Qualified Immunity Doctrine: The Epitome of ‘Judicial Policymaking’

On March 23, 2010, a police officer approached Israel Leija, Jr. at a drive-in restaurant with a warrant for his arrest. Leija proceeded to lead the police on a high-speed chase on the interstate while periodically calling the police dispatcher, saying that he had a gun and threatening to shoot the officers chasing him. The officers continued their pursuit, and other officers deployed spike strips. Trooper Chadrin Lee Mullenix, upon learning that other spike strips were set up, decided to pursue the alternate tactic of shooting at Leija’s car in order to stop it. Although he had not received training on this maneuver, he informed one of the officers in pursuit of his plan and radioed his supervisor for permission. Before receiving a response, Officer Mullenix got in shooting position on an overpass. Witnesses testified that Mullenix could hear his supervisor respond to say that he should “stand by” and “see if the spikes work first.” When Leija’s car approached, Mullenix fired six shots. Right after, the car struck the spike strips, hit the median, and rolled several times. It was later determined that Leija died as a result of Mullenix’ shots, four of which struck his body and none of which struck the car’s radiator, hood, or engine block. Fundamentally, the legal question considered before the Supreme Court was whether Officer Mullenix (the defendant) was entitled to qualified immunity for his actions in this situation. 

In a per curium decision, the Supreme Court ultimately ruled in favor of Officer Mullenix on the basis of qualified immunity: which protects “all but the plainly incompetent or those who knowingly violate the law.” In other words, the Court determined in this case that none of its deadly force precedents “squarely governs” the facts at play here. Therefore, Given Leija’s dangerous conduct, it refused to say that only someone “plainly incompetent” or who “knowingly violate[s] the law” would have perceived a sufficient threat and acted like Mullenix.

That all being understood, Mullenix v. Luna (2015) was wrongly decided because its holding fundamentally relies upon a legal doctrine that lacks valid basis in either statutory or common law. After all, we must not lose sight of the fact that this doctrine is nominally an interpretation of our principal federal civil rights statute: 42 U.S.C. § 1983. Codified in 1871, the statute reads:

“Every person who, under color of any statute, ordinance, regulation, custom, or usage, of any State or Territory or the District of Columbia, subjects, or causes to be subjected, any citizen of the United States or other person within the jurisdiction thereof to the deprivation of any rights, privileges, or immunities secured by the Constitution and laws, shall be liable to the party injured in an action at law, suit in equity, or other proper proceeding for redress.” 

As can be inferred by this text, the statute merely creates a ‘cause of action’ against state agents who violate constitutional rights. In other words, the statute strictly states that an individual acting under state authority who causes the violation of a protected right “shall be liable to the party injured.” This goes to show that based on a plain reading of the text; this statute evidently does not afford any ‘immunities’ whatsoever to officers. Therefore, this doctrine cannot plausibly be attributed to the duly enacted text of the statute itself. Continuing our search for a valid legal foundation for qualified immunity, we are forced to turn to the common law background of ‘state agent liability’ in a desperate attempt to substantiate this doctrine. Unfortunately, however, U.S. legal history does not support the Court’s retrospective claims about qualified immunity’s alleged common law foundations. In fact, when the Civil Rights Act of 1871 was passed, government officials could not assert a ‘good faith’ defense to liability. Furthermore, if a state official did engage in illegal conduct; they were liable without regard to their subjective good faith. Even more notably, the Court explicitly rejected a ‘good faith’ defense to liability under Section 1983 in Myers v. Anderson (1915) just 44 years after the statute’s enactment. Thus, the Court’s contradictory holding in Pierson v. Ray (1967), establishing that good faith immunity does protect officers from civil liability, is inconsistent with both the common law at the statute’s adoption and the Court’s earlier precedents. In conclusion, since the post-1967 line of case precedent building on to qualified immunity is premised upon a flawed holding that departs significantly from the statutory text as well as the common law background, this modern doctrine should be entirely invalidated — and should not have influenced the Court’s recent holding in Mullenix whatsoever. 

Now, for the sake of argument, let’s suppose that the Court is unwilling to go so far as to invalidate this vast body of jurisprudence (of which Justice Thomas openly condemns for being ‘judge-made law’ of the type “that [the Court] has previously disclaimed the power to make”) for institutional legitimacy purposes. Even if this were the situation in play, the Court would still nevertheless have had an obligation to rule in favor of Luna in Mullenix because the qualified immunity doctrine expressly excludes “the plainly incompetent” from protection (a fact that is recklessly disregarded in Mullenix’s holding). Notice, these are two separate clauses or exceptions listed here per curiam by the Court’s own pronouncement. So then, if we consider the Court’s admission that, “There was no evidence that any of Mullenix’s shots hit the car’s radiator, hood, or engine block,” in light of the fact that the defendant intended to “shoot at the car in order to disable it;” it is difficult to understand how this wouldn’t be considered “plain incompetence” of the utmost severity, given that 4/6 shots not only didn’t hit the specified target, but unduly and irreversibly killed the suspect. For this reason, Mullenix v. Luna (2015) was wrongly decided – even if we grant that qualified immunity is a valid doctrine, which it isn’t. 

Now, to be clear, I am merely commenting on the legality of qualified immunity rather than evaluating the pros and cons of its policy implications. Whether or not qualified immunity is an ethical or effective policy is an entirely separate question that ought to be debated and voted on by duly-elected representatives in a constitutional republic. Broadly-speaking, what is so troubling about this legal doctrine and its aggrandizement over time though, is that it is being enforced by ‘judicial fiat’ – since the Court has usurped power reserved for the legislative branch. In this way, it undermines our nation’s separation of powers – just as all judicial activism does. For this reason, qualified immunity ought to be invalidated by the Court as soon as possible so that the citizenry can rightfully dictate the outcome of this fervently-contested policy question. Such abdication of judicial power is not only in the best interest of the citizenry, but it is also in the interest of the Supreme Court itself – so that it remains a legitimate and estimable institution.

Thomas H. Bickel is a senior staff writer for the blog and is concentrating in Political Theory.