|St. Michael's Chapel at Chelsea Soldiers' Home|
By Randall Armor, Boston's Hidden Sacred Spaces (CC BY-NC-ND 4.0)
The trial court dismissed claims under the Massachusetts civil rights act on grounds of qualified immunity, and the Appeals Court reversed. Qualified immunity pertains when (1) a plaintiff complains of a public official's violation of statutory or constitutional rights, (2) the plaintiff's right was clearly established at the time of the alleged violation, and (3) a reasonable person in the shoes of the defendant would have understood that plaintiff's rights were clearly violated. Qualified immunity is an important defense in the law of "constitutional tort," because torts with public-official defendants usually must rise to the level of civil rights violations in order to overcome sovereign immunity, which is absolute unless waived.
The argument in qualified immunity usually centers on the second element, with an assist from the third, the two forming something like a "reasonable belief" test. Public officials, who bear the burden of proof of immunity, invariably argue that they were clueless about any clear violation because never before have the courts had a case quite like this one. Plaintiffs invariably respond by saying that of course this has never happened before, but come on, a lot of cases just like this have happened. Where element two is hard on plaintiffs with its clarity requirement, element three gives plaintiffs an assist by testing officials' denial objectively. Many a commentator has noted that the odd yet defensible effect of this rule is to give public officials a pass on a kind of civil rights offense once--but only once.
True to form, defendants here argued that no precedent provided clear guidance to officials on how to handle Krupien's desire to go to church. Nevertheless, the court opined, ample precedents demonstrate that struct scrutiny applies to claims of free religious exercise. And strict scrutiny, a public official should know, tests for narrow tailoring to achieve a legitimate state interest. Officials here had no evidence that Krupien's attendance at church would jeopardize anyone's safety. It would have been a simple matter to narrow the order and let her attend worship services.
|Judge Posner at Harvard Law|
By chensiyuan (CC BY-SA-2.5)
Our job is the humbler one [than Congress's, in extending or abolishing immunity] of applying the immunity doctrine. We begin with the elementary proposition that it would be improper to deny immunity to a particular defendant on the ground that his conduct could be subsumed under some principle of liability in force when he acted. That approach would shrink immunity to trivial dimensions, since it is always possible to find a principle of comprehensive generality (such as "due process of law"). But the immunity doctrine as it has evolved goes much further than this to protect public officers. It is not enough, to justify denying immunity, that liability in a particular constellation of facts could have been, or even that it was, predicted from existing rules and decisions, even though law, as Holmes famously remarked, is a prediction of what courts will do faced with a particular set of facts. (Maybe it is more than that, but it is at least that.) Liability in that particular set must have been established at the time the defendant acted.
It begins to seem as if to survive a motion to dismiss a suit on grounds of immunity the plaintiff must be able to point to a previous case that differs only trivially from his case. But this cannot be right. The easiest cases don't even arise. There has never been a section 1983 case accusing welfare officials of selling foster children into slavery; it does not follow that if such a case arose, the officials would be immune from damages liability because no previous case had found liability in those circumstances.
The case is Krupien v. Ritcey, No. AC 17-P-870 (Sept. 26, 2018). The opinion was authored by Associate Justice Vickie L. Henry. A graduate of Wellesley College and Boston University Law, Judge Henry left a lucrative commercial litigation practice with Foley Hogg in 2011 to serve as senior staff attorney and youth initiative director for Gay & Lesbian Advocates & Defenders (GLAD). In that capacity, she appeared in the consolidated cases that became Obergefell v. Hodges (U.S. 2015), establishing the federal constitutional right of gay marriage. Judge Henry was appointed to the bench by Governor Baker in 2015.