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special to the national law journal Karen M. Blum is a professor of law at Suffolk University Law School. She is a co-author, along with Michael Avery and David Rudovsky, of Police Misconduct: Law and Litigation. Last term, in Hope v. Pelzer, the U.S. Supreme Court told the 11th U.S. Circuit Court of Appeals that its approach to qualified immunity was too rigid. In response, the circuit essentially has thumbed its nose, resulting in protection for a good deal of wrongdoing by police officers, prison guards and other public officials. The Supreme Court needs to fix this Section 1983 mess it has created. In Hope, the 11th Circuit found no controlling case law with “materially similar” facts that would put prison guards on notice that shackling a shirtless inmate to a hitching post for seven hours without bathroom breaks and with little water was unconstitutional. In Saucier v. Katz, the Supreme Court admonished the 9th Circuit for not defining the constitutional right at issue with enough particularity. In attempting to rein in these aberrant circuits, the high court has sent mixed signals. While the majority of circuits have read Saucier and Hope as supporting a Goldilocks test (not too big, not too small) for defining the constitutional right for qualified-immunity purposes, the 11th Circuit has dug in its heels. Three strikes In the wake of Hope, the 11th Circuit reinstated three other opinions that had been vacated and remanded for reconsideration. In each, the court concluded a constitutional violation could be found. In none, however, did the court find the law sufficiently established for a reasonable official to have understood he was violating a constitutional right. According to the court, Hope “did not change the preexisting law of the 11th Circuit much.” In Vaughan v. Cox, Officer Fred Cox opened fire in broad daylight on a major thruway and without warning on suspected truck thieves who were evading arrest by speeding. A passenger was rendered paraplegic. The 11th Circuit held that Tennessee v. Garner, the Supreme Court precedent holding that it is unconstitutional to shoot an unarmed, nondangerous, fleeing felon, did not give fair warning to Cox that he was violating the Fourth Amendment when he opened fire that day. Judge John T. Noonan Jr., a 9th Circuit judge sitting by designation, dissented, characterizing the officer’s action as clearly dangerous, stupid and unconstitutional. Similarly, in Willingham v. Loughnan, the 11th Circuit found no case with facts close enough to put officers on notice that it was unreasonable to shoot an unarmed woman who had just assaulted them with kitchen utensils. Finally, in Thomas v. Roberts, the circuit again found insufficient precedent for warning school officials that performing strip-searches on fifth graders for a missing $26 was unconstitutional. The Supreme Court has indicated that law can be established clearly by “a consensus of cases of persuasive authority” from other jurisdictions. Unlike all other circuits, the 11th Circuit has refused to look to outside case law for fair warning of unlawful conduct. Requiring controlling authority with similar facts erects a high hurdle for plaintiffs and shields officers from suit in all but the most egregious cases. In Harlow v. Fitzgerald, the Supreme Court jettisoned the “good faith” component of qualified immunity, opting for an objective standard that assumes knowledge of clearly established constitutional principles. The 11th Circuit, however, is intent on protecting street-level officials who may have acted objectively unreasonably, but with subjective good faith. Qualified immunity, combined with the Monell doctrine of no vicarious liability for the public entity, leaves many wronged plaintiffs without a remedy under Section 1983. Removing the barrier to vicarious liability for local governments would eliminate pressure to find qualified immunity for individual actors who violate constitutional rights in good-faith efforts to enforce the law. Where the loss is absorbed by the entity, it will be encouraged to monitor closely its employees and improve policies of hiring, training, supervision and discipline. It’s time that the high court untangled the unsatisfactory liability scheme it has created under Section 1983. Much judicial energy is now spent in holding the vaguely defined line against vicarious municipal liability and engaging in mental gymnastics to resolve the qualified immunity issue. The result has been confusion, divergence, resistance and, in the case of the 11th Circuit, defiance. Rather than trying to maintain two strains of unsatisfactory doctrine, the Supreme Court should adopt respondeat superior liability for local governments and eliminate individual qualified immunity. Until the high court cleans this up, it is likely that civil rights plaintiffs will remain hopeless in Atlanta.

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