By Victoria del Rio-Guarner1
When a government official violates a civilian’s fundamental rights, § 1983 of Title 42 of the United States Code (“§ 1983”) gives that civilian a cause of action in the form of a civil damages suit against such official in federal court.2 First enacted in the aftermath of the Civil War as part of the Klu Klux Klan Act of 1871,3 Congress designed this cause of action as a prophylactic safeguard for fundamental rights4—consistent with several core American values such as deterrence and accountability.5 Since its enactment, § 1983 has not mentioned any affirmative defenses. Nevertheless, the Supreme Court has incorporated some traditional defenses into it. Specifically, the Court decided that the immunities available to government actors as a defense to common law tort liability would be read into this new statutory scheme.6 The Court justified this decision on the basis that these immunities were “so firmly rooted in the common law and  supported by such strong policy reasons that ‘Congress would have specifically provided had it wished to abolish the doctrine.’”7
Initially, the Court directed lower courts to grant immunity defenses asserted by officials in response to § 1983 claims only to the extent that immunities existed for similar officials accused of committing analogous common law torts in 1871.8 Under this historical analogy approach, immunities were seen as falling into one of two general categories—absolute immunity9 and qualified immunity10—and the Court was able to preserve the appearance of institutional integrity by creating incremental carveouts to specific § 1983 actions and then chalking them up to history rather than to the Justices’ personal policy preferences.11 Little by little, however, as the Court became increasingly concerned with imposing the burdens of litigation on public officials, it began to justify all expansions of qualified immunity on the basis that peace officers were entitled to a good faith defense when § 1983 was adopted, even if the official in question was not a peace officer.12 Eventually, the Court altogether untethered qualified immunities from their historical roots.13 Consequently, the modern doctrine of qualified immunity bears little resemblance to its original form in the context of § 1983 claims and represents a series of “freewheeling” policy choices by the Court, in contravention of separation of powers.14
This Contribution argues that in two seminal decisions, Harlow v. Fitzgerald and Pearson v. Callahan, the Supreme Court disregarded the policy choice Congress made by enacting § 1983 and radically transformed both the substance15 and the procedure16 of the qualified immunity framework, rendering it effectively unqualified.17 This Contribution also argues that, at the very least, the Court should recalibrate and clarify the doctrine to better fulfill its underlying purpose without disabling § 1983 claims.
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When qualified immunity was justified by the common law good faith defense,18 it was granted upon the official showing “the existence of reasonable grounds for the belief formed at the time [of the challenged action] and in light of all the circumstances, coupled with good-faith belief.”19 Thus, government officials were only afforded its protection if both of the following elements were established: (1) it was objectively reasonable for the public official to believe that his or her challenged conduct was constitutional; and (2) the official had a subjective good faith belief that his or her conduct was lawful.20 Before conducting this analysis, however, lower courts were required to follow a particular procedure: first, determine whether the alleged constitutional violation occurred, and only proceed if the answer was yes.21 But, in Harlow v. Fitzgerald and Pearson v. Callahan,22 the Court substituted its policy judgments for those of Congress, and fundamentally changed both the substance and the procedure of the doctrine.
In Harlow v. Fitzgerald, the Court changed the substance of the doctrine by eliminating the subjective component of the analysis, such that government officials accused of a constitutional tort are entitled to qualified immunity, so long as the challenged conduct was objectively reasonable in light of then-existing law.23 The Court characterized its decision as a choice “between the evils inevitable in any available alternative.”24 And ultimately, the Court choose to jeopardize civil liberties by rendering § 1983 toothless, rather than risk “the danger that fear of being sued will dampen the ardor of [public officials] … in the unflinching discharge of their duties.”25 Objective reasonableness turns on whether the plaintiff meets his or her burden in showing that the controlling law at the time in question was “clearly established.”26 The Court justified its decision to discard the subjective part of the analysis on the basis that trying to discern an implicated official’s state of mind tended to foreclose summary judgment in favor of the public official, thereby undermining an important policy at the heart of immunity: shielding officials not only from liability, but also from suit.27
In Pearson v. Callahan, the Court made a pivotal decision to upend the qualified immunity doctrine’s procedure.28 Like in Harlow, the Court framed its decision as a choice between evils. Choosing between the risk of “constitutional stagnation” and the risk of “substantial expenditure of scarce judicial resources … [in] cases in which it is plain that a constitutional right is not clearly established[,]”29 the Court decided that the former was the lesser threat.30 The Court granted lower courts permission to skip the constitutional question and dismiss where the law is not clearly established.31 This decision is particularly problematic because the Court has failed to provide meaningful, let alone coherent guidance, as to what it meant in Harlow when it set forth the clearly established law standard.32
In addition to the critical changes to the substance and procedure of the doctrine, it is not entirely clear what meeting Harlow’s clearly established law standard entails.33 The Harlow inquiry is about determining whether precedent is sufficiently analogous to render the law clearly established.34 The Court has suggested that this analysis should proceed at a very low level of generality—in other words, that there must be a high degree of factual correspondence between the case before a court and the then-existing precedent.35 For instance, the Court has stated that “clearly established law should not be defined at a high level of generality,”36 and that the applicable case law must put the illegality of the conduct at issue “beyond debate.”37 Yet, in some cases, the Court appears to relax this requirement, by, for example, framing it as a “fair notice” standard.38
According to the Court, neither formulation requires a case directly on point.39 Under the stricter articulation of the standard, however, this claim is disingenuous and the Court’s analysis in Anderson v. Creighton illustrates why.40 Anderson concerned a forcible and warrantless search of a family’s home in the middle of the night, which police officers justified as lawful because of exigent circumstance. There the Court explained that the question under the Fourth Amendment was not whether “the right to be free from warrantless searches of one’s home without probable cause and exigent circumstances was clearly established.”41 Rather, the question was “whether a reasonable officer could have believed Anderson’s warrantless search to be lawful, in light of clearly established law and the information the searching officers possessed.”42 Thus, to meet the clearly established law standard, the plaintiffs effectively needed a factually parallel case in which police officers relied on the same exigent circumstances.
Adding to the confusion is the circuit split that has developed in light of the fact that Harlow’s progeny says little on delineating the body of relevant decisional law for the clearly established standard.43 On this the Court has said that both “cases of controlling authority in their jurisdiction at the time of the incident” and “a consensus of cases of persuasive authority such that a reasonable officer could not have believed that his actions were lawful” may render the law clearly established.44 The ambiguities of this statement have come to the forefront as the circuits have interpreted its mandate. For instance, the threshold for controlling precedent to be sufficient remains unclear.45 In fact, whether circuit law can be enough on its own is especially uncertain since the Court has suggested that clearly established in circuit law is insufficient when the circuits are divided on the issue.46 It is also unclear when and to what extent persuasive authorities should be considered.47 While judges know they may look to other circuit decisions, state court case law, state laws and regulations, and other materials providing legal guidance,48 they have little guidance on how to make proper use of such materials.
The Court’s ambiguity with respect to the body of decisional law that controls in employing the clearly established standard has resulted in a circuit split, cutting against principles of uniformity and threatening reliance interests.49 The First, Fifth, Seventh, Eighth, Ninth, and Tenth Circuits, for example, cast a broad net by “look[ing] to whatever decisional law is available,” if there is no binding precedent that renders the right clearly established.50 By contrast, the Sixth and District of Columbia Circuits take a narrower approach by evaluating a subset of relevant law pursuant to the following hierarchy: Supreme Court precedent, case law from their circuit, in circuit district court decisions, and other circuits decisions.51 In the Fourth and Eleventh Circuits, courts cast the narrowest net by looking only to binding precedent and law from the highest state court where the events at issue transpired.52
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These doctrinal inconsistencies make qualified immunity a nightmare to administer.53 This likely leads lower courts to err on the side of caution and grant immunity.54 Indeed, despite some more forgiving formulations of the clearly established law standard, the Court has not fully embraced these more lenient formulations.55 Lower courts have understood this to mean that qualified immunity is only proper when the challenged conduct is so egregious that the absence of case law on the subject is irrelevant.56 The prevalence of the more stringent formulation of clearly established law as requiring precedent that places the issue of the legality of the conduct “beyond debate”57 creates an incredibly difficult hurdle for plaintiffs to clear. This is especially true in the early stages of litigation where there has been little to no discovery and competing accounts of critical facts may not impede summary judgment if courts simply decide that the law is not clearly established.58 In short, by defining alleged constitutional harms at such a low level of generality, the Court is essentially directing lower courts to find all existing precedent distinguishable or inapplicable, unless doing so is impossible.59 The result is an over-inclusive standard that shields more than just government officials who negligently commit constitutional violations.60
In addition, after Pearson, empirical evidence suggests that lower courts abuse the discretion Pearson afforded them by skipping straight to the clearly established law question based on considerations not listed by the Court,61 which has led to constitutional stagnation.62 Consequently, it has become increasingly difficult for plaintiffs to prove that the law was clearly established.63 The fact that the standards governing constitutional torts tend to clash with the current immunity analysis may have something to do with this.64 Specifically, since many constitutional rights are governed by standards that call for balancing various policy interests and context-specific factors, the reasonableness standard of qualified immunity creates “two layers of insulation from liability .…”65 This results in a brick, rather than a thumb, on the scale in favor of government actors accused of serious wrongdoing.66
The Court’s divergent justifications for the doctrine undermine its claimed rationale and engender further complications. Some arguments focus on the common law justification of the doctrine, while others focus on the justifications the Court set forth in Harlow. Scholars and current Justices have argued that the doctrine must be reconsidered since it can no longer be justified on the basis of its historical roots and is mere judicial legislation.67 Put differently, because qualified immunity is a judicially-created defense, if it is no longer tethered to its common law roots, or constrained by Congress’ intent in enacting § 1983, then it is just a device for judges to make policy based on personal preferences, contrary to the Constitution.68 With respect to the latter, some commentators posit that the justification in Harlow is unsound and actually undermines the integrity of the process.69 There the Court justified its reformulation of the doctrine stating that “[t]he subjective element of the good-faith defense frequently has proved incompatible with [the Court’s] admonition … that insubstantial claims should not proceed to trial,” especially in light of the “substantial costs [that] attend the litigation of the subjective good faith of government officials.”70 Aside from the problematic assumption that most § 1983 actions are insubstantial and unworthy of surviving summary judgment and proceeding to trial, commentators argue that this decision makes judges into fact finders in the process of deciding whether early disposition is proper.71 And ultimately, they assert, if the doctrine forces judges to usurp the role of the jury and presume all claims brought by plaintiffs are frivolous, then it undermines public perception of the judiciary and the integrity of the system.72
Admittedly, there are two consistent strands discernable in the Court’s modern qualified immunity case law. These two aspects of the doctrine, however, promote confusion by both further complicating application and adding to its theoretical incoherence. First, the Court explicitly and repeatedly stated that the doctrine applies “‘across the board’ and without regard to ‘the precise nature of the various officials’ duties or the precise character of the particular rights alleged to have been violated.’”73 Though clear, this aspect of the doctrine heightens the concern that the doctrine is substantively at odds with highly contextual tests that govern constitutional torts.74 Second, though not explicitly stated by the Court, by giving cases where immunity was denied a prominent position on its docket and almost always reversing these denials, the Court has implied that courts should presumptively grant qualified immunity.75 This, coupled with Pearson, makes constitutional stagnation a very real threat.76 Thus, the Court’s far-from-subtle preference for granting immunity exacerbates the issues created by its modern qualified immunity doctrine.77
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In order to correct this massive power grab, the Court should both relax the clearly established law standard and provide meaningful guidance that makes it easier to apply. This means abandoning the “beyond debate” language used to define the clearly established law standard and embracing the neglected “fair notice” articulation of the standard. This is because under the “fair notice” standard a case directly on point is not necessary since the case law taken in aggregate can be said to have put the officials on notice that their conduct was unlawful.78 It also means articulating a clear and consistent set of factors for courts to use as guideposts in surveying the body of existing law from which the clearly established standard will be evaluated. In other words, by clarifying Harlow, the Court can temper the impact of Pearson’s procedural escape hatch and strike the balance it originally sought to achieve by reading immunities into the statute.
In crafting guiding factors for applying qualified immunity, two areas of the Court’s jurisprudence are instructive: cases brought under Bivens v. Six Unknown Fed. Narcotics Agents,79 and cases concerning administrative law.80 The former provides us with an example of guidance designed to ascertain the degree of similarity between a case at bar and existing precedent, similar to inquiry under the clearly established law standard.81 The latter is helpful because it is an area of law greatly concerned with problems of discretion, judicial deference, and separation of powers, notions that are also at play in the context of qualified immunity.82
When reviewing a claim brought under Bivens, courts must decide whether it is proper to permit the use of this “implied cause of action” and whether to dismiss the case if it arises in a new context.83 Consequently, courts begin by asking whether the case at bar “is different in a meaningful way from previous Bivens cases decided by th[e] [Supreme] Court[.]”84 To guide courts in making this determination, the following factors have evolved:
 the rank of the officers involved;  the constitutional right at issue;  the generality or specificity of the individual action;  the extent of judicial guidance as to how an officer should respond to the problem or emergency to be confronted;  the statutory or other legal mandate under which the officer was operating;  the risk of disruptive intrusion by the Judiciary into the functioning of other branches;  or the presence of potential special factors that previous Bivens cases did not consider.85
Likewise, in the qualified immunity context, factors akin to the Bivens factors could instruct courts in defining the universe of precedent capable of rendering the law clearly established. Importantly, qualified immunity factors would have to be significantly different from the Bivens factors since the Bivens factors are geared towards finding that all cases arise in a new context, and, therefore, should be dismissed.86 Instead, to help cure the infirmities of qualified immunity, these guiding factors should be tailored to sufficiently limit the universe of cases for the clearly established law inquiry without rendering all but those squarely on point inadequate. In other words, the Court should provide guidance geared towards finding that more cases are analogous to cases under review so that civilians can actually meet the clearly established law standard.
Qualified immunity factors could, for example, direct courts to limit the body of law to controlling cases involving (1) an officer of similar rank, charged with similar duties, (2) the same constitutional right at issue and claim, and (3) arising from an official action similar in kind, such as ordinary duties or extraordinary duties. Courts could also be required to include some version of the fifth Bivens factor, “statutory or other legal mandate under which the officer was operating[.]”87 Thus, aside from evaluating the clarity of the law by reference to analogous cases, courts could consider other legal materials as well as policy manuals or training materials under which the accused official was operating. Again, this would broaden the scope of relevant sources and, presumably, allow for more determinations that the law is clearly established under the “fair notice” articulation.
After explaining how courts should define the clearly established law question, the Court could borrow from administrative law to guide lower courts in analyzing the clarity of the law given the relevant set of cases. For instance, Skidmore v. Swift88 and United States v. Mead Corp.89 together tell courts to determine the degree of judicial deference due to an agency’s informal interpretation of its authorizing statute by considering factors such as the thoroughness, formality, validity, consistency, agency expertise, longevity, and contemporaneity of the interpretation.90 Similarly, in determining whether the universe of relevant law renders the law clearly established or not, lower courts could consider things like (1) the breadth of the available law, (2) its consistency, (3) its longevity, and (4) its contemporaneousness with regard to the conduct at issue. Considering these factors, the question would then be whether the defendant-official was in fact justified in believing that his or her conduct fell within the bounds of the law, or whether the facts, in light of relevant law, evince some kind of reckless disregard for a known risk. In the latter case, trial would be justified.
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Because of the important place civil liberties hold in the American psyche,91 the Court should recalibrate the doctrine of qualified immunity to ensure the availability of remedies for constitutional violations so that fundamental rights are not “merely precatory.”92 While the Court’s concern over chilling the vigor with which government officials’ discharge their duties, the Court cannot promote its own preferences at the expense of the goals that Congress sought to promote by enacting § 1983. Therefore, unless and until Congress codifies some kind of immunity defense, the Court should reconsider the current doctrine of qualified immunity and provide guidance that is helpful in practice, theoretically coherent, and consistent with constitutional principles.
Recommended Citation: Victoria del Rio-Guarner, Rethinking Qualified Immunity: Making America Accountable Again, 2018 N.Y.U. Proceedings 1, http://proceedings.nyumootcourt.org/2018/01/rethinking-qualified-immunity-making-america-accountable-again/.
1. Victoria del Rio-Guarner is a 3L at New York University School of Law. This piece is a commentary on one issue of the problem from the Robert F. Wagner National Labor and Employment Law Competition. The problem was a First Amendment employment retaliation claim brought by a former professor at a state university under 42 U.S.C. § 1983. The questions were whether defendants, members of the university’s board of trustees, violated the professor’s free speech rights, and, in any event, whether they were entitled to qualified immunity. The views expressed in this article do not necessarily represent the views of the author. Rather, this article is a distillation of one side of an argument assigned to the author at the Competition.
2. 42 U.S.C. § 1983. Section 1983 provides in part:
Every person who, under color of any statute, ordinance, regulation, custom, or usage, of any State or Territory or the District of Columbia, subjects, or causes to be subjected, any citizen of the United States or 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.
Because § 1983 only creates a cause of action against state or local officials, the Court created an equivalent cause of action against federal officials. See Bivens v. Six Unknown Named Narcotics Agents, 403 U.S. 388 (1971) (creating the Bivens cause of action where federal officials were accused of violating the Fourth Amendment). Notably, the Court now disfavors this judicially created cause of action and has significantly limited its reach, so it is available for a much narrower range of constitutional torts than § 1983 actions. For cases in which the Court refused to extend Bivens, see, for example, Correctional Services Corp. v. Malesko, 534 U.S. 61 (2001) (Eighth Amendment claims against private federal prison operator); Bush v. Lucas, 462 U.S. 367 (1983) (First Amendment context); Chappell v. Wallace, 462 U.S. 296 (1983) (race-discrimination suit against military officers); United States v. Stanley, 483 U.S. 669 (1987) (substantive due process suit against military officers); Schweiker v. Chilicky, 487 U.S. 412 (1988) (procedural due process suit against Social Security officials); FDIC v. Meyer, 510 U.S. 471 (1994) (procedural due process suit against a federal agency for wrongful termination).
3. See 17 Stat. 13 (1871), which is sometimes referred to as the Civil Rights Act of 1871. See, e.g., Ziglar v. Abbasi, 137 S. Ct. 1843, 1870–71 (2017) (Thomas, J., concurring); Wyatt v. Cole, 504 U.S. 158, 164 (1992); Smith v. Wade, 461 U.S. 30, 34 (1983); Monroe v. Pape, 365 U.S. 167, 170–76 (1961). See also William Baude, Is Qualified Immunity Unlawful? 106 Cal. L. Rev. (forthcoming 2018) (manuscript at 25–26), https://papers.ssrn.com/abstract=2896508; Karen M. Blum, Section 1983 Litigation: The Maze, The Mud, and the Madness, 23 Wm. & Mary Bill of Rts. J. 913, 913 (2015) [hereinafter The Maze].
4. See, e.g., Lugar v. Edmondson Oil Co., 457 U.S. 922, 934 (1982) (“The history of the Act is replete with statements indicating that Congress thought it was creating a remedy as broad as the protection that the Fourteenth Amendment affords the individual.”); Monroe, 365 U.S. at 174 (“[The Act] was passed by a Congress that had the Klan particularly in mind. The debates are replete with references to the lawless conditions existing in the South in 1871.” (internal quotation marks and footnote omitted); Alan W. Clarke, The Ku Klux Klan Act and the Civil Rights Revolution: How Civil Rights Litigation Came to Regulate Police and Correctional Officer Misconduct, 7 Scholar 151, 153 (“[The Act’s] purpose, in part, was to effectuate broad constitutional protections set in place in the aftermath of the Civil War. These protections did not remain static, so the history of the Act is intertwined with a continuing history of expanding rights.”).
5. See Marbury v. Madison, 5 U.S. (1 Cranch) 137, 163 (1803) (“The very essence of civil liberty certainly consists in the right of every individual to claim the protection of the laws whenever he receives an injury.… The government of the United States has been emphatically termed a government of laws, and not of men. It will certainly cease to deserve this high appellation, if the laws furnish no remedy for the violation of a vested legal right.”); The Federalist No. 70 (Alexander Hamilton). See also Ziglar, 137 S. Ct. at 1874–75 (2017) (Breyer, J., dissenting).
6. See, e.g., Alan K. Chen, The Facts About Qualified Immunity, 55 Emory L.J. 229, 229 (2006) (“The United States Supreme Court ought to learn the facts about qualified immunity, the judicially-created doctrine that often protects public officials from damages actions for the violation of constitutional rights.”); Rehberg v. Paulk, 566 U.S. 356, 361 (2012) (“Despite the broad terms of §1983, this Court has long recognized that the statute was not meant to effect a radical departure from ordinary tort law and the common-law immunities applicable in tort suits.… [and for over sixty years] held that §1983 did not abrogate the long-established absolute immunity enjoyed by legislators for actions taken within the legitimate sphere of legislative authority.” (citing Tenney v. Brandhove, 341 U.S. 367, 376 (1950))); Malley v. Briggs, 475 U.S. 335, 342 (1986) (“Since the statute on its face does not provide for any immunities, we would be going far to read into it an absolute immunity for conduct which was only accorded qualified immunity in 1871.” (emphasis in original)); Imbler v. Pachtman, 424 U.S. 409, 417 (1976); Wood v. Strickland, 420 U.S. 308, 317–18, 318 n.8 (1975).
7. Owen v. City of Independence, 445 U.S. 622, 637 (1980) (quoting Pierson v. Ray, 386 U.S. 547, 555 (1967)).
8. See e.g., Imbler, 424 U.S. at 421 (explaining that courts must conduct “a considered inquiry into the immunity historically accorded the relevant official at common law and the interests behind it”); Wyatt v. Cole, 504 U.S. 158, 170 (1992) (Kennedy, J., concurring) (“[O]ur original decisions recognizing defenses and immunities to suits brought under 42 U.S. C. § 1983 rely on analogous limitations existing in the common law when §1983 was enacted.”).
9. Pursuant to the historical analogy approach, the Court initially identified several government actors as being absolutely immune from liability for damages under §1983. See, for example, Tenney, 341 U.S. 367, for legislators acting within the scope of legislative authority, Pierson, 386 U. S. 547, for judges acting within the scope of judicial authority, and Imbler, 424 U.S. 409, for prosecutors in their role as advocates. Importantly, absolute immunity categorically exempts government officials with special functions or constitutional status from suit, and therefore operates as a rule rather than a standard. Alan K. Chen, The Ultimate Standard: in the Age of Constitutional Balancing Tests, 81 Iowa L. Rev. 261, 262 (1995) [hereinafter The Ultimate Standard] (“[T]he absolute immunity doctrine is rule-like. Once the Court designates a class of officials as being absolutely immune from suit, injured plaintiffs are barred from bringing constitutional tort actions against those types of officials, at least for the actions uniquely related to the officials’ positions.”).
10. Under the historical analogy approach, the Court has found qualified, but not absolute, immunity for various officials. See, for example, Scheuer v. Rhodes, 416 U.S. 232 (1974), for a State’s chief executive officer, senior and subordinate officers of the State’s National Guard, and president of the State university, Wood, 420 U.S. at 318, for school board members, O’Connor v. Donaldson, 422 U.S. 563 (1975), for the superintendent of a state hospital, Pierson, 386 U.S. 547, for police officers generally, and Procunier v. Navarette, 434 U.S. 555 (1978), for prison officials and officers. Qualified immunity is applied as a standard and may be available to executive officials with discretionary functions. See Scheuer, 416 U.S. at 247 (defining immunity based on variable factors such as an official’s responsibilities, the scope of her discretion, and the totality of the circumstances at the time); Chen, The Ultimate Standard, supra note 8, at 263 (“Th[e] standard-like formulation of qualified immunity allocates great discretion to future decisionmakers, especially the lower federal courts.”).
11. See, e.g., Rehberg, 566 U.S. at 363 (“We do not simply make our own judgment about the need for immunity.… We consult the common law to identify those governmental functions that were historically viewed as so important and vulnerable to interference by means of litigation that some form of absolute immunity from civil liability was needed” (internal quotations omitted)).
12. See Wyatt, 504 U.S. at 170 (Kennedy, J., concurring) (“The good-faith and probable cause defense evolved into our modern qualified-immunity doctrine.”); id. at 177 (Rehnquist, C.J., dissenting) (“Similarly, in Wood v. Strickland, we recognized that, ‘[a]lthough there have been differing emphases and formulations of the common-law immunity,’ the general recognition under state law that public officers are entitled to a good-faith defense was sufficient to support the recognition of a §1983 immunity.” (internal citation omitted)); Chen, The Ultimate Standard, supra note 9, at 289 (explaining the shift in Court’s immunity cases from differing standards for particular types of officials to a single, across-the-board reasonableness standard).
13. See, e.g., Wyatt, 504 U.S. at 170 (1992) (Kennedy, J., concurring) (“In cases involving absolute immunity we adhere to that view, granting immunity to the extent consistent with historical practice. . . . In the context of qualified immunity for public officials, however, we have diverged to a substantial degree from the historical standards.” (internal citations omitted)); Ziglar v. Abbasi, 137 S. Ct. 1843, 1870–71 (2017) (Thomas, J., concurring) (noting that the Court “completely reformulated [the doctrine] along principles not at all embodied in the common law”); Alan K. Chen, The Burdens of Qualified Immunity: Summary Judgment and the Role of Facts in Constitutional Tort Law, 47 Am. U. L. Rev. 1, 21–22 (1997) [hereinafter Burdens] (explaining that in cases predating the modern qualified immunity doctrine, the Court “focused on the problems associated with constitutional tort liability, but did not expressly acknowledge the social costs of constitutional tort liability, … independent of the case’s outcome,” while the current framework “manifest[s], in part, the Court’s increasing concern … with the actual burdens attendant to the litigation process itself”).
14. See Malley v. Briggs, 475 U.S. 335, 342 (1986) (“We reemphasize that our role is to interpret the intent of Congress in enacting § 1983, not to make a freewheeling policy choice, and that we are guided in interpreting Congress’ intent by the common-law tradition.”). See also Ziglar, 137 S. Ct. at 1872 (Thomas, J., concurring) (“Until we shift the focus of our inquiry to whether immunity existed at common law, we will continue to substitute our own policy preferences for the mandates of Congress. In an appropriate case, we should reconsider our qualified immunity jurisprudence.”); Corr. Servs. Corp. v. Malesko, 534 U.S. 61, 83 (2001) (Stevens, J., dissenting) (“[O]ur primary duty is to apply and endorse settled law, not to revise that law to accord with our own notions of sound policy.”).
15. See Harlow v. Fitzgerald, 457 U.S. 800 (1982).
16. See Pearson v. Callahan, 555 U.S. 223 (2009).
17. See, e.g., Alan K. Chen, Rosy Pictures and Renegade Officials: The Slow Death of Monroe v. Pape, 78 UMKC L. Rev. 889, 910 (2010) (lamenting that “the Supreme Court has issued a series of decisions that have gradually diminished [Section] 1983 in ways that make damages recovery both costly and difficult”); Blum, The Maze, supra note 3, at 913–14 (“There is a growing consensus among practitioners, scholars, and judges that Section 1983 is no longer serving its original and intended function as a vehicle for remedying violations of constitutional rights, that it is broken in many ways, and that it is sorely in need of repairs.”).
18. See, e.g., Wyatt v. Cole, 504 U.S. 158, 170 (1992) (Kennedy, J., concurring).
19. Wood v. Strickland, 420 U.S. 308, 318 (1975).
20. Id. at 321.
21. Saucier v. Katz, 533 U.S. 194, 201 (2001) (holding that sequencing starting with the constitutional question was mandatory).
22. Harlow v. Fitzgerald, 457 U.S. 800 (1982) (regarding substance); Pearson v. Callahan, 555 U. S. 223 (2009) (concerning procedure).
23. Harlow, 457 U.S. at 817–19 (“The subjective element of [qualified immunity] has proved incompatible with our admonition … that insubstantial claims should not proceed to trial.… We therefore hold 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.”).
24. Id. at 813–14. See also Reichle v. Howards, 566 U.S. 658, 664 (2012) (noting that qualified immunity “protects the balance between vindication of constitutional rights and government officials’ effective performance of their duties by ensuring that officials can ‘reasonably … anticipate when their conduct may give rise to liability for damages.’” (quoting Anderson v. Creighton, 483 U.S. 635, 639 (1987))).
25. Harlow, 457 U.S. at 814 (internal quotation omitted). See also Chen, Burdens, supra note 13, at 19 (noting that Harlow marked a shift in the Court’s justifications for qualified immunity by “identif[ying] several general social costs likely to be incurred under a system that allowed unlimited exposure to constitutional tort litigation: (1) an increase in the government’s litigation expenses; (2) the diversion of public officials’ attention and energy away from performing their duties and toward defending lawsuits; and (3) the deterrence of able people willing to occupy public office.”).
26. Harlow, 457 U.S. at 818. See Chen, Burdens, supra note 13, at 19 (noting that in Harlow “the Court introduced and emphasized several new policy considerations associated with the litigation burdens that constitutional tort claims impose on public officials and society”).
27. Harlow, 457 U.S. at 815–16 (“[A]n official’s subjective good faith has been considered to be a question of fact that some courts have regarded as inherently requiring a jury.”); Pearson v. Callahan, 555 U. S. 223, 231 (2009) (noting that qualified immunity is “immunity from suit” and is “effectively lost if a case is erroneously permitted to go to trial”).
28. Pearson, 555 U.S. at 234–40 (undoing the mandatory sequencing set forth in Saucier). See also Morse v. Frederick, 551 U.S. 393, 425 (2007) (Breyer, J., concurring in part and dissenting in part) (“This Court need not and should not decide this difficult First Amendment issue on the merits. Rather, I believe that it should simply hold that qualified immunity bars the student’s claim for monetary damages and say no more.”); Scott v. Harris, 550 U.S. 372, 387 (2007) (Breyer, J., concurring) (“[L]ower courts should be free to decide the two questions in whatever order makes sense in the context of a particular case.”).
29. Pearson, 555 U.S. at 236–37.
30. Id. (holding that courts could skip to the clearly established law analysis).
31. Id. The Court provided to help courts decide whether skipping the constitutional question was appropriate. Id. (listing four factors that counsel in for addressing the constitutional question and eleven factors that counsel against).
32. See Aaron L. Nielson & Christopher J. Walker, Strategic Immunity, 66 Emory L.J. 55, 70–71 (2016) (explaining that if the substantive constitutional question is repeatedly skipped in the name of constitutional avoidance the law may never become clearly established making qualified immunity effectively absolute).
33. See e.g., John C. Jeffries, Jr., What’s Wrong with Qualified Immunity?, 62 Fla. L. Rev. 851, 852 (2010) [hereinafter What’s Wrong] (describing the “clearly established” law aspect of the qualified immunity doctrine as “a mare’s nest of complexity and confusion”); Blum, The Maze, supra note 3, at 925 (“One has to work hard to find some doctrinal consistency or predictability in the case law and the circuits are hopelessly conflicted[.]”).
34. See Harlow, 457 U.S. at 818.
35. See infra notes 36–42.
36. White v. Pauly, 137 S. Ct. 548, 552 (2017) (“[I]t is again necessary to reiterate the longstanding principle that clearly established law should not be defined at a high level of generality.” (internal quotation marks omitted)).
37. Ashcroft v. al-Kidd, 563 U.S. 731, 741 (2011). See also Anderson v. Creighton, 483 U.S. 635, 639–40 (1987) (stating that “the unlawfulness must be apparent” under the pre-existing law). Emphasizing this point, the Court explained that relevant precedent must be “particularized” to ensure that it is not turned into “a rule of virtually unqualified liability simply by alleging violation of extremely abstract rights.” Id. See also Brosseau v. Haugen, 543 U.S. 194, 198 (2004) (per curiam) (explain that the inquiry “must be undertaken in light of the specific context of the case, not as a broad general proposition”).
38. See Hope v. Pelzer, 536 U.S. 730, 739 (2002). See also Karen Blum, The Qualified Immunity Defense: What’s “Clearly Established” and What’s Not, 24 Touro L. Rev. 501, 519 (2014) (“Plaintiffs will cite to Hope.… The defendants point to the language from … Brosseau, [a] case where the Supreme Court has required the right to be framed with more particularity .… There is something for everyone in the language of the Supreme Court, which is part of the confusion surrounding qualified immunity.”).
39. Ashcroft, 563 U.S. at 740–41 (a case “directly on point” is not required, but controlling precedent must put the issue “beyond debate”). For cases under the more stringent formulation of the standard, see, for example, Anderson, 483 U.S. at 640 (noting that requiring the right be clearly established in a particularized manner “is not to say that an official action is protected by qualified immunity unless the very action in question has previously been held unlawful”). For cases under the more relaxed standard, see, for example, Hope, 536 U.S. at 739–41 (rejecting Eleventh Circuit’s requirement that case be “materially similar” to relevant precedent because “officials can be on notice that their conduct violates established law even in novel factual situations”).
40. 483 U.S. 635 (1987)
41. Id. at 640–41.
42. Id. at 641. See also Ashcroft, 563 U.S. at 742 (“The general proposition, for example, that an unreasonable search or seizure violates the Fourth Amendment is of little help in determining whether the violative nature of particular conduct is clearly established.”).
43. See, e.g., Michael S. Catlett, Note, Clearly Not Established: Decisional Law and the Qualified Immunity Doctrine, 47 Ariz. L. Rev. 1031, 1050–55 (2005) [hereinafter Clearly Not Established] (detailing the various splits that exist among the circuit courts due to the Court’s ambiguous precedent on this subject).
44. Wilson v. Layne, 526 U.S. 603, 617 (1999).
45. See San Francisco v. Sheehan, 135 S. Ct. 1774, 1776 (2015) (“But even if ‘a controlling circuit precedent could constitute clearly established federal law in these circumstances,’ … it does not do so here.”).
46. See Ziglar v. Abbasi, 137 S. Ct. 1843, 1868 (2017) (“When the courts are divided on an issue so central to the cause of action alleged, a reasonable official lacks the notice required before imposing liability.”).
47. See, e.g., Catlett, Note, Clearly Not Established, supra note 43, at 1042–50 (explaining how the Third, Sixth, Ninth, and Eleventh Circuits use persuasive materials in their qualified immunity analysis); Richard B. Saphire, Qualified Immunity in Section 1983 Cases and the Role of State Decisional Law, 35 Ariz. L. Rev. 621, 631–32 (1993) (detailing how circuits treat state court decisions in their qualified immunity analysis).
48. See, e.g., Hope v. Pelzer, 536 U.S. 730, 741–42 (2002) (holding that, even though there was no Eleventh Circuit precedent on point, the District Court in the Eleventh Circuit should have found that the law was clearly established based on Fifth Circuit precedent, an Alabama Department of Corrections regulation, and a Department of Justice report).
49. See generally Catlett, Note, Clearly Not Established, supra note 43.
50. Capoeman v. Reed, 754 F.2d 1512, 1514 (9th Cir. 1985). See also Catlett, Note, Clearly Not Established, supra note 43, at 1048 & n.138, 141.
51. See Catlett, Note, Clearly Not Established, supra note 43, at 1047 & n.131 (noting that “D.C. Circuit also looks to the law of the highest court in the state in which the case arose” (citing Lederman v. United States, 291 F.3d 36, 48 (D.C. Cir. 2002)).
52. See Catlett, Note, Clearly Not Established, supra note 43, at 1049–50, 1049 n.146.
53. See, e.g., Golodner v. Berliner, 770 F.3d 196, 205 (2d Cir. 2014) (“Few issues related to qualified immunity have caused more ink to be spilled than whether a particular right has been clearly established, mainly because courts must calibrate, on a case-by-case basis, how generally or specifically to define the right at issue.”); Charles R. Wilson, “Location, Location, Location”: Recent Developments in the Qualified Immunity Defense, 57 N.Y.U. Ann. Surv. Am. L. 445, 447 (2000) (“Wading through the doctrine of qualified immunity is one of the most morally and conceptually challenging tasks federal appellate court judges routinely face.”).
54. See, e.g., Nielson, Strategic Immunity, supra note 32, at 92 (“[I]f the issue is controversial, the panel may fear reversal. One way to minimize that chance would be not to reach the constitutional merits. By deciding an issue relevant only in a particular case … the decision  be[comes] less certworthy.”).
55. See Karen Blum et. al., Qualified Immunity Developments: Not Much Hope Left for Plaintiffs, 29 Touro L. Rev. 633, 654 (2013) (“The Court’s language in Hope is clearly more plaintiff-friendly, but since that decision, the fair warning formula has been virtually ignored by the Supreme Court.” (internal quotation marks omitted)).
56. See Mark R. Brown, The Fall and Rise of Qualified Immunity: From Hope to Harris, 9 Nev. L.J. 185, 197–202 (2008) (discussing cases in which minor factual differences from prior cases precluded liability even in the face of “patent wrongs” and “horrendous facts”).
57. Ashcroft v. al-Kidd, 563 U.S. 731, 741 (2011).
58. See Chen, Burdens, supra note 13.
60. See, e.g., Brosseau v. Haugen, 543 U.S. 194, 199–201 (2004) (holding that it was not clearly established that an officer may not shoot a man accused of nonviolent crimes in the back because he was fleeing from the police); White v. Pauly, 137 S. Ct. 548, 552 (2017) (holding it was not clearly established that police officer may not shoot and kill an individual through the window of his rural home in the course of investigating an earlier road-rage incident involving the victim’s brother). See also Salazar-Limon v. City of Houston, Tex., 137 S. Ct. 1277, 1283 (2017) (Sotomayor, J. dissenting from denial of cert.) (noting that denying certiorari “continues a disturbing trend regarding the use of this Court’s resources. We have not hesitated to summarily reverse courts for wrongly denying officers the protection of qualified immunity in cases involving the use of force.… But we rarely intervene where courts wrongly afford officers the benefit of qualified immunity in these same cases.”).
61. See generally Nielson, Strategic Immunity, supra note 31, at 95–117 (reviewing collected cases and finding empirical evidence suggesting that judge’s personal preferences impact the qualified immunity analysis). But see generally
Adam M. Samaha, Looking over A Crowd-Do More Interpretive Sources Mean More Discretion?, 92 N.Y.U. L. Rev. 554 (2017) (suggesting that as the number of cases on a point increases, judicial discretion as to choosing an outcome in a particular case is constrained, not enhanced).
62. See Nielson, Strategic Immunity, supra note 31, at 95–117 (empirical evidence shows stagnation).
63. See id. at 69 (law will never be clearly established if leapfrogging continually occurs).
64. See Chen, The Ultimate Standard, supra note 8, at 309–16.
65. Anderson v. Creighton, 483 U.S. 635, 647–68 (1987) (Stevens, J., dissenting).
66. Chen, The Ultimate Standard, supra note 8, at 309–16 (“tips the scales by permitting the decisionmaker to stack an additional government interest not ordinarily considered to be on the government’s side.”).
67. See, e.g., Ziglar v. Abbasi, 137 S. Ct. 1843, 1870–72 (2017) (Thomas, J., concurring); Wyatt v. Cole, 504 U.S. 158, 164–70 (1992) (Kennedy, J., concurring); Baude, Is Qualified Immunity Unlawful?, supra note 3, at 11–17.
68. See Ziglar, 137 S. Ct. at 1870–72 (Thomas, J., concurring).
69. See Chen, Burdens, supra note 13, at 28–98.
70. Harlow v. Fitzgerald, 457 U.S. 800, 815–16 (1982).
71. See Chen, Burdens, supra note 13, at 19–27.
73. Ziglar, 137 S. Ct. at 1871 (quoting Anderson v. Creighton, 483 U.S. 635, 641–43 (1987)).
74. See Chen, The Ultimate Standard, supra note 8, at 309–16 (explaining that the frameworks for constitutional torts are fact specific and arguing that it makes no sense to evaluate clearly established law as an across the board standard, without regard to nuances of context). See also Anderson, 483 U.S. at 647–68 (1987) (Stevens, J., dissenting).
75. See Baude, Is Qualified Immunity Unlawful?, supra note 3, at 39–44 (suggesting that the Court has sent a strong signals to lowers courts because of the dominance qualified immunity cases in its docket, especially since “all but two of the Court’s awards of qualified immunity were reversing the lower court’s denial of immunity below”).
77. Id. at 39–40 (noting that the dominance of qualified immunity on Court docket and strong hint to grant, only two cases reversing grant and both from a long time ago).
78. See supra note 33–42.
79. 403 U.S. 388 (1971).
80. See, e.g., Chevron, U.S.A., Inc. v. Nat. Res. Def. Council, Inc., 467 U.S. 837, 865 (1984) (“Courts must, in some cases, reconcile competing political interests, but not on the basis of the judges personal policy preferences”); see also Lexmark Int’l, Inc. v. Static Control Components, Inc., 134 S. Ct. 1377, 1387–88 (2014) (in the context of the zone of interest doctrine “[j]ust as a court cannot apply its independent judgment to recognize a cause of action that Congress has denied, it cannot limit a cause of action that congress has created merely because ‘prudence’ dictates.”).
81. Cf. Ziglar v. Abbasi, 137 S. Ct. 1843, 1859–60 (2017) (providing examples of factors that “might prove instructive” in determining whether cases are similar to precedent “[w]ithout endeavoring to create an exhaustive list”).
82. See Nielson, Strategic Immunity, supra note 32, at 57–65, 76–82 (analogizing the rationale for controlling agency discretion to the rationale for cabining judicial discretion in the qualified immunity context, and calling for the Court to recognize and address the latter just as it has done with the former).
83. Ziglar, 137 S. Ct. at 1859–60.
84. Id. Where there is no statute providing a cause of action, the Court allows civilians to seek damages from federal officers, i.e., bring a Bivens claim, only if the claim falls within one of the following three contexts: (1) alleged violations of the Fourth Amendment’s prohibition against unreasonable search and seizures, see Bivens, 403 U.S., at 397; (2) alleged violations of the Fifth Amendment’s Due Process Clause based on unlawful discrimination, see Davis v. Passman, 442 U.S. 228, 248–249 (1979) (congressman accused of discriminating against a staffer on the basis of gender); and (3) alleged violations of the Eighth Amendment’s Cruel and Unusual Punishment Clause, see Carlson v. Green, 446 U.S. 14, 19 (1980). For a discussion on the history and evolution of Bivens claims and example of the Court’s analysis, see, for example, Ziglar, 137 S. Ct. at 1854–69. See also Correctional Servs. Corp. v. Malesko, 534 U.S. 61 (2001); Minneci v. Pollard, 565 U.S. 118 (2012).
85. Ziglar, 137 S. Ct. at 1860.
86. See Ziglar, 137 S. Ct. at 1857 (2017) (explaining factors after stating that “expanding the Bivens remedy is now a ‘disfavored’ judicial activity.” (quoting Ashcroft v. Iqbal, 556 U.S. 662, 675 (2009)).
87. Id. at 1859–60.
88. 323 U.S. 134 (1944).
89. 533 U.S. 218 (2001).
90. See id. at 228 (noting that deference to agencies depends on things like “thoroughness, logic and expertness, its fit with prior interpret … the degree of the agency’s care, its consistency, formality, and relative expertness, and to the persuasiveness of the agency’s position, …”); Skidmore, 323 U.S. at 140 (“The weight of such a[n] [agency] judgment in a particular case will depend upon the thoroughness evident in its consideration, the validity of its reasoning, [and] its consistency with earlier and later pronouncements, …”). See also Kristin Hickman and Matthew D. Krueger, In Search of the Modern Skidmore Standard, 107 Colum. L. Rev. 1235, 1259 (2007), available at http://scholarship.law.umn.edu/faculty_articles/390. (explaining that Mead’s articulation of Skidmore “can be distilled to five key factors in modern Skidmore analysis: thoroughness, formality, validity, consistency, and agency expertise. As noted above, longevity and contemporaneity may together comprise a sixth key factor”).
91. See supra note 5.
92. Davis v. Passman, 442 U.S. 228, 242 (1979).