Iowa's new qualified immunity law may not hold up in court

“Iowa’s law enforcement will always have my respect, and I will always have their back,” Governor Kim Reynolds declared while signing Senate File 342 on June 17. Sections 12 through 16 of the wide-ranging policing bill establish a “qualified immunity” standard for Iowa. Effective immediately upon the governor’s signature, state employees or law enforcement officers who violate individuals’ constitutional rights can be sued only if their conduct violated “clearly established” law, such that “every reasonable employee would have understood” the act was illegal.

The provisions were crafted to match decades-old federal qualified immunity standards, and to override an Iowa Supreme Court ruling that was more favorable to Iowans whose rights have been violated by police.

The new law will almost certainly be challenged. And while the conservative majority on the Iowa Supreme Court often defers to other branches of government, the justices may find that Senate File 342’s language on qualified immunity is incompatible with the Iowa Constitution.

UNDOING THE COURT’S ACTION IN BALDWIN

Baldwin v City of Estherville received little attention, in part because it was published on the same day in June 2018 that the Iowa Supreme Court handed down a blockbuster abortion rights ruling. At the end of this post I’ve enclosed the full text of the 39-page majority opinion and 40-page dissent in Baldwin.

When I covered this case nearly three years ago, I was focused on how the Baldwin majority created a standard that could excuse many kinds of official misconduct. Writing in dissent, Justice Brent Appel argued, “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.”

The context I missed at the time was that the Baldwin standard, set out by Justice Edward Mansfield in an opinion joined by four colleagues, was more favorable to those harmed than federal qualified immunity standards. The U.S. Supreme Court held in Harlow v. Fitgerald in 1982 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.”

The Harlow standard has led courts to dismiss many lawsuits prompted by outrageous misconduct. For instance, qualified immunity “protected a corrections officer who fondled the genitals of an inmate for no legitimate purpose.” In a 2014 case,

A naked, emotionally disturbed person who claimed to be God was tased repeatedly by officers in front of his home until he died. The police had been called to the location by the individual’s mother. In granting the officers Qualified Immunity, the circuit court held that although it was clearly established that non-violent, non-fleeing subjects should be free from multiple tasings, such law was not “clearly established” regarding a naked, aggressive person with no weapons.

David Deerson wrote in the National Review last year of a case where “police sicced their dog on Alexander Baxter, who was sitting on the ground, hands raised in surrender. We know from an earlier precedent that it is unconstitutional for police officers to release a dog on an unarmed suspect who is laying down on the ground, hands at his side.” Nevertheless, “The Sixth Circuit ruled that the officers in Baxter are immune from suit, leaving Baxter without redress for his injuries. Because the court declined to address the merits of his claim, the same impediment will exist for anybody who suffers a similar injury in the future.”

In contrast, the Iowa Supreme Court majority in Baldwin 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.” Section 1 protects “inalienable rights,” while Section 8 guarantees against “unreasonable seizures and searches.”

“THE SUPREME COURT GOT IT WRONG”

The Iowa Senate first approved the qualified immunity language as part of a different bill, Senate File 476. During the floor debate on March 8, State Senator Dan Dawson (a career law enforcement officer) asserted that the Supreme Court “got it wrong” in the Baldwin case, “and what we are trying to do is put this genie back in the bottle.”

House Republicans didn’t advance that bill but folded its qualified immunity provisions into Senate File 342, which the lower chamber debated for the first time on April 14. The floor manager, State Representative Jarad Klein, denied that the language was designed to protect “bad officers.” Rather, he said, legislators want to ensure that law enforcement officers acting within the scope of their duties are protected from lawsuits.

Raising his voice, Klein said, “But I’ll tell you right now, this is not protecting bad cops. In fact, nothing infuriates me more as a supporter of law enforcement than when we see those bad actors out there.”

The reality is that federal qualified immunity has protected many bad cops. Cops who destroyed a woman’s home, set a suicidal man on fire, or hired a jail guard who sexually assaulted a woman in custody.

Democrats predicted during the legislative debates that the bill’s qualified immunity provisions might not survive a court challenge.

“ALMOST CERTAINLY UNCONSTITUTIONAL”

Democratic State Senator Nate Boulton offered an amendment to the first qualified immunity bill debated this year. Introducing his proposal, which would have codified Baldwin, Boulton described “due care” as a “basic competence standard,” as opposed to federal qualified immunity standards, which would protect “extreme, outrageous misconduct” by police.

“It does not do a service to our law enforcement community to tell them that they should be protected by a standard that we know going into it is unconstitutional, and if it is constitutional, will protect egregious misconduct,” Boulton said.

In closing remarks advocating for his amendment, Boulton warned that “an unconstitutional standard,” which the Republican bill contained, would offer police “no meaningful protection.” He noted that most of Iowa’s law enforcement groups were not registered in support of the GOP bill and reminded Senate colleagues, “There’s a reason why our courts are saying you need due care in a standard where you allow immunity. It’s simple and it’s basic.”

Republican senators rejected Boulton’s amendment along party lines and sent the qualified immunity bill to the state House.

When House members debated the expanded policing bill in mid-April, Democratic State Representative Christina Bohannan raised similar concerns. Bohannan’s day job is being a University of Iowa law professor, and she noted that qualified immunity “is one of the most widely criticized doctrines in all of federal law,” opposed by organizations in all parts of the political spectrum.

Under the provisions of Senate File 342, no matter how egregious police misconduct may be, even if the officer used excessive force in violation of department policy, there is no liability unless the officer violated “clearly established law.” In the Baldwin case, Bohannan noted, the Iowa Supreme Court majority said the federal standard “puts too much weight on how clear the law is and too little weight on how clear the wrongdoing is. Which means that this qualified immunity part of the bill is almost certainly unconstitutional under the Iowa state constitution.”

IOWA ATTORNEYS EXPECT CHALLENGES

Andrew Mertens, deputy executive director of the Iowa Association for Justice, told Bleeding Heartland in April that if Senate File 342 became law,

there would absolutely be a viable constitutional challenge to the qualified immunity provision. As you know, in the Baldwin decision, the courts specifically rejected the language chosen by the legislature. Baldwin was based on an interpretation of the Iowa Constitution, which should not be overridden by legislation.

That is not a guarantee that the challenge would prevail, just to say that if this bill becomes law there will be a viable constitutional challenge to the qualified immunity provision just as soon as the right case and lower court decision comes along. 

I reached out to Jack Bjornstad, who represented the Baldwin plaintiff and has handled similar cases involving official misconduct. He told Bleeding Heartland this month he is “certain” the new law’s qualified immunity standards will be challenged.

“Of course, the Iowa Supreme Court will have the final word on whether SF342 and the Iowa Constitution are compatible,” Bjornstad said. But he flagged a passage from the Baldwin majority opinion “that appears to specifically reject the language of SF342.” (emphasis added)

As we have noted, a number of states allow Harlow immunity for direct constitutional claims. In those jurisdictions, there cannot be liability unless the defendant violated “clearly established . . . constitutional rights of which a reasonable person would have known.” Harlow, 457 U.S. at 818, 102 S. Ct. at 2738. Harlow examines objective reasonableness; thus, in some ways it resembles an immunity for officials who act with due care. However, it is centered on, and in our view gives undue weight to, one factor: how clear the underlying constitutional law was.

Bjornstad added, “In my experience, Iowans take their constitutional rights very seriously. […] I don’t think Iowans were clamoring for legislation that limits the enforcement of their constitutional rights. I don’t think the Baldwin decision was referenced in any legislative election campaign. Most Iowans would be shocked to find out that the legislature is limiting the enforcement of their constitutional rights.”

He said the Harlow standard had led to “hundreds of examples of absurd federal qualified immunity results.”

People who have had their homes destroyed by police who came to the wrong address get no help under federal qualified immunity. Children who were no threat who are shot by police get no help under federal qualified immunity. Folks who have their dogs shot and killed by police for no good reason get no help under federal qualified immunity. Innocent folks who get tased or attacked by police dogs for no good reason get no help under federal qualified immunity. […]

Iowa’s Baldwin standard helps real Iowans who have been unreasonably hurt by law enforcement. Baldwin helps them enforce their constitutional rights in a meaningful way. And, as you know, Baldwin protects officers too. It is only when officers act unreasonably that there is any sort of liability. Baldwin is a very common-sense standard that really does strike a common-sense balance. Under Baldwin, constitutional rights are protected. But officers are likewise protected when they act reasonably. That is the key to the balance that Baldwin struck. Common sense.

HOW MIGHT THE IOWA SUPREME COURT VIEW THE NEW LAW?

Predicting how judges might rule is risky business, especially since we don’t know the facts of any future case that tests Senate File 342. But assuming the right plaintiff hires a skillful attorney, there seems to be a realistic chance of getting the qualified immunity provisions struck down.

Only three justices who participated in Baldwin still serve on the Supreme Court. Justice Appel would surely reject the new qualified immunity provisions. Even the Baldwin standard was insufficient, in his view. Appel’s dissent quipped that instead of adhering to Iowa’s motto of “Our Liberties We Prize and Our Rights We Will Maintain,” the majority had followed an approach that suggests, “Our Liberties Are Transient and Our Rights Are Expendable.”

However, any case challenging the new law will probably not reach the Iowa Supreme Court before Appel reaches the mandatory retirement age in 2022.

That leaves Mansfield, who authored the Baldwin majority opinion, and Justice Thomas Waterman, who joined it. Both have typically deferred to the state legislature’s authority to set policy. On the other hand, they rejected the Harlow standard once, citing the state constitution, so may be persuaded to do it again.

Governor Reynolds has named four justices since the summer of 2018 and will appoint Appel’s replacement sometime next year. Although all of her appointees are considered conservatives, that doesn’t mean they will automatically uphold a law she signed. Many conservative voices in the legal community have called for abolishing or significantly scaling back federal qualified immunity.

Last week, Justice Christopher McDonald wrote for the majority that a Clear Lake police officer “conducted an unreasonable search and seizure in violation of article I, section 8 of the Iowa Constitution when he acted without a search warrant and removed opaque trash bags from waste bins set out for collection behind a residence,” then searched the bags. Reynolds appointees Dana Oxley and Matthew McDermott joined the opinion, and Appel concurred in part. Ryan Foley reported for the Associated Press, “The ruling overturned Iowa courts’ long adherence to a 1988 U.S. Supreme Court decision that found the U.S. Constitution’s Fourth Amendment does not prohibit the search of garbage outside one’s home.” Mansfield, Waterman, and Chief Justice Susan Christensen dissented in the case.

We can’t extrapolate from that case how the same justices would view a law designed to overturn Baldwin. But we can say that McDonald, Oxley, and McDermott don’t take a maximalist view of police authority to violate Iowans’ constitutional rights, nor are they beholden to federal case law on police powers.

I welcome insight from knowledgeable attorneys and will keep all private communications confidential.


Appendix: Majority opinion and dissent in Baldwin v City of Estherville

Top image: Governor Kim Reynolds signs Senate File 342 at the Iowa Law Enforcement Academy on June 17. Cropped from a photo posted on the governor’s Facebook page.

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