Justice Thomas Issues a Qualified Challenge to the Court’s Qualified Immunity Jurisprudence


By: Matthew Weiss

On June 19, the United States Supreme Court in Ziglar v. Abbasi, No. 15-1358 (June 19, 2017), declined to provide a federal Bivens action for constitutional violations arising from the detention of six foreign nationals in a federal detention facility in the months following the September 11, 2001 terrorist attacks.  Perhaps the most interesting dynamic to come out of the decision was Justice Thomas’ concerns for the direction of qualified immunity.

While in detention, the detainees alleged that they were deprived of many basic civil rights. After the detainees were removed from the United States, they asserted a claim under 42 U.S.C. § 1985(3), alleging a conspiracy to violate their equal protection rights by “agreeing to implement a policy” under which the detainees were detained in harsh conditions “because of their race, religion, ethnicity, and national origin.” Justice Kennedy, writing for the majority, immediately turned to the question of whether the claim was subject to qualified immunity. He assessed “whether it would have been clear to a reasonable officer that the alleged conduct was unlawful in the situation he confronted.” Based on this analysis, Justice Kennedy found that the named defendants would not have been certain that § 1985(3) was applicable to their conduct and were therefore entitled to qualified immunity.

Justice Thomas devoted the entirety of his concurrence to note his “growing concern with [the Court’s] qualified immunity jurisprudence.”

Justice Thomas expressed concern that the Court “had diverged from the historical inquiry mandated by the statute.” According to Justice Thomas, “instead of asking whether the common law in 1871 would have accorded immunity to an officer for a tort analogous to the plaintiff’s claim under § 1983, we instead grant immunity to any officer whose conduct ‘does not violate clearly established statutory or constitutional rights of which a reasonable person would have known.’” Justice Thomas noted that this standard was now applied “across the board” even though it is not rooted in the common law as it existed in 1871 when Congress passed 42 U.S.C. § 1985.  As such, he believes the Court’s recent precedent in the area of qualified immunity “represent[s] precisely the sort of free-wheeling policy choices that we have previously disclaimed the power to make” and that decisions about what immunities exist to statutory rights of action should be made by Congress and not the courts. Based on this concern, Justice Thomas implored the Court at a future date to “reconsider our qualified immunity jurisprudence.”

Time will tell whether Justice Thomas’s concerns about the Court’s qualified immunity jurisprudence are a “one-off” comment, or the basis for a future reexamination of how qualified immunity is applied. However, Justice Thomas’s concurrence reflects a belief by at least one Supreme Court Justice that the concept of qualified immunity has morphed from its original purpose and now does not encompass many actions by government officials that would have been subject to immunity under the common law of 1871. If this proposed qualified immunity standard were to gain traction with a majority of Justices on the Court, it would have the effect of expanding qualified immunity to encompass those actions that have been identified as new constitutional violations over the past 146 years. Although it is likely that Justice Scalia would have agreed with Justice Thomas’s originalist interpretation of this federal civil rights statute, it remains to be seen whether it will be embraced by Justices Roberts, Alito, or Gorsuch, the other members of the Court’s conservative wing.

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