68 Am. U. L. Rev. 379 (2018).

* Professor, University of Georgia Law School.  The Author wishes to thank Nathan Chapman, Dan Coenen, Michael Coenen, Tom Eaton, and Richard Fallon for helpful comments on a draft of this Article.

Qualified immunity protects officers from liability for damages unless they have violated clearly established rights, on the ground that it would be unfair and counterproductive to impose liability without notice of wrongdoing.  In recent years, however, the Supreme Court has increasingly applied the doctrine to cases in which it serves little or no legitimate purpose.  In Ziglar v. Abbasi, the rights were clearly established but the Court held that the officers were immune due to lack of clarity on other issues in the case.  Because cases like Ziglar undermine the vindication of constitutional rights and the deterrence of violations, critics of immunity have called for its abolition.  This Article rejects both of these approaches.  This Article’s thesis is that the availability of qualified immunity should depend on an assessment of costs and benefits, which vary depending on context.  A better approach is to retain the basic doctrine but to identify categories of cases in which immunity should be denied, and others in which it should be strengthened.

Introduction

After the September 11, 2001 attacks, federal officials arrested and detained over seven hundred undocumented aliens.1Ziglar v. Abbasi, 137 S. Ct. 1843, 1852–53 (2017).  Many detainees were held for several months before being cleared of involvement in the attacks.2Id. at 1853 (“Conditions in the Unit were harsh.  Pursuant to official Bureau of Prisons policy, detainees were held in tiny cells for over 23 hours a day . . . .  Lights in the cells were left on 24 hours.  Detainees had little opportunity for exercise or recreation.  They were forbidden to keep anything in their cells, even basic hygiene products such as soap or a toothbrush.  When removed from the cells for any reason, they were shackled and escorted by four guards.  They were denied access to most forms of communication with the outside world.  And they were strip searched often—any time they were moved, as well as at random in their cells.”).  They sued the Attorney General and other federal officials over their treatment in detention.  These complaints asserted violations of Fourth Amendment unreasonable seizure rights and Fifth Amendment substantive due process and equal protection claims.  Because no federal statute authorizes lawsuits of this sort, the plaintiffs sought damages under the implied cause of action theory recognized in Bivens v. Six Unknown Named Agents of Federal Bureau of Narcoticsp3403 U.S. 388 (1971). for certain constitutional violations.4See id. at 392 (acknowledging that persons may bring certain constitutional claims and seek necessary relief even though remedies are not explicitly prescribed within the Bill of Rights, nor authorized by any statute).  In Ziglar v. Abbasi,5137 S. Ct. 1843 (2017). a 4–to–2 majority declined to apply the Bivens doctrine to most of the plaintiffs’ claims.6See id. at 1854–65 (denying the plaintiffs’ Bivens claims but remanding for reconsideration of the plaintiffs’ claim that the warden of the detention facility had violated the Fifth Amendment by allowing prison guards to abuse them).  Ziglar may become a landmark ruling based on its highly restrictive approach to judge-made damages remedies for constitutional wrongs.  Although the majority consisted of only four Justices,7Justice Gorsuch had not yet been confirmed when the case was argued, and Justices Kagan and Sotomayor recused themselves.  Justice Kennedy wrote the opinion for the Court.  Justices Breyer and Ginsburg dissented. the opinion seems designed to bury the “implied cause of action” doctrine.  Nor did the outcome in Ziglar come as a surprise.  Indeed, the Court’s ruling was the ninth case in a row that narrowed the scope of permissible Bivens actions.8The Supreme Court, 2016 Term—Leading Cases, 131 Harv. L. Rev. 223, 313 (2017).  One commentator has suggested that, “for the sake of judicial candor and litigative efficiency[,] [the Court] should hold that the Bivens cause of action is limited to the facts of Bivens” and of two other early post-Bivens cases.9Id.

This Article focuses on a separate aspect of Ziglar:  over the longer term, this case may attract as much interest for its holding on a separate issue—namely, the qualified immunity of executive officials.  This defense blocks the recovery of damages even when the plaintiff can get past the “cause of action” hurdle by establishing an actionable violation of constitutional rights.10The “cause of action hurdle” refers to whether a particular plaintiff is an appropriate member of a class of litigants who may invoke the power of the court to seek a remedy.  Qualified immunity shields an official engaged in executive or administrative functions from having to pay damages for constitutional wrongdoing unless the plaintiff can show that the official has violated “clearly established statutory or constitutional rights of which a reasonable person would have known.”11Harlow v. Fitzgerald, 457 U.S. 800, 818 (1982).  Officers engaged in legislative, judicial, or prosecutorial functions are absolutely immune from paying damages, no matter how flagrant the violation.  See infra note 25.  The Court has left no doubt that qualified immunity is a powerful defense, which “protects ‘all but the plainly incompetent or those who knowingly violate the law.’”12Ziglar v. Abbasi, 137 S. Ct. 1843, 1867 (2017) (quoting Malley v. Briggs, 475 U.S. 335, 341 (1986)).  It not only knocks out many Bivens claims, but, also, as a practical matter, its greatest impact is in the much larger number of suits, brought under 42 U.S.C. § 1983,1342 U.S.C. § 1983 (2012) (authorizing the possibility of civil actions for any person who is deprived of their constitutional rights). against state and local officials.14See Harlow, 457 U.S. at 818 n.30 (indicating that the qualified immunity rule applies to § 1983 litigation).

The qualified immunity issue arose in Ziglar because the detainees did not rely solely on Bivens.  They also sued under 42 U.S.C. § 1985(3),1542 U.S.C. § 1985(3) (allowing any person deprived of their constitutional rights and privileges by two or more people to bring an action to recover damages). which imposes statutory liability when two or more persons “conspire . . . for the purpose of depriving . . . any person or class of persons of the equal protection of the laws.”16Id.; Ziglar, 137 S. Ct. at 1865–66.  The Civil Rights Act of 1871 included § 1985(3), which is similar to the better known and far more widely used § 1983.17Civil Rights Act of 1871, Pub. L. No. 42-22, 17 Stat. 13 (1871).  Thus, section 1 of the 1871 statute is currently codified as 42 U.S.C. § 1983, and section 2 is currently codified as 42 U.S.C. § 1985(3).  Unlike § 1983, this statute does not operate only when the defendant has acted “under color of state law”; it can be used to sue both federal officials and private actors.18See, e.g., Griffin v. Breckenridge, 403 U.S. 88, 99 (1971) (holding that defendants do not have to just act under color of state law, as conspiracy claims may be brought under § 1983 against state and federal officials).  For examples of § 1983 cases, see Soo Park v. Thompson, 851 F.3d 910, 928 (9th Cir. 2017); and White v. McKinley, 519 F.3d 806, 816 (8th Cir. 2008).  The § 1985(3) count of the plaintiffs’ complaint asserted that federal officers “detained them in harsh conditions because of their actual or apparent race, religion, or national origin, in violation of the equal protection component of the Fifth Amendment.”19Ziglar, 137 S. Ct. at 1853.  Absent a compelling state interest, it is clear that the government may not discriminate on these grounds.20See Kathleen M. Sullivan & Noah Feldman, Constitutional Law 678, 681–82, 1564–65 (19th ed. 2016) (summarizing the Court’s jurisprudence and application of classifications that meet strict scrutiny).  Thus, the complaint alleged violations of clearly established law.  Even so, the Court held that the officials were protected by qualified immunity, reasoning that the § 1985(3) doctrine was unclear as to whether an actionable conspiracy can exist among officials of the same department of government and that the case involved high level executive decision making about national security.

Ziglar is an especially officer-protective qualified immunity decision because it seems to treat qualified immunity as a general no-liability rule whenever the law bearing on liability is unsettled and no matter why liability is uncertain.  The holding thus implicitly rejects an alternative view, under which the official avoids liability only when the disputed element of the plaintiffs’ claims involves the defensibility of the official’s conduct.  In other words, the Court in Ziglar treats qualified immunity as a general rule of “no liability when any element is uncertain,” even when the policies that gave rise to the immunity defense do not apply in the case at hand.  The Court’s approach rests on a preference for laying down bright-line rules, as opposed to formulating a more refined doctrine rooted in the reasons that underlie the qualified immunity defense.  This preference for rules is not inherently objectionable, because rules can serve worthy goals independent of the substantive interests they are designed to further.  These goals include promoting stability in the law, predictability of outcomes, control of lower level decision makers, and efficiency in resolving disputes.21See Frederick Schauer, Formalism, 97 Yale L.J. 509, 539–44 (1988) (discussing the values served by rule-based decision making and concluding that “[f]ormalism . . . achieves its value when it is thought desirable to narrow the decisional opportunities and the decisional range of a certain class of decisionmakers”).  The Court’s predilection for bright-line rules over substance-driven rules, so vividly illustrated by Ziglar, permeates the Court’s qualified immunity doctrine.22See, e.g., John C. Jeffries, Jr., The Liability Rule for Constitutional Torts, 99 Va. L. Rev. 207, 258 (2013) [hereinafter Jeffries, Liability Rule] (“Qualified immunity should be narrowed to adhere more closely to the rationales for limiting liability in the first place.”).  This Article focuses on the institutional interests served by framing qualified immunity doctrine in the form of rules.  It argues that “ruleness” values deserve to play a role in the qualified immunity context, but not nearly as much of a role as the Court now accords them.  The universe of constitutional tort cases is not monolithic.  One can make categorical distinctions between substantive contexts in which the policies favoring immunity are comparatively strong or weak.

This Article’s argument rests on three key points:  First, recognizing the existence of any immunity defense is arguable.  Second, there are nonetheless defensible, substantive justifications for retaining some form of immunity defense.  Third, the best accommodation of the competing considerations involves marking off manageable categories of cases in which these substantive grounds for applying the immunity doctrine are especially weak or strong.  As Richard Fallon has explained, “official immunity doctrines perform an equilibrating function by diminishing the social costs that constitutional rights would have if officers who violated them were always strictly liable in suits for damages.”23Richard H. Fallon, Jr., Asking the Right Questions About Officer Immunity, 80 Fordham L. Rev. 479, 485 (2011).  Thus, the case against the Court’s broad rule is not strong enough to warrant wholesale abandonment of the defense, despite the empirical arguments marshalled by the Court’s anti-immunity critics.  The Court, in addressing the arguments of anti-immunity critics, should embrace a readily available and modest alternative to the current law that falls short of wholesale abandonment of the immunity doctrine.

The analysis in this Article honors the Court’s overarching framework for resolving immunity issues.  That framework treats § 1983 and § 1985(3) as “common law statutes,” which authorize the Court to act freely in the manner of a common law court in shaping of official immunity doctrine.24See Hillel Y. Levin & Michael L. Wells, Qualified Immunity and Statutory Interpretation:  A Response to William Baude, Cal. L. Rev. Online 1, 2 (forthcoming 2018).  But see William Baude, Is Qualified Immunity Unlawful?, 106 Cal. L. Rev. 45, 50–51 (2018) (arguing that § 1983 is better understood as a “common law statute”); see also Ziglar, 137 S. Ct. at 1871 (Thomas, J., concurring in part and concurring in the judgment) (endorsing Baude’s view).  The Court “seeks a proper balance between two competing interests.”25Ziglar, 137 S. Ct. at 1866; see also Pearson v. Callahan, 555 U.S. 223, 231 (2009) (“Qualified immunity balances two important interests . . . .”); Wyatt v. Cole, 504 U.S. 158, 167 (1992) (“Qualified immunity strikes a balance between compensating those who have been injured by official conduct and protecting government’s ability to perform its traditional functions.”); Davis v. Scherer, 468 U.S. 183, 195 (1984) (discussing the Court’s effort to strike a “balance . . . between the interests in vindication of citizens’ constitutional rights and in public officials’ effective performance of their duties”); Harlow v. Fitzgerald, 457 U.S. 800, 813–14 (1982) (“The resolution of immunity questions inherently requires a balance between the evils inevitable in any available alternative.”).  One set of interests involves vindicating constitutional rights and deterring constitutional violations.  On the other side of the ledger lies an interest in ensuring fairness to government officials26See, e.g., Butz v. Economou, 438 U.S. 478, 506 (1978) (“[I]t is not unfair to hold liable the official who knows or should know he is acting outside the law.”); Wood v. Strickland, 420 U.S. 308, 319 (1975) (“Liability for damages for every action which is found subsequently to have been violative of a student’s constitutional rights . . . would unfairly impose upon the school decisionmaker the burden of mistakes made in good faith in the course of exercising his discretion . . . .”); Scheuer v. Rhodes, 416 U.S. 232, 240 (1974) (holding that one rationale for official immunity is “the injustice, particularly in the absence of bad faith, of subjecting to liability an officer who is required, by the legal obligations of his position, to exercise discretion”); Pierson v. Ray, 386 U.S. 547, 555 (1967) (“A policeman’s lot is not so unhappy that he must choose between being charged with dereliction of duty if he does not arrest when he has probable cause, and being mulcted in damages if he does.”). and in lowering the “social costs” that constitutional tort litigation can generate.27Ziglar, 137 S. Ct. at 1866 (quoting Anderson v. Creighton, 483 U.S. 635, 638 (1987)).  The Court’s cost-benefit model rejects both the notion that a remedy should be available for every violation of a constitutional right,28See Richard H. Fallon, Jr. & Daniel J. Meltzer, New Law, Non-Retroactivity, and Constitutional Remedies, 104 Harv. L. Rev. 1731, 1779–86 (1991) (arguing American legal tradition demonstrates that there are constitutional rights without individually effective remedies). and the proposition that executive officers should always enjoy immunity from suits for damages.29For a defense of absolute immunity for executive officers in the common law context, see Gregoire v. Biddle, 177 F.2d 579, 581 (2d Cir. 1949).

A key feature of the doctrine is that the Court refuses to balance interests on a case-by-case basis—for example, by evaluating in each case the precise degree of official wrongfulness, the nature and importance of the constitutional rights at stake, and other considerations presented by that particular case.  Instead, the Court aims for “the best attainable accommodation of competing values,”30Harlow, 457 U.S. at 814. by applying the “clearly established law” rule to all qualified immunity cases.31See supra note 11.  That rule thus “reflects a balance that has been struck across the board.”32Anderson, 483 U.S. at 642 (citation and internal quotation marks omitted).

This Article does not take issue with the Court’s rejection of case-by-case balancing in the qualified immunity context, particularly because a repudiation of case-by-case balancing marks much of our constitutional law.  In the First Amendment context, for example, the Court has generally rejected such balancing, because it would “lead to unpredictable results and uncertain expectations.”33Gertz v. Robert Welch, Inc., 418 U.S. 323, 343–44 (1974) (rejecting case-by-case balancing in setting free speech constraints on liability for defamation).  To say that the Court has wisely embraced a non-case-by-case balancing approach in qualified immunity cases is not to say, however, that the particular approach it has embraced makes good sense.  Close examination suggests that the Court’s current approach gives too much weight to the pro-immunity side of the balancing ledger.  Cost-benefit balancing is best employed, as it is in First Amendment doctrine, as a means for making rough, but useful, comparisons among categories of fact patterns.34Cf. Sullivan & Feldman, supra note 20, at 944–46.  A category-by-category approach would accommodate the competing policies at work in qualified immunity cases more fully than the Court’s current across-the-board rule.  And it would do so without giving up the benefits of rule-based doctrine.

Part I of this Article focuses on Ziglar and makes two points, one in Section I.A and the other in Section I.B.  Section I.A shows that the application of qualified immunity in Ziglar does not square with the aims of the doctrine, but only with the values served by bright-line rules.  The Court’s premise, albeit unarticulated and unexamined, is that qualified immunity must operate as a sweeping rule that is equally applicable in each and every case.  Section I.B argues that the case for a rule of this kind is unpersuasive, because its costs outweigh its benefits.  Part II addresses critics of qualified immunity who favor its abolition by one means or another, in favor of a general rule of liability for constitutional torts.35See, e.g., Lynn Adelman, The Erosion of Civil Rights and What to Do About It, 2018 Wis. L. Rev. 1, 7 (2018); Akhil Reed Amar, Fourth Amendment First Principles, 107 Harv. L. Rev. 757, 811–13 (1994) (focusing on Fourth Amendment remedies); Karen M. Blum, Section 1983 Litigation:  The Maze, the Mud, and the Madness, 23 Wm. & Mary Bill Rts. J. 913, 925 (2015); Mark R. Brown, The Failure of Fault Under § 1983:  Municipal Liability for State Law Enforcement, 84 Cornell L. Rev. 1503, 1510–11 (1999); Joanna C. Schwartz, The Case Against Qualified Immunity, 93 Notre Dame L. Rev. 1797, 1799–1800 (2018) [hereinafter Schwartz, The Case Against Qualified Immunity].  Section II.A defends qualified immunity against objections that it rests on faulty empirical premises and Section II.B rejects an alternative approach that would greatly expand recoveries by shifting liability to local governments.  This Article’s defense of qualified immunity, however, is not a defense of the current regime.  Building on this idea, Part III proposes a new approach that gives significant—but not always controlling—weight to the values of rule-based doctrine.  The alternative this Article calls for is judicial recognition of a limited number of categories in which the defense is unavailable because the benefits of immunity are significantly outweighed by its costs.  Section III.A identifies six such categories.  Section III.B then identifies two categories of cases in which the benefits of immunity are especially high in comparison to its costs.  In these two sets of cases, according to the analysis offered here, a thoughtful build-out of categorical balancing rules might well support the displacement of the Court’s existing clear-error approach with a truly bright-line rule of absolute immunity.

1.  Qualified Immunity in Ziglar

Official immunity protects all officials engaged in “discretionary” functions from liability for damages, at least to some extent.  Judges,36Stump v. Sparkman, 435 U.S. 349, 356–57 (1978). legislators,37Bogan v. Scott-Harris, 523 U.S. 44, 52–54 (1998). and prosecutors38Imbler v. Pachtman, 424 U.S. 409, 427 (1976).—or, more precisely, persons engaged in judicial, legislative, and prosecutorial functions39See, e.g., Burns v. Reed, 500 U.S. 478 (1991) (distinguishing between the advocative and investigative conduct of prosecutors); Forrester v. White, 484 U.S. 219 (1988) (distinguishing judicial from administrative functions).—are absolutely immune from liability for damages, no matter how egregious their conduct is.  Executive and administrative acts are covered by qualified immunity.  Under Harlow v. Fitzgerald,40457 U.S. 800 (1982). officers who engage in these acts are “are shielded from liability for civil damages insofar as their conduct does not violate clearly established statutory or constitutional rights of which a reasonable person would have known.”41Id. at 818.  Thus, plaintiffs may lose even when they can prove a violation of constitutional rights and damages resulting from the violation.

A.  Ziglar and the Policies Underlying Qualified Immunity

In Ziglar, Justice Kennedy’s majority opinion ordered dismissal of the § 1985(3) claim on the ground that all of the officer-defendants were shielded from liability under the qualified immunity doctrine.  According to the opinion, the application of § 1985(3) to these allegations failed the “clearly established law” test, because “the conspiracy recited in the complaint was alleged to have been between or among officers in the same branch of the government (the Executive Branch) and in the same department (the Department of Justice).”42Ziglar v. Abbasi, 137 S. Ct. 1843, 1867 (2017).  Without addressing whether such “intrabranch” behavior can give rise to a conspiracy for purposes of § 1985(3), the Court held that the law on the question lacked sufficient clarity.43See id. (holding that here reasonable officers could not have known the law applied to their behavior).  In order to show why, Justice Kennedy drew an analogy to the antitrust context.44Id. (comparing officers of a corporate entity jointly adopting a policy with federal agents of the same department making a similar joint agreement).  In antitrust, the Court rejected the existence of “intracorporate conspiracies” to restrain trade because the officers of a corporation all act for the same corporate entity.45Id.  As such, “agents of the same legal entity are not distinct enough to conspire with one another.”46Id. at 1868.  As for § 1985(3), the Court had never ruled one way or the other on the “intracorporate conspiracy doctrine.”  Turning to lower court decisions, Justice Kennedy found a division of authority over the viability of the intracorporate conspiracy doctrine, in cases that involved suits against private businesses and officers sued for violations under § 1985(3).47See id. (finding that since § 1985(3) does not contain an “under color of” state law requirement, it can be used against private actors for violations of civil rights and against officials acting under color of federal law).  This division of lower court authority was apparently decisive:  “When the courts are divided on an issue so central to the cause of action alleged, a reasonable official lacks the notice required before imposing liability.”48Id.  Thus, the officials avoided liability because “[u]nder these principles, . . . reasonable officials in petitioners’ positions would not have known, and could not have predicted, that § 1985(3) prohibited their joint consultations and the resulting policies that caused the injuries alleged.”49Id. at 1867.  The Court also said that immunity was justified because “open discussion among federal officers is to be encouraged, so that they can reach consensus on the policies a department of the Federal Government should pursue.”  Id. at 1868.  For a discussion of this aspect of the opinion, see infra Section III.B.

Ziglar is an ambitious qualified immunity case in part because the Court ruled on a motion to dismiss the complaint, and thus “accept[ed] as true the facts alleged in the complaint,”50Id. at 1852. including the allegation that the officers unjustifiably discriminated against the plaintiffs on the basis of race, religion, and national origin.  The impermissibility of such discrimination has been settled for decades, and the Court in Ziglar does not suggest otherwise.  The only lack of clarity in the case involved the intrabranch conspiracy issue.  The question thus arises whether this type of lack of clarity should matter.

1.  Fairness to defendants

An important objection to the Court’s reliance on “uncertainty as to intracorporate conspiracies” is that the uncertainty on that point has nothing to do with the either of the two rationales for qualified immunity.  First, official immunity is recognized as a matter of fairness when an officer reasonably believes he is acting within the constitutional rules.51See id. at 1867 (discussing the inherent tension between private citizens’ constitutional rights and police officers’ ability to perform their duties effectively).  For example, in Pierson v. Ray,52386 U.S. 547 (1967). the first modern case in the development of qualified immunity for constitutional torts, the Court awarded qualified immunity to police officers to avoid the unfairness of imposing liability without fault.53Id. at 557.  Writing for the Court, Chief Justice Warren emphasized the unfairness of a strict liability rule when he wrote:  “A policeman’s lot is not so unhappy that he must choose between being charged with dereliction of duty if he does not arrest when he has probable cause, and being mulcted in damages if he does.”54Id. at 555.[/m,fn]  Thus, the Court recognized a defense of “good faith and probable cause,” which meant that the officer would have a defense if he reasonably believed the arrest was proper, even if the arrest in fact violated the Fourth Amendment.  In Scheuer v. Rhodes,54416 U.S. 232 (1974). the Court added that recognizing qualified immunity avoids “the injustice, particularly in the absence of bad faith, of subjecting to liability an officer who is required, by the legal obligations of his position, to exercise discretion.”55Id. at 240.  More recently, in Hope v. Pelzer,56536 U.S. 730 (2002). the Court said that the point of qualified immunity is that officials are entitled to “fair warning” that their act violates federal law.57Id. at 739–40; see also Wood v. Strickland, 420 U.S. 308, 319 (1975) (finding liability for all constitutional violations, no matter how innocent, “would unfairly impose upon the school decision maker the burden of mistakes made in good faith in the course of . . . his official duties”).

This fairness rationale is analogous to the negligence rule in ordinary tort law.  A central principle of negligence law is that it is unfair to impose liability on a private actor who cannot reasonably foresee that his act will injure someone.58See Oliver Wendell Holmes, The Common Law 77 (Mark DeWolfe Howe ed., 1963) (“The requirement of an act is the requirement that the defendant should have made a choice.  But the only possible purpose of introducing this moral element is to make the power of avoiding the evil complained of a condition of liability.  There is no such power where the evil cannot be foreseen.”).  Holmes’ rationale remains “the most influential theoretical argument on behalf of a negligence rule tied to the principle of reasonable foresight.”  Richard A. Epstein & Catherine M. Sharkey, Cases and Materials on Torts 121 (11th ed. 2016).  Modern tort theorists have elaborated on this central principle.  See, e.g., Stephen Perry, Torts, Rights, and Risk, in Philosophical Foundations of the Law of Torts 60, 60 (John Oberdiek ed., 2014) (“[T]he fundamental moral right underlying negligence law is, roughly, a right not to be caused reasonably foreseeable physical harm as a proximate result of another person’s engaging in unreasonably risky conduct towards one.”); Arthur Ripstein, Private Wrongs 89–94 (2016) (discussing the role of foresight in negligence law).  It seems similarly unfair to impose liability on an officer who cannot reasonably foresee that his act will violate a plaintiff’s constitutional rights.  There is a difference between private actors and state officials, in sense that officials typically do intend to touch, threaten, imprison, or otherwise invade the plaintiff’s person or property.  But this difference is irrelevant to the “fair warning” issue.  Fair warning relates to whether the officer made a choice to risk unconstitutional interference with the plaintiff.59See, e.g., Hope, 536 U.S. at 739–41 (noting that officers are on notice that their conduct is unlawful only so far as their conduct violates “clearly established” law).  Some intentional interferences are unconstitutional and others are not.60Id.  Officers who reasonably but mistakenly believe they have sufficient grounds to make an arrest, fire an employee, or revoke a business license lack “fair warning” that they have crossed constitutional lines.61Id.   This principle is reflected in the common law of intentional torts, which declines to impose liability on a person who shoots another, even a police officer, in the absence of fair warning that his target is not an aggressor.62See Courvoisier v. Raymond, 47 P. 284, 286–87 (Colo. 1896) (finding that if the defendant’s fears were reasonable under the circumstances then liability would not be extended). It is equally unfair to impose constitutional tort liability on an officer in a similar situation.

2.  “Social costs”

Second, constitutional tort litigation generates “social costs [which] include the expenses of litigation, the diversion of official energy from pressing public issues, and the deterrence of able citizens from acceptance of public office.”63Harlow v. Fitzgerald, 457 U.S. 800, 814 (1982).  All litigation produces similar costs, yet no immunity defense is generally available to private persons and entities.  The difference between private and public actors is that public actors face a different incentive structure.  The core of the “social costs” rationale for official immunity is that, at least in theory, private actors capture the benefits of their actions.64See, e.g., Richardson v. McKnight, 521 U.S. 399, 412 (1997) (discussing the incentive structures that private firms face and how it affects behavior).  When those actions generate risks to others, private actors should take those costs into account.65Reasoning along similar lines, the Court rejected qualified immunity for privately employed prison guards in RichardsonId. at 409.  The aim is to encourage them to (more or less accurately) weigh the real costs against the benefits.  Public officers do not capture the benefits of their actions in the same way.  Those benefits go to society at large, for example, in the form of effective policing, fire protection, safe products, clean air and water, good teaching, and generally efficient administration of government.66For a systematic exposition of this point, see Ronald A. Cass, Damage Suits Against Public Officers, 129 U. Pa. L. Rev. 1110, 1135–40 (1981).

Allowing for official immunity maximizes social utility and, by extension, social welfare by enabling officials to act without limitation toward the public good.67See Forrester v. White, 484 U.S. 219, 223 (1988) (explaining that “the threat of liability can create perverse incentives that operate to inhibit officials in the proper performance of their duties”).  If officers were liable for every constitutional violation, they might hesitate before taking a step that produces a public benefit because an error would lead to personal liability.  A police officer may decline to make an arrest that arguably violates the Fourth Amendment, or the supervisor of a government agency may decline to fire an incompetent employee whose job is arguably protected under the due process clause.  From the “social costs” perspective, the rationale for the defense is that official immunity will correct the asymmetrical incentives officials otherwise face.68See Cass, supra note 67, at 1152 (describing the pressures public officials face and the social benefits of damage liability).  The availability of a defense protects officers who act in the public interest.  Thus, the defense encourages the police officer to make the arrest and the supervisor to fire the employee despite the uncertain constitutional issue that would otherwise counsel caution.

3.  Fairness, utility, and the conspiracy issue

In Ziglar, neither fairness nor utility were threatened by the imposition of liability.  According to the complaint, the officials deliberately discriminated on the basis of race, religion, and national origin in their abusive treatment of the detainees.69Ziglar v. Abbasi, 137 S. Ct. 1843, 1853 (2017).  There is no lack of clarity in the constitutional doctrine that forbids these types of discrimination, no lack of fair warning that the acts are forbidden, and no danger that officials will be overly cautious in an area in which the constitutional line is uncertain.  The application of § 1985(3) conspiracy doctrine is a collateral matter.  Lack of clarity on that issue is as irrelevant as lack of clarity on the statute of limitations, or issue preclusion.  It is as though the Court, instead of permitting an action for a clear constitutional violation in Bivens itself, should have held that the officials were immune because of lack of clarity as to the previous available Bivens actions.  Many questions may determine outcomes, but not all of them have to do with the state of the law as to whether the conduct at issue violated the plaintiff’s constitutional rights.  If the officers knew they could be sued under § 1985(3) pursuant to an “intrabranch conspiracy” theory, they understood (according to the complaint) that they were violating constitutional rights.70Id. at 1853–54.

In this respect, the Ziglar Court seems to enlarge the scope of qualified immunity beyond the Harlow doctrine.71Id. at 1872 (acknowledging the Court’s precedent and the gradual expansion of qualified immunity).  Harlow held that executive officials are immune from damages “insofar as their conduct does not violate clearly established statutory or constitutional rights of which a reasonable person would have known.”72Harlow v. Fitzgerald, 457 U.S. 800, 818 (1982) (emphasis added).  The plaintiffs in Ziglar claimed violations of their rights to equal protection and religious liberty.  These rights were “clearly established,” no matter how unclear the doctrine may have been on whether intragovernmental conspiracy can trigger § 1985(3) liability.73Ziglar, 137 S. Ct. at 1869.  Under Ziglar, it appears that the defendant may win without showing lack of clarity as to the right violated, so long as he can show that the law is uncertain as to other aspects of the plaintiff’s case.

B.  Benefits and Costs of the Ziglar Rule

In Ziglar, the Court treats “lack of clearly established law” as a broad rule, which hinges on lack of clarity across-the-board, not only as to the core legal obligation owed by the defendant, but also as to whether § 1985(3) reaches collaboration among members of the same Executive Department.74See Frederick Schauer, Playing by the Rules:  A Philosophical Examination of Rule-Based Decision-Making in Law and in Life 23 (1991) (explaining that “generalization, with its necessary selection and suppression, is . . . central to prescribing by rule”).  The rule controls the outcome even though there is no link between the rationales for the rule and its application to the plaintiff’s substantive claims.  Ziglar presents a typical example of the Supreme Court’s increasing focus on developing sharp edge rules in its qualified immunity cases.  The early cases on qualified immunity considered several factors in their application of the defense, including the nature of the defendant’s duties and his state of mind.75Pierson v. Ray focused on the special problems confronted by police officers.  386 U.S. 547 (1967).  In Scheuer v. Rhodes, the defendant was the governor of Ohio, and the Court framed the issue with that office in mind.  416 U.S. 232, 247 (1974) (explaining that because “the options which a chief executive and his principal subordinates must consider are far broader and far more subtle than those made by officials with less responsibility,” the governor was entitled to a “comparably broad” “range of discretion”).  Wood v. Strickland, 420 U.S. 308 (1975), took the same approach with school administrators.  In Pierson, Scheuer, and Wood, the Court developed a two-prong test.  In the school administrator context, for example:

The official himself must be acting sincerely and with a belief that he is doing right, but an act violating a student’s constitutional rights can be no more justified by ignorance or disregard of settled, indisputable law on the part of one entrusted with supervision of students’ daily lives than by the presence of actual malice.

Wood, 420 U.S. at 321.

Beginning with Harlow, the Court moved to a more rule-oriented approach, by taking two steps.76457 U.S. 800, 816–18 (1982).  First, it abandoned the old distinctions among government jobs in favor of a general norm for all qualified immunity cases.77Id. at 817–18 (indicating that the reformulated rule would apply to government officials in general); see also Anderson v. Creighton, 483 U.S. 635, 642 n.4, 642–43 (1987).  Second, it eliminated the subjective “malice” or “good faith” prong in favor of what it characterized as an “objective” test.78457 U.S. at 816–18.  Some of the reasoning of Harlow seemed, at least to Justice Brennan, to permit recovery when the official “actually knows that he was violating the law . . . even if he could not ‘reasonably have been expected’ to know what he actually did know.”79Id. at 821 (Brennan, J., concurring) (quoting Procunier v. Navarette, 434 U.S. 555, 565 (1978)).  The Court blocked even that avenue a few years later in Anderson v. Creighton,80483 U.S. 635 (1987). holding in the context of a Fourth Amendment challenge to a search that the test is strictly objective.81Id. at 641.  The officer’s “subjective beliefs about the search are irrelevant.”82Id.  The Court further extended the rule in Ashcroft v. Al-Kidd,83563 U.S. 731 (2011). at least in its rhetoric, by stating that it would apply unless “every” officer would have been on notice that his action was unconstitutional, and by adding that the constitutional validity of the officer’s action must have been “beyond debate” at that time.84Id. at 741.  The phrase “beyond debate” seems to have become part of the standard recitation of the doctrine on qualified immunity.  See Kisela v. Hughes, No. 17-467, slip op. at 4 (U.S. Apr. 2, 2018) (per curiam); White v. Pauly, 137 S. Ct. 548, 551 (2017) (per curiam).  But Ziglar goes further than any of these cases.  The innovation in Ziglar is to apply qualified immunity to lack of clarity not only on the content of “constitutional rights,” on which Harlow had focused, but on a collateral matter as to the applicability of a particular statute.

1.  Form and substance in qualified immunity doctrine

It is easy to criticize practically any rule, because there is always a gap between the fact patterns to which the rule applies and the policies on which the rule is based.  As a result, the rule is overinclusive, underinclusive, or both.85See Schauer, supra note 21, at 539 (“Once we understand that rules get in the way, that they gain their ruleness by cutting off access to factors that might lead to the best resolution in a particular case, we see that rules function as impediments to optimally sensitive decision making.”).  For example, because the Court’s rule for qualified immunity in Ziglar is triggered by “lack of clarity” in judicial interpretation of the conspiracy statute, and not based on fairness and utility rationales, Ziglar sacrifices the plaintiff’s constitutional tort interest in recovery for a violation of settled constitutional rights.  The ill-fit of the grounds for a rule and the operation of the rule is a defining feature of rules.86See Schauer, supra note 75, at 224–28.  Otherwise, the “rule” would be superfluous.  A decision maker would reach the same result by applying the policies underlying the rule.  Yet rules are often justified, despite their clumsiness and seeming arbitrariness, because they serve critical values of the legal system.  Across many areas of law rules contribute to the resolution of disputes by saving time and effort in decision making,87See id. at 145–49. generating and maintaining stability in the law,88See Rowland v. Christian, 443 P.2d 561, 569 (Cal. 1968) (Burke, J., dissenting). enabling us to predict of outcomes of disputes that may arise,89See Richard A. Wasserstrom, The Judicial Decision:  Toward a Theory of Legal Justification 60–62 (1961) (discussing the value or predictability in connection with reliance on precedent). and controlling the discretion of officers who apply the law to particular cases.90See Schauer, supra note 75, at 158–62.

Thus, to evaluate the Ziglar rule fairly, the question of its merit should be framed differently, as a balance between costs and benefits.  While the rule may be arbitrary, it has many benefits such as predictability, stability, assuring fairness to officials, and easing concerns about overdeterrence of effective government operations.  Given the benefits of rules, what substantive interests on the plaintiff’s side of the case are sacrificed under the Ziglar rule?  That is, what are its costs?  Notably in Harlow and many other cases, the Court identifies the plaintiff’s interest as “vindication” of rights and “deterrence” of constitutional violations.91457 U.S. 800, 814 (1982); see also Town of Newton v. Rumery, 480 U.S. 386, 395–96 (1987); Robertson v. Wegmann, 436 U.S. 584, 599–600 (1978); Carey v. Piphus, 435 U.S. 247, 255–56 (1978).  Can those costs be diminished by an approach that is less sweeping than that of Ziglar, without unduly sacrificing the fairness and social utility benefits that ruling provides?  The resolution of this question necessarily depends on value choices.  Neither the rigorous champion of remedying constitutional violations nor the hardcore advocate of effective government will have difficulty answering them, though in opposite directions.  Many judges, however, will find that their initial value judgments fall somewhere between the two extremes.  On the premise that there is value on both sides, the task is to draw distinctions between contexts in which the case for immunity is stronger or weaker.

There is no room for argument that a broad immunity rule like that of Ziglar will entirely block vindication of constitutional rights and deterrence of violations in some contexts.  When the constitutional violation is in the past, damages constitute the only viable remedy.  Courts will deny a request for an injunction or declaratory judgment unless a plaintiff can show a likelihood of recurrence;92See City of Los Angeles v. Lyons, 461 U.S. 95, 109 (1983) (emphasizing that unless a plaintiff is “realistically threatened by a repetition of his experience,” he cannot seek injunctive relief in federal court). City of Los Angeles v. Lyons93Id. at 107 n.7, 107–09; see, e.g., Updike v. Multnomah Cty., 870 F.3d 939, 947 (9th Cir. 2017). illustrates this theme.  In Lyons, the police put the plaintiff in a chokehold.94Lyons, 461 U.S. at 97–98.  He sued for both damages and an injunction, on the theory that the officer used excessive force.95Id.  The Court held that the suit for an injunction could not go forward, because Lyons could not show that he was likely to be choked again.96Id. at 105–06; id. at 111 (“Absent a sufficient likelihood that he will again be wronged in a similar way, Lyons is no more entitled to an injunction than any other citizen of Los Angeles; and a federal court may not entertain a claim by any or all citizens who no more than assert that certain practices of law enforcement officers are unconstitutional.”).  Yet there was no assurance that the police would not continue to use chokeholds.97Id. at 106 (finding that so long as the city did not condone the behavior, Lyons could not seek injunctive relief at the prospect that a rogue officer could use chokeholds in defiance of “city policy”).  A combination of a broad immunity-from-damages doctrine and this unavailability of prospective relief could eliminate any action that seeks to vindicate constitutional rights and deter constitutional violations.

The problem exists across a range of constitutional tort issues, so long as a plaintiff’s disagreeable encounter with the government is unlikely to be repeated.  Many constitutional tort suits involve random encounters with the police,98See, e.g., Pearson v. Callahan, 555 U.S. 223, 227–28 (2009); Anderson v. Creighton, 483 U.S. 635, 641–42 (1987). or complaints by inmates of their treatment by guards on a specific occasion,99See, e.g., Ziglar v. Abbasi, 137 S. Ct. 1843, 1853 (2017); Beers-Capitol v. Whetzel, 256 F.3d 120, 125 (3d Cir. 2001). or one-time decisions by high-level officers to fire or otherwise disadvantage government employees under their supervision.100See, e.g., Sheppard v. Beerman, 94 F.3d 823, 825–26 (2d Cir. 1996).  Typically, the Lyons requirement of likelihood of rec