The lack of a common law basis for qualified immunity

Scott Keller, the former Solicitor General of Texas, now a partner at Baker Botts, has an important article to appear in the Stanford Law Review: Qualified and absolute immunity at common law: He delves into 19th century treaties and cases to describe the immunities enjoyed by government officials and argues that there was – contrary to conventional wisdom – a form of qualified immunity recognized at common law. Here is the summary :

Qualified immunity has become one of the Supreme Court’s most controversial doctrines. But while there have been many comments criticizing the Court’s “clearly established law” test, there has been no in-depth historical analysis examining the complicated subject of the immunities of government officials under the 19th century common law. Yet the legitimacy of state official immunities, under the Court’s precedents, hinges on the common law as it existed when Congress passed the Civil Rights Act of 1871. the Supreme Court, it cannot “freewheel political choice” and must apply immunities that Congress has implicitly adopted from the “common law tradition”.

This article therefore provides the first comprehensive review of the common law around 1871 on the immunities of government officials. In particular, he reviews the four 19th-century treatises that the Supreme Court consulted in assessing officer immunity under the common law of 1871: Cooley’s 1879 Law of Torts; Bishop’s Commentaries on Non-Contract Law of 1889; the Mechem Law of 1890 on Public Offices and Officers; and the Throop Act of 1892 relating to public officers. Not only do these treatises bring together many overlooked state common law precedents, but they rely heavily on the Supreme Court’s own, oft-ignored, 19th century decisions.

These historical sources overwhelmingly refute the prevailing view among modern commentators on a critical aspect of qualified immunity. This article confirms that the common law around 1871 recognized free-standing qualified immunity protecting the discretionary functions of all government officials – like qualified immunity today.

But many other important features of current Supreme Court doctrines on officer immunity diverge significantly from the common law around 1871: (1) senior officers enjoyed absolute immunity at common law, whereas today they have only qualified immunity; (2) qualified immunity at common law could be overridden by showing an officer’s subjective improper purpose, instead of a violation of “clearly established law”; and (3) the plaintiff had the burden of proving an improper purpose with clear evidence, whereas today there is confusion about that burden.

The circa 1871 common law restoration of state official immunities could solve many modern problems with qualified immunity, and these three features of the common law provide a roadmap for reforming qualified immunity. If high-ranking executives enjoyed absolute immunity, it would sufficiently protect the separation of powers without resorting to the “clearly established law” test – which often denies plaintiffs damages when lower-ranking executives violate their constitutional rights. At the same time, if plaintiffs in qualified immunity cases bear the burden of proving the subjective bad faith of junior officers with clear and convincing evidence, then defendant officers and the courts will have important procedural mechanisms to dismiss claims. non-substantial claims before trial.

I just posted a short article responding to my disagreement: Is quasi-judicial immunity qualified immunity? Here is the intro:

Has qualified immunity finally found its roots? Scott Keller’s article shows the extent and complexity of 19th century case law dealing with official immunities. But perhaps its most important claim, for today’s purposes, is the claim to find a historical basis for a qualified immunity doctrine. According to Keller, “the common law definitively granted at least qualified immunity to all discretionary duties of rulers” in 1871, when Congress passed the Civil Rights Act now codified as 42 U.S.C §1983. This is contrary to received scholarly wisdom, and it would be very significant if it were true. But it’s not.

Suppose this body of 19th century common law should be translated into the scope of remedies under a lawsuit for violation of the Constitution. Even so, the common law did not recognize the doctrine of qualified immunity. She recognized a doctrine of quasi-judicial immunity, which shields certain acts from liability for honest mistakes. Keller acknowledges that this 19th century doctrine has significant differences from today’s doctrine. But the differences run deeper than you would know from Keller’s account.

A closer examination of the doctrine of quasi-judicial immunity shows how far it was from the modern doctrine of qualified immunity. It protected quasi-judicial acts such as administering elections and assessing taxes, not ordinary law enforcement decisions. He allowed severe accountability for officers who overstepped their authority. And the defense was not trial immunity. Thus, the current doctrine of qualified immunity owes more to modern judicial invention than to the common law.

And Professor Jim Pfander has also just posted his own response: Areas of discretion in common law. Abstract:

Scott Keller argues in a major forthcoming article that the common law recognizes forms of qualified immunity. This response suggests that Keller’s authorities comprise a body of administrative law, rather than a body of qualified immunity law. Many of the doctrines identified by Keller operate in much the same way as Chief Justice Marshall’s account of judicial review operated in Marbury v. Madison. Marshall acknowledged that matters legally assigned to executive discretion are beyond the scope of judicial review. But when an official’s legitimate discretion ended and legal limits were transgressed, the common law was available (indeed compelled according to Marshall) to provide a remedy. In much of what Keller points out, the common law courts recognized that executive officials enjoyed areas of legal discretion. But the common law does not confer immunity when these limits are transgressed.

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