This article is part of a case law symposium from Supreme Court Candidate Amy Coney Barrett.
Stephen Wermiel writes the column “SCOTUS for law students” for SCOTUSblog. He is Professor of Practice at American University's Washington College of Law, teaching constitutional law and a Supreme Court seminar.
One of the hot button issues that Judge Amy Coney Barrett has encountered in her nearly three years on the U.S. 7th Circuit Circuit Court of Appeals is the level of qualified immunity, a doctrine that often protects officials from damages claims when they do be sued for violating constitutional rights. The doctrine prevents such actions unless the officer allegedly violated the "clearly established" law – a standard that was narrowly construed to mean that the officer's conduct violated an earlier precedent in which nearly identical conduct has been found illegal.
At the Supreme Court, Justice Clarence Thomas has repeatedly urged colleagues to reconsider qualified immunity. He argues that the doctrine is not rooted in the text or history of the postwar law that allows individuals to sue government officials for damages for violating the Constitution, known as Section 1983 (42 USC, Section 1983); Judges shouldn't read the doctrine into the law, says Thomas. At the other end of the court's ideological spectrum, Justice Sonia Sotomayor has questioned the court's willingness to use qualified immunity to protect police misconduct. Qualified immunity negates the important effect such lawsuits have in preventing law enforcement abuse, she says.
However, the court has repeatedly denied petitions asking it to reconsider the doctrine of qualified immunity. Last June, nine such cases were denied at once, and a handful more as the new term began this month.
On the 7th Circuit, Barrett drafted unanimous majority opinions on three qualified immunity cases for three panels of judges, two involving the police and one involving university officials, all three of which were decided in 2019 the other two upheld. Because of the mixed results and the small sample size, her opinions do not offer firm predictions of how she would deal with the objections raised by Thomas and Sotomayor to qualified immunity.
In the earliest case, Rainsberger versus Benner, then Judge Diane Wood and Judge David Hamilton jointly denied an application for qualified immunity. Police officer Charles Benner arrested an Indiana man, William Rainsberger, in 2013 on charges of murdering his 88-year-old mother. Rainsberger was jailed for two months before putting on bail, and a year later the local prosecutor dismissed the charges against him. According to Rainsberger's 1983 lawsuit, Benner ignored evidence showing that Rainsberger did not kill his mother and relied on flawed assumptions and deceptions that were insufficient to ascertain a likely cause of the crime. A federal district judge denied the detective's request for a summary judgment based on qualified immunity and ruled that the case should be brought to trial. Benner appealed this decision to the 7th Circuit.
Barrett initially concluded that Benner could appeal the district judge's rejection of his motion for summary judgment. While a denial of a summary judgment is usually unappealable because it is not a final order, Barrett said such appeals are admissible on the question of qualified immunity. The reason, she said, is that the purpose of granting qualified immunity to an official like Benner is to avoid lengthy litigation. An immediate objection is therefore useful. However, after Benner's appeal was allowed, the appeals court found that he was not eligible for qualified immunity because it was implausible to believe that it was acceptable to lie on his affidavit to establish a likely reason. The justification for qualified immunity, Barrett wrote, is "protection of officials acting in objective good faith." Benner's forgery of evidence and the lack of a likely cause exclude him from that protection, Barrett said.
In the Doe v. Purdue University granted Barrett qualified immunity to a number of university officials sued for handling a sexual violence case. Purdue, a public university, suspended a male student identified as John Doe after being accused and then investigated for allegations of sexually assaulting a female student. The two had dated in 2015, and the woman claimed the misconduct occurred without her consent during their relationship. Doe was suspended for a year, resigned from the Navy ROTC program, and lost his fellowship and hopes for a Navy career. He sued the university president and a number of administrators for unfair investigations and for gender discrimination in disciplinary proceedings. A federal judge dismissed the lawsuit.
Barrett, along with current Judge Diane Sykes and Judge Amy St. Eve, overturned that dismissal, finding that Doe had made a valid claim for the purposes of Section 1983 that he had a protected "liberty" interest in his reputation and his potential career in the Navy, he said, was that Purdue's investigation unfairly deprived him of that interest without due process in violation of the 14th Amendment. However, after Barrett found a violation of the constitution, Barrett ruled that Purdue's administrators were nonetheless entitled to qualified immunity on matters under the 1983 section. The notion that reputational damage could be a constitutional “freedom interest”, argued Barrett, was reapplied here to a university setting and was therefore not a “clearly defined” rule that university officials should have known about.
Instead, Barrett allowed the male student's lawsuit to proceed on other grounds, stating that he should be allowed to continue his sexual prejudice under Title IX, which prohibits gender discrimination in educational programs. This aspect of Barrett's decision, unrelated to qualified immunity, has alerted civil rights groups concerned that it could affect universities' ability to investigate sexual violence on campus.
In the third case, Barrett, Torry v City of Chicago, Barrett, along with Judges Michael Kanne and Michael Brennan, found that three Chicago police officers were entitled to qualified immunity in a lawsuit for illegally stopping three black men in a car and The incident took place near a previous drive-by shooting, not far from a high school. Although police reports described three black men in a gray car, other descriptions of the men and the car varied. When Marcus Torry and two other black men drove by twice in a gray Ford Fusion and were walking to and from an auto parts store, officers stopped them and told them to get out of the car so it could be searched without explanation. The three men later filed a 1983 Section complaint alleging the officers had no reasonable suspicion or probable reason to stop and question them.
Barrett agreed in a federal district court that the police stop was lawful and that officers were in any case entitled to qualified immunity as it was reasonable for them to believe that they were acting within the limits of the 4th Amendment.
If confirmed as a Supreme Court Justice, Barrett could get a brief respite from qualified immunity issues, but she will surely face them again in the future.
Symposium: A Closer Look at Barrett's Decisions on Qualified Immunity,
SCOTUSblog (October 15, 2020, 3:51 p.m.),