Imagine that there is a law on the books criminalizing some behavior. It can be any law. Pick one. This law was enacted by the state legislature. It remains on the books. It has never been challenged. A local police officer arrests someone for violating that law.

If the law were potentially constitutionally problematic, we would expect the arrestee to challenge the statute and move for dismissal of the charges. Then one of two things might happen: the prosecutor might exercise discretion and drop any pending charges, or the prosecutor might continue with the charges and allow a judge to determine the constitutionality of the criminal statute.

Good so far?

Not so in the Eighth Circuit.

A basic misunderstanding of the doctrine of qualified immunity imperils the rule of law everywhere, inviting law enforcement officers to independently evaluate existing laws on the books and threaten them with lawsuits if they decide to enforce a law a court later finds unconstitutional.

Missouri had a flag-burning statute on the books (PDF). The statute had never been challenged. A police officer, acting on advice from another officer, obtained a warrant from a judge and arrested a man for burning a flag, a man who claimed he did so because “he hated the United States because it was the country’s fault that he could not find a job.” The prosecutor looked at the Supreme Court's decision in Texas v. Johnson and United States v. Eichman, decided to drop the charges.

Granted, Texas’s statute bears similarities to Missouri’s statute. But Texas v. Johnson certainly did not purport to settle the matter for all fifty states.

It has been of some amusement to legal academics, whose commentary reads something like, “Oh, those backwater Show-Me Staters near the boot heel. Don’t they know the totality of the contours of First Amendment law?” But perhaps one could be forgiven for thinking that, as a matter of common sense, burning the flag is not protected by the Free Speech Clause. As of 1989, forty-eight states and the federal government had flag desecration statutes. Some still have them today. And some flag desecration (the kind that doesn’t involve expressive conduct) may still be criminalized.

Alas, the First Amendment is not the stuff of common sense, and certainly not the stuff of popular opinion, but of law. And as a matter of law, the Supreme Court has interpreted the Free Speech Clause to protect the expressive conduct of burning the flag to make a political point.

Should it be known to a prosecutor, or a judge? Probably. To a law enforcement officer? There is the trickier part--but one the Eighth Circuit had no difficulty analyzing in a dramatic statement. The court informs law enforcement officers that they have an obligation to ignore a duly-enacted law, one that has never been formally challenged, based upon their independent conclusion that the law is unconstitutional under existing Supreme Court precedent.

The history of qualified immunity is not the cleanest. It traces back to the 1970s as the Court grappled with its existing precedent under a series of older cases that prohibited parties from suing states for monetary damages for constitutional violations. After the Kent State riots, the Court authorized suits against state officials in limited cases--that is, the officials' immunity from lawsuit was "qualified." As the Court explained, "[A] qualified immunity is available to officers of the executive branch of government, the variation being dependent upon the scope of discretion and responsibilities of the office and all the circumstances as they reasonably appeared at the time of the action on which liability is sought to be based. It is the existence of reasonable grounds for the belief formed at the time and in light of all the circumstances, coupled with good-faith belief, that affords a basis for qualified immunity of executive officers for acts performed in the course of official conduct."

These cases tend to be "excessive force" cases under the Fourth Amendment, for good reason: usually, they arise when a law enforcement official is arresting someone or processing someone in custody, and there arises a dispute as to whether the official acted within the permissible range of discretion of exceeded it unnecessarily. It arises when police officers search a home without a warrant and asks whether they were justified in doing so. And it arises in other contexts, including First Amendment or Due Process Claims.

But the law must also be "clearly established" for an officer to lose qualified immunity-that is, "'the contours of the right must be sufficiently clear that a reasonable official would understand that what he is doing violates that right. This is not to say that an official action is protected by qualified immunity unless the very action in question has previously been held unlawful, but it is to say that in the light of pre-existing law the unlawfulness must be apparent.'"

With that brief background, what of this case?

This case is not one in which the law enforcement officer is acting in his discretionary capacity--he is not making an employment decision, or using force to stop a fleeing suspect, or any of the other typical qualified immunity cases.

Instead, it is a case where there is a law, on the books, previously unchallenged in any judicial forum, and the law enforcement officer is enforcing that law.

The Eighth Circuit said that the law enforcement officer should not have enforced that law and could be sued for monetary damages for doing so.

Of course, isn't this a particularly egregious violation of "clearly established" precedent from the Supreme Court? Well, not exactly. Texas v. Johnson was a flag-burning case, yes, but it was an "as-applied" challenge--that is, flag burning statutes are not inherently (facially) unconstitutional, but only unconstitutional in limited circumstances. In that 1989 case, it was unconstitutional when it was applied solely to political speech.

In this case, for the officer at the time, were there other factors that might affect the analysis? That a neighbor call the police, suggesting a feud? That there was originally a litter ticket issues, suggesting a non-speech-oriented basis for the citation? We don't know. The parties concede that the citation ultimately issued was done so in violation of the First Amendment--but only after the prosecutor reviewed the charges and the relevant case law.

Instead, the Eighth Circuit would demand that the law enforcement officer make an ex ante decision about validity of a law and voluntarily refuse to enforce it--or face lawsuit.

The ramifications could be dramatic.

Imagine a state with a campaign finance law on its books that has aggregate contribution limits similar to those in McCutcheon v. FEC. May it enforce those laws? Or should local clerks independently abandon them, absent judicial review, for fear that complying with laws on the books may open them up to lawsuits?

The same scenario could hold true for a host of cases in the future--same-sex marriage statutes, death penalty statutes, and the like.

It might be the case that a court ducks by saying it was not "clearly established." But in a case like McCutcheon--which, even more so than Texas v. Johnson, was a facial challenge to a federal campaign finance law--it's hard to escape the applicability of precedent going forward.

In part, this is an overstatement of what the Supreme Court does. It handles the cases of individual litigants, perhaps disputing an individual statute. But to translate that quickly to a sweeping pronouncement of dozens of laws nationally implicating millions of Americans is not what it is doing. Stare decisis may suggest a future result; but that suggestion is not the kind of thing that ought to hold a law enforcement officer with the task of performing judicial review.

In closing, it might be that I hyperbolize slightly in this post, that I overuse adverbs, or that I'm the one, in fact, dramatically wrong. But given the unanimity of views laughing at the local Missouri law enforcement officials, I thought it would be valuable to highlight what I view as a very real problem with this qualified immunity analysis, and suggest that perhaps we don't want law enforcement officials to abandon their duty to enforce the law simply because the Supreme Court, in another case in another state in a similar situation, has spoken.