The Ultimate Standard: Qualified Immunity in the Age of Constitutional Balancing Tests

Abstract

This article represents a major departure from existing academic literature by proposing a new way of looking at how two important areas of constitutional doctrine affect each other. Through the lens of the jurisprudential dilemma over framing law as bright-line rules or open-ended standards, the article examines the confluence of public officials' immunity law and substantive constitutional law. Though public officials may be sued for damages when they violate constitutional rights, the law of immunity sometimes protects them from liability. The law determining officials' immunity from constitutional torts may be defined by a rule or a standard. Most officials are entitled to qualified immunity, which insulates them from liability for constitutional violations if no reasonable official would have understood their conduct violated clearly established constitutional rights. Thus, qualified immunity invokes a reasonableness standard. Substantive constitutional rights, such as those protected by the first and fourth amendments, also may be articulated as rules or standards. Here, too, the Supreme Court has preferred standards or balancing tests.

A large body of literature and case law has considered the advantages and disadvantages of articulating substantive constitutional law as rules or standards. But no other scholarship has identified what this article discusses - the phenomenon, uniquely associated with constitutional tort actions, in which the rules/standards dilemma occurs at two distinct levels of the adjudication process. That is, the rules or standards are stacked upon one another. It argues that framing qualified immunity as a reasonableness standard distorts or undermines the advantages associated with both rules and standards in the definition of substantive constitutional law. The analysis proposed in this article may in some ways help to clarify the confusion surrounding the doctrine by provoking discussion about the consequences of formulating immunity doctrine as a rule or standard, something that surely merits attention in the continuing dialogue concerning substantive constitutional directives as well.

Keywords: qualified immunity, civil rights, constitutional law, legal rules