Clark Neily is vice president for criminal justice at the Cato Institute. His areas of interest include constitutional law, overcriminalization, civil forfeiture, police accountability, and gun rights. Neily is the author of Terms of Engagement, and contributed a chapter to Visions of Liberty. His writing has appeared in the Wall Street Journal, Forbes, and the Harvard Journal of Law and Public Policy amongst others. Neily is a frequent guest speaker and lecturer for the Federalist Society, Institute for Humane Studies, and American Constitution Society. He also teaches constitutional litigation and public‐​interest law at George Mason University’s Antonin Scalia Law School. Before joining Cato in 2017, Neily was a senior attorney and constitutional litigator at the Institute for Justice and director of the Institute’s Center for Judicial Engagement. Neily served as co‐​counsel in District of Columbia v. Heller, the historic case in which the Supreme Court held for the first time that the Second Amendment protects an individual right to own a gun for self‐​defense.

Why Cato Took on Qualified Immunity

On May 15th, the Supreme Court will make a momentous decision: Whether to take the first step towards ending our failed experiment with near‐​zero accountability for law enforcement. The cornerstone of that policy is a judge‐​made legal doctrine called qualified immunity, and the time has come to abandon it.

As ably explained by my colleague Jay Schweikert in multiple op‐​eds and blog posts, there are many reasons why SCOTUS should grant certiorari in one or more of the dozen qualified‐​immunity cases going to conference ten days from now. In this post, I want to explain why Cato’s Project on Criminal Justice chose to make the elimination of qualified immunity one of its top priorities, and why we’ve devoted more than half our resources to waging that battle since I took over the department three years ago.

On March 1, 2018, Cato held a forum with law professor Will Baude, author of the definitive article on the historical and textual illegitimacy of qualified immunity; Judge Lynn Adelman, one of the doctrine’s leading judicial critics; Andrew Pincus, a former Assistant to the Solicitor General and fierce opponent of qualified immunity; and Vic Glasberg, a prominent civil rights attorney. We noted that the forum “mark[ed] the beginning of Cato’s campaign to challenge and roll back qualified immunity,” a goal we’ve been laser‐​focused on ever since. But why?

In a word, accountability. As demonstrated by Paul and Sara Robinson in Pirates, Prisoners, and Lepers: Lessons from Life Outside the Law, civil society is impossible without a well‐​functioning criminal justice system. But in order to be well‐​functioning, it is not enough that a criminal justice system have the power to arrest, prosecute, and punish wrongdoers. The system must also be perceived by citizens as fundamentally legitimate and thus genuinely worthy of their confidence and support. But a growing number of Americans do not perceive our criminal justice system to be legitimate, and it does not enjoy their confidence or support.

Rather than catalogue the myriad ways in which our criminal justice system fails to live up to its middle name, I will address the one area in which the system has arguably most broken faith with the people of this country: Accountability.

Fundamentally, the job of law enforcement—meaning police, prosecutors, judges (in their sentencing role), and prison officials—is to hold citizens accountable for their misconduct. As noted, there are behaviors that threaten the very fabric of civil society, including murder, violent assaults, theft, and fraud. As a result, we must have some mechanism for declaring that certain things will not be tolerated and that people caught doing those things will be punished. Properly conceived, that is the job—and the only legitimate job—of criminal law.

Given that mission, it is difficult to imagine anything more delegitimizing than a law‐​enforcement community that insists upon being held to a vastly lower standard of accountability than the one it imposes on ordinary citizens. But that, unfortunately, is precisely what we have. Even more tragically, it is an unforced error caused by a misbegotten blunder into judicial policymaking by the Supreme Court. The good news is that the Court now has its best chance in more than a generation to begin repairing the system by getting rid of qualified immunity.

As explained on our Unlawful Shield website, qualified immunity is a legal doctrine that was invented from whole cloth by the Supreme Court in open defiance of Congress’s decision to provide people with a federal remedy for the “deprivation of any right[]” at the hands of a state actor. Misconstruing both historical practice and the realities of modern of law enforcement, the Court effectively amended our main civil rights law, known as Section 1983, by inserting the words “clearly established” between “any” and “right” so that a would‐​be civil rights plaintiff must show not only that her rights were violated by a government actor but also that there is a preexisting case in the relevant jurisdiction with nearly identical facts. Not surprisingly, that turns out to be practically impossible, which means police and other public officials routinely escape liability, even when everyone agrees they’ve acted unlawfully.

To say this has been a disaster for police accountability would be an understatement. To take just one of several egregious examples from the current Supreme Court term, a panel of the Ninth Circuit dismissed a homeowner’s lawsuit against police for allegedly stealing $225,000 in cash and rare coins from his bedroom while executing a search warrant. The three‐​judge panel held that while theft may be “morally wrong,” the officers could not be sued because the Ninth Circuit had never specifically considered the issue, and therefore the right not to have police steal your property while executing a search warrant was not “clearly established” in that jurisdiction.

The result of this aberrant legal doctrine is that police may shootbeatkill, and fatally neglect people in their custody, practically at will. Given the extraordinary power and discretion with which they are clothed, not to mention their specialized training, you might think police would be held to a much higher standard of responsibility than ordinary people, but you’d be mistaken; instead, the qualified immunity doctrine ensures that police and other government officials are held to a far lower standard than ordinary citizens when it comes to civil liability for their own misconduct.

The perverse result is that people who are in the business of imposing accountability on the rest of us are themselves among the least accountable people in the country. As explained in Cato’s “cross‐​ideological” brief that has been filed in support of five Supreme Court cert petitions, “qualified immunity…undermines accountability, harming citizens and public officials alike” and makes it more, not less, difficult for police to do their jobs.

This simply will not do in a country that proclaims equal justice under law and expects its citizens to obey criminal statutes as a matter of civic virtue rather than naked compulsion. The Supreme Court cannot fully repair the damage qualified immunity has done to the fabric of civil society during the half‐​century it has been on the books. But it can begin, as Shakespeare said, to “knit[] up the ravelled sleave of care.”