Posted by: captainfalcon | May 6, 2012

More on Qualified Immunity

From How Appealing, an interesting Ninth Circuit case reversing the Northern District of California’s denial of John Yoo’s motion to dismiss a Bivens and RFRA suit filed against him by Jose Padilla. Padilla sought nominal damages against John Yoo, alleging Yoo set in motion Padilla’s detention and interrogation and thereby violated Padilla’s due process and Eighth Amendment rights, for violations of which Bivens damages are available. (Bivens recognized a right to damages against federal agents acting in their official capacity who violated a plaintiff’s Fourth Amendment rights. Bivens has since been extended to the Eighth and Fifth Amendments.)

The Ninth Circuit ordered the suit dismissed on the grounds that Yoo enjoyed qualified immunity from suit. The black letter law of immunity for executive aides is that they enjoy immunity from suit arising from conduct that (i) was done in their official capacity (e.g. writing memos for OLC) and (ii) was not contrary to clearly established law of which the official should reasonably have been aware. In the qualified immunity context, “clearly established law” is law established either by controlling precedent in the jurisdiction (e.g. Supreme Court case law, or current case law from the Circuit where one is operating) or a consensus of persuasive precedent from sister jurisdictions. Abstract principles (e.g. “disproportionate punishment violates the Eighth Amendment”) do not make for clearly established law. Rather, as the Ninth Circuit explains the contours of the right must be sufficiently clear such that every “reasonable official would have understood that what he is doing violates that right.”

Applying this doctrine to Padilla’s suit against Yoo, the Ninth Circuit held that clearly established law between 2000 and 2003 did not show that Padilla enjoyed the constitutional rights he alleged Yoo violated. Ex Parte Quirin, a 1942 case, had denied that a United States citizens operating as a German agent and detained on United States soil enjoyed the right to trial by jury, and this was sufficient, the Ninth Circuit reasoned, to cast doubt on Padilla’s claims to constitutional rights. (Hamdi, which confirmed (or announced) that citizen’s designated enemy combatants and held on US soil enjoy certain constitutional rights (a) was decided in 2004 and (b) anyway does not clearly define the contours of the constitutional rights enjoyed.)

The Ninth Circuit also considered an alternative argument that, because Yoo authorized the use of torture on Padilla, he thereby triggering an exception to the requirement that clearly established law be fleshed out suitably enough that the contours of the right be defined. Even if no case is directly on point, Padilla argued, authorizing the torture of an American citizen is sufficiently egregious that it is clearly against the law. The Ninth Circuit recognized the exception, but rejected this argument on the grounds that the conduct to which Padilla was subject was not clearly torture at the time Yoo authorized it: “In 2001-03, there was general agreement that torture meant the intentional infliction of severe pain and suffering . . . The meaning of “severe pain or suffering,” however, was less clear in 2001-03.”

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