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.

Police Accountability Is a Matter of Life and Death

One year ago today, George Floyd was murdered by armed agents of the state. Their employer, the Minneapolis Police Department, initially attributed Floyd’s death to a “medical incident,” for which officers had taken him to the hospital. But because 17‐​year‐​old Darnella Frazier captured the horrific incident on video—and perhaps only for that reason—we know what really happened: George Floyd was brutally asphyxiated by police over a period of nearly ten minutes while he called out for his mother and bystanders begged to intervene.

What’s most extraordinary about this travesty is not the flagrant abuse of authority, but the fact that one of the officers was actually held accountable for it. And after a year of furious, sometimes violent protests, that remains the key issue surrounding police reform in America: Accountability.

As Cato scholars and others have repeatedly explained, police cannot do their jobs effectively without the trust and support of the communities they serve. But public confidence in police is at an all time low, and that seriously impairs their ability to do the most important part of their jobs, which is not handing out traffic tickets, resolving domestic disputes, or making misdemeanor arrests for rinky‐​dink crimes like low‐​level drug possession, but keeping our neighborhoods safe from violence and theft.

Why is public confidence in police so low? Doubtless there are many reasons, including overcriminalizationracially disparate enforcement, and using cops to raise revenue through fines, fees, and forfeitures. But perhaps the most corrosive dynamic of all is the widespread—and entirely accurate—perception that instead of being held to a very high standard of accountability, police are held to a very low standard. And what is the cornerstone of this near‐​zero‐​accountability policy for law enforcement? The judge‐​made doctrine of qualified immunity.

As we explained when Cato launched its campaign to eliminate qualified immunity more than three years ago, qualified immunity is an illegitimate legal doctrine that not only discourages the filing of otherwise meritorious civil rights lawsuits, but routinely enables rights‐​violating police to avoid liability for even the most egregious acts of misconduct including stealing money while executing a search warrantbrutally assaulting the purported victim of a domestic violence incident at a public swimming pool, and shooting a ten‐​year‐​old boy in the back of the leg while negligently firing at a non‐​threatening family dog.

Incredibly, the Supreme Court allowed the lower court rulings in each of those—and many other equally egregious—cases to stand last June, less than one month after police murdered George Floyd in broad daylight on the streets of Minneapolis. The message was clear: Do not look to the Supreme Court to clean up the mess it made with its improvident foray into judicial policymaking.

To its credit, Congress appears to have received that message and has publicly committed itself to enacting some sort of police‐​reform legislation at the federal level. Yet here we are on the one‐​year anniversary of George Floyd’s death, and still Congress has done nothing. Frustrating though that may be, however, it’s better than the usual alternative, which is to duck the hard issues by enacting an essentially meaningless basket of window‐​dressing masquerading as real reform.

Not this time. This time, there is an unprecedented confluence of policymakersactivists, and thought‐​leaders from across the political spectrum who understand that accountability is the key to restoring public confidence in police, and that there can be no real accountability without repealing—or at least substantially reforming—the unlawful shield of qualified immunity.

Of course, nothing we do today will bring George Floyd back to life. But what we can do—what we must do—is everything in our power to purge the remaining Derek Chauvins from the ranks of law enforcement and ensure that for the violation of every right—every right—there is a remedy. We have never had a better opportunity to restore public faith in law enforcement by ensuring consistent, meaningful, and just accountability. Shame on us if we squander it. 

Qualified Immunity Is Still the Key to Real Police Reform

As we approach the one‐​year anniversary of George Floyd’s murder by Minneapolis police, Congress stands at a crossroads: It can deliver the real reform it has repeatedly promised by overhauling qualified immunity, or it can settle for a package of largely meaningless window dressing that leaves untouched our indefensible policy of near‐​zero accountability for police. From a purely policy standpoint, the choice is a no‐​brainer. As explained below, it’s good politics as well.

To briefly recap, there is bipartisan agreement that American policing stands in desperate need of reform, particularly with respect to excessive force, racial disparities, and accountability. Acknowledging the ongoing crisis of public confidence in police, Congress has spent the past year working to identify key problems and assessing proposed solutions. In the course of those discussions, a single issue has come to predominate: qualified immunity.

Qualified immunity is a judge‐​made defense that enables police and other government officials to escape liability for violating people’s rights unless there happens to be a preexisting case with nearly identical facts in the relevant jurisdiction such that the misconduct at issue was “clearly established.” This has enabled cops to escape liability for everything from stealing property while executing a search warrant to savaging an unresisting suspect with a police dog. And while the Supreme Court could in theory fix the mess it made with its unwarranted foray into judicial policymaking, that seems increasingly unlikely. Thus, it is up to Congress to decide whether to fulfill the promise of our nation’s preeminent civil rights law, colloquially referred to as “Section 1983,” which provides that state actors “shall be liable to the person injured” for the deprivation of any right—not merely those the judiciary deems “clearly established.”

To their immense credit, a diverse array of legislators have recognized the pathology of qualified immunity and have remained laser‐​focused on the need to repeal or substantially reform it in order to ensure proper police accountability. Not surprisingly, some members of law enforcement recoil at the prospect of real accountability and have deployed a number of strategies to defeat the push to overhaul qualified immunity. Essentially, those strategies involve a proposal to offer up an attractive basket of largely meaningless window dressing in exchange for kicking the qualified‐​immunity can down the road and leaving untouched our current policy of near‐​zero accountability for law enforcement. Policymakers should reject that offer and the baseless propaganda with which it has been promoted.

Perhaps the single greatest sticking point right now is the perception that the law‐​enforcement community is united in its opposition to qualified immunity reform. Not so. Indeed, just last week, the Major Cities Chiefs Association—an organization of 79 police chiefs, commissioners, and sheriffs representing the largest cities in the United States and Canada—released a statement that embraces a major overhaul to qualified immunity that would result in the elimination of the “clearly established law” standard and effectively gut the doctrine as a defense for rights‐​violating police. Adding the MCCA’s support for qualified‐​immunity reform to that of other police organizations, including the Law Enforcement Action Partnership and the National Organization of Black Law Enforcement Executives, means that it is no longer possible to say that the law enforcement community is unanimous in its opposition. By contrast, civil rights organizations across the ideological spectrum—from the ACLU and NAACP Legal Defense Fund to the Second Amendment Foundation and Alliance Defending Freedom are united in seeking to ensure real accountability by repealing or substantially reforming qualified immunity. That confluence of support from civil‐​rights and law enforcement organizations ought to translate into 60 votes in the Senate.

Notably, some Members have expressed concern about the impending anniversary of George Floyd’s death on May 25 and a desire to have a piece of legislation that Congress can send to the Biden White House for review and comment. But the best way to honor George Floyd’s memory is not to meet some arbitrary deadline but instead to ensure the sort of genuine accountability that might have seen his killer, Derek Chauvin, removed from the police force before he murdered anyone.

As noted, the window dressing being proposed by members of the law‐​enforcement lobby in exchange for caving on qualified immunity may look pretty, but it will have little real‐​world impact and certainly won’t address the most significant sources of public disillusionment with police. And the reason for that is simple. If, as they have proposed, police agree to dial back chokeholds and no‐​knock raids but then simply disregard those new policies—as former NYPD officer Daniel Panteleo did when he killed Eric Garner with a forbidden chokehold—how are they going to be held accountable? Even the proposal to hold departments, rather than rights‐​violating police themselves, liable for misconduct falls short because it destroys individual incentives to respect people’s rights and prevents victims from seeking redress from the person who harmed them. That is simply not the way to revive public confidence in police and assure people that police will be held to (at least) the same standard of accountability as the rest of us.

Make no mistake—this is a time of crisis for American policing and for our criminal justice system writ large. To perform their vital functions properly, those institutions must have the confidence and support of the public. But they do not, nor, according to record numbers of Americans, have they earned it. This is not a time for half‐​measures, window dressing, or rearranging the chairs on the deck of the ship. Americans have made clear that they demand real reform and real accountability from police. Fortunately, the path to real accountability is short and simple—simply repeal the illegitimate, judge‐​made doctrine of qualified immunity and embrace the ineluctably clear text of Section 1983, which provides a federal remedy for the deprivation of any right. 

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.”