Because most state and local governments not only indemnify their employees against such judgments, but also assume the costs of their defense, insuring that government officials are well informed and cautious when their conduct may have constitutional implications is imperative to everyone, whether personally involved or just footing the bill. Reading Beyond the Headlines:
"Qualified Immunity" Case Disguised as "Hitching Post" Case

We are all guilty of it: merely scanning newspaper headlines and reading the entire article only if the headline grabs our attention. The shortsightedness of that habit, however, recently became more apparent.

On Thursday, April 18, 2002, the New York Times ran an article headlined "U.S. Joins Inmate in Prison Discipline Case — Justices Weigh Liability for Shackling Convict to a Post for 7 Hours." Another Eighth Amendment prisoners’ rights case, right? Wrong!

The United States Supreme Court did not grant certiorari in the case to determine whether the inmate has alleged a violation of a constitutional right. The lower court resolved that issue in favor of the prisoner. Reading below the headline, really much further into the article, you learn that the real questions the Court agreed to resolve involve the law of qualified immunity.

Although not the subject of this piece, the underlying facts of the case do involve a prisoner’s claim of cruel and unusual punishment for being twice shackled to a hitching post for disruptive behavior on a chain gang. We leave it to others to comment on whether tying a prisoner to a hitching post for seven hours, in the heat of the day, with limited access to water or a restroom, violates the inmate’s constitutional rights under the Eighth Amendment. Even PETA could file an amicus on that issue.

In Hope v. Pelzer (No. 01-309), the first question posed by the Court is "whether state officials, sued in their individual capacities under 42 U.S.C. 1983, are entitled to qualified immunity unless they have violated statutory or constitutional rights ‘clearly established’ by a case presenting facts ‘materially similar’ to those in the plaintiff’s case." Depending on the Court’s answer to that key question, it may then address the second question -- "[w]hether under the circumstances that must be taken as true at the summary judgment stage of this case, tying a prisoner to a ‘hitching post’ violates ‘clearly established’ constitutional rights for purposes of qualified immunity" in a section 1983 action. Again we leave for others to debate whether ‘hitching post’ case law is clearly established.

The potential impact on the law of qualified immunity is vitally important to all of us. The law, 42 U.S.C. 1983, provides, in pertinent part, that "[e]very person who, under color of any statute, ordinance, regulation, custom, or usage, of any State . . . , subjects, or causes to be subjected, any citizen . . . to the deprivation of any rights, privileges, or immunities secured by the Constitution and laws, shall be liable to the party injured . . .." In general, however, courts have recognized the need to protect government employees from meritless and unduly burdensome litigation that may interfere with the exercise of lawful discretion in their official functions. Government officials who act in their official capacity are entitled to some form of immunity from suits for damages. Depending upon the status of the official, immunity can be either absolute or qualified, with absolute immunity being reserved in most instances to legislators, prosecutors, and judges. Qualified immunity, however, is dependent both on the status of the individual and the facts of the case, with executive officials, who usually do not make the same type of policy decisions as legislators, being limited to raising a qualified immunity privilege rather than enjoying absolute immunity. Twenty years ago, the Supreme Court established 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." Harlow v. Fitzgerald, 457 U.S. 800, 818 (1982).

In Saucier v. Katz, 121 S. Ct. 2151 (2001), the Supreme Court recently adopted a two step procedure for considering qualified immunity claims. The threshold inquiry the Court explained is whether the alleged facts show a constitutional violation. If they do, then the court must determine whether a reasonable officer would have thought that the alleged act was lawful in light of clearly established law and the factual information possessed at the time. This decision commands officials to look for a controlling decision on-point or a consensus of persuasive authority before acting in a manner that could give rise to a lawsuit alleging that the officer’s conduct was unlawful in the situation he confronted.

But how apparent must the lawfulness be? Case law makes evident that where the claimed constitutional right is not unequivocally set out in the text of the Constitution itself, it is necessary to turn to case law for analysis. The Supreme Court made it clear in United States v. Lanier, 520 U.S. 259, 271 (1997), that a constitutional rule identified in the decisional law may apply with obvious clarity to a new case. Where, however, officers of reasonable competence could disagree on the lawfulness of the conduct, then "immunity should be recognized." Malley v. Briggs, 475 U.S. 335, 341 (1986).

Let’s remember that courts should not be called upon to protect "the plainly incompetent [and] those who knowingly violate the law." Malley v. Briggs, 475 U.S. 335 (1986). In an era of unaccountability, how much leeway should we be willing to give a government officer who claims ignorance of law? What if that officer is the clerk of a court, who has unending opportunities to be familiar with the laws and the Constitution? (See The Court vs. the Press: A Case in Point ) What if the officer is the Mayor, who presumably has taken an oath to uphold the Constitution and the laws of the land, who after being advised that her conduct is unconstitutional she continues to act in an unlawful manner, raising as her shield a law that is unconstitutionally vague and overbroad? (See Center Urges West Virginia Mayor to Stop Infringing on Residents' Constitutional Right to Free Speech)

Couldn’t the latter situation also give rise to the municipality being subject to liability under section 1983 for the unconstitutional or otherwise illegal acts of its agent? It is clear that municipal liability would attach where an express policy is ruled unconstitutional and could attach where the constitutional violation results from the application of otherwise valid policies. But a city’s liability for its agent’s actions is an entirely separate subject from the one under consideration by the Supreme Court, a legal conundrum demanding its own rigorous analysis.

Regardless of your view on prisoners’ rights, Hope v. Pelzer should be watched closely. Federal, state and local government officials and all citizens should be concerned about the standard of review in a situation where a government official raises a qualified immunity defense. A clear standard needs to be adopted for section 1983 claims and the Supreme Court seems poised to give much-needed guidance to the lower federal and state courts.

Because most state and local governments not only indemnify their employees against such judgments, but also assume the costs of their defense, insuring that government officials are well informed and cautious when their conduct may have constitutional implications is imperative to everyone, whether personally involved or just footing the bill. Section 1983 lawsuits deter some unlawful behavior. Some argue they also make it more difficult to recruit and retain high quality employees. This excuse for broad qualified immunity is counterintuitive, however, because it seems more likely that a "high quality employee" would be more mindful of the laws and less likely to end up in a situation needing to invoke the qualified privilege. In any event, the privilege should yield to constitutional rights and the Supreme Court should not extend the zone of immunity from personal liability for government officials.

April 25, 2002
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