Professor James Pfander has an interesting solution to the dilemma created by the Supreme Court's qualified immunity jurisprudence.

Officers sued in their personal capacity for constitutional torts enjoy qualified immunity from liability unless their conduct violated clearly established law.  Thus, a court could simply avoid deciding whether the officer's conduct was unconstitutional if it concludes that the law is unclear on that question.  Indeed, this is arguably the best way to resolve such cases, since courts are supposed to avoid deciding legal issues"”particularly constitutional issues"”unnecessary to a final disposition.  And yet herein lies the dilemma:  For if courts never address the constitutional question, the right will never be clearly established and officials will be perpetually immunized for unconstitutional conduct.

To address that problem, the Court held in Saucier v. Katz that courts must first resolve whether the challenged conduct transgresses constitutional boundaries before deciding whether the violation was clearly established.  But the so-called Saucier sequence was widely criticized, and the Court took a step back in Pearson v. Callahan, where it gave the lower courts discretion whether to address the constitutional question in such cases.  A related issue came up yet again this term in Camreta v. Greene, where, remarkably, the Court allowed an officer to appeal a Ninth Circuit decision granting him qualified immunity"”in other words, a decision in his favor"”because the officer wanted to challenge the Ninth Circuit's decision that his conduct violated the Fourth Amendment.  The Court allowed the winning party to appeal because it saw the need to resolve the constitutional issue in these types of cases.  (Though the Court ultimately dismissed the case as moot, making this the kind of convoluted decision that law professors love to hate.)  In short, this is an area of the law in which the usual sensible rule about avoiding unnecessary constitutional questions causes lots of problems.

Professor Pfander's elegant proposal would clean up this mess in at least some of these cases.  In a forthcoming essay in the Columbia Law Review, Pfander suggests that constitutional tort claimants be allowed to pursue claims for nominal damages alone, thereby avoiding the need for a qualified immunity defense.  A court decision finding a violation of the plaintiff's constitutional rights would "provide a measure of vindication, even if it did not provide make-whole relief," and would deter future violations.  At the same time, the officials involved would be spared liability for conduct that was not clearly unconstitutional, and courts could avoid tricky questions about the level of certainty of the right involved at the time of the violation.

Obviously, actions for nominal damages could only be brought by those willing to bankroll the costs of such symbolic litigation.  But this could be a good thing, since it would naturally limit such suits to those raising serious but unresolved constitutional questions.  (Professor Pfander cites the Guantanamo Bay detainee litigation as an example.)  It will be interesting to see if litigants and courts pick up on Pfander's suggestion. In fact, Justice Kennedy alluded to the same idea in his dissent in Camreta v. Greene, so it would appear that at least one Justice is open to the proposition.

Posted in Camreta v. Greene, Academic Round-up

Recommended Citation: Amanda Frost, Academic round-up, SCOTUSblog (Jul. 19, 2011, 8:55 AM), http://www.scotusblog.com/2011/07/academic-round-up-73/