By Nana Dadzie Ghansah
If the 1967 Supreme Court ruling in the case Pierson vs Ray birthed the doctrine of “Qualified Immunity”, the 1982 decision Harlow vs Fitzgerald cemented the concept.
Background
In 1965, Lockheed was awarded the contract to build the C-5A Galaxy cargo plane for the Air Force. Even though Boeing had the best overall design, Lockheed had the lowest bid and thus won. Their bid was for $16 million per plane for a project total of $1.9 billion. In a few years, the cost of a plane amount would balloon to $40 million.
The project was plagued by technical difficulties and significant cost overruns which both Lockheed and the Pentagon hid from Congress. There was however an engineer and management analyst in the Department of the Air Force who knew how much more the project was costing taxpayers. He first discovered the cost overruns on a routine visit to the Lockheed complex in Marietta, GA in January 1966. He kept up with the overruns even though Lockheed tried to hide them. His name was Ernest Fitzgerald.
With time, Congress got wind of how expensive the C-5A project had gotten. On November 13, 1968, with the unexpected costs standing at $2.3 billion dollars over budget, Fitzgerald was invited to testify before Congress regarding these cost overruns.
Even though he was asked by the Air Force to not divulge any information about the cost overruns and problems at Lockheed, Fitzgerald did not heed that directive. His testimony was stunning. The Air Force brass was livid.
The initial congressional hearing occurred at the tail end of the Johnson presidency. The investigations and Fitzgerald’s appearances continued into 1969 with Nixon in office. In late May and early June of 1969, Fitzgerald testified four times before the House Armed Services Committee and the Joint Economic Committee at their request.
Now Fitzgerald’s testimonies were not only annoying the Air Force brass but also reportedly, President Nixon and three of his aides, Bryce Harlow, H.R. Haldeman, and Alexander Butterfield. They thought he was not a team player and needed to be removed from the Air Force.
Even before the president got involved, Fitzgerald was socially and professionally ostracized at the Pentagon after his initial testimony before Congress. Many of his assignments, especially those involving the C-5a were pulled and he did not get any new responsibilities. Led probably by the Air Force Secretary Robert C. Seamans and working together with the White House, he was secretly investigated, suffered a smear campaign, and was accused of divulging classified information. Finally, it was decided that the best way to get rid of him was to abolish his position in the Air Force. On November 4, 1969, Fitzgerald was notified that his job had been abolished in a reduction in force, and economic reorganization. His termination became effective on January 5, 1970.
He appealed his termination to the Civil Service Commission (CSC). He won his appeal and was reinstated to his Pentagon job with back pay in December 1973. However, he was not assigned to any more jobs that involved weapon systems. It was also during these CSC hearings that the role of the Nixon White House in Fitzgerald’s firing came to light.
In January of 1974, Fitzgerald filed a suit for damages in the United States District Court in Washington DC. The defendants were 8 officials of the Defense Department, White House aide Alexander Butterfield, and “one or more” unnamed “White House Aides” styled only as “John Does.” He alleged the defendants conspired “…to deprive him of constitutional and statutory rights resulting in permanent injury to his career and personal injury to his dignity, privacy, and reputation, as well as mental anguish.”
The district court dismissed the lawsuit under the statute of limitations. The Court of Appeals affirmed the lower court decision but reasoned that the defendant Alexander Butterfield, one of Nixon’s aides, might not be covered by the statute of limitations due to a memo he had written in 1970 and that had come to light during the Watergate hearings. The memo was written around the time Fitzgerald was fired. In the memo, Butterfield stated, “Fitzgerald is no doubt a top-notch cost expert, but he must be given very low marks in loyalty; and after all, loyalty is the name of the game. Butterfield went on to recommend that Fitzgerald should at least be made to “bleed for a while” before being offered another job in the administration. The Court of Appeals thus remanded the action against Butterfield for further proceedings in the District Court.
Following that and extensive discovery, Fitzgerald filed a second amended lawsuit in DC district court in July 1978. As defendants, he named the former President Nixon, White House aide Bryce Harlow and other officials of the Nixon administration. By March 1980, only three defendants remained: Richard Nixon and White House aides Harlow and Butterfield. Nixon and the other defendants claimed protection from qualified immunity. Moreover, Nixon claimed absolute immunity as he was president when the actions were taken. The district court ruled that the case could go to trial and that Nixon could not claim absolute Presidential immunity. He could only claim qualified immunity. Nixon and the other defendants appealed the ruling of the district court but the Court of Appeals upheld it.
Nixon vs Fitzgerald
On November 30, 1981, the lawsuit landed before the judges of the United States Supreme Court. By this time, the lawsuit against Nixon had been separated from that against Harlow and Butterfield. The question was, “Was the President immune from prosecution in a civil suit?”
On June 24, 1982, the judges decided in favor of Nixon. In a 5–4 decision, they ruled that the President “is entitled to absolute immunity from damages liability predicated on his official acts.” Justice Powell in writing the court’s opinion stated that absolute immunity was a function of the “President’s unique office, rooted in the constitutional tradition of separation of powers and supported by our history.” He also argued that “because of the singular importance of the president’s duties, diversion of his energies by concern with private lawsuits would raise unique risks to the effective functioning of government.” The court however also stated that the President is not immune from criminal charges stemming from his official (or unofficial) acts while in office.
Interestingly, in 1997, the SC in Clinton vs Jones would add that a President is subject to civil suits for actions committed before he assumes the presidency.
Harlow vs Fitzgerald
The other part of the lawsuit involving Harlow and Butterfield was heard separately by the judges in the same time span and became known as Harlow vs Fitzgerald. The question here was, “Are presidential aides entitled to immunity from civil suits?”
In an 8–1 majority, the judges held that government officials are entitled to qualified immunity but not absolute immunity. The court stated that “government officials performing discretionary functions, generally 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.”
In ruling this way, the judges were hoping to protect state actors from frivolous lawsuits that would dampen the desire for government workers to exercise their duties in cases where the legality of their actions is uncertain.
However, this has led to the unintended consequences that have not always been good and have challenged the civil rights law Section 1983.
For several years after the ruling government officials and policemen who violated the civil rights of others in new and novel ways and got sued, mostly got off free as the illegality of their actions had not been established. However, subsequent offenders did not always. Judges dealing with such cases had to conduct a two-step inquiry.
First was the question if the alleged facts show that, say, an officer’s conduct violated a constitutional right of a victim. Then the judge had to determine if the illegality of the officer’s actions was or was not “clearly established. If there was a precedent, then the action had been clearly established as being illegal and the officer did not get qualified immunity and could be sued. If there was no precedent, then he got qualified immunity. Unfortunately in the 2008 case Pearson vs Callahan, the judge ruled that this 2-step framework was not mandatory. Since then, a lot of judges have forsaken the 2-step process and are not even examining if a plaintiff’s civil rights were violated. Also, in looking at the illegality of officers’ actions, judges are giving them more leeway.
The Supreme Court ruling also gives government officials and policemen another advantage. Qualified immunity is usually invoked before the case goes to trial before a jury. In all other lawsuits, if the challenge a defendant brings up to prevent a trial fail, he/she cannot appeal the case before the trial is over. Yet, in cases involving qualified immunity, the officer or government official can appeal the denial of qualified immunity before the trial. This increases the time and cost of civil rights lawsuits against state actors thus making such cases unpopular with civil rights attorneys.
And even if the plaintiff prevails in a lawsuit, most jurisdictions indemnify police officers against having to pay compensation to victims. Like UCLA law professor Joanna Schwartz found out in a survey she did in 2014 for her NYU Law Review article “Police Indemnification, 44 large police departments, as well as 37 small and mid-sized agencies totally exempted their officers from paying for the damages of their misconduct. She found out in the study period of 2006 -11 “…governments paid approximately 99.98% of the dollars that plaintiffs recovered in lawsuits alleging civil rights violations by law enforcement.”
The Supreme Court created the doctrine of “Qualified Immunity”. It was not a law passed by Congress. No matter its intent, the doctrine has morphed into an instrument that allows some state actors to violate the civil rights of some of the nation’s citizens and escape the consequences of their actions. It is time for Congress to do something about it.