In the past decade, practitioners in cases arising under 42 U.S.C. Section 1983 have noticed vast changes in the law. The doctrine of qualified immunity has taken shape, gained momentum, and now moves like a bulldozer, knocking out one case after another before a jury is sworn. I suspect that putting Samuel A. Alito, Jr. on the Supreme Court will accelerate that trend.
In lay terms, qualified immunity gives the benefit of the doubt to state actors in close cases. As forumulated in Harlow v. Fitzgerald, a state actor is immune from suit unless his conduct either violates clearly established law, or if objectively reasonable officials could disagree about whether the conduct in question is unlawful. Dicta tells us that qualified immunity is to protect all but the plainly incompetent.
In police cases, plaintiffs often litigate some of the most porous constitutional guarantees. Was a search "unreasonable"? Was bond "excessive"? Was there a violation of a right to "due process"? Yet porous as these terms are, they do have meaning, a meaning often discerned through the evolution of constitutional doctrine.
In a case called Baker v. Monroe Township, a majority on a Third Circuit panel held that a mother and her three daughters were unreasonably detained -- they were handcuffed at gunpoint and held during a search -- during a drug bust. Alito dissented. Among his observations? "There was a good likelihood that visitors to the apartment were drug buyers. While it was certainly possible that there would also be some innocent visitors ... I think there was probable cause to search anyone found on the premises."
Decisions like these scare me. Do we really want to lower the bar in areas such as search and seizure? And if we are willing to do so there, when there is at least clear textual support for the right in question and doctrinal support on what is and is not reasonable, how much easier will it be to ignore rights that lack clear textual support, such as a right be to let alone, to die, or to choose abortion?
I keep hoping that one day there will be a Court courageous enough to tackle the meaning of the Ninth Amendment and say that unnemureated rights are real. Why not conclude that the government is one of limited powers, and that textual silence is not an implicit justification for government conduct, but, rather, a presumption that the contract formed between power and people never anticipated that the government would act in areas on which the contract is silent?
Giving the benefit of the doubt to power, whether it be police, prosecutor or bureaucrat, overturns the constitutional applecart. It makes a medieval mockery of republican principles. Reading more and more of Alito's decisions suggests he is of a medieval mindset. Expect qualified immunity to grow and prosper, perhaps even ripening into new absolute immunities.
What becase of "we the people"?