Does One Size Fit All? Qualified Immunity Inside and Outside Split-Second Policing Decisions

Qualified immunity shields all government officials from suit when the constitutional rights they violate are not “clearly established.” Yet the public conversation often centers on police officers. Supreme Court cases on the doctrine frequently involve split-second law enforcement decisions, and when Congress considered reform in the George Floyd Justice in Policing Act of 2020, its focus was again on police, excluding other officials.
How should we think about qualified immunity in the policing context versus other government contexts, particularly when officials are not acting under urgent time pressure? Should there be a single, uniform standard, or should the doctrine be tailored to the circumstances faced by the defendant? And if tailoring is appropriate, should that responsibility rest with the political branches rather than the courts?
Join us for a discussion on the origins, evolution, and future of qualified immunity—and bring your questions.
Featuring:

Elliott Averett, Attorney, Bryan Cave Leighton Paisner LLP
William Most, Attorney, Most & Associates
(Moderator) Anya Bidwell, Attorney, Institute for Justice

Episode Transcript

Speaker 1 (00:02):
Welcome to FEDSOC Forums, a podcast of the Federal Society's
practice groups. I'm Ny kas Merrick, vice President and Director
of Practice.

Speaker 2 (00:08):
Groups at the Federal Society.

Speaker 1 (00:10):
For exclusive access to live recordings of FEDSOC Forum programs,
become a Federal Society member today at fedsoc dot org.

Speaker 3 (00:18):
Hello everyone, and welcome to this Federal Society virtual event.

Speaker 4 (00:22):
My name is Marco J.

Speaker 3 (00:23):
Lloyd, and I'm Assistant Director of Practice Groups for the
Federalist Society. Today we're excited to host to webinars Does
One Size Fit All Qualified? Immunity inside and outside? Split
Second Policing Decisions featuring Elliott Averett and William Most. Our
moderator today is Ayah Bidwell. I lead's the Institute for
Justices Project on Immunity and Accountability and serves as an

(00:45):
advisor on the American Law Institute's Restatement of the Law
Constitutional Towards Project. She appeared several times before the Supreme Court,
most recently successfully arguing Gonzale's Feature Vino. Before joining ij
she worked for a top national law firm handling cases
in trial and appellate courts, and she earned her jd
with honors from the University of Texas. If you'd like

(01:07):
to learn more about today's speakers, they're full bioscn viewed
on our website FEDSOC dot org. If you have a
question at any point in today's program, please enter into
the Q and A function at the bottom of your
zoom window. We will do our best to answer as
many as you can. Finally, I'll note it as always,
the Federal Society takes no position on particular legal or
public policy issues, and all ex versions opinion are those

(01:29):
of the speakers. With that, thank you all for joining us,
and the floor is yours.

Speaker 5 (01:35):
Hi everyone, Thank you to FEDZOC for hosting this discussion.
Thank you to the audience for coming to this webinar
on qualified immunity. I'm assuming you all are fed courts nerds,
or at least aficionados, so let's jump right in.

Speaker 6 (01:55):
As you all know, at.

Speaker 5 (01:57):
The heart of qualified immunity is the prince that an
official must have fair warning that his actions would violate
constitutional rights. In Mulnix versus Lunar, the Supreme Court stated
that such a fair warning should not be provided at
a high level of generality. Instead, the dispositive question is

(02:20):
whether the violative nature of a particular conduct is clearly established.
The Court then emphasized that this level of specificity in
precedent is quote especially important in the Fourth Amendment context
end quote, because it is hard for an officer to
determine how a relevant legal doctrine like excessive force applies

(02:45):
to the factual situation the officer confronts. Some circuits, like
the Fifth take it to mean that split second decision
making by police is a special area of the qualified
immunity jurisprudence that when it comes to excessive force claims
against police officers, plaintiffs cannot overcome qualified immunity unless they

(03:09):
point to a case with materially identical facts, as Judge
Oldham explained in Morow versus Mitchum quote, in the typical
excessive force case, the law must be so clearly established
that in the blink of an eye in the middle
of a high speed chase, every reasonable officer would know

(03:30):
it immediately end clote.

Speaker 6 (03:32):
Outside of split secn decision making.

Speaker 5 (03:34):
By police, on the other hand, the trend in some
circuits has been to allow plaintiffs more breathing room when
looking for a president clearly establishing the law. As the
Eleventh circuit reaffirmed just last week. Plaintiffs, even in circumstances
involving novel facts, can still overcome qualified immunity if they

(03:58):
point to a broader, clearly established principle that's derived from
general statements of the law, or if the constitutional violation
is obvious.

Speaker 6 (04:09):
So how should we.

Speaker 5 (04:11):
Think about qualified immunity in light of these statements? Is
it a bifurcated doctrine in that split second decision making
by police gets a special carve out and other defendants,
like say, university administrators or mayors, can be sued more easily.
Or does this tailored approach miss the mark in that

(04:33):
we already account for time pressures when we look at
the elements of the Fourth Amendment, like the reasonableness of
using force, before we even get to the question of
whether the law was clearly established. For those advocating against
qualified immunity, does it make sense to try to coordin
off excessive force cases and fight for an easier test

(04:54):
outside of this area of the law. And even if
it makes sense to have a tailored approach, should it
be judicial branch implementing it or should it be something
that legislators are better positioned to do. We'll explore these
questions and more with our two guests, William Most and

(05:16):
Elliott Averett.

Speaker 6 (05:18):
William Most practices.

Speaker 5 (05:19):
Civil rights law at Most and Associates, a litigation boutique
he founded in New Orleans, Louisiana. He handles a wide
range of legal issues, from police misconduct to prisoner of
a detention, to abuse of children in public schools to
violations of land owner rights.

Speaker 6 (05:36):
And voting rights.

Speaker 5 (05:38):
As you might expect, William's been battling various immunities as
a part of his legal practice, and he's senate applied
to all kinds of government officials, from police officers, two
directors of prisons, two school administrators.

Speaker 6 (05:51):
And the like.

Speaker 5 (05:53):
William just won the Federal Bar Association New Orleans Chapter
Public Service Award.

Speaker 6 (05:58):
Congratulations William, and.

Speaker 2 (06:01):
Thank you very much. So I really appreciate this hold on, William.

Speaker 5 (06:05):
Let me introduce Elliott and then I'll let you get going.

Speaker 2 (06:08):
So.

Speaker 5 (06:09):
Elliott Averett is a lawyer with Brian cave Leyton Paisner.
He has experienced in a wide variety of litigation, from
criminal matters to class actions to commercial disputes. Elliott published
a law review article about qualified immunity in the Georgetown

(06:30):
Journal of Law and Public Policy titled and Unqualified Defense.

Speaker 6 (06:35):
Of Qualified Immunity.

Speaker 5 (06:38):
Before law school, Elliott followed in his mom's footsteps and
served as a police officer in Seattle, Washington. Welcome to you,
Elliott two. I am I'm a Bidwell. I'm a lawyer
within STUPHA Justice. As you've heard, full disclosure. I fight
qualified community on a daily basis, but as a moderator

(06:59):
of this country station, I will leave my personal views
at the door.

Speaker 6 (07:04):
And so with that, let's get going. William and Elliott
will each speak for about ten minutes.

Speaker 5 (07:10):
We will then do a bit of a book back
and forth and then open it up for questions from
the audience. Please use the zoomlink question function to send
questions our way. So let's get going.

Speaker 2 (07:23):
William, thank you so jumping into it. I think it
helps when we're talking about welfare an particularly should it
be tailored for certain circumstances or not, to take a
step back and say, like, what is it and where
did it come from, so that then we can figure
out whether it should be gotten rid of it, completely
tailored for certain circumstances, or just left alone. So qualified immunity.

(07:48):
I think a great place to start. This case sticks
in my head all the time, which is just a
f the City of Presnow, this is a twenty nineteen
nine thirty case where officers were accused of just during
a search, stealing two hundred and twenty five thousand dollars
in cash and rare coins from someone whose house they searched.

(08:10):
That seems pretty obviously illegal for officers to just take
your money, but the Ninth Circuit held that qualified immunity
barred that lossing on the theory that because the Ninth
Circuit never previously said it's illegal to steal people's gold
coins during a search or cash, then these officers can't
be held personally accountable for it. And so when you

(08:33):
have a doctrine, a legal doctrine that stops us from
holding officers accountable when they just straight up and take
our money out of our house, I think we have
a profit right. This is a problematic doctrine if that's
what it does. So going back to what is it,
it's qualified immunity is a doctrine that has an analysis

(08:54):
with two steps. The first step is was a constitutional
right violated? One is pretty unobjectionable. That's just our standard
constitutional analysis. Do the officer break the Fourth Amendment, the
Fourteenth Amendment? Whatever. The second part is the part that's problematic.
It's the in order to hold an officer liable for

(09:15):
damages in a civil suit, you have to not only
show that they violate the Constitution, but also that that
violation or that right was clearly established before the officer
took that action, which sounds kind of benign, but when
you think about it, that's not a protection that most
people get in court. If you or I or sued
for breaking the law, we don't get to say, well, yeah,

(09:37):
I broke the law, but no court had decided that
exactly what I did broke the law before I did it, right,
You and I don't get that defense. But officers of
all stripes can invoke it. And I think this is
something on you pointed out, which is we think often
about qualified immuni thinking like in our head we imagine
a police officer on the street. That's not just who

(10:01):
invotes it. All sorts of government officials can invoke it.
So these are real cases. The Fifth Circuit recently addressed
the case in which a school principle had invoke qualified
immunity when he was accused of letting a teacher sexually
use a student. Prison administrators who keep inmates in prison
pass the end of their sentense in vote qualified immunity. Sure,

(10:25):
this is a real case that I handled a sheriff
who asked the lawyer, can I arrest this person who's
criticizing me? And the lawyer said, no, you can't. The
sheriff arrested him. Anyway, that sheriff in vote qualified immunity
as well. And I saw the Q and A. There's
a question of could a nonprofit charter school board member
invote qualified immunity? And I think plausibly. So, I mean,

(10:46):
charter schools can be sued for constitutional violations, and so
I would expect that some of their officials might invokee
qualified immunity if they did get sued for a constitutional violation.
So this is I think the best fifties seconds about
qualified immunity and why it's kind of absurd. So I'm
just gonna play it. Let me know if you can't.

Speaker 6 (11:07):
Why did you do that?

Speaker 7 (11:08):
Oh yeah, I don't know.

Speaker 6 (11:09):
I thought you were gonna slap me first. Well, I
feel like you should still get in trouble for sure. Yeah,
we can get the teacher in here. Is there a
problem here? Yeah, he slapped me, he should get in trouble.
Has he slapped people before? Yeah?

Speaker 7 (11:18):
And did he get in trouble then no? Okay, So
according to the rules, he can't get in trouble. Now
wait what that doesn't Did you see that he just
slapped me again? Has he done this before? Yeah, it
literally just happened. And did he get in trouble then no? Okay,
So according to the rules, he can't get in trouble.
Now I'm sorry, what kind of rule? This can't be legal?

Speaker 4 (11:37):
It is?

Speaker 2 (11:37):
It is?

Speaker 6 (11:38):
Can I slap him? He's special?

Speaker 2 (11:40):
You would go to jail. That's how qualified immunity works
plays on courts. Right. This is funny, right, But this
is legally accurate because the Supreme Court has said that
if you if you court decides like there hasn't been
a prior case on this, you don't even need to
decide the constitutionality what's in front of you. And so

(12:01):
what happens is the law sort of doesn't progress because
courts keeps skipping over the question of whether an officer
wrote the constitution in the case in front of them.
So this is and I would hunt by Collie Elliott. Look,
if there's anything inaccurate in this TikTok, I'd love to
hear it because I think it's an accurate depiction of
qualified immunity litigation. Hey where so qualified immunity, where does

(12:25):
it come from? It's not in a statue, right it was.
It's not in the text of the statute that it
applies to. So the statute that usually is involved is
forty two Usc. Nineteen eighty three, which is part of
the Kuplux Plan Act shortly after the Civil War to
hold people liable and they violate the Constitution. Qualified immunity

(12:45):
is not in the text of the statue. Where it
comes from is some Supreme Court cases from the nineteen hundred,
it's late nineteen hundreds which looked at section nineteen eighty three,
and the Supreme Court said, well, Section nineteen eighty three
doesn't say anything about common law immunities. So we assume

(13:07):
that Congress meant to silently incorporate common law immunities when
they wrote this statue. I don't know about that as
a conclusion, but recent scholarship actually some wares at the
Institute for Justice and then some law professors have figured
something out which is totally nuts, which is this whole

(13:28):
thing that the Statute was silent about common law immunities
is wrong. So if you actually go back to the
original text the Act of Congress, there is a clause
that's in the original Act that says the officers shall
be liable any such lost statute, ordnance, regulation, custom, or
usage of the states of the countrary notwithstanding. So Congress

(13:50):
really said, look, if you've got background principles of immunity,
we're going to throw them out. We're going to hold
people liable, and they eviolate the Constitution. The problem is
later on this got condensed when it was put into
the US Code, and this section got taken out because
it was superfluous. But this original Act still has the
force of law. And look, you don't have to take

(14:12):
my word for it, but this is a big deal.
Trump appoint Judge Willett on the Fifth Circuit said, this
whole thing about like finding the original text is a
game changing argument. He says, the doctrinate qualified immunity does
not merely complement the text. It brazenly contradicts the texts
of the statute. So it's not textual qualified immunity, is

(14:35):
it historical, it's not justice. Thomas has said that if
you go back and look at treatises in case law,
you can't find anything from the eighteen hundreds or early
nineteen hundreds that provides support for this clearly established law test.
And he points out that Supreme Court didn't adopt qualified
immunity because of general principles of toward immunities. They did

(14:58):
it because they balanced competing ballent. It's about litigation costs
and efficiency. It was a policy choice, not a textual
or historical choice. But I don't even think it's good policy. So,
you know, something that's brought up a lot is, you know,
we need qualified immunity so that we don't put or
you know, officers into bankruptcy. But officers don't pay judgments.

(15:22):
One study showed that they only paid point zero two
percent of the dollars that were actually awarded in police
miscondent cases. They don't pay any of the punitives. And
it's not about ending weak cases because very few cases
are entirely thrown out by qualifying we need so professors
who study this have shown that qualifying community isn't even

(15:45):
meeting the policy goals that it's proponents supporting. So look,
my take is, we pay government official salary, we pay
their legal fees. They work for us, The government works
for us, so they should be multiple higher stated, not
a dramatically lower standard where they're protected from their accountability

(16:05):
for their actions. So it's an a textual doctrine that's ahistorical,
fails to meet its own policy goals, makes litigation slower
and more expensive, and stops you from suing the government
when they steal your money. So that's a problem. So
then should it be tailored for non split second scenarios.
I don't think it has to or really should or

(16:28):
make sense to, because when we are talking about use
of force, the Fourth Amendment already asks was it reasonable
for this officer to use force in the way they did?
And so the split second message actions on the street, which, look,
I acknowledge it can be tough to make split second decisions,
but that already can be factored into the reasonableness inquiry

(16:49):
of the constitutional violation. We don't need this extra clearly
established thing because it just doesn't reflect reality. Officers, and
maybe earlier can correct me if I'm wrong in a
split second scenario about deciding whether to shoot or not.
I don't think officers are thinking back through case law
and deciding, you know, would this action be clearly established

(17:11):
by the circuit court president in the state where I live.
I do think, however, and this is something I've been tracking,
that judges are tailoring qualified immunity for non split second scenarios.
So there's been a series of cases I've been tracking
the Fifth Circuit where when it's a slow moving scenario

(17:32):
like maybe our sheriff we talked about went and talked
to a lawyer who did some research and then made
a choice to arrest someone, it does seem like judges
are sort of blunting the impact of qualified immunity a
little bit in those scenarios while still sort of maintaining
at full strength and split second scenario. So I think

(17:53):
it's accurate to describe judges as sort of doing that,
whether or not they really should. I mean, I think
the simpler solution is just get rid of this document
entirely and then incorporate all the sort of reasons why
you might not want to second guess an officer's decision
making in a split second scenario. Just incorporate that into
the reasonable missing grade that's within the Fourth Amendment. So

(18:14):
that's my take. I think that was about ten minutes.

Speaker 6 (18:21):
That is good.

Speaker 8 (18:22):
Thanks William, Well, thank you Anya for the introduction.

Speaker 4 (18:26):
And I guess a couple of caveats.

Speaker 8 (18:29):
I'm kind of speaking my own opinion here, not necessarily
my firm or any employer.

Speaker 4 (18:34):
So with that said, you know, I guess I'll try
and get into.

Speaker 8 (18:37):
Some of Williams points, and I don't have a PowerPoint,
so I apologize, but I'll try to get into some
of Williams points and then move on to sort of
the conversation starter. I think what we're talking about cases
like jessop it's a little bit misleading to say that
Jessup means there's no accountability for the officers in that case, obviously,

(18:58):
you know. And to go back to or to what
qualified immunity is. Qualified immunity is not an immunity from
criminal prosecution. It's not an immunity from employment discipline. It's
not an immunity from tort liability in state court. It's
an immunity from liability brought for constitutional violations under Section
nineteen eighty three. So I think it's misleading to say

(19:20):
that cases like Jessup totally deprived the plans of accountability.
You know, to go back to an example William discussed,
you know, in a case where a school official is
failing to protect students from sexual abuse by a teacher,
that's going to be, at least in California, massive civil
towart liability in state court, whether there's a cause of
action under Section nineteen eighty three or not. And so

(19:42):
I think it's of course, in a case where an
officer is engaging in criminal wrongdoing, prosecutors can and should
prosecute them, and of course employers can and will discipline them.
And there's general trend over the last ten to fifteen
years has been that there is much more accountability at
the employment level, statewides certification boards that can impose disciplines,
body cameras, so on and so forth. And I acknowledge,

(20:06):
you know, I worked as a police officer in the
Ninth circuit, William isn't working as a plane of.

Speaker 4 (20:10):
Civil rights turning in the fifth circuit.

Speaker 8 (20:12):
Those are going to be different worlds right in a
lot of ways, just because of the ways that the
law comes out in these two different circuits. You know,
in terms of whether qualified immunity is a protection that
most people get, I think there's a really key distinction,
and this is addressed in my note that Anya was
talking about. But the expectation of the public, and in

(20:34):
many cases the law, at least for police officers, is
that officers have a duty to act and normal citizens
and the general rule of tort liability that I assume
our audience probably knows is that there's no liability for omissions.
You can walk by the drowning man in the river
and you can let him drown and you don't have
to do anything about it. But a police officer who

(20:56):
sees this something suspicious or dangerous is happening, or that's
probable cause to arrest often has a duty to do something,
and in some cases, the failure to act on that
duty can lead to civil liability. There's twenty two states
that have mandatory arrests statutes for domestic violence crimes, and
it can even lead to criminal liability. There's an officer

(21:17):
in Baltimore, Maryland, who a couple of years ago was
convicted of misconduct in office and criminally charged and convicted
for failing to use enough force. He didn't use enough
force on a suspect, and he faced criminal prosecution for that.
So to the extent, qualified immunity does basically give officers
a little more breathing room in terms of this fair notice,

(21:39):
I would say that that reflects the law's expectation that
comes through in the Fourth amendmenters prudence.

Speaker 4 (21:44):
At least, the police officers are supposed to be out.

Speaker 8 (21:47):
There ferreting out crime and sort of proactively enforcing the law. Now,
some people think that's bad. They don't think officers should
be proactive about enforcing the law. They think officers should
just answer nine to one calls and otherwise sort of
do the minimum amount of policing possible.

Speaker 4 (22:01):
But we do have.

Speaker 8 (22:04):
A serious, in my opinion, a serious problem with crime
in the United States, and so that kind of gets
me to my point about the practical impact.

Speaker 4 (22:13):
I think it's a contradiction in terms.

Speaker 8 (22:15):
To say that qualified immunity is too powerful and to
burden some for plaintiffs, when the reality of the numbers
that William is citing from Johanna Schwartz, who is a
critic of qualified immunity, is that there's only immunity granted
in about four percent of these cases and maybe about
ten percent of causes of action versus plaintiffs are getting settlements.

(22:36):
According to her numbers, in fifty six percent of these cases,
fifteen percent of these cases are getting dismissed as a sanction,
and of the seven percent of cases that go to trial,
defendants are winning pretty much all of them. So what
that tells me is that courts, and this is something
I addressed in my note, courts are really not enforcing
qualified immunity a way the Supreme Court says they should.

(22:57):
What is the impact that has on officers on the street. Well,
you know, there's a lot of talk about indemnification for
officers who do get a judgment against them. There's a
few problems with that argument. First, you know, there's something
called Lexipoul, which is a company that basically writes policies
for police departments around the country, and so every time
there's some change in a judicial decision, Lexipaul actually incorporates

(23:21):
these policies, and then they basically sell a policy manual
that incorporates standards to officers. And also, you know, some
cities are self insured. Seattle's self insured city insurance companies
insurance risk pools, they demand certifications, they demand certain standards
right because they don't want to pay out this liability.
And as a result, they're going to set policies that

(23:42):
deter proactive policing. If you have judgments that are entered
against you, even if the city ends up picking it up,
the policy makers, either through you know, the insurance companies
in lexipoul or in self insured cities, we have our
own policy unit and our command staff, they're going to
change the policy, either formally or informally, to deter officers
from engaging in proactive policing. The other side of the

(24:04):
coin is that being sued is not fun. Even if
you don't have to eventually pay the judgment, you have
to be deposed. Your name is going to be in
the news, and you know, there's always the possibility in
certain areas. You know NYPD, the New York City routinely
threatens to not indemnify officers, is my understanding of their policy.
So when that threat is out there, what you have

(24:25):
is just another reason to not go into policing. When
policing is a really tough job. And over the last
five years, states that have taken qualified community out by
amending state law. New Mexico and Colorado have seen really
major declines in police staffing. New Mexico is actually sending
the National Guard out to do policing right now because.

Speaker 4 (24:44):
They're so short staffed.

Speaker 8 (24:45):
Colorado voters just pass a three hundred million dollars ballot
measure to try and hire more police officers because they
have so few. So, turning back to sort of the
highlights of in terms of the larger question, I think
split second decision making is important for officers. I think

(25:06):
the better framework to look at it is through a
question of good faith, whether the officers acting in good faith.
I think villar Real versus City of Laredo in the
Fifth Circuits a good example of this, because in that case,
the officers arrested to defend the plan iff based on
a statute that had never been ruled unconstitutional. They went
to a prosecutor and got approval, and they got a warrant. So,

(25:28):
as a reasonable officer, I'm thinking, who else can I
ask the legislature, a judge, my prosecutor. They all say
that this is a legal arrest. What else do I do?
So I think in those kinds of situations, even though
there's deliberation. What you want to do is set out
a pathway for people to say, how do I find
out what I'm supposed to do and not do right?
If I'm going to spay, if I do have time

(25:49):
to deliberate, how do I do the right thing? And
if you're consulting, you know, if you're asking for a
judicial approval to do something and you get it, I
don't think a reasonable officer is going to think that
what they're doing is illegal. You should be entitled to
rely on a judge, and unfortunately, under current case law,
that's not always the case. As far as the common

(26:11):
law origins of qualified immunity, there's some really good work
out there by Judge Oldham, who wrote some in the
Journal of Harvard Law and Public Policy about the sort
of common law qualified immunities that were available at the
time of the founding under the Fourth Amendment or the
precursors to the Fourth Amendment. Scott Keller has also written

(26:31):
a great piece about some of the common law support
for qualified immunity. But I think if you really rewind
things and you go back to eighteen seventy and you
ask the Congress that passed Section nineteen eighty three questions
like can a police officers shoot a fleeing felon in
the back to apprehend them, right, which we all know
now violates Tennessee versus Garner since the nineteen eighties, but

(26:55):
in eighteen seventies Congress was, of course, we're not banning
that right. What's happened since Monroe versus Pape in the
nineteen sixties is you've had a gradual expansion of constitutional
tort liability cases like Katz and Terry. There's a study
that I cite in my note that talks about how
only thirteen percent of our Fourth Amendment jurisprudence.

Speaker 4 (27:16):
Is really originalist.

Speaker 8 (27:18):
So what you have the court doing under section nineteen
eighty three in practice, I would say over the last
fifty or sixty years is you've developed a set of
common law constitutional torts, and of course a common law
set of constitutional tort defenses like qualified immunity. Is that
problematic without Congress getting involved, I'll just say this. Since

(27:40):
Pearson versus Rey was decided, Section nineteen eighty three has.

Speaker 4 (27:44):
Been amended twice.

Speaker 8 (27:45):
Nineteen seventy nine DC was added to section nineteen eighty three,
and in nineteen ninety six, there was amendments relating to
judicial immunity, and in neither of those cases of Congress
decided to strip qualified immunity out even though it knew
it was already the law. In nineteen seventy six, Congress
passed the Civil Rights Attorney Fee Award Act, which basically
creates a new statute where Planet's attorneys can get all

(28:07):
of their.

Speaker 4 (28:08):
Fees paid for these lawsuits.

Speaker 8 (28:10):
And I think most importantly, in nineteen ninety five, the
Prison Litigation Reform Act has passed, and that act actually
explicitly references a screening for immunity defenses, which doesn't make
a whole lot of sense. If the goal that statute
is to protect prison officials from lawsuits, that statute basically
presumes that there is an immunity that exists. I think

(28:31):
there's a serious case to be made that qualified immunity
is legitimate, both in terms of the Court's development of
a constitutional toward common law over.

Speaker 4 (28:42):
The last fifty or sixty years.

Speaker 8 (28:44):
And I also think there's pretty good evidence at this
point that Congress has fiddled around with the civil rights
liability regime at great length and never seen fit to
revisit Pearson versus Rey, and the qualified community jurisprudence. So
I don't know if I'm bumping up again my time
on you, but I think I probably am, so I might.

Speaker 4 (29:02):
Leave it there.

Speaker 6 (29:04):
Yeah, you did great. Something that I've been thinking.

Speaker 5 (29:08):
About as the two of you been talking, is this
idea of you know, Pearson versus Ray has been mentioned
several times, and Elligott you talked about the good.

Speaker 6 (29:17):
Faith standard, right.

Speaker 5 (29:19):
That seems to me, you know, for our listeners, and
I'm sure a lot of you guys know this. You know,
Harlo versus fir Gerald has this clearly established law standard
which does not concern itself with whether the officer acted
in good faith at all. And versus Pearson versus Ray
is an earlier decision by the Supreme Court from nineteen
sixty seven where good faith was a big element of

(29:43):
deciding whether an immunity should be granted. So, William you first,
and then Elliott too, is that a potential point of
agreement for you two in terms of if we were
to look for a standard that is onerous on plaintiff,
less honorous and plaintiffs, but still provides protection to government defendants.

(30:04):
Is something that you could see yourself compromising on.

Speaker 6 (30:10):
William, you're muted, thank you.

Speaker 2 (30:14):
It's a good question. And you know, because generally the
Supreme Boat is said, we're not supposed to get into
officers' heads when we're assessing you so force, because the
Fourth Amendment is judged by a reasonable officers statement. Right,
It's not really about what are they thinking at the time.
It's like what would an officer in their position was
reasonable to you. And you know, I'm not sure that
good faith is a great fit because you know, the

(30:36):
Fourth Amendment bar is unreasonable searches and seizures, right, not
malicious ones, right, or bad faith ones. It's about reasonableness
and so and also I just think I'm not sure
that like good faith bad faith really makes sense for
officer decision making. Like I don't think officers who use
it excessive force with narrow with some exceptions, right, there

(30:57):
are definitely some bad faith ones, like we have a
where an officer came in and wiped, you know, put
feces into the mouth of an inmate who is bound
and chackled. But like I think most successive course cases
don't really bring down a lot good faith bad faith wives.
You know, it's an officer who used way too much
force that was vastly disproportionate to the threat. But I'm

(31:20):
not sure he was really he or she was acting
in good faith or bad things. I'm just not sure
it sort of matches what's going on. I do think
it's really interesting, Elliott, what you said about sort of
officers having a duty to act, and so they should
have sort of extra protections, right, because they have more
duties than the rest of us, and maybe they have
more protections than the rest of us. That's interesting because
I get a lot of phone calls from potential clients

(31:42):
who are want to sue the police for what they
didn't do right, for what they for not taking action,
for not investigating, for not protecting them them from whatever,
And almost never can you sue the police for that, right.
There's almost no civil liability with some narrow exceptions for
when the police don't protect you, even though you know,

(32:03):
protect and service on the side of the police car.
So I would be more okay with qualified immunity if
we actually had a robust, uh, you know, civil liability
for not doing the police part of it. But I
don't really see that in actual practice. So I don't know.
I mean, I think I'm more open to tim gering
with stuff, but I'm not sure good faith really captures

(32:26):
what we're trying to stop. If that makes sense.

Speaker 8 (32:30):
Yeah, I think you know, to Anya, to start with
your question, I think good faith is in a lot
of ways a better standard. And I think you know,
what Judge Oldham and Scott Keller have sort of discovered
through their research is that historically there's a presumption of
good faith and the planet would have to at least
plead past that presumption of good faith. And there's also
a similar sort of regime and immunity statues like the

(32:52):
Child Abuse Prevention and Treatment Act, and that statute is
a good a good analogy I think for why I think,
you know, not having this standard is a problem. KAPTA
is a statute that we've recently had a case involving this,
and you know, basically, to get around it, plaintiffs have

(33:12):
to do enough pleading to show that a person who
reported child abuse was acting in bad faith. That's you know,
not only consistent with the common law. But I think
it goes back to what William was bringing up, which
is it is really hard to have a constitutional toward
lawsuit against officers for failure to act. Now, the Ninth

(33:32):
Circuit has taken some u sometimes some creative approaches to
that that probably differ from what you see in the
Fifth Circuit. But William is generally correct that you know,
you're not going to face as much Section nineteen eighty
three liability for failing to act. On the other hand,
you know, I hear William saying we want to collapse

(33:53):
the analysis on the Fourth Amendment front into just generic reasonableness, right,
and the the practical effect of that is that you
turn the Fourth Amendment into sort of a negligence liability
for police officers. Well, you could have avoided using this force.
You know, we can think of some ways you could
have avoided using this force. So now you're going to
be sued for you know, Fourth Amendment violations. But if

(34:16):
you had just done nothing, then you'd be you'd be
off scott free, right, you know, So whether or not
there's liability, I think we as a society, you know,
you want police to go out and do policing. And
if you were to totally get rid of qualified immunity
with constitutional tort law currently the way that it is,
the practical effect of that is to really deter proactive policing,

(34:36):
because no matter how unreasonable you are, if you sit
and do nothing, you're not going to be sued. But
if you don't have qualified immunity, you can be held liable,
even if the court goes back and totally changes the law.
So for example, Canniglia versus Strom that was decided a
couple of years ago, that's a case where officers had
a call about a potentially suicidal man. They ended up

(34:58):
going into his house and taking his fire arm away
under the community caretaking exception.

Speaker 4 (35:03):
The first circuit says that's good to go. There's a
circuit split, we think you're good to do that.

Speaker 8 (35:08):
On the Fourth Amendment goes to the Supreme Court, the
Supreme Court says, no, the community caretaking standard doesn't go
that far. I don't think those officers should be held
liable for what is basically a retroactive change in the
law in that situation. And if they are liable, and
then you know that there's no liability if you just
don't do anything, then you probably don't go try and
get that gun.

Speaker 4 (35:29):
And you know there's the.

Speaker 8 (35:32):
Downsides of that too, right, that very rarely show up
in this liability. Do I take this person's kids away
from them? That's a huge, huge infringement on liberty. But
of course there's child abuse happening. Somebody could die. Do
I arrest this driver for driving under the influence or
let them go? If I let them go and they crash,
there can be you know, all kinds of heinous consequences that,

(35:53):
because of what William was saying, never really show up
in the constitutional.

Speaker 4 (35:56):
Tort litigation world. So I do think good faith is the.

Speaker 8 (36:00):
Best standard in terms of being grounded in the common
law rule. And I also think it's the best approach
from a practical perspective.

Speaker 2 (36:08):
Yeah, I'm just jumping. I'll say, Look, I think there's
a lot of merit to that, right, which is, Look,
it's not fair to sort of hold someone accountable when
the court says what you did was illegal, and maybe
that I hadn't been said before. But if that's fair,
that should be fair for all of us. Right. Look,
if i'm super attorney malpractice and you know, court says

(36:30):
what you did was malpractice even though we haven't said
that before, that doesn't seem fair to me. But I
will be held accountable for that. I don't see why
officers shouldn't be held in the same standard that you
me Anya, everyone in this room. Is if we break
the law, and I mean just asking officers to follow
the constitution and not violate the constitution, I don't think

(36:50):
is that burns some a request.

Speaker 8 (36:53):
Well, I think that's a good point. But what I
would say about that is, you know, as a private attorney,
you and I are in private practice. We're in the
to make money, right, at least to some degree, We're
providing a service to our clients in exchange for money.
We're part of a business. The business's goal is to
be profitable. Public officials are acting, presumably for the benefit
of the public. Right, and if you look at public

(37:16):
officials who are practicing law, and this is one of
my favorite things to point out, the communities are actually
much broader. As we all know, judges have absolute immunity
from any liability, no matter how crappy my warrant is,
if you sign it right, you're not going to get
sued for that. Prosecutors have very close to absolute immunity.
Sometimes there's some exceptions to that, and you know, even
other individual actors in the legal system. For example, you know,

(37:39):
state bar. I think the Ninth Circuit recently held that
our state bar has absolute immunity.

Speaker 4 (37:45):
So when you're talking.

Speaker 8 (37:45):
About lawyers who are in public service, lawyers generally actually
have much much broader immunity than regular old public servants
in law enforcement or other parts of the executive branch do.

Speaker 4 (37:59):
And you know, I think, I think so. I guess.
I think that's sort of a key distinction.

Speaker 8 (38:02):
And another key distinction is something that really works the
plants benefit in these cases, which is that you are
getting all of your attorney's fees paid if you win.
I mean, there's a case in Seattle that made the
news a few years ago where an officer was sued,
went through a whole trial. There was I think two
of the three claims against him. The jury found no

(38:24):
liability one claiming against him. They awarded zero dollars to
the planeff. The judge converts that to one dollars in
damages and then tax on six figures of attorney's fees,
and by the time the whole thing is said and done,
it's a million dollars in attorney's fees. Out the window
for a case that a jury said is worthless. So
if we're talking about standards that apply to everybody, the

(38:44):
tort liability standards that apply to people in the private world,
generally speaking, the attorneys suing them are going to be
working on a contingency fee arrangement. And so I think
if we're going to say fair is fair, we'd have
to go back to some sort of system like that.
Connors didn't want to do that, But I question whether
or not they would have passed the Civil Rights Attorney's
fe Award Act back in the seventies if there was

(39:06):
no call offut immunity right. They're looking at it saying, hey,
you know, in light of the whole system of immunities
and torts that we have, we think this is reasonable.
But to take one out without taking the other out,
I think really upsets the balance.

Speaker 5 (39:24):
So that kind of all this discussion about duty to
act and Elliott. You also mentioned villarry Al versus City
of Laredo make me think back to justice stories opinion
in the oppollon back in the olden days, where you
had an officer acting in good faith right, but there

(39:49):
was still an injury to the plaintiff.

Speaker 6 (39:53):
And what Justice.

Speaker 5 (39:53):
Story said is that the duty of the court is
to decide whether the right was violated.

Speaker 6 (40:01):
Focus on that, not on duty.

Speaker 5 (40:03):
Whether the right was violated, and if the right was violated,
order a remedy.

Speaker 6 (40:08):
And it is the job of.

Speaker 5 (40:11):
Congress to see whether the officer acted in good faith,
whether he acted pursuant to the duty, and then indemnify
or you know, have a law that would specify things
like that and kind of have the honors on the
duty part with the political branches and the honors on

(40:32):
the rights part with the courts.

Speaker 6 (40:37):
So what do you guys think about that?

Speaker 5 (40:39):
Because I feel like sometimes when we talk about qualified community,
we kind of talk about rights and duties as one thing,
and we kind of don't separate them from each other.

Speaker 6 (40:51):
What do you think about just focusing on the.

Speaker 5 (40:54):
Rights violations when it comes to the judiciary, and focusing
on duty and good fath when it comes to the
legislative branches.

Speaker 4 (41:04):
Well, I think, sorry, I don't know, William, you want
to go first.

Speaker 8 (41:10):
I think that's tough to sort of say where that
falls these days, because if I'm recalling the opinion correctly,
or if I'm remembering when this was said, at that time,
Congress sort of had to appropriate money for every judgment
right that was entered against the United States, and that
sort of gets into weird Article one issues whether or
not the judiciary can appropriate money without you know, congressional approval.

Speaker 4 (41:35):
So I'm not really sure how far that gets these days.

Speaker 8 (41:40):
And I think, you know, as I mentioned previously, in
terms of the section, you know, Section nineteen eighty three
and what it was intended to do, you know, that's
something where there's specifically a focus on state officials and
enforcement of the constitutional rights.

Speaker 4 (41:55):
Against state officials.

Speaker 8 (41:56):
So you know, in most states, again, they're not necessarily
looking at, you know, the appropriation issue when they're deciding
whether or not to indemnify an employee. So I think,
you know, my concerns are a little more I got
a systemic level, right, I don't know, William, I'll let
you serious what you think.

Speaker 2 (42:14):
Yeah, And something else, I think what you was saying
that made me think is, you know, we've been talking
a lot back and forth about sort of qualifying unity
from the officer's perspective from the defendant's perspective, Right, you know,
what is it like to be a defendant in a lawsuit?
What is it like to be suon do you have
to be a judgment right. There's a flip side to
that too, which is from the plaintiff's perspective, which is,

(42:35):
if you're a plaintiff who's been seriously hurt by the
government and you sue, it's pretty hard to hear at
court say, yes, your constitutional rights were violated. Maybe a
jury said your constitutional rights were violated. But then you
don't get paid because even though a judge or a jury,
or maybe both the judge and the jury has said

(42:57):
these officials broke the constitution and hurt you, you don't
get anything for it because we don't have some case
law from other cases. So, yeah, that's a hard pill
to swallow, and I think kind of, you know, corrosive
to the very idea of what does it mean to
have a constitution that binds the government and prevents them
from hurting us?

Speaker 8 (43:17):
Well, I think on that point, you know, and it's
a it's a fair point. I think that's something that
good faith standard can help solve. I know that you
had a lot a case I was reading about where
some sheriff's deputies I think you mentioned it, where some
sheriff's deputies were told by their prosecutor, Hey, what you're
doing is probably unconstitutional, and then they went and did
it anyway. Well, even in my world, you know, relatively

(43:39):
defended friendly world, I would probably say that gets past
a good faith test that I would draw up right,
because if you're going to go and do something that
you're prosecutor told you is unconstitutional, kind of doing it
at your own risk. You know, in terms of the
remedies that are availble to plain IFFs, I think as
a again, as a practical matter, Joanna Schwartz's study when

(43:59):
she looked at over I think eleven hundred of these
cases found exactly one case where court said your rights
are violated, but I'm granting qualified immunity anyway, which tells
me that those sort of circumstances are an extreme outlier.
And then of course there's all the other remedies that
are available too. You know, there's course of preference. You know,
everybody likes to get paid, but there is injunctive relief available,

(44:20):
to claratory relief available. Qualified immunity doesn't apply to those,
it doesn't apply to state claims, and so there's a
whole universe of other relief available for a plant off
in that situation. But I do agree, you know, in
circumstances where an officer really is doing something that they
know or sort of recklessly ignore the fact that they
should know is illegal. I think this would solve a

(44:43):
lot of the issues that come up in the clearly
established context.

Speaker 2 (44:47):
Like jessop yeah, I think one response to that is that,
you know, we're talking about qualified immunity, right, that's sort
of a doctor and that protects police officers are an immunity.
You know, I'd be more okay with qualified immunity if
it was sort of like the shield for officers, right,
or government officials. But it's not. It's like one out

(45:11):
of a bunch of different shields, overlapping shields that they have.
So in addition to qualified immunity, there's often sovereign immunity
under state law. There's often state law communities. In Louisiana,
you can win a case against the government and state
core they don't have to pay you, right, And so
there's all these other overlapping communities. And Jeremy Schwartz is

(45:32):
actually found she thinks the other shields are the stronger ones.
Things like monell are a bigger impediment to accountability and
compensation than qualified immunity. So I'd be a lot happier
with qualified immunity as it currently is if it wasn't
for the fact that it is like I don't know
the outer or inner layer of armor, depending on what
you're like thinking about, and lots and lots of other layers.

(45:56):
And I mean, it's not that rare that allients are
told that, you know, constitution was violated, but qualified community
kicks in. Anyway, we had. It happened two months ago
to trial. A police officer came into my client's property
shot their sixteen week old puppy dead. Even though the
puppy was so small I couldn't even bark. He was

(46:17):
about this big. And the qualified immune got put into
the jury, which is confusing on its own, and the
jury found that the constitutional right had been violated, but
there was qualified immunity, and so explaining that to a
client is pretty hard and why that should be.

Speaker 8 (46:38):
Yeah, I think you know, it's interesting you mentioned the
state law munities because again, I think we probably live
in a little bit different world being in California versus
Louisiana in terms of how the states have chosen to
address that But you know, one thing that Monroe versus
Paved did when it sort of generated this explosion of
civil rights live only in the nineteen sixties is basically say,

(46:59):
we're taking a very broad view of accounts as acting
under color of state law. And there's some really strong
arguments we made that that was wrong. And if it
is wrong, then the way that qualified immunity should work
is as kind of a gap filler, right where if
there is sort of a state law immunity for somebody's conduct,
then maybe there's a cause of action, there's Section nineteen
eighty three, but otherwise there's not. And you know, to

(47:22):
the extent Monroe versus Pape was wrongly decided, and for
all the reasons I've said about the layers that Congress
has put in our civil rights litigation world, I'm not
sure it makes sense to revisit at this point. But
to the extent that's correct, and qualified community is supposed
to serve as a gap filler, it would have addressed
those problems right where if the state chooses to create
immunities where there's no recovery for a constitutional violation, then

(47:45):
there may be federal liability. Right with fee shifting and
all the things that comes with, or the state can
afford a regular tourt remedy that just looks like the
regular tort remedy that applies to everybody else. So I
think there's you know, there's an argument to be made
that there's there should be more of an interaction between
the state, the state toward immunities that exist and sort

(48:08):
of the federal immunity scheme. But as a practical matter,
you know, when we talk about laws like the George
Floyd Just and Policing Act that would have repealed qualified
using not only for cops, right, that's just going to
cash out in enormous liability for states, localities, police departments
without really changing or giving states an opportunity to change

(48:29):
things by revisiting sort of their state towards schemes.

Speaker 5 (48:32):
So all right, I think it's about tim that I
ask questions from the audience. I just I want to
clarify two things really quickly. So this discussion focused on
state and local officials, and that's why you had a
lot of discussion of how it is under for example,
California State toward law or Louisiana State toward law. We

(48:55):
weren't talking about federal officials, and that's something that comes
up a lot today with ice rates and the like.

Speaker 6 (49:02):
That is a very.

Speaker 5 (49:03):
Different accountability regime at this point because Section nineteen eighty
three does not provide a cause of action against federal officials.
So a lot of things like the attorney's peace provisions
under nineteen eighty eight don't apply here, or things like
being able to sue an officer or a government official

(49:23):
in state under state towards, you wouldn't be able to
do that with federal officials. So that is something that
should be a topic for another day where we can
talk about accountability specifically for federal officials.

Speaker 6 (49:34):
But that's something for the audience to remember.

Speaker 5 (49:35):
And also the injunct depend declaratory belief. Sometimes when we
talk about Fourth Amendment violations and when you have like
an excessive force type of a situation, the only remedy
you can get under nineteen eighty three would be to
sue for damages because you can't show that the officer
is likely to hurt you. Again, so with those two

(49:56):
clarifying things, let's turn to the audience. One of the
chance was actually about charter schools, and William you kind
of mentioned it early on, and let's just talk a
little bit more about the kind of standard that would
apply to non police in qualified community situations, and whether
public school officials or maybe even charter school officials could

(50:19):
take advantage of the doctrine, and whether it makes sense
for that to kind of address the original question of
whether it makes sense to kind of maybe provide more
deference to somebody who is acting under you know, split
second type of a situation versus somebody like a public
school official who has time, you know, and ability to

(50:40):
think at least when it comes to certain relations, especially
you know, for example, principles of schools or like board members.
As the question here indicates, so one of you wants
to take on this kind of charter.

Speaker 6 (50:51):
School liability point.

Speaker 8 (50:55):
I think that's an interesting question. I mean, if I
was a charter school board member and I'm sued under
nineteen eighty three, I you know, if I was representing
that client, I guess the question I would have would be,
you know, should we even you know, concede they were
state official at all? Right, because if we can get
out from saying, hey, we're state official acting under the

(51:17):
color of law section nineteen eighty eight, doesn't apply. I'm
not looking at attorney's fees liability, So I think there
might be a real doubt about whether or not that
official qualifies as a state actor in the first place,
and to the extent that they do. You know, I
think a lot of the same concerns do apply for
the same reasons that I've already stated. But you know,

(51:39):
of course, in terms of the deliberative conduct and you know,
my ideal world with a good face standard, what I'd
like to see is, you know, an official in that situation,
working for school, whether it's a charter school or not,
be given a clear path where they can go do
their research, where they can go do their research and
come back with you know, the best answer they can

(52:01):
get right and if they're acting in good faith, be
covered by ball fled immediate in that circumstance.

Speaker 6 (52:09):
William over to you.

Speaker 5 (52:10):
And also, have you had experience of litigating in private
prison context? That's something like giving your experience with you know,
prison litigation.

Speaker 2 (52:20):
Yeah, Aly Tangentially, you know, private prisons are obviously a
big thing in America and a growing thing in America.
So in private prisons can be under some circumstances sued
under nineteen eighty three because they act like government officials
in many ways, and so they can the case level
whether they can vote well out immunity is more complex,

(52:43):
and frankly, I'm not sure where the landed most recently
in I think there was some back and forth on it. So,
but private prisons, you know, are businesses, but they act
like the government and so sometimes can be sued like
the government.

Speaker 5 (52:59):
We have another interesting question here from Paul, and it
kind of gets at this idea of qualified.

Speaker 6 (53:09):
Immunity at the motion to dismiss stage. Right.

Speaker 5 (53:13):
Very often with qualified immunity, a lot of you know,
factor alleged to the best of the knowledge of the plaintiff,
but there hasn't yet been discovery and many circuits and
they're not consistent about this, but sometimes they would say,
like qualified immunity as a general matter shouldn't even be
available at the you know, motion to dismiss stage.

Speaker 6 (53:35):
So what do you think.

Speaker 5 (53:37):
About kind of the role qualified immunity place when it
comes in before you even have an opportunity to kind
of weigh facts.

Speaker 2 (53:48):
Yeah, So, you know, it's tricky because we didn't really
talk a lot in this hour about what are the
practical effects of qualified immunity, like when you know in
a lawsuit, when someone says call for community, what happens, right,
at least in the Fifth Circuit, if the defendant invokes
flaw fed immunity in emotion like emotion to dismiss, all
discovery has to stop. No more discovery until qualified immunity

(54:10):
is ruled on. And once that motion to dismiss has decided,
the defendant can immediately appeal to the Court of Appeals,
even though most dependents don't get to do that. And
sometimes you'll actually go back and forth. So like we
have a case where prison indisputably held in my client
for months after his release date, but the case was

(54:32):
delayed for years waiting for ruling on emotion to dismiss.
We can't do any discovery. They appealed to the Fifth Circuit.
The Fifth Circuit decided mostly in our favor, came back down.
We then did a little discovery, found out some other
officials were involved, We added them to the case. Boom,
another motion to dismiss qualified immunity. Again, no more discovery,

(54:53):
back up to the Fifth Circuit. So we're like seven
years into this case right now, and we're read even
close to trials. So it's hard because you know, often
with you don't have access to the answers that you
need to be able to precisely articulate exactly what was
going on and definitely not what was going on inside
the officer's head. If we're sort of looking at a

(55:14):
good faith standard, but you have to be able to
survive wealfited immunity at emotion to this mess, and so
we think about qualified immunity when we're deciding whether to
take a case, like what can we find through public
records requests? What cases can we find they are closely analogous,
and so you know, we turned out a lot of
cases where I think that there's probably a strong chance

(55:37):
of the constitutional violation, but we don't have a close
enough case on point to have confidence about surviving qualified immunity.
So we're thinking about it from when the client walks
in the door, you know, through trial and post trial.

Speaker 5 (55:52):
Yeah, and Elliott, you know you're talking about good faith, right,
some of that can actually be sessed out once you
you know, send out discovery requests or get a chance
to depose an official. So how does interplay, How does
that view that you have interplay with this idea of
qualified im into being available at the motion to dismiss.

Speaker 8 (56:14):
Well, actually, I don't have a super strong opinion about
this one way or the other because I recognize what
William's saying in terms of it can be really hard
to you know, SUSA whether or not good faith existed
without discovery. You know, Washington State had a really expansive
regime of public records, you know, statutes. Not every state
has that, So I see the point there. You know,

(56:37):
in terms of the practicalities, if you look at I
think Joanna Schwartz's data, you know, I said fifteen percent
of these cases are getting dismissed suis sponte as a sanction.
I think that tells you that there's probably a lot
of lawsuits getting filed, maybe by pro sal litigants who
probably should never have filed this lawsuit. You know, they're
just not even getting past the twelve by six standard
with or without qualified community. So I do have some concerns

(56:59):
about just front loading, you know, allowing sort of this
wave of you know, lawsuits that really shouldn't be filed
to get past the twelve v six standard. But if
we were going to have a strong good face standard
like the one that I've articulated, where you get a
presumption of good faith and the planet has to get
past it. I think I could live with that being
something that really only gets a side as summary judgment,

(57:20):
especially because you know the Ninth Circuit the Court has
basically said, you know, good luck getting qualified immunity at
the twelve y six stage, and in practice, practically, I
think Johannes Schwartz's data shows that's pretty much what happens anyway, right,
The vast majority these cases end up, you know, at
summary judgments where the qualified immunity gets granted, if it
gets granted in the cases where it gets granted.

Speaker 4 (57:40):
So I almost strong opinion or the other.

Speaker 8 (57:43):
I think if there was a good face standard that
wasn't forced, then you could probably simplify things and just
say it gets ruled on the summary judgment standard.

Speaker 2 (57:53):
Well yeah, yeah, one thing, you know, just I'm sort
of thinking more about good faith as in opposite to
the decision making here, because I'll take this example of
the officer who shot this puppy. His explanation, and I
believe him, is that he believed subjectively that the puppy
was going to jump into the air, fly through the air,
and bite him in the penis. I don't think he

(58:15):
was lying to me about that, right, But I think
that's a crazy fear to have and was completely disconnected
from reality. And so trying to use good faith to
determine whether force was accessive or not I think doesn't
really connect to sort of the reality of things. We're
really trying to figure out if the force was excessive not.

(58:36):
I don't know, did the officer have some idiosyncratic belief
that it was appropriate or not? I don't know. I
just worry about good faith becoming the standard given what
I see in reality.

Speaker 8 (58:49):
I guess what i'd say about that is, you know,
courts routinely sort of infer subjective intent from objective actions, right,
And so in that case, you have body camera footage
of what happened, which is now extremely common. I think
it'd be pretty easy for the court of the Summer
Jugement started to look at that and say, you know,
do I find this client with good faith really credible
in these circumstances, And if it's not, then maybe there's

(59:11):
a dispute effect. You get past Rule fifty six. I
know we're pushing up against time here, Onya, I'm sorry, no.

Speaker 5 (59:17):
No, I just think it's interesting and there are areas
of agreement. It seems like we are identifying in some
respects this whole thing of does one size fit all
topic that we got here to talk about.

Speaker 4 (59:34):
Right.

Speaker 5 (59:35):
It really seems that both of you think that, you know,
qualified immunity. Really it's not that bi few caated type
of a situation where you should have like one particular
standard for split second decision making and then everything else.
It seems like both of you kind of talk about
qualified immunity more as like a general standard of you know, immunity.

Speaker 6 (59:58):
For all the officials.

Speaker 5 (01:00:00):
And the other interesting thing too is, you know, Elliott,
you're talking about, uh, good faith as being a big
element here is something that I think a lot of
uh you know, uh civil rights lawyers would be happy
to also adopt as a standard versus the Harlow standard

(01:00:24):
that exists today. So it is interesting that the discussion is,
you know, has many different.

Speaker 6 (01:00:30):
Uh uh you know, it's not as black and white
as a lot of people would assume.

Speaker 8 (01:00:37):
Yeah, I mean, I think unfortunately, you know, the Harlow
standard just isn't it just isn't doing enough to actually
protect against in substantial litigation. So you know, like I said,
the Child Abused Prevention of Treatment Act has sort of
a builds in this presumption of uh good faith and
a planet has to has to overcome that. That seems
to be pretty effective in that context. So if I

(01:00:58):
was you know, Congress and Ryan from Crash, I think
it'd be fair to say it's time to maybe revisit
the Pearson standard. And I think there's good, you know,
support for it historically too.

Speaker 5 (01:01:08):
I want us to really quickly address the two questions
because I don't want to just dismissing that one of
the questions is specifically actually analogizing to the business judgment rule,
and like, what do you think about thinking about split
second decision decision making essentially as the judge saying like,

(01:01:29):
I'm just not even gonna be weighing in into this.
I'm just and I think often that's how judges in
practice feel. But that would get back to this idea
of a bifurcated standard, which seems to me like neither
one of you's supports And the other question is just
the whole qualifying qualified immunity in the legislature. I know, Elliott,

(01:01:53):
you're basically saying you think it already is kind of
by implication, but like, what do each of you think
about that? And with that, I think will wrap up
and you can either answer one or both or neither,
But go ahead, William.

Speaker 2 (01:02:11):
I mean, I think the business judgment thing is descriptively accurate,
you know. I think that's what sort of animating judges
and juries is. Not wanting to second guess, uh, you know,
split second decision making by officers. But I think we
would have that sort of breathing room whether or not
we had qualified community. I think if we're just doing

(01:02:31):
it under the Fourth Amendment, judges and juries will still
be sort of affording that that not wanting to Monday
morning quarterback. So I think whether or not we have qualify,
I mean, it will still be in our law, and
then whether we codify it. I mean, look, I don't
I don't know why we should be adding making it
harder to hold the government accountable when they violate our

(01:02:53):
constitutional rights. It's already really hard, and I don't know
why would make it harder. And then to answer one
of the quest So yeah, I'd be happy to share
the power point to shooting an email.

Speaker 6 (01:03:03):
Oh, yes, that's right, that's right.

Speaker 2 (01:03:08):
Yeah.

Speaker 8 (01:03:08):
I mean, I think, you know, to start with the
last question, I think qualified immunity is in many ways already.

Speaker 4 (01:03:12):
Codified, right.

Speaker 8 (01:03:13):
I think Congress has had chances to take it out
of the statute when many ninety day three it has
amended provisions really into judicial immunity, decided not to get
rid of qualified immunity. And of course the Prison Litigation
Reform Act E supposedly refers to immunity defenses.

Speaker 4 (01:03:29):
In terms of the business judgment rule.

Speaker 8 (01:03:30):
I think that's just another good example of how it's
not so black and white to say, well, the government's
getting special rules that don't apply to other people. You know,
we see similar things. I know, for example, under the
Fair Debt Collection Practices Act, there's actually, at least in
the ninth Circuit, a qualified immunity kind of defense that
a defendant can assert. When you know, whether or not

(01:03:50):
the debt collector's conduct was illegal wasn't clearly established, A
defendant debt collector can sometimes raise that as a defense.
So I think, you know, that's just another example of
how what we're aiming for, you know, when courts are
sort of crafting toward doctrines on Congress's writing statutes, is
you're aiming to be fair but also sort of promote
socially beneficial outcomes, and you know, to the extent that

(01:04:12):
we want police to be proactive and crack down on crime.
I think qualified is something that's really important to have.

Speaker 5 (01:04:20):
And with that, I am going to hand it back
to Marco and Mary. I feel like we addressed you
a good faith standard question kind of during the discussion,
so in the interest of time, I'm passing it on
to Marca.

Speaker 3 (01:04:35):
Well, thank you all for that fantastic discussion and the
benefit of your time and expertise today on behalf of
the Federal Society. I'd also like to thank you our
audience for joining us. We greatly appreciate your participation. For
information on more upcoming events, please visit our website and
on all major social media platforms at FEDSC.

Speaker 4 (01:04:55):
On that note, weird Jar.

Speaker 1 (01:04:57):
Thank you for listening to this episode of Soiz, a
podcast of the Federal Society's Practice groups. For more information
about the Federal Society, the Practice Groups, and to become
a Federal Society member, please visit our website at FEDSOC
dot org.