http://www.columbialawreview.org/assets/pdfs/111/7/Pfander.pdf
RESOLVING THE QUALIFIED IMMUNITY DILEMMA:
CONSTITUTIONAL TORT CLAIMS FOR
NOMINAL DAMAGES
James E. Pfander
*Under current law, government officers sued in their personal capacity
for constitutional torts enjoy qualified immunity from liability unless the conduct
in question violates clearly established law. The clear-law requirement
gives rise to the well-known “order of battle” dilemma; a court may dismiss
the action on the basis of unsettled law without clarifying the legal norm.
The Court had for some time attempted to compel greater clarity by directing
lower courts to address the claimed violation of constitutional right first, and
only then to consider the clarity with which it was established. In its 2009
decision in
Pearson v. Callahan
, however, the Court changed course. By
restoring the lower courts’ discretion to dismiss on the basis of legal uncertainty,
the Court has rekindled the debate over constitutional stagnation.
This Essay suggests that constitutional tort claimants should be permitted
to avoid the qualified immunity defense by pursuing claims for nominal
damages alone. Such nominal claims have a lengthy pedigree, both as a
common law analog to the declaratory judgment action and as a remedy for
constitutional violations. Because they do not threaten to impose personal
liability on official defendants, nominal claims should not give rise to a
qualified immunity defense. By seeking only nominal relief, litigants could
secure the vindication of their constitutional rights in cases where legal uncertainty
might otherwise lead to a dismissal. Such a regime could resolve the
qualified immunity dilemma, advancing the acknowledged interest in maintaining
a vibrant body of constitutional law without threatening officials
with liability for action taken in the shadow of unsettled law.
