Under decisions that the U.S. Supreme Court could revisit, some individuals whose civil rights are violated by government officials never get their day in court due to qualified immunity, while others are denied legal representation when the government seizes their property without a conviction.
Now, the nomination of Judge Ketanji Brown Jackson gives senators a chance to explore whether she would leverage her experience as a defense lawyer to elevate due process in the high court's approach to both qualified immunity and forfeiture — issues that motivate both sides of the aisle.
First, Judge Jackson, the first court nominee who served as a public defender, is no stranger when it comes to grappling with qualified immunity, a legal doctrine described by critics as a blank check for police misconduct.
Under the Supreme Court's 1982 holding in Harlow v. Fitzgerald, government officials are entitled to qualified immunity so long as their actions do not violate "clearly established statutory or constitutional rights of which a reasonable person would have known."
Questioning at her confirmation hearing could surprise some, as it may reveal that she would align with none other than Justice Clarence Thomas on this topic.
In her 2013 Patterson v. U.S. ruling in the U.S. District Court for the District of Columbia, Judge Jackson rejected an officer's claim of qualified immunity after making a retaliatory arrest because a protestor used profanity.
Jackson held that, given the prominence of the First Amendment, any officer should have reasonably known such an arrest would be unlawful.
However, under existing case law, an overly broad conception of qualified immunity results in many suits against police officers and other government agents being dismissed without the benefit of a trial.
In cases involving police misconduct, including officer behavior that results in death, this means that victims and survivors can be left empty-handed, unable to even recover the costs of medical care.
For example, David Collie of Fort Worth, Texas, who died in February, was paralyzed after being shot by police while walking away from a scene, only to have his suit dismissed on grounds of qualified immunity.
While making changes to qualified immunity is sometimes mistakenly pigeonholed as a liberal cause, it is strongly conservative Justice Thomas who has called for overhauling the court's jurisprudence here.
His most recent statement on this subject came in Hoggard v. Rhodes, a case involving a student who challenged restrictions on speech by a public university, illustrating that many of the suits blocked by this judicially created doctrine are against government officials other than police officers.
In a July 2021 statement on the court's decision not to hear the student's appeal, Justice Thomas rejected the exacting "clearly established" test, which requires plaintiffs to identify a prior published appellate court opinion that involves facts nearly identical to their case to avoid dismissal of their civil rights suit. It is this test that creates the highest bar for those seeking redress for harm.
Based on his commitment to strictly applying the law as written, Justice Thomas emphasized that the court overstepped its bounds to effectively superimpose this test on Title 42 of the U.S. Code, Section 1983, the part of federal law creating a cause of action for violations of individuals' civil rights. He stated that the clearly established test "cannot be located in [Section] 1983's text and may have little basis in history."
While the First Amendment's effect of precluding arrest for mere speech may be clearly established, cases involving excessive use of force often involve more complex and somewhat novel circumstances, meaning that this requirement frequently results in immunity.
Such immunity means the plaintiff is never able to reach the point where a judge or jury considers whether the officer in question knew his conduct was unlawful or whether the conduct was objectively reasonable.
The theoretical justification for this clearly established test offered in the court's jurisprudence has been that Congress must not have intended to override the purported common law tradition of such immunity.
But prior to the passage of Section 1983 in 1871, the common law immunity of government officials distinguished the performance of ministerial functions from discretionary conduct; Supreme Court precedent, however, has obfuscated this demarcation.
The ministerial category includes, for example, an officer who performs his obligation to execute through legal means a warrant that the judge mistakenly signed against the wrong person.
This scenario is distinguishable from situations where an officer uses his discretion to apply excessive force, an IRS agent opts to release confidential information on certain groups for political reasons, or a child welfare worker chooses to fabricate abuse allegations against a parent.
In such discretionary actions, plaintiffs in common law could have potentially recovered damages against the government actor if his or her exercise of discretion was unreasonable, but the judicial invention of the clearly established test has largely trumped that.
The Council on Criminal Justice Task Force on Policing, which included both law enforcement leaders and civil rights advocates, identified in its brief on qualified immunity an alternative to the clearly established test that is consistent with our legal tradition of placing the burden of proof on the party seeking to dismiss a suit without a court hearing on the underlying facts.
Under this alternative approach, government officials could only obtain dismissal if they could prove the alleged unlawful misconduct had been sanctioned or prescribed by federal or state statute; regulation or department policy; or that a court had found the conduct was consistent with the U.S. Constitution and state and federal laws.
Critics of efforts to adjust the qualified immunity standard have expressed concern that any reform would spark a flood of lawsuits that would drive officers from the profession.
The fact is, however, that police officers are indemnified by their employer in more than 99% of cases. Also, liability insurance and caps on noncompensatory damages can alleviate and disperse potential costs.
In addition to exploring whether Judge Jackson might align with Justice Thomas' inclination to pare back qualified immunity, senators should also explore her approach to civil asset forfeiture.
As a former defense lawyer, the nominee surely appreciates the imbalance that is created when prosecutors, with the vast resources of the government behind them, can pursue a defendant who lacks legal representation.
Yet, current jurisprudence encompassing holdings from at least six federal circuit courts fails to extend the Supreme Court's landmark 1963 Gideon v. Wainwright decision guaranteeing a right to counsel to individuals challenging the forcible seizure and forfeiture of their property by law enforcement.
This jurisprudence is based on the fiction that civil asset forfeiture is a purely civil proceeding.
In fact, forfeiture cases are punitive actions inextricably linked to a criminal case, given that the ultimate question is whether the property is the ill-gotten gains of criminal activity.
Those who are never convicted of a crime face the daunting prospect of hiring an attorney to file a civil suit to recover their property — which, in some instances that involve cash, jewelry or a used car, would cost more than the property itself.
As an attorney, Judge Jackson co-authored a legal brief in 2008 arguing that a right to counsel should apply to indigent parents in child custody cases, even though these matters are civil in nature.
Her confirmation hearing offers an opportunity for senators to explore the nominee's openness to considering whether due process similarly requires legal representation in at least those forfeiture proceedings where there has been no conviction.
Criminal justice is just one of many topics that senators will rightfully consider in evaluating Judge Jackson, but her approach to holding government accountable in the areas of qualified immunity and forfeiture should be on the docket.
Revisiting shaky precedents on these topics would help ensure all Americans are guaranteed due process and help foster trust between citizens and their government. Just as Judge Jackson deserves a fair hearing, so do all Americans when challenging government overreach.
Marc Levin is chief policy counsel at the Council on Criminal Justice.
"Perspectives" is a regular feature written by guest authors on access to justice issues. To pitch article ideas, email firstname.lastname@example.org.
The opinions expressed are those of the author(s) and do not necessarily reflect the views of the organization, or Portfolio Media Inc., or any of its or their respective affiliates. This article is for general information purposes and is not intended to be and should not be taken as legal advice.
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 Hoggard v. Rhodes , 594 U.S. ____, https://www.supremecourt.gov/opinions/20pdf/20-1066_ihdk.pdf.
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 Louis S. Rulli, On the Road to Civil On the Road to Civil Gideon: Five Lessons from the Enactment of a Right to Counsel for Indigent Homeowners in Federal Civil a Right to Counsel for Indigent Homeowners in Federal Civil Forfeiture Proceedings Forfeiture Proceedings, Journal of Law & Policy (2011) https://scholarship.law.upenn.edu/faculty_scholarship/674/?utm_source=scholarship.law.upenn.edu%2Ffaculty_scholarship%2F674&utm_medium=PDF&utm_campaign=PDFCoverPages.
 Gideon v. Wainwright , 372 US 335 (1963), https://www.oyez.org/cases/1962/155.