Symposium: A close look at Barrett’s rulings on qualified immunity
Stephen Wermiel writes the “SCOTUS for law students” column for SCOTUSblog. He is a professor of practice at American University Washington College of Law, where he teaches constitutional law and a seminar on the Supreme Court.
Among the hot-button issues that Judge Amy Coney Barrett has encountered in her nearly three years on the U.S. Court of Appeals for the 7th Circuit is the scope of qualified immunity, a doctrine that often protects public officials from lawsuits for damages if they are sued for violating constitutional rights. The doctrine prevents such lawsuits unless the public official allegedly violated “clearly established” law – a standard that has been interpreted narrowly to mean that the official’s conduct violated some previous court precedent finding nearly identical conduct illegal.
On the Supreme Court, Justice Clarence Thomas has repeatedly urged his colleagues to reconsider qualified immunity. He argues that the doctrine is not rooted in the text or history of the post-Civil War statute that allows individuals to sue government officials for damages for constitutional violations, known as Section 1983 (42 U.S.C. § 1983); judges should not be reading the doctrine into the law, Thomas says. At the other end of the court’s ideological spectrum, Justice Sonia Sotomayor has challenged the court’s willingness to apply qualified immunity to protect police misconduct; qualified immunity blunts the important effect that such lawsuits have in discouraging abuses by law enforcement, she says.
The court, however, has repeatedly turned down petitions asking it to revisit the qualified immunity doctrine, rejecting nine such cases in one sweep last June, and a handful of additional cases as the new term got underway this month.
On the 7th Circuit, Barrett has written unanimous majority opinions for three-judge panels in three qualified immunity cases, two involving police and one involving university officials, all three decided in 2019. In one, she rejected the qualified immunity claim, and in the other two, she upheld it. Because of the varying results and small sample size, her opinions do not offer any firm predictions on how she would approach the objections to qualified immunity raised by Thomas and Sotomayor.
In the earliest case, Rainsberger v. Benner, she was joined by then-Chief Judge Diane Wood and Judge David Hamilton in rejecting a claim for qualified immunity. Police detective Charles Benner arrested and charged an Indiana man, William Rainsberger, in 2013 with murdering his 88-year-old mother. Rainsberger was jailed for two months before posting bail, and a year later the local prosecutor dismissed the charge against him. According to Rainsberger’s Section 1983 lawsuit, Benner disregarded evidence that showed Rainsberger did not kill his mother and relied on faulty assumptions and deceptions that fell short of establishing probable cause to charge the crime. A federal district judge rejected the detective’s motion for summary judgment based on qualified immunity and ruled that the case should go to trial. Benner appealed that ruling to the 7th Circuit.
Barrett first concluded that Benner could appeal the district judge’s denial of his motion for summary judgment. While denial of summary judgment is usually not appealable because it is not a final order, Barrett said that on the issue of qualified immunity such appeals are allowed. The reason, she said, is that the purpose of granting qualified immunity to a public official, like Benner, is to avoid prolonged litigation; thus, an immediate appeal makes sense. After allowing Benner’s appeal, however, the appeals court found that he was not entitled to qualified immunity because it was not plausible to believe that lying in his affidavit to support probable cause was acceptable. The justification for qualified immunity, Barrett wrote, is “protecting officers who act in objective good faith.” Benner’s falsification of evidence and lack of probable cause exclude him from this protection, Barrett said.
In Doe v. Purdue University, Barrett granted qualified immunity to a number of university officials who were sued for their handling of a sexual violence case. Purdue, a public university, suspended a male student, identified as John Doe, after he was accused of and then investigated for allegations of sexually assaulting a female student. The two had dated in 2015, and the woman alleged the misconduct took place during their relationship without her consent. Doe was suspended for a year, resigned from the Navy ROTC program and lost his scholarship and hopes of a Navy career. He sued the university president and a number of administrators for unfair investigative procedures and for sex discrimination in the disciplinary process. A federal magistrate judge dismissed the lawsuit.
Joined by now-Chief Judge Diane Sykes and Judge Amy St. Eve, Barrett overturned that dismissal, finding that Doe had stated a valid claim for Section 1983 purposes that he had a protected “liberty” interest concerning his reputation and potential Navy career, and that Purdue’s investigation unfairly deprived him of that interest without procedural due process in violation of the 14th Amendment. But having found a constitutional violation, Barrett ruled that Purdue administrators were nonetheless entitled to qualified immunity on the Section 1983 issues. The notion that harm to reputation could be a constitutional “liberty” interest, Barrett reasoned, was newly applied here to a university setting and, therefore, was not a “clearly established” rule about which the university officials should have known.
Instead, Barrett allowed the male student’s lawsuit to proceed on other grounds, finding that he should be allowed to continue with his sex bias claims under Title IX, which prohibits discrimination based on sex in education programs. This aspect of Barrett’s ruling, unrelated to qualified immunity, has drawn attention from civil rights groups concerned that it may hamstring the ability of universities to investigate campus sexual violence.
In the third case, Torry v. City of Chicago, Barrett, joined by Judges Michael Kanne and Michael Brennan, found that three Chicago police officers were entitled to qualified immunity in a lawsuit alleging that they illegally stopped and harassed three Black men in a car in 2014. The incident occurred near the scene of an earlier drive-by shooting, not far from a high school. Though police reports described three Black men in a gray car, further descriptions of the men and the car varied. When Marcus Torry and two other Black men drove by twice in a gray Ford Fusion, going to and from an auto parts store, the officers stopped them and demanded they exit the car so it could be searched, offering little explanation. The three men later filed a Section 1983 lawsuit alleging that the officers had neither a reasonable suspicion nor probable cause for stopping and questioning them.
Barrett agreed with a federal district court that the stop by police was lawful and that, in any event, the officers were entitled to qualified immunity because it was reasonable for them to believe they were acting within the boundaries of the 4th Amendment.
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