protected by qualified immunity. Police officers pulled over a white Honda Accord because the car had only one operating headlight. Donald Rickard was the driver of the Accord, and Kelly Allen was in the passenger seat. The officer asked Rickard if he had been drinking, and Rickard responded that he had not. Because Rickard failed to produce his driver’s license upon request and appeared nervous, the officer asked Rickard to step out of the car. Rather than comply with the officer’s request, Rickard sped away.
A high-speed chase then occurred that lasted five minutes and reached speeds greater than 100 mph. At one point, the officers appeared to have Rickard’s car pinned. But when the car pulled away, officers fired three shots into the car. As the car attempted to speed away, another 12 shots were fired by the police. Both the driver and the passenger were killed. The 6th U.S. Circuit Court of Appeals concluded that the police used excess force and violated the Fourth Amendment.
The Supreme Court unanimously reversed, ruling in favor of the police. Justice Samuel A. Alito Jr. wrote for the court and held that there was no violation of the Fourth Amendment. The court said that the driver’s conduct posed a “grave public safety risk” and that the police were justified in shooting at the car to stop it. The court said “it stands to reason that, if police officers are justified in firing at a suspect in order to end a severe threat to public safety, the officers need not stop shooting until the threat has ended.” Moreover, the court said that even if there were a Fourth Amendment violation, the officers were protected by qualified immunity, in that the law had not clearly established that the conduct violated the Fourth Amendment.
This is a disturbing holding. The Supreme Court now has said that whenever there is a high-speed chase that the officers perceive could injure others–and that would seem to be true of virtually all high speed chases–the police can shoot at the vehicle and keep shooting until it stops. The car was stopped for having only one working headlight. If the driver refused to stop, why not just let the car go and then track the driver down later? Why should death be the punishment for making the extremely poor choice to begin a high-speed chase?
Finally, in Wood v. Moss, also decided on May 27, the court found that Secret Service agents were protected by qualified immunity when they engaged in viewpoint discrimination with regard to speakers. President George W. Bush was in Oregon and the Secret Service agents allowed supporters of President Bush to be closer and pushed the opponents further away. The law is clear that the government cannot discriminate among speakers based on their views unless strict scrutiny is met.
Nonetheless, the court, in a unanimous decision with the majority opinion written by Justice Ruth Bader Ginsburg, found that the Secret Service agents were protected by qualified immunity because there were no cases on point concerning when Secret Service agents may violate the First Amendment. But why do there need to be specific cases since the law is clearly established that viewpoint discrimination violates the First Amendment?
All of these cases were unanimous. All found qualified immunity because of the absence of a case on point. Together they show a court that is very protective of government officials who are sued and that has made it very difficult for victims of constitutional violations to recover.
Erwin Chemerinsky, Dean and Distinguished Professor of Law, and Raymond Pryke Professor of First Amendment Law at the University of California, Irvine School of Law, is one of the nation’s top experts in constitutional law, federal practice, civil rights and civil liberties, and appellate litigation. He is the author of seven books, the latest being The Conservative Assault on the Constitution (Simon & Schuster, 2010). His casebook, Constitutional Law, is one of the most widely read law textbooks in the country. Chemerinsky has also written nearly 200 law review articles in journals such as the Harvard Law Review, Michigan Law Review, Northwestern Law Review, University of Pennsylvania Law Review, Stanford Law Review and Yale Law Journal. He frequently argues appellate cases, including matters before the U.S. Supreme Court and the U.S. Court of Appeal, and regularly serves as a commentator on legal issues for national and local media. He holds a J.D. from Harvard Law School and a B.S. from Northwestern University.
