A plaintiff-friendly standard for civil rights cases.

Suing government officers is often the only way for victims of civil rights violations to obtain relief. Sovereign immunity protects state governments from suit, and local governments can be sued only if their own policies violate federal law. Prosecutors, judges, and legislators are absolutely immune from suit for their prosecutorial, judicial, and legislative actions, respectively. But almost all other government officers are protected only by qualified immunity.

The U.S. Supreme Court announced the test for qualified immunity 20 years ago in Harlow v. Fitzgerald. (1) The Court held that government officers performing discretionary functions may be held liable only if their actions violate clearly established law that a reasonable officer should know. (2) Since then, courts have struggled with how to determine what is "clearly established law" and what "a reasonable officer should know." The answers to these questions often determine whether or not a plaintiff can recover damages.

In June 2002, the Supreme Court clarified the test for qualified immunity and handed an important victory to civil rights plaintiffs with its ruling in Hope v. Pelzer. (3) The Court held that a plaintiff need not point to a prior court ruling involving similar facts to show that clearly established law existed. Rather, the Court held, government officers can be held liable as long as they had "fair warning" that their conduct was impermissible. (4) This standard promises to make it much easier for civil rights plaintiffs to obtain justice.

These are the facts of the case: In 1995, Larry Hope was incarcerated at Limestone Prison in Alabama. At the time, Alabama was the only state that allowed guards to handcuff prisoners to "hitching posts" if they disrupted work squads or refused to work. (5) Guards tied Hope to a hitching post twice: In May 1995, he was tied for two hours because of an altercation with another inmate. He was offered drinking water and a bathroom break every 15 minutes. The next month, Hope was tied to a post again for getting into a scuffle with a prison guard. But this time, he was tied for seven hours, given no access to a bathroom, and offered water only once or twice. Guards taunted Hope by giving water to some dogs and pouring water on the ground, and they took away Hope's shirt, leaving him to burn in the sun.

Hope sued the three guards who were responsible for tying him to the post. The district court dismissed Hope's case based on qualified immunity, and the Eleventh Circuit affirmed. The appellate court emphasized that there was no previous case with facts materially similar to Hope's allegations. (6)

A confusing legal standard

Courts at all levels have wrestled with how to interpret the standard for determining qualified immunity--that is, how to determine whether there is clearly established law that a reasonable officer should know. Some, like the Eleventh Circuit in Hope, have stressed the need for a case on point. For example, Kyle K. v. Chapman was a civil suit for damages against government officers for failure to provide adequate mental health care. The court found qualified immunity because although the right to minimal care was established, there were no cases concerning responsibility of nonprofessional employees at a mental health care facility. (7)

Similarly, in Kalka v. Hawk, the District of Columbia Circuit concluded that prison guards were protected by qualified immunity because there were no precedents establishing whether prison officials must allow inmates to practice humanistic religion. (8)

In 1998, the Supreme Court appeared to endorse this approach with its ruling in Wilson v. Layne. (9) The Court unanimously held that it is a violation of the Fourth Amendment for police to bring reporters onto private property when executing a search or arrest warrant. But, by an 8-1 margin, the Court concluded that the officers were protected by qualified immunity because there were no precedents holding that such conduct violated the Constitution.

Other courts have expressly ruled that cases on point are not necessary to show that conduct has violated clearly established law. For example, in the Seventh Circuit case of Burgess v. Lowery, Judge Richard Posner explained that such a requirement would protect behavior that was so outrageous that no court would have had occasion to disapprove of it in a published opinion. (10)

In 1997, in United States v. Lanier, the Supreme Court had seemed to approve this approach to determining qualified immunity. (11) Lanier was a state court judge who had sexually harassed and assaulted five women in his chambers. He was convicted under 18 U.S.C. [section] 242, which creates criminal liability for one party who deprives another of his or her constitutional rights while acting under color of state law. The Sixth Circuit reversed Lanier's conviction, holding that he could not be held liable because there was no case on point establishing that his conduct violated the Constitution.

The Supreme Court reversed the Sixth Circuit. The Court stressed that a reasonable person would surely know that such behavior violates a woman's constitutional rights. Although Lanier was a criminal case, the Court relied on the law under [section] 1983, which, like [section] 242, was enacted as part of the Civil Rights Act of 1871.

The High Court resolved the conflict between the two approaches with the Hope decision.

Fair warning

In a 6-3 decision, the Court ruled that the officers who tied Hope to a hitching post were not entitled to qualified immunity. Justice John Paul Stevens, writing for the majority, followed the familiar two-step approach: A court first determines whether the plaintiff's allegations, if true, would establish a constitutional violation. If so, the court then decides whether the government officer's action violated clearly established law that a reasonable officer should know. (12)

The Supreme Court, like the Eleventh Circuit, found that the use of the hitching post was unconstitutional. The Court has long held that "the unnecessary and wanton infliction of pain ... constitutes cruel and unusual punishment forbidden by the Eighth Amendment." (13) Based on the facts that Hope alleged, Stevens wrote,

   The Eighth Amendment violation is obvious. ... Despite the clear lack of an
   emergency situation, the respondents knowingly subjected him to a
   substantial risk of physical harm, to unnecessary pain caused by the
   handcuffs and the restricted position of confinement for a seven-hour
   period, to unnecessary exposure to the heat of the sun, and to a
   deprivation of bathroom breaks that created a risk of particular discomfort
   and humiliation. (14)

The majority concluded that this treatment had amounted to "gratuitous infliction of `wanton and unnecessary' pain that our precedent clearly prohibits." (15)

The Court then turned its attention to whether the officers were protected by qualified immunity. Stevens wrote that the Eleventh Circuit's insistence on prior decisions on point was a "rigid gloss" unsupported by Supreme Court precedents. (16) He stressed that qualified immunity operates "to ensure that before they are subjected to suit, officers are on notice that their conduct is unlawful." (17)

Thus, the key question in determining whether the prison officials could be held liable was "whether the state of the law in 1995 gave [them] fair warning that their alleged treatment of Hope was unconstitutional." (18) After reviewing the law as it existed in 1995, the Court concluded that it did.

Stevens wrote that "although earlier cases involving `fundamentally similar' facts can provide especially strong support for a conclusion that the law is clearly established, they are not necessary to such a finding." (19)

No place to hide

Many civil rights cases have been dismissed by federal and state courts based on qualified immunity because there was no precedent creating clearly established law. The Supreme Court's decision in Hope makes clear that such precedent is not necessary. Government officials who had "fair warning" that their actions were impermissible will no longer be able to hide behind the shield of qualified immunity.

Notes

(1.) 457 U.S. 800 (1982).

(2.) Id. at 818.

(3.) 122 S. Ct. 2508 (2002).

(4.) Id. at 2516.

(5.) Id. at 2512.

(6.) 240 F.3d 975, 981 (11th Cir. 2001).

(7.) 208 F.3d 940 (11th Cir. 2000).

(8.) 215 F.3d 90 (D.C. Cir. 2000).

(9.) 526 U.S. 603 (1999).

(10.) 201 F.3d 942 (7th Cir. 2000).

(11.) 520 U.S. 259 (1997).

(12.) Saucier v. Katz, 533 U.S. 194, 201 (2001).

(13.) Whitley v. Albers, 475 U.S. 312, 319 (1986) (quoting Ingraham v. Wright, 430 U.S. 651, 670 (1977) and Estelle v. Gamble, 429 U.S. 97, 103 (1976)).

(14.) Hope, 122 S. Ct. 2508, 2514.

(15.) Id. at 2515.

(16.) Id.

(17.) Id. (quoting Saucier, 533 U.S. 194, 206).

(18.) Id. at 2516.

(19.) Id.

Erwin Chemerinsky is the Sydney M. Irmas Professor of Public Interest Law, Legal Ethics, and Political Science at the University of Southern California in Los Angeles.