Justices Weigh Case on Immunity for Public Officials

By Mark Walsh — October 14, 2008 4 min read
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What do public school principals and teachers share in common with the average police officer on the street?

The answer is an interest in the body of law concerning official immunity from liability in lawsuits that challenge their actions. The police are sometimes sued personally by criminals or suspects over charges of the alleged deprivation of constitutional rights. Educators are sued by students and their parents over a whole range of actions.

Under the U.S. Supreme Court’s precedents on so-called qualified immunity, such government officials are immune from suit unless they violated clearly established statutory or constitutional rights of which a reasonable person would have known. The principle has enormous practical consequences for educators and other public officials. If they are sued and can establish their immunity fairly early in the legal process, they are saved from countless hours and costs of litigation.

The question for the Supreme Court in a case argued today and stemming from a challenged police search is whether lower-court judges must follow a particular “order of battle” when analyzing such civil rights claims. Must they determine first whether a constitutional violation has even occurred before they decide whether an official has immunity?

That is the order the courts are supposed to follow under a 2001 Supreme Court decision known as Saucier v. Katz. In that decision, Justice Anthony M. Kennedy said that if lawsuits against government officials were often decided on immunity grounds alone, the courts would never resolve many constitutional questions.

In 2007, in a case about a student’s display of a “Bong Hits 4 Jesus” banner, one question for the Supreme Court was whether a high school principal merited qualified immunity for disciplining the student.

A lower federal court had ruled that the principal was not immune from a suit for damages because the student’s right to display the banner was so clearly established that the principal should have known she could not discipline him.

But in Morse v. Frederick, the Supreme Court unanimously agreed that the principal deserved qualified immunity because it was far from clear at the time of the incident that the “Bong Hits” banner, with its sly drug message, was protected student speech. In fact, the justices ruled 5-4 that it was not protected.

In a concurring opinion, Justice Stephen G. Breyer said the Morse case could easily have been decided on qualified-immunity grounds alone if not for the requirement from the Saucier decision that the courts first ask whether a constitutional right had been violated.

“The relative ease with which we could decide this case on the qualified-immunity ground, and thereby avoid deciding a far more difficult constitutional question, underscores the need to lift the rigid ‘order of battle’ decisionmaking requirement that this court imposed upon lower courts in Saucier,” Justice Breyer said in his Morse concurrence.

During oral arguments on Oct. 14 in Pearson v. Callahan (Case No. 07-751), a case raising immunity questions about police officers who were sued over an alleged unconstitutional search of a home for drugs, Justice Breyer picked up the cause for overruling or scaling back the Saucier requirement. (The court itself had asked the parties in the police-search case to address the issue.)

Noting some of the complex constitutional issues that were being raised by the police search, Justice Breyer said “constitutional questions in this area are like the stars in the sky. There are so many. Rather than having the judges answer each one and getting everything mixed up, why not just have them take whatever is the easier path? As a judge, I like to take what is the easier path.”

“And if it’s easier to deal with the qualified immunity, deal with it and forget the rest of it,” Justice Breyer said to Malcom L. Stewart, the deputy U.S. solicitor general, who was arguing as a friend-of-the-court on the side of the police officers.

Mr. Stewart offered no disagreement to Justice Breyer on the idea of doing away with the Saucier requirement.

“The mandatory order of decision for qualified-immunity cases announced in Saucier v. Katz should be overruled,” Mr. Stewart told the justices. (The Justice Department’s brief is here.)

Justice Breyer appeared to gain the support of the Supreme Court’s newest members to his cause. Both Chief Justice John G. Roberts Jr. and Justice Samuel A. Alito Jr., neither of whom were on the court when Saucier was decided, raised questions about that ruling’s requirement.

Chief Justice Roberts said he had had “a few of these cases” when he was on the federal appeals court in Washington.

“I thought it was very odd that I had to go and decide a difficult constitutional issue and then not worry about it because in one sentence you say, well, but the issue is not clearly established and so it’s qualified immunity” for the public official, the chief justice said.

But Justice Kennedy suggested that the theory behind Saucier remained valid—that the police (in this type of case) benefit from clearer constitutional guidance when the law is fully developed.

“It seems to me that we could have learned a lot if the courts of appeals had addressed” some of the constitutional issues raised by the police search in the case before the court, Justice Kennedy said.

The American Civil Liberties Union filed a friend-of-the-court brief on the side of the suspect who sued the police in the Pearson case, urging the justices to retain the Saucier requirement. The civil rights group noted that before the Saucier ruling, many suits against public officials were decided on immunity grounds without answering the fundamental constitutional questions at issue. Thus, in the next case, educators or police officers could again claim that the law in a particularly area was not clearly established, the group said.

A ruling in the case is expected by next June.

A version of this news article first appeared in The School Law Blog.