The collapse of Constitutional Remedies

An Academic Look at the Qualified Immunity Debate

by L. Steven Emmert, Virginia Lawyer – June 2022

Modern discussion of qualified-immunity jurisprudence usually focuses on sociological issues, especially racial inequality and police misconduct. In a new book, University of Chicago Law Professor Aziz Z. Huq casts a scholar’s eye on the development of this doctrine.

This book is about a somewhat wider topic – it traces the process by which the courts have gradually strangled remedies overall – but qualified immunity is the star of the production. After opening chapters that describe the concept and construction of a legal system to provide redress for wrongs, Huq describes that system’s eventual dismantling of that means of redress.

The concept that “a right implies a remedy” has been part of American legal thought since, at the latest, January 1788, when that phrase appeared in The Federalist No. 43. Congress provided a remedy for civil rights violations in the Civil Rights Act of 1871. This survives today as 42 U.S.C. §1983: “Every person who, under color of any [state law], subjects or causes to be subjected, any citizen of the United States or any other person within the jurisdiction thereof to the deprivation of any rights, privileges, or immunities secured by the Constitution and laws, shall be liable to the party injured in an action at law, suit in equity, or other proper proceeding for redress….” This familiar language contains no good-faith exception; no unreasonableness requirement; and certainly, no grant of immunity, qualified or otherwise.

It took courts to do that. Beginning nearly a century after the statute’s passage, the Supreme Court of the United States began to fashion exceptions to Congress’s unconditional system of liability. In Pierson v. Ray, 386 U.S. 547 (1967), the Court imported a “good faith and probable cause” defense from the common law of torts and applied it to a §1983 action. Eight years later, it extended the Pierson rule – previously applied only in the limited context of false imprisonment – to §1983 claims generally.1

Another seven years brought the watershed decision in Harlow v. Fitzgerald, 457 U.S. 800 (1982), which mandated a finding of qualified immunity from suit unless the defendant violated “clearly established statutory or constitutional rights of which a reasonable person would have known.” This transformed Pierson’s subjective good-faith test into an objective one. The Court then required a more or less exact match between the defendant’s conduct and a previous judicial opinion before a court could find that a right was “clearly established.”2

The reader will note that each of these changes waters down the unqualified right to relief that Congress specified in 1871. But the Court wasn’t done; it inserted a malicious-intent requirement into the statute, so negligent acts were no longer within its purview.3  And Huq notes that this inexorable limiting of remedies isn’t restricted to claims for money damages. In United States v. Leon, 468 U.S. 897 (1984), the Court established a qualified-immunity exception to the exclusionary rule for illegally obtained evidence in criminal prosecutions.

Huq’s narrative explores these legal evolutions, all pointed in the same direction (which changes he calls “remedial recessions”), from the standpoint of the litigants, especially those plaintiffs who placed inadvisable hope in the plain text of §1983. Those litigants, he feels, were swimming toward an ever-retreating shore, as the Supreme Court devised over time a string of exclusions from the statute’s promise of redress.

To identify a culprit for what he sees as this one-way rush to limit remedies, Huq looks past the identities of jurists and points to increases in judicial independence. That, he claims, has fostered an environment in which courts engage in value judgments over social policy, instead of leaving those questions to the elected branches. This realization belies the assurances of then-Judge John Roberts that judges are like umpires who “merely call balls and strikes.” In qualified immunity, we see an entire legal doctrine created, out of whole cloth, by judges.

Huq’s thesis underscores the separation-of-powers component of this debate. Congress passed a law, and the Supreme Court has effectively amended it to the point that the relief promised in the act is now a phantom. In theory, Congress could legislatively repeal, or at least restrict, these holdings. That “remedy” is probably unrealistic in today’s political climate, so this and other complaints of legislating from the bench will continue.

This book is one of the latest entries in law-related literature – scholarly or otherwise – focusing on qualified immunity. Make no mistake: Huq writes very much like a law professor, so the prose is at times quite dense. For nonlawyers, Ben Cohen’s Above the Law – How “Qualified Immunity” Protects Violent Police will be a far easier read that points the reader in the same direction. One may also find a middle ground by following the published articles of William & Mary Law Professor Katherine Mims Crocker, who has written extensive and highly readable commentary on qualified immunity.

1 Wood v. Strickland, 420 U.S. 308 (1975).
2 Anderson v. Creighton, 483 U.S. 635 (1987).
3 Daniels v. Williams, 474 U.S. 327 (1986).

Steve Emmert of Sykes, Bourdon, Ahern & Levy, P.C. in Virginia Beach limits his practice to appellate advocacy in the state and federal courts.  He has briefed and argued numerous significant cases that have resulted in published opinions in a variety of fields of the law.

The Collapse of Constitutional Remedies
By Aziz Z. Huq
Oxford University Press, 2021
160 pages plus endnotes and index