Article
Amicus Curiae Blog (May 28, 2020)

Qualified Immunity: When Clearly Established Law is “as Clear as Mud”

By Kaleb Byars*

Introduction

The phrase “as clear as mud” is an age-old idiom used to describe an inexplicable phenomenon, such as a legal principle that defies logic and reason. This article identifies one such legal principle that exists in the realm of qualified immunity. More specifically, “it is about as clear as mud” why the federal courts consider persuasive authority when determining whether law is “clearly established” under the doctrine of qualified immunity.

Background of Qualified Immunity

Qualified immunity protects government officials from Section 1983 claims arising from their discretionary actions in their official capacity.1 Specifically, public officials are immune from liability for their improper, official conduct that violates a person’s rights when that conduct is objectively reasonable in light of law that was “clearly established” when the officials engaged in the conduct.2 The Supreme Court has made clear that law is “clearly established” when it is “sufficiently clear” to an official that the official’s conduct violates an individual’s rights, considering law of which official is aware.3 Perplexingly, the Supreme Court has considered persuasive authority in determining whether law is “clearly established” for the purposes of qualified immunity.4  As a result, almost every federal circuit now considers the law of other circuits (i.e. persuasive authority) when determining what law is “clearly established” in qualified immunity cases.5

Before proceeding, it is important to understand the policy considerations that underlie the doctrine of qualified immunity. Chiefly, qualified immunity6 is a compromise between competing interests.7 In some cases, it secures an avenue through which persons injured by public officials may recover from those officials for the harm those officials cause.8  In other cases, qualified immunity minimizes unnecessary, frivolous, and excessive litigation against public officials.9  Without qualified immunity, the fear of lawsuit officials would face would likely deter them from zealously executing the duties of their offices.10 Additionally, qualified immunity minimizes social costs through avoidance of judicial expenses incurred by allowing numerous claims against public officials to proceed past the summary judgment stage.11

Analysis

With this background, it is possible to appreciate the inappropriateness of federal courts considering persuasive authority when determining what law is “clearly established” for purposes of sovereign immunity. First and foremost, it is a basic principle that persuasive authority is not binding, and thus, persuasive authority generally does not govern conduct in a jurisdiction.12  Consequently, to suggest legal authority that is merely persuasive in a jurisdiction is “clearly established” in that jurisdiction is inherently self-contradictory.

Moreover, undoubtedly, most public officials do not possess a legal background. As a result, it is arguably unreasonable to expect public officials to apprise themselves of the law of their own jurisdictions. Accordingly, it is even more unreasonable to require public officials to become well-versed in the laws that govern officials in other jurisdictions. Yet, when courts consider persuasive authority when defining what law is “clearly established,” those courts necessarily and unfairly expect and even require those officials to take actions in light of that persuasive authority.

Furthermore, courts’ use of persuasive authority in the “clearly established” analysis contravenes the policy considerations underlaying the doctrine of qualified immunity. As stated above, qualified immunity ensures that public officials carry out their official duties with zeal.13 If public officials cannot be certain what conduct is permitted in their jurisdiction––because they do not know which jurisdiction’s law will govern their conduct, persuasive authority or otherwise––public officials will be hesitant to take risks that might be in the best interests of the public.14

Conclusion

Many legal doctrines are reasonable in theory but unworkable in practice. The federal courts’ use of persuasive authority to determine what law is “clearly established” for the purposes of qualified immunity is an example of such a doctrine. Persuasive authority is inherently not law that is “clearly established” in a jurisdiction, and courts’ use of persuasive authority undermines the bedrock policy considerations of qualified immunity. Consequently, in future cases, the federal courts should refrain from further considering persuasive authority in qualified immunity cases when determining what law is “clearly established.”

Footnotes

* Kaleb Byars is a Juris Doctor Candidate at the University of Tennessee (Class of 2021) and Editor-in-Chief of the Tennessee Law Review.↩︎

  1. Harlow v. Fitzgerald, 457 U.S. 800, 818–19 (1982). ↩︎
  2. Anderson v. Creighton, 483 U.S. 635, 639 (1987) (quoting id. at 818)). ↩︎
  3. Wilson v. Layne, 526 U.S. 603, 614–15 (1999) (quoting id. at 640)). ↩︎
  4. See, e.g.,Ashcroft v. al-Kidd, 536 U.S. 731, 741–42 (2011) (quoting id. at 603, 617). ↩︎
  5. See Ullery v. Bradley, 949 F.3d 1282, 1982 (2020) (collecting cases from other circuit courts). ↩︎
  6. Qualified immunity is preferable to absolute immunity regarding some public official conduct because it permits public officials to be liable in some, but not all cases. Matt Chiricosta, Note, Qualified Immunity Dissonance in the Sixth Circuit: Why We Must Return to Reasonableness, 59 CLEV. ST. L. REV. 463, 470 (2011). This possibility gives those public officials an incentive to act appropriately, but it does not entirely deter the officials from engaging in behavior essential to their public offices. ↩︎
  7. Joanna C. Schwartz, How Qualified Immunity Fails, 127 YALE L. J. 2, 8 (2017). ↩︎
  8. Id. ↩︎
  9. Id. ↩︎
  10. Id. Additionally, courts have respected the “need to protect government officials from nonfinancial burdens associated with discovery and trial. Id. at 9. ↩︎
  11. Chiricosta, supra note 6, at 470. ↩︎
  12. See generally Chad W. Flanders, Toward a Theory of Persuasive Authority, 62 OKLA. L. REV. 55, 59 (2009) (describing the nature of mandatory and persuasive authority). ↩︎
  13. Schwartz, supra note 7, at 9. ↩︎
  14. See Irish v. Fowler, No. 1:15-cv-00503, 2020 U.S. Dist. LEXIS 19546, at *127, n. 157 (D. Me. Feb. 3, 2020) (noting that filing of unnecessary claims against police officers deters them from taking “risks for the public safety that the public wants them to take.”). ↩︎