Rajan Vasisht '24
Guest Writer
Raised Sikh, you are taught that you are part of the “warrior class.” Imbedded into your religious constitution and daily routine is reinforcement that your purpose is to protect others. For example, you wear a turban around your unshorn hair and proudly display your untrimmed beard to represent your integrity and strength. You also carry a kirpan, or sword, as protection for the oppressed. As an adult, you decide to act on your duty to protect by joining the military. But, upon arrival for basic training, your commanding officers tell you that you are required to shave your beard and your head in the interest of uniformity. After objecting, and under physical protest, the officers restrain you and forcefully shear off your hair and beard. There is nothing you can do now; your Sikh beliefs instruct that this act alone has brought shame to your family and violates your conscience.
To vindicate your shattered religious morality, you sue the officers who shaved you, seeking both damages for what has already been done and injunctive relief to prevent this from happening again. The district court denies the injunction, holding that you have no standing to prove that the officers will shave you again. All that remains of your suit is the claim for compensatory damages and one of the most formidable and controversial barriers to recovery—qualified immunity—which requires dismissal of damages suits against executive officers who did not violate “clearly established” law. In theory, this shields officers from being haled into court to defend against frivolous suits that arise simply because they have the most frequent run-ins with on-the-ground constitutional decision making. In practice, it’s much more.
In the wake of Pearson v. Callahan, district courts are presented with a dilemma: Do they first consider the underlying merits of a civil rights claim or first determine whether the relevant law is sufficiently clearly established to defeat qualified immunity? Those asking what it means to be “sufficiently clearly established” are in good company—the Supreme Court has no obvious answer and circuit courts are struggling with this standard. But resolution of that difficult question won’t help the Pearson dilemma.
The easy answer is for the district court to begin with qualified immunity. Why waste judicial resources solving the merits of a case if it’s going to be dismissed on immunity grounds regardless? If a court can quickly determine that the relevant law is not so established that an officer on the ground should have known their conduct was unconstitutional, there is no need to do the extra step of fully defining the bounds of the law to decide that the officer crossed a line. Plus, qualified immunity only applies to suits for retrospective damages. Many constitutional plaintiffs are also seeking an injunction to prevent future harm to their rights. Therefore, even if the damages claim is dismissed on immunity grounds, the court will still have to wrestle with the merits to grant the injunction. So then, the argument goes, we should obviously allow courts to consider qualified immunity before the merits of the damages suit.
The problem with those arguments is that they are unfairly harmful not only to that plaintiff but also to future plaintiffs. The Supreme Court has already recognized what we already knew: Dignity-based harms can be righted with dignity-based remedies. Justice Thomas said as much in his 8-1 opinion in Uzuegbunam v. Preczewski. Now, go back to imagining that you’re the free exercise plaintiff described above. Based on the conduct of the prison guards, your physical injury is pretty minimal, so your damages won’t be that impressive. But we know you deserve to sue because of the wound to your religious conscience. A decision on the merits in your favor cannot make you whole, as you deserve. But it can provide some of the compensation that you won’t get in real damages, even if the suit will eventually be dismissed on immunity grounds. A Sikh prisoner without any other options for redress at least deserves to be told he was right.
And even worse, if the district court resolves the case on qualified immunity grounds without reaching the merits then it is nourishing a Catch-22. As a reminder, defeating qualified immunity requires that the challenged law be so clearly established that an officer should have known that their conduct was violative. But if courts never make decisions on the merits, the law will forever remain obscure. When courts are making merits-based decisions they are at least rationalizing the law, providing opportunities for the Supreme Court to step in and fix mistakes and splits. Since that is the only agreed upon method of clearly establishing law, applying a merits-first framework will help future plaintiffs get relief. Maybe they won’t even have to be plaintiffs at all.
The Supreme Court knows that there is no clear answer to the order of battle problem in qualified immunity cases; that’s why it changed its instructions to district courts on how to handle it in only a few years. I don’t pretend that there is any clear answer for courts here. However, it couldn’t hurt to presume a merits-first default for free-exercise plaintiffs. Especially when it appears that the relief is “damages or nothing,” courts don’t have to settle for nothing when qualified immunity bars damages.
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rkv4dm@virginia.edu