A little-noticed Iowa Supreme Court decision may leave Iowans more vulnerable to infringements of their constitutional rights.
Five justices held in Baldwin v. City of Estherville that government officials who can prove they "exercised all due care to conform with the requirements of the law" can't be sued for wrongful arrests or searches and seizures. Justice Edward Mansfield's majority opinion establishes qualified immunity for state constitutional law claims in Iowa. That legal concept means plaintiffs can't easily sue individual officials (such as police officers) for violating their rights. The U.S. Supreme Court's broad application of qualified immunity has become a hot topic of debate among legal scholars.
To my knowledge, no Iowa media have reported on Baldwin, which was overshadowed by higher-profile split decisions the state Supreme Court filed on the same day in June: namely, a landmark 5-2 abortion rights ruling and a 4-3 ruling that allowed a county attorney to return to his job despite a well-documented history of sexual harassment.
But dissenting Justice Brent Appel warned the Baldwin majority opinion may encourage abuses of power: "Rather than follow the state’s motto, 'Our Liberties We Prize and Our Rights We Will Maintain,' the majority follows an approach that suggests 'Our Liberties Are Transient and Our Rights Are Expendable.'" Professor Mark Kende, director of Drake University's Constitutional Law Center, told Bleeding Heartland last month that Baldwin could be an "'under the radar' big deal case."
This case reached the Iowa Supreme Court as a certified question from U.S. District Court Judge Mark Bennett, rather than coming up through the normal state court appeal process.
Greg Baldwin sued the city of Estherville (Emmet County) and two police officers after being arrested and charged for operating an ATV in a way that turned out to be legal. His lawsuit is pending in federal court. Bennett already ruled "the officers had qualified immunity for violating Baldwin’s rights under the U.S. Constitution." Since federal judges lack the authority to resolve matters of state law, he asked the Iowa justices to determine, "Can a defendant raise a defense of qualified immunity to an individual’s claim for damages for violation of article I, § 1 and § 8 of the Iowa Constitution?" Those passages protect "inalienable rights - among which are those of enjoying and defending life and liberty" and forbid "unreasonable seizures and searches."
Chief Justice Mark Cady and Justices Thomas Waterman, David Wiggins, and Bruce Zager joined the Mansfield opinion, which concluded, "A defendant who pleads and proves as an affirmative defense that he or she exercised all due care to conform with the requirements of the law is entitled to qualified immunity on an individual’s claim for damages for violation of article I, sections 1 and 8 of the Iowa Constitution."
Justice Daryl Hecht joined Appel's dissent, which argued, "there is no immunity available to shield the defendants from liability for the alleged harm caused by their constitutional torts [...]." Here's the full text of the 39-page majority opinion and 40-page dissent:
I enclose below highlights from the Mansfield and Appel opinions. The Iowa Judicial Branch website has links to briefs filed by all parties in Baldwin's case and a video of the oral arguments, where several justices indicated which legal questions were of particular concern.
Both the majority and dissenting opinions "were well done and make strong arguments," Kende observed, adding that Mansfield's position on qualified immunity "has support from some other states and federal law."
On the other hand, Kende pointed to "an important scholarly trend questioning the doctrine." UCLA law professor Joanna Schwartz and University of Chicago law professor William Baude are among those who have written extensively about the issue in recent months. Baude's article challenging the foundations of qualified immunity "has had a huge scholarly impact and beyond,” according to Kende. For example, the conservative Cato Institute has promoted Baude's perspective on what Cato considers an "unlawful assault on civil rights and police accountability" by the U.S. Supreme Court.
As Justice Appel points out in dissent, it is generally not a good thing for constitutional violations to be excused. Yet the majority endorses such a position in certain cases. And there is growing criticism of federal qualified immunity in surprising circles. It is also very difficult for plaintiffs to overcome qualified immunity, and even to draft complaints that survive dismissal, in federal court civil rights cases. [...]
We will have to see how the doctrine is implemented in Iowa. To put it another way, law enforcement has a tough job and deserves respect, but constitutional violations should not easily be immunized.
"STRICT DAMAGES LIABILITY FOR ANY CONSTITUTIONAL WRONG WOULD LEAD TO UNTENABLE RESULTS"
The Baldwin case raises a question not resolved in the groundbreaking 2017 ruling on a suit filed by former state Workers’ Compensation Commissioner Christopher Godfrey. Mansfield explained (p. 11),
Last year, in Godfrey, we held that the State of Iowa and state officials acting in their official capacities could be sued directly for violating article I, section 6 (the Iowa equal protection clause) and article I, section 9 (the Iowa due process clause), where state law does not provide an adequate compensatory damage remedy. [...] We concluded that with respect to discrimination based on sexual orientation, the Iowa Civil Rights Act provided an adequate remedy and thus no claim was available under article I, section 6. Id. at 881. We did not reach the same conclusion with respect to the due process violations alleged in the petition. Id. at 880–81
We expressly deferred consideration of whether qualified immunity applied to these constitutional tort claims. Id. at 879. That is the issue we are now asked to address.
Mansfield devoted sixteen pages to a review of case law from other states before developing his argument for "the proper approach in Iowa," beginning on page 28. The "three Iowa precedents we singled out in Godfrey for having recognized constitutional torts" all "involved bad faith conduct" by officials who had violated someone's constitutional rights. An 1852 high court ruling (predating the adoption of our state constitution in 1857) gave some public officials "a form of qualified immunity."
"Moreover, strict damages liability for any constitutional wrong would lead to untenable results," Mansfield argued. (p. 31) He summarized three relatively recent Iowa Supreme Court holdings. A 2012 decision granted qualified immunity to Department of Human Services employees who had removed a child from parental custody. A pair of cases from 1996 gave immunity to Department of Natural Resources officers who had issued hunting citations and to county supervisors accused of violating a plaintiff's constitutional rights "by not providing a safe environment at the jail."
We believe the government officials in these cases would be reluctant to fully perform their jobs if they could be found strictly liable for actions that happened to violate someone’s constitutional rights. There is a danger of overdeterrence. Search and seizure involves judgment calls. [...] The line between good police work and overzealous police work can be razor thin. It is certainly fair to exclude the evidence from any ensuing criminal proceeding whenever the line is crossed, even slightly. But if the law enforcement officer also is subject to a damage action, this could lead him or her to be reluctant to act at all in a gray area.5
And there would be no reason for anyone—including judges—to get special treatment. For example, in this particular case, the magistrate who issued the arrest warrant for Baldwin would be subject to a damages suit as well.
Mansfield pointed to a passage from a 2000 Iowa Supreme Court ruling as proof the court had already recognized officials acting in good faith would be immune from civil suits seeking monetary damages. The new standard emerges on pages 35-37:
Logically, the threshold of proof to stop an unconstitutional course of conduct ought to be less than the proof required to recover damages for it. [...]
If strict liability is not the correct standard, what is? For purposes of article I, sections 1 and 8, we are convinced that qualified immunity should be available to those defendants who plead and prove as an affirmative defense that they exercised all due care to conform to the requirements of the law. [...]
Proof of negligence, i.e., lack of due care, was required for comparable claims at common law at the time of adoption of Iowa’s Constitution. See Hetfield, 3 Greene at 585; Howe, 12 Iowa at 203–04. And it is still the basic tort standard today.
The majority noted that the burden of proof would be on defendants to show they exercised due care when committing any violations of a plaintiff's constitutional rights. On its final pages, the Mansfield opinion cited a 2013 article by University of Virginia law professor John Jeffries as supporting the majority's approach in Baldwin. A footnote approvingly quoted Jeffries: "some gap between constitutional rights and the damages remedy is a good thing. It is not a problem to be solved, but an asset to be preserved. Eliminating that gap entirely would have a baleful effect on the content and development of constitutional law."
"ACCORDING TO THE MAJORITY, THE EMPHASIS IN THE IOWA CONSTITUTION IS NOT ON RIGHTS BUT GOVERNMENT POWER"
The "fighting issue joined by the parties" is "whether Iowa should adopt a qualified immunity doctrine patterned after the one adopted by the United States Supreme Court," Appel wrote in his dissent. The city of Estherville, its police officers, and the State of Iowa (in an amicus curiae brief by the Attorney General's office) want the Iowa Supreme Court to follow federal doctrine. Appel isn't buying it. (pp. 44-5)
I begin by emphasizing that the policy-oriented federal doctrine of statutory qualified immunity does not provide a model for determining whether individuals are entitled to qualified immunity for Iowa constitutional torts. The federal doctrine of statutory qualified immunity progressively dilutes legal norms, embraces numerous false assumptions, fails to recognize the important role of juries in restraining government, and is inconsistent with important tenants [tenets] of Iowa law. We should not voluntarily drape our constitutional law with the heavy chains of indefensible doctrine. We should aim to eliminate fictions in our law and be honest and forthright on the important question of what happens when officers of the law commit constitutional wrongs that inflict serious reputational, emotional, and financial harms on our citizens.
2. It’s not the tail of the dog; it’s the dog. First, one must recognize what is at stake when a doctrine limits remedies available for a legal violation. The limitation of remedies is not a sideshow, collateral issue, or footnote in the development of the law. Remedial doctrine is at the heart of substantive law. [...]
A lack of remedy drives a stake in the heart of a substantive legal doctrine. [...] We should tread very carefully before we limit the scope of remedies for unconstitutional conduct because we are, in effect, cutting down the scope of the substantive rights involved. [...]
The notion that judges may create a “gap” between constitutional rights and the remedies afforded is untenable. The consequence of such a gap is to effectively reduce the constitutional protections afforded to the public. To the extent they are not enforced, the nice words in the constitution do not mean what they seem to mean.
Appel further argued that "search and seizure law is the last place" where courts should restrict plaintiffs from remedies, because "Constitutional protections related to search and seizure are fundamental to liberty." Alluding to some U.S. Supreme Court decisions that narrowed the application of the Fourth Amendment, Appel wrote, "We must recognize that this case falls squarely within the recent efforts to limit protections that citizens have from arbitrary government search and seizure actions." (p.47)
In addition, the dissenting opinion noted that "Article I, section 1 was purposefully placed at the beginning of the Bill of Rights. [...] It makes the point of emphasizing 'inalienable rights,' which, I take it, includes rights that cannot be abrogated by the legislature, or this court." (pp. 47-8)
Like article I, section 8, this constitutional provision is not the place to cut remedial corners. Indeed, it is an area requiring exceptional remedial vigilance.
In short, when citizens suffer potentially grievous harms from unconstitutional conduct in violation of article I, section 1 or article I, section 8, we should require the officials who engaged in the unconstitutional conduct to bear the burden of the loss. We should not allow the officials who engage in unconstitutional conduct to respond to the prayer of the harmed citizen with, “Aw, tough luck. Tut tut. Bye bye.”
Appel then reviewed precedents. The celebrated Wilkes cases of the 1760s involved some "very large money judgments" against officers of the Crown who conducted unlawful searches. For most of the 19th century, U.S. courts held sheriffs or peace officers liable for unconstitutional actions. Professor Baude's article questioning qualified immunity doctrine covers a lot of historical ground and informed the Baldwin dissent.
The majority opinion rests on a policy claim Appel finds "unbalanced": "without qualified immunity, the officials will be frozen because of fear of potential liability." (pp. 55-7)
If we are going to accept the premise that potential liability affects behavior, as advocates of immunities so fervently do, we need to look at the opposite side of the coin too, namely, if behavior is fundamentally affected by the imposition of tort liability, the removal of tort liability will also similarly impact behavior. If it is true that police conduct will be chilled by tort rules, then the granting of immunity will lead police to engage in more unconstitutional activities because they do not have to worry about potential liabilities. We must consider both halves of the deterrence walnut. [...]
Stay in your own lane: judicial legislation. Further, the jeremiads about chilling official conduct ring hollow. Advocates of sharp restrictions on judicial protection of individual rights generally are also advocates of legislative supremacy. Well, then let’s give the legislature the power to enact policy. To the extent that the legislature wishes to prevent lack of constitutional immunity from chilling police conduct, it may enact an indemnity statute. [...]
The federal courts have deprived the legislature of this policy choice by an aggressive imposition of judicially created immunity.
Appel didn't find any support in Iowa case law for granting immunity to officers who violate state constitutional rights. The 1852 and 1861 rulings Mansfield cited "involve judicial immunity, [...] a concept well-recognized at common law and distinct from a claim against officers engaged in search-and-seizure-type activities [...]. The majority opinion thus conflates apples and oranges." He disagreed with the majority's interpretation of other relevant Iowa cases as well, including the 2017 Godfrey plurality and concurrence.
From pages 70-1:
I conclude that we should not manufacture a qualified immunity doctrine for constitutional wrongs of public officials. Our state constitutional tradition places strong emphasis on the Bill of Rights. [...] There can simply be no doubt that limiting the remedies available for violations of constitutional provisions limits the substantive protections of those constitutional provisions for all practical purposes. [...]
There can be little doubt that the Bill of Rights in the Iowa Constitution was intentionally placed in article I to emphasize its primacy in the constitutional scheme. It precedes articles establishing executive and legislative powers. The notion that legislative powers in article III of the Iowa Constitution could eviscerate the Bill of Rights in article I is a topsy-turvy approach to our state constitutional structure. Further, the prominent English common law cases where government officials were found liable for search and seizure violations were well known in the colonies and to lawyers and judges at the time of the Iowa constitutional convention, as demonstrated by a citation to Entick by the Iowa Supreme Court in 1855. [...] Our early search and seizure cases tend to reinforce the notion that money judgments against officials were an appropriate way to compensate plaintiffs and deter future misconduct. [...] We should not dilute the remedy with a qualified immunity doctrine.
Appel was on fire as he explored other flaws in the majority's reasoning. (pp. 74-5)
The majority has created a “negligence” immunity to violations of search and seizure prohibitions under article I, section 8 of the Iowa Constitution, largely based on the work of Professor John Jeffries. As Professor Jeffries himself has noted, his approach “is opposed by the weight of academic opinion, which favors strict liability for all constitutional violations.” [...]
Rather than follow the state’s motto, “Our Liberties We Prize and Our Rights We Will Maintain,” the majority follows an approach that suggests “Our Liberties Are Transient and Our Rights Are Expendable.” There is no sound policy basis to adopt such a negligence exception under article I, section 8 of the Iowa Constitution, particularly when individual municipal officers are indemnified for most claims that arise out of their official acts. See Iowa Code § 670.8. The majority has no response to this point. And how interesting it is that while the majority is concerned that government conduct will be chilled, it is not at all concerned that by granting immunity, unconstitutional conduct may be encouraged. And wholly absent from the majority opinion is any concern at all for a citizen who may suffer grievous harm as a result of the unconstitutional conduct of a government official. In effect, the majority has moved article I of the Iowa Constitution from its place of primacy and made it article V, behind the provisions establishing executive and legislative power. According to the majority, the emphasis in the Iowa Constitution is not on rights but government power.
The dissent also expressed concern that the Iowa Supreme Court may use this negligence standard to "double count" reasonableness in future search and seizure cases. In other words, the court may consider not whether a police search was constitutional but rather, "Was it reasonable for the officer to believe his or her conduct was reasonable?" Such an approach would "geometrically" undermine enforcement of article 1, section 8.
In conclusion, Appel wrote,
The majority opinion is misguided. It does not mention the role of the historic Wilkes cases and the dramatic impact these cases had on American law—a part of history, apparently, that is best forgotten. It embraces a constitutional “gap” theory and fails to recognize that rights and remedies, as Justice Harlan so eloquently pointed out in Bivens, have a 1:1 correlation and that the reduction in the scope of remedies necessarily involves a reduction in the scope of the constitutional protections for citizens. [...] The majority speculatively declares that liability for damage caused by unconstitutional conduct may overdeter officials from engaging in their duties but remarkably fails to recognize that a nonliability rule may have an equal and opposite effect: underdeterrence of unconstitutional conduct. The majority’s finding that the speculative overdeterrence of actions of officials is weighty while the risk of underdeterrence of unconstitutional conduct infringing on individual rights is not mentioned at all, suggests a results-oriented jurisprudence that favors government officials who inflict unconstitutional harms over citizens who endure them. Further, the majority opinion ignores the fact that if overdeterrence is a problem, the legislature is free to provide indemnity for individual officers, which the Iowa legislature has largely done. [...] The majority fails to recognize that granting immunity to officials for unconstitutional conduct leaves the burden of the harm from that unconstitutional conduct on the injured citizen instead of on the officials acting unconstitutionally.