JURIST Guest Columnist Angela Johnson, University of Notre Dame Law School Class of 2014, offers insight into the short per curiam decision in Stanton v. Sims issued by the US Supreme Court on November 4, 2013 which may have created a major hurdle for plaintiffs vindicating constitutional rights via §1983 litigation by expanding the availability of qualified immunity to officials acting under color of law…
The Facts: [PDF]
Around one o’clock in the morning on May 27, 2008, Officer Mike Stanton and his partner responded to an “unknown disturbance” involving a person with a baseball bat in La Mesa, California. Upon arrival they found three men; two fled while the third (Nicholas Patrick) headed toward a residence. Stanton loudly called out “police,” and ordered Nicholas Patrick to stop. Instead, Patrick “looked directly at Stanton, ignored his lawful orders[,] and quickly went through [the] front gate of a fence enclosing Sim’s front yard.” When the gate closed behind Patrick, the six-foot tall wooden fence blocked Stanton’s view of the yard. Because Stanton believed Patrick committed a jailable misdemeanor (disobeying an order to stop) and because Stanton feared for his safety, he made the split-second decision to kick open the gate in pursuit of Patrick. Unbeknownst to Stanton, the owner of the residence, Drendolyn Sims, was standing behind the gate. “The swinging gate struck Sims, cutting her forehead and injuring her shoulder.” Sims sued Officer Stanton in federal district court via 42 USC §1983, alleging Stanton “unreasonably searched her home without a warrant in violation of the Fourth Amendment.”
To understand the significance of Stanton, it is helpful to have some background on §1983 and qualified immunity. Section three of the Civil Rights Act of 1871 (now codified as §1983) does not create any substantive rights. Rather, it provides a procedural mechanism through which civil rights plaintiffs can file suit in federal court against state officials and local governments that violated constitutional or certain federal statutory rights while “acting under color of law.”
Opponents of §1983 feared a federal statute granting authority to federal courts to hear cases against state actors constituted an overreach in national government. To balance these concerns, federal courts created several limitations to §1983 liability. For instance, state governments are not viable defendants under §1983 due to Eleventh Amendment sovereign immunity principles. However, state officials acting in their individual capacities (but still acting “under color of law”) are amenable to suit for damages, as per Hafer v. Melo and municipalities are able to be sued per Monell v. New York City Department of Social Services, but only if its policy, practice or custom violates a constitutional right.
Another limitation, found in Harlow v. Fitzgerald, is the availability of qualified immunity which protects government officials (including police officers) from liability for civil damages insofar as their conduct does not violate “clearly established federal statutory or constitutional rights of which a reasonable person would have known.” If the law is not clearly established, the actor could not have had notice his conduct was unconstitutional. It would thus be unfair to impose liability on actors who can only guess as to the constitutionality of their conduct. The idea is to insulate those who reasonably made the wrong prediction. Ashcroft v. Al-kidd stated sources of “clearly established” rights include the US Constitution and very factually similar precedent case law. To ensure officers have “fair and clear warning” of what the Constitution requires, according to States v. Lanier, he or she will only be held to the standard of “clearly established” law in his or her own jurisdiction. Although, according to Ashcroft v. Al-Kidd, in some instances involving national officeholders faced with differing and inconsistent jurisdictions, a “robust” consensus of persuasive authority in jurisdictions may be sufficient in the absence of binding contrary authority.
Because the §1983 statutory text is silent with respect to immunities, the creation of qualified immunity is controversial. Courts recognized that officers make “split-second decisions” while facing imminent harm in dangerous situations without time to consult legal counsel. Without some immunity, officers may be hyper-cautious and hesitant to act quickly as needed out of fear of possible legal liability for a mistaken judgment. Accordingly, courts made available a doctrine of qualified immunity to insulate certain actors to allow for execution of duties with the decisiveness and judgment required by the public good. Qualified immunity also bars potentially frivolous suits and resolves them quickly and efficiently (immunity provides Rule 12(b)(6) dismissal from suit – not merely freedom from liability).
Nevertheless, critics of qualified immunity point to several downfalls. First, they assert qualified immunity runs counter to the purpose of §1983 to compensate monetarily people whose rights were violated. Second, by granting immunity, actors may be reckless in ensuring their conduct is indeed lawful; as Justice Stevens articulated, until a right is “clearly established” there is a “one free violation” for constitutional harms. Third, because immunity bars suits even when a constitutional violation in fact occurred, not only are courts denying compensation for constitutional injuries, it is a symbolic denial—as if those rights do not matter.
Ultimately, as articulated in Pearson v. Callahan [PDF], it is important that “[q]ualified immunity balances two important interests—the need to hold public officials accountable when they exercise power irresponsibly and the need to shield officials from harassment, distraction, and liability when they perform their duties reasonably.” Yet as case law develops, qualified immunity is available with increasing frequency. Stanton v. Sims contributes further to this expansion.
Before Stanton, the established inquiry of qualified immunity, found in Anderson v. Creighton, was not just whether the law was “clearly established” but also the “objective legal reasonableness” of the action. A defendant will be immune from liability only if no objectively reasonable officer could have believed his conduct was lawful or constitutional at the time the violation occurred. Malley v. Briggs, only in dicta, noted that the policy behind the “objective legal reasonableness” standard gives officers “breathing room to make reasonable but mistaken judgments about open legal questions,” such that “[w]hen properly applied, it protects “all but the plainly incompetent or those who knowingly violate the law.”
Stanton ignores the well-established “objectively reasonable” standard and seizes on the dicta statement of Malley, holding, (quoting Malley): “Stanton may have been mistaken in believing his actions were justified, but he was not ‘plainly incompetent.'” This holding sets a new standard: an officer will lose his immunity only if he was “plainly incompetent” in believing his conduct did not violate clearly established law.
The Supreme Court’s reliance on Malley is disingenuous; it splices the Malley policy statement and narrows-in on the “plainly incompetent” dicta (those words appear only once in Malley), transforming it as an authoritative rule in Stanton. The Malley holding does not reference “incompetence” but rather holds “objective reasonableness” “defines the qualified immunity accorded to an officer whose request for a warrant allegedly caused an unconstitutional arrest.” Even Ashcroft (which the Stanton court relies heavily for support) follows the “objectively reasonable officer” standard.
Did Stanton lower the floor on qualified immunity standards? Because one could act unreasonably, but still be competent, plaintiffs will have greater difficulty in overcoming the qualified immunity bar to liability. As noted by Law Professor Howard Wasserman (author of the leading treatise on §1983 litigation, Understanding Civil Rights) in “The Rhetoric of Qualified Immunity”, a “‘plainly incompetent’ standard seems to be suggesting that a court that denies qualified immunity is, per se, labeling that officer as ‘plainly incompetent.’ If lower courts and defendants seize on that, qualified immunity will become even harder to overcome (and dismissal easier to obtain), because … no court wants to sign onto calling police officers names or questioning their integrity and ability.”
But Stanton might also harm defendants and undermine the policy goal of quick disposition of unmeritorious claims. While the pre-Stanton standard was “objectively reasonable,” the “incompetent” standard under Stanton is subjective, which involves factual questions. This precludes quick disposition via summary judgment or 12(b)(6) motion, since litigants will be unable to prove until much later in the factual development of the case whether the defendant is entitled to qualified immunity. This brings added expense, less predictability, and greater disruption to officials and government – the same concerns the Harlow “objectively reasonable” standard was created to extinguish; per Malley: it was “specifically designed to avoid excessive disruption of government and permit the resolution of many insubstantial claims on summary judgment.”
Stanton also creates confusion by its treatment of precedent in the “clearly established” inquiry. The Supreme Court held the law was not “clearly established” because binding precedent held that a warrantless entry to arrest a misdemeanant should be rare – not that it is never justified. In granting even greater leniency for determining what is “clearly established law,” the Supreme Court also stated “it cannot be said the law was clearly established because the “federal and state courts of last resort around the Nation were sharply divided.” Recall, the laws of the officer’s jurisdiction are what count in determining whether the law was “clearly established;” the “sharply divided” standard as articulated in Ashcroft is applicable only for national officeholders, who would otherwise be forced to comply with varying and conflicting jurisdictions to maintain its eligibility for immunity. This expansion in Stanton might impose a second hurdle for civil rights plaintiffs – defendants will be entitled to qualified immunity so long as federal (and state) jurisdictions are “sharply divided” on the applicable law. Thus, an officer could know his conduct violates clearly established law in his jurisdiction, but point to a split in circuits as a defense.
Once it found the officer was immune from liability, the Stanton court did not need to decide whether Sim’s Fourth Amendment rights were violated. While this furthers efficiency, it stunts the development of what is a “clearly established” law and leaves actors without guidance. The law post-Stanton remains unclear as to whether an officer may pursue an unarmed fleeing misdemeanant under the “hot pursuit” exception. It is too soon to determine the consequence of Stanton on future §1983 claims and how lower courts will interpret its potentially expanded qualified immunity to officers who are not “plainly incompetent.” Unfortunately, this case is just the latest that fails to “clearly establish” the law of §1983.
Angela Johnson is a third year law student at the University of Notre Dame Law School and earned a Bachelor’s degree in Political Science from Indiana University – South Bend. Angela is the Executive Articles Editor for the Notre Dame Journal of Law, Ethics, & Public Policy.
Suggested citation:Angela Johnson, Stanton v. Sims: A New Standard for Qualified Immunity?, JURIST – Dateline, Mar. 2, 2014, http://jurist.org/dateline/2014/03/angela-johnson-qualified-immunity.php
This article was prepared for publication by Michael Micsky, a senior editor for JURIST’s student commentary service. Please direct any questions or comments to him at firstname.lastname@example.org
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