Qualified Immunity for Private Healthcare Professionals (Part II)

By: Stewart Milch and Kristina Taylor

 

Qualified Immunity for Private Healthcare Professionals (Part II)

In Part I of this article, we discussed when and how part-time government employees (specifically healthcare personnel) treating pretrial detainees or prisoners can use a qualified immunity defense against constitutional claims brought under 42 U.S.C. § 1983 for allegedly negligent medical treatment. This article is focused on the growing criticisms of the qualified immunity doctrine and responses to those criticisms.

Recent Criticisms of the Qualified Immunity Doctrine

Recent questions and criticisms of the qualified immunity doctrine have come from Supreme Court Justices,[1] Courts of Appeals Judges,[2] and legal scholars.[3] One scholar—Professor Reinert of the Benjamin Cardozo School of Law—even believes the entirety of qualified immunity jurisprudence is wrong; that it is based on an incorrect version of 42 U.S.C. § 1983, and the original text purportedly rejected immunities for everyone.[4]

Appellate courts writing about the doctrine have generally criticized current precedents’ “diverge[ence] from the historical inquiry mandated by the statute.” Ziglar, 582 U.S. at 158.[5] That is, instead of analyzing cases with reference to whether 1871 common law would have afforded a privilege, courts have asked whether a government actor’s conduct “violates a clearly established statutory or constitutional right” a reasonable person would have known about. Id. at 159; see also Sosa v. Martin Cnty., Fla., 57 F.4th 1297, 1304 (11th Cir. 2023) (Jordan, J. concurring) (criticizing qualified immunity case law as “far removed from the principles existing in the early 1870s, when Congress enacted what is now 42 U.S.C. § 1983.”).

Scholarly criticism has focused primarily on the rationales underpinning the doctrine. Professor Baude, for instance, claims that history doesn’t support courts’ opinions holding that there were common-law exceptions for government actors when Section 1983 was adopted. This is like Professor Reinert’s argument that the real text of Section 1983 (as enacted in the 1871 Session Laws) contained language that effectively displaced all common-law defenses. According to Professor Reinert, “for reasons lost to history” that language never made it into the statute as codified in 1961. Judge Willett of the Fifth Circuit Court of Appeals seized on Professor Reinert’s opinions in Rogers, writing that the “lost words” are “game-changing,” and provide evidence that the current qualified immunity case law is “counter-textual.”[6]

Defending the Continued Application of Qualified Immunity

Not all legal scholars believe the doctrine should be abolished. Some—like Georgetown University Law Center Professor Elliott Averett—believe the criticisms are unpersuasive.[7] He specifically points out that Professor Reinert’s suggestion would effectively eliminate immunity for judges, legislators, and prosecutors, who are all absolutely immune from suit under Section 1983 in addition to those government workers—including healthcare employees—who have traditionally been given qualified immunity under existing precedent.[8]

Another frequent criticism Averett debunks is the claim that it allows police officers to “shoot first, think later.” But as Averett points out, trial courts often err against officers to find reasons not to dismiss civil rights claims under Section 1983. And abolishing qualified immunity could “hobble proactive policing[9] just when at-risk communities need it most, while making police recruiting and retention even more difficult….”[10]

Although there have been several recent critical scholarly articles urging elimination of the doctrine and some cases questioning it based on those articles, only the Supreme Court can abolish it.[11] And although Justice Thomas has written that he believes the doctrine should be re-examined, none of the Justices have indicated it should be abolished entirely. Even if the Supreme Court decided to re-examine the doctrine as Justice Thomas suggested, the Court has already performed the historical analysis he believes would be appropriate.[12] And the Fifth Circuit has followed.[13] And—to bring this back to the original content—that’s good news for healthcare professionals sued for civil rights violations under Section 1983, who can continue to take advantage of this defense