Support for Reforming Qualified Immunity in New York

REPORT ON LEGISLATION BY THE CIVIL RIGHTS COMMITTEE

A.1402 (M. of A. Hunter)
S.176 (Sen. Jackson)

AN ACT to amend the civil rights law, in relation to providing a cause of action for deprivation of rights

THIS LEGISLATION IS SUPPORTED

The Civil Rights Committee (“Committee”) of the New York City Bar Association (“City Bar”) writes to express its support of A.1402 (AM Hunter) / S.176 (Sen. Jackson), which creates a remedy for the violation of New Yorkers’ rights protected by the State and Federal Constitution, and helps ensure accountability for public employees who violate those rights. Throughout this memo, we refer to the proposed legislation as the Jackson-Hunter bill.

The Jackson-Hunter bill brings state civil rights law more in line with existing federal law, and creates important reforms—especially to the doctrine of qualified immunity—that the City Bar has already endorsed on the federal level.[1] For the reasons set forth below and in the City Bar’s report in support of similar reforms at the federal level (the “Floyd Act Report”), we endorse the Jackson-Hunter bill and urge its passage.

I. BACKGROUND

Congress passed 42 U.S.C. § 1983, the Civil Rights Act of 1871 (then the Ku Klux Klan Act of 1871), during the post-Civil War Reconstruction era.[2] Section 1983 promised relief for those who have experienced “the deprivation of any rights, privileges, or immunities secured by the Constitution and laws” by any person acting under color of law.[3] As a result, citizens who have experienced a deprivation of rights by an actor with authority under a governmental entity have standing to seek damages from those individual actors, who will be held personally liable.[4]

The statute remained largely dormant until 1951 when, in Tenney v. Brandhove, the United States Supreme Court interpreted Section 1983 for the first time, followed by its decision in Monroe v. Pape in 1961.[5] Shortly thereafter, in 1967, the Supreme Court recognized “qualified immunity” as a defense to § 1983 claims brought against police officers,[6] and further developed the defense in 1982. In Harlow v. Fitzgerald, the Supreme Court clarified that government officials (not just law enforcement officers) can invoke qualified immunity as a defense, and set forth the following standard: “[G]overnment 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.”[7] The Court further explained that the defense of qualified immunity could be revoked if the official “knew or reasonably should have known that the action he took within his sphere of official responsibility would violate the constitutional rights of the [plaintiff], or if he took the action with the malicious intention to cause a deprivation of constitutional rights or other injury….”[8]

The Court justified its creation of this defense—which is nowhere to be found in the text of the statute—as necessary to balance two competing interests: the need to hold government officials accountable for violations of constitutional rights against the need to protect those officials from “harassment, distraction, and liability when they perform their duties reasonably.”^[9] In the years since, courts have dramatically expanded the applicability of the qualified immunity defense. As a result, under the doctrine developed by courts since Harlow, it is nearly impossible to hold a government officer accountable for violating a person’s constitutional rights unless an appellate court has already explicitly ruled that the specific actions undertaken by the officer were unconstitutional.[10]

The central focus of the qualified immunity doctrine is the “clearly established law” standard. As one commentator noted: “The crucial takeaway from decades of Supreme Court jurisprudence is that ‘clearly established law’ cannot be defined at a high level of generality; instead, the law must be ‘particularized’ to the facts of the case.”[11] Although the Supreme Court has said that it “does not require a case directly on point for a right to be clearly established,”[12] it has also stated that “existing precedent must have placed the statutory or constitutional question beyond debate,”[13] and the lower courts typically require that the particular facts mirror those of a prior case in a relevant jurisdiction before they will find that the law was “clearly established.”[14] In practice, this means that if the facts of a case do not match the facts of prior precedent, the case will be dismissed on qualified immunity grounds.[15] For example, in Baxter v. Bracey, the petitioner stated that he was already surrendering and had his hands raised when a police officer ordered a police dog to attack and apprehend him; the circuit court nonetheless found that such conduct did not violate a “clearly established” right.[16] The circuit court essentially required—and the Supreme Court did not dispute—that, in order to hold the officer accountable under Section 1983, there had to have been a finding by a prior appellate court that ordering a police dog to attack a suspect who was surrendering by raising his hands is unconstitutional.

Further compounding the problem of developing “clearly established law” is that courts have the discretion to grant dismissal on qualified immunity grounds without first determining the threshold question of whether the defendant violated a person’s constitutional rights,[17] which, in turn, stymies development of the law.[18]

Moreover, courts have shifted in their assessments on how a “reasonable officer” would behave. While the Supreme Court’s original construction provided qualified immunity to an officer so long as his actions did not violate clearly established rights “of which a reasonable person would have known,”[19] that doctrine has shifted over time, “virtually always in favor of the government,” as Professor Scott Michaelman explains.[20] “The construct of ‘a reasonable officer,’ by which the reasonableness of a defendant’s conduct was to be judged, became ‘any reasonable officer’ or ‘every reasonable official’—thus implying that in order for a plaintiff to overcome qualified immunity, the right violated must be so clear that its violation in the plaintiff’s case would have been obvious not just to the average ‘reasonable officer’ but to the least informed, least reasonable ‘reasonable officer.’”[21]

This continually shifting doctrine complicates litigation. Furthermore, a defendant denied dismissal on qualified immunity grounds may bring an interlocutory appeal, which drives up litigation costs.[22] The circular and confounding nature of the qualified immunity doctrine, along with the high cost of litigating these cases, means that even meritorious claims often are dismissed or not raised at all, which, in turn, may allow state actors to continue to engage in actions that violate constitutional rights.[23] As Justice Sotomayor puts it, “It is time to restore some reason to a doctrine that is becoming increasingly unreasonable.”[24]

II. THE CITY BAR SUPPORTS QUALIFIED IMMUNITY REFORM

In February 2021, the City Bar endorsed passage of the George Floyd Justice in Policing Act (“Floyd Act”), with suggestions for amendments (hereinafter “the Floyd Act Report”).[25] The City Bar endorsed the Floyd Act’s qualified immunity reform, which proposed eliminating as a defense in civil rights cases against police or corrections officers claims the officer acted in good faith or that the right in question was not clearly established.

Qualified immunity reform is necessary because, under existing qualified immunity doctrine, it is practically impossible to hold a law enforcement officer accountable for violating the individual rights of a citizen unless a court has previously ruled that the specific actions in question were unconstitutional. If a court has not so ruled, the defense of qualified immunity often protects the law enforcement officer by default, even in some plainly egregious circumstances. Eliminating the nearly impermeable defense of qualified immunity is therefore essential to addressing police misconduct and holding officers accountable for civil rights violations. Even without the blanket defense of qualified immunity, defendants could still invoke the procedural and substantive defenses available to them, including, for example: statute of limitations, failure to state a claim, and good faith.

While proponents of the qualified immunity defense raise various rationales for retaining it, we submit that they are outweighed by the reasons for eliminating it—and, in fact, arguments for removing the defense have received support across ideological lines.[26] For example, proponents have argued that eliminating the qualified immunity defense will lead to under-enforcement of the law, as police officers will hesitate to engage in (or avoid altogether) situations where they may need to use force to protect themselves or the public.[27] Indeed, the Supreme Court stated as much in Harlow: “fear of being sued will ‘dampen the ardor of all but the most resolute, or the most irresponsible [public officials], in the unflinching discharge of their duties.’”[28] Such concerns, however, are belied by empirical evidence: There is no reason to believe that, if not for the qualified immunity defense, police officers—fearing the costs of potential litigation—would hang back and allow violent crimes to occur, because police officers are almost always indemnified by their employers.[29] In fact, “one empirical analysis concluded that during the relevant period of study, ‘governments paid approximately 99.98% of the dollars that plaintiffs recovered in lawsuits alleging civil rights violations by law enforcement.’”[30]

Others argue that eliminating qualified immunity will lead to unwarranted and costly litigation against police officers and municipalities. However, this argument is unpersuasive. To the extent that law enforcement officers may fear being sued and having to engage in discovery and sit for depositions in which they have to explain their actions, such concerns will increase accountability and deter police misconduct.[31] The possibility that such lawsuits will not be summarily dismissed on qualified immunity grounds may also lead police departments to increase training and institute policies to reduce the use of excessive force.[32] Moreover, the fear that eliminating qualified immunity will lead to a proliferation of meritless lawsuits is unfounded: such suits are still subject to pleading and process requirements, and must set forth appropriate causes of action.[33] Rather than subjecting police departments to a flood of unwarranted litigation, they will simply have to substantiate their claims for dismissal rather than rely on qualified immunity as a catch-all, overly restrictive shield.”

III. THE CITY BAR ENDORSES THE JACKSON-HUNTER BILL’S OTHER REFORMS

In addition to reforming qualified immunity, the Jackson-Hunter bill includes several other important provisions. These reforms create parallel state law remedies that mirror or enhance existing federal remedies.

Section 1 amends the Civil Rights Act to create a remedy for the violation of a person’s rights under the Federal and State Constitutions,[34] correcting case law suggesting suits over New York State constitutional violations are permitted only in limited circumstances. If this bill is enacted, it would enable civil rights litigants to bring an action in state court rather than having to bring a § 1983 action in federal court, allowing New York courts to further develop the unique and specific requirements of the State Constitution. For those cases brought in federal court or with a federal constitutional claim, passage of the bill would ensure that the qualified immunity defense would be limited to only the federal constitutional claims, without affecting the state constitutional claims.[35]

Section 1 also specifies that a civil action may be brought by either the victim or by the New York Attorney General.[36] We endorse this provision because the state Attorney General has an interest, on behalf of individual victims as well as the broader public, in bringing suits for legal or equitable relief or other proper redress to challenge individual acts by government officials, as well as broader patterns and practices within agencies or other government organizations, that deprive civilians of their civil rights. Enabling the New York attorney general to bring such suits—whether or not the individual whose rights have ostensibly been violated also brings suit—furthers the purposes of the act by holding state and municipal actors accountable for civil rights violations whether or not individual victims are able (financially or otherwise) to pursue their claims.

Section 5 of the Jackson-Hunter bill requires public entities to indemnify public employees for the actions forming the basis of a civil rights lawsuit—ensuring that plaintiffs can actually recover any compensation awarded to them.[37] Some critics may argue that broad availability of indemnification effectively gives police officers permission to engage in misconduct—even without the protections of the qualified immunity defense.[38] But as noted in the Floyd Act Report, “indemnification practices can actually serve to incentivize police departments to hire, train, and terminate individual police officers in a manner that prevents civil rights violations. The presence of heightened, ubiquitous indemnification would not stifle the deterrent effect of eliminating the qualified immunity defense, but serve to enhance it.”[39]

In addition, Section 7 of the Jackson-Hunter bill corrects a quirk in state law that had granted corrections officers special immunity from suit in state court for constitutional violations pursuant to subdivision one of section twenty-four of the Correction Law.[40] The bill repeals that immunity and brings corrections officers onto equal footing with other public employees.

IV. CONCLUSION

As explained above and in the City Bar’s Floyd Act Report, police and corrections officers must be held accountable for unlawful actions that violate people’s civil rights. The Jackson-Hunter bill is an important step forward in the effort to ensure meaningful protection of the rights of civilians in New York. We respectfully urge its swift passage.

Civil Rights Committee
Evan Henley, Co-Chair