Earlier this week, the Supreme Court issued two unsigned opinions in Rivas-Villegas v. Cortesluna and City of Tahlequah v. Bond, both of which summarily reversed lower-court opinions that had denied qualified immunity to police officers. The reasoning in the two opinions was nearly identical – in both cases, the Court held that the officers were entitled to immunity because there were no prior judicial decisions with sufficiently similar facts as these cases. These decisions aren’t especially noteworthy on their own terms, but they do provide further evidence that the Court is unwilling to reconsider any fundamental aspect of qualified immunity. To the contrary, the ordinariness of these opinions itself suggests that the Court wants the core of the doctrine to remain unchanged from how it’s been applied for decades.

To understand the significance of these otherwise mundane decisions, it’s important to start with last term’s decision in Taylor v. Riojas. This per curiam opinion summarily reversed the Fifth Circuit’s grant of immunity to corrections officers who had kept a man in inhumane prison conditions, and it marked the first time in sixteen years that the Court held that official conduct violated “clearly established law.” As I discussed in detail here, this was a noteworthy development, as it reaffirmed the basic principle from Hope v. Pelzer — long thought to be effectively inoperative as binding precedent — that at least some sufficiently obvious constitutional violations do not require cases exactly on point to hold that the law was clearly established.

But, as I cautioned here, the Taylor decision — while perhaps indicating that the Justices want to cut back on the most egregious applications of the doctrine — also suggested that the Justices are not interested in reconsidering qualified immunity entirely. After all, the Taylor petition presented exactly that fundamental question, and the Court declined to hear it on the merits, just as it did with many similar petitions in June 2020.

Monday’s twin decisions provide further evidence that the Justices are not prepared to make major alterations to qualified immunity. Both cases involved claims against police officers alleged to have used excessive force, and the Court’s per curiam opinions were very similar:

• Rivas-Villegas involved a group of police officers who responded to a 911 call from a family claiming that the mother’s boyfriend, Ramon Cortesluna, was in their house with a chainsaw and might hurt them. The officers arrived, knocked on the door, and ordered Cortesluna to come out and drop his “weapon” (a metal tool). He did so, but the officers saw also that he had a knife in his pocket and shot him twice with a beanbag round when he didn’t comply with their instructions. As they went to handcuff him, one of the officers, Daniel Rivas-Villegas, briefly put his knee on Cortesluna’s back. The Ninth Circuit denied immunity to Rivas-Villegas, holding that circuit precedent also involving “suspects who were lying face-down on the ground and were not resisting either physically or verbally, on whose back the defendant officer leaned with a knee” put him on notice that his actions could constitute excessive force. But the Supreme Court reversed, holding that this prior case law was “materially distinguishable” because the facts of this case involved a more volatile situation.

• In City of Tahlequah, officers responded to a 911 call from a woman who said that her ex-husband, Dominic Rollice, was intoxicated and in her garage. When the officers arrived and started talking to Rollice, he went into the garage and grabbed a hammer from the back wall. The officers ordered him to drop it, but he took a few steps and raised it high above his head, at which point the officers shot and killed him. The Tenth Circuit denied immunity to the officers, holding that circuit precedent allowed claims for excessive force, even if a shooting is itself reasonable, when the officer’s own reckless or deliberate conduct created the need for deadly force. The Supreme Court reversed on the grounds that the lower court had failed to identify any precedent “finding a Fourth Amendment violation under similar circumstances.”

Taken on their own terms, neither case is especially noteworthy. Indeed, in my judgment, neither even involves a clear example of police misconduct in the first place! Both concerned officers responding to volatile situations with armed suspects, and while it’s perhaps debatable whether the respective uses of force were absolutely necessary, neither seems obviously unreasonable. In Rivas-Villegas, an officer put his knee on the back of an armed (albeit unresisting) suspect he was subduing for no more than 8 seconds. In City of Tahlequah, the force itself was deadly, but it was in response to a suspect who had picked up a weapon, refused to drop it, and seemed to be preparing to attack the officers with it. Perhaps there were still certain factual disputes that needed to be addressed by a jury, but putting qualified immunity to the side entirely, I suspect that both sets of defendants could have successfully argued that their conduct was not “objectively unreasonable” in the first place.

What is noteworthy, however, is that the Supreme Court made a point to emphasize in both opinions that “clearly established law” cannot be defined at a high level of generality, and that overcoming qualified immunity will usually require plaintiffs to identify prior cases with very similar facts as their own. Though this has long been black-letter law, it is also exactly the aspect of qualified immunity that so many were hoping the Court would reconsider, because it routinely does lead to absurd and unjust results. For example:

• In Baxter v. Bracey, the Sixth Circuit granted qualified immunity to two police officers who deployed a police dog against a suspect who had already surrendered and was sitting on the ground with his hands up. A prior case had already held that it was unlawful to use a police dog without warning against an unarmed suspect laying on the ground with his hands at his sides. But despite the apparent factual similarity, the Baxter court found this prior case insufficient to overcome qualified immunity because “Baxter does not point us to any case law suggesting that raising his hands, on its own, is enough to put [the defendant] on notice that a canine apprehension was unlawful in these circumstances.” In other words, prior case law holding unlawful the use of police dogs against non-threatening suspects who surrendered by laying on the ground did not “clearly establish” that it was unlawful to deploy police dogs against non-threatening suspects who surrendered by sitting on the ground with their hands up.

• In Latits v. Phillips, the Sixth Circuit granted immunity to a police officer who rammed his vehicle into the car of a fleeing suspect, drove the suspect off the road, then jumped out of his vehicle, ran up to the suspect’s window, and shot him three times in the chest, killing him. The court acknowledged that several prior cases had clearly established that “‘shooting a driver while positioned to the side of his fleeing car violates the Fourth Amendment, absent some indication suggesting that the driver poses more than a fleeting threat.’” Even though that statement would seem to govern this case exactly, the majority held that these prior cases were “distinguishable” because they “involved officers confronting a car in a parking lot and shooting the non-violent driver as he attempted to initiate flight,” whereas here “Phillips shot Latits after Latits led three police officers on a car chase for several minutes.” The lone dissenting judge in this case noted that “the degree of factual similarity that the majority’s approach requires is probably impossible for any plaintiff to meet.”

Thus, the Court seems to be using these two (relatively) innocuous cases to clarify more broadly that, despite Taylor v. Riojas, the degree of factual similarity necessary to overcome qualified immunity remains incredibly demanding, and the bar for demonstrating “obvious” constitutional violations remains incredibly high. While Taylor may help curb the very worst excesses of the doctrine (or perhaps more cynically, curb the applications of the doctrine so extreme that they embarrass the courts), qualified immunity doctrine will remain unchanged in run-of-the-mill cases.

However, to be ever-so-slightly optimistic about these developments, there is one aspect of Monday’s decisions that has alarmed people more than I think is warranted. In Rivas-Villegas, the per curiam opinion included the following passage (emphasis added):

Even assuming that controlling Circuit precedent clearly establishes law for purposes of §1983, LaLonde did not give fair notice to Rivas-Villegas. He is thus entitled to qualified immunity.

Steve Vladeck described this line as the Court “dropp[ing] a strong hint that *circuit* precedent may no longer be sufficient to provide ‘clearly established’ law,” which “would be a *huge* barrier to damages suits against government officers.” Ian Millhiser likewise wrote in his Vox article on this very question that “the Supreme Court is floating a change in course — one that would expand qualified immunity considerably.”

Far be it from me to be less than maximally cynical about the Supreme Court’s willingness to abet constitutional violations, but I think these fears are overstated. The Court’s acknowledgment of uncertainty on this doctrinal question is not, as Millhiser seems to suggest, a new idea, but a boilerplate line that has been part of Supreme Court decisions for years. See, e.g., Kisela v. Hughes, 138 S. Ct. 1148, 1153 (2018) (“‘[E]ven if a controlling circuit precedent could constitute clearly established law in these circumstances, it does not do so here.'” (quoting City & Cnty. of San Francisco v. Sheehan, 575 U.S. 600, 614 (2015))); Taylor v. Barkes, 575 U.S. 822, 826 (2015); Carroll v. Carman, 574 U.S. 13, 17 (2014) (same); Reichle v. Howards, 566 U.S. 658, 665-66 (2012) (same). Thus, I don’t see anything especially noteworthy about the Court repeating that boilerplate yet again.

Vladeck and Millhiser are certainly correct that if the Court did hold that only Supreme Court precedent could “clearly establish” constitutional rights, it would make overcoming qualified immunity virtually impossible, given how few cases the Court actually decides. But for precisely that reason, I think it’s unlikely the Court would take this step. Qualified immunity is one of the most legally dubious and heavily criticized doctrines in the history of the Republic, and as much as the Justices seem unwilling to reconsider it, neither do they seem interested in expanding it. After all, the key takeaway from Rivas-Villegas and City of Tahlequah seems to be that the Court doesn’t want to fundamentally change how qualified immunity is applied in the lower courts.

In summation, this week’s decisions are a discouraging but unsurprising indication that, as far as the Justices are concerned, qualified immunity is here to stay. Thus, until and unless Congress abolishes qualified immunity by legislation, public officials will continue to evade responsibility for violating people’s constitutional rights.

Yesterday, the IndyStar published an op-ed by Republican Senator Mike Braun on the subject: “The federal government should not reform local police departments.” On the whole, the piece is a jumble of contradictions, partisan mudslinging, and unseemly fawning over law enforcement. But wedged between all of that are also some grossly inaccurate policy arguments, the most important of which is Sen. Braun’s assertion that he opposes “any reform to the current doctrine of qualified immunity” because the doctrine “extends critical protections for law enforcement officers who are forced to act in split-second scenarios when lives are on the line.”

As I have explained over and over and over again, qualified immunity is not what protects officers from liability when they make “split-second decisions when lives are on the line.” The Fourth Amendment itself provides this protection, and it would continue doing so if we abolished qualified immunity tomorrow.

Though others may not know any better, Sen. Braun surely does. Indeed, last year, he was actually the first Republican to introduce qualified immunity reform in the Senate. His “Reforming Qualified Immunity Act”—which would have eliminated the “clearly established law” standard but replaced it with actual good-faith safe harbors—was premised on the idea that modern qualified immunity does not protect reasonable, good-faith decisions by police officers. As he correctly stated at the time:

While qualified immunity originally was intended to defend government employees acting with good faith, the doctrine has expanded to protect those acting well-outside the law if the allegedly deprived right has not yet been “clearly established” in the relevant jurisdiction.

Sen. Braun’s statement even cited the specific examples of Kelsay v. Ernst and Baxter v. Bracey, which, in his words, respectively granted immunity to officers who “[a]ssaulted and consequently broke the collarbone of an unarmed and nonviolent woman” and “[r]eleased a police dog on an unarmed person who had surrendered.”

Besides advancing baseless arguments that he himself has previously rejected, Sen. Braun fails to acknowledge, much less explain, his complete reversal on qualified immunity. To be sure, Sen. Braun shelved his own reform proposal last year after his disappointing appearance on Tucker Carlson. But until now, he’d given no indication that he’d abandoned all hope of reforming the doctrine in any respect. Unfortunately, the tenor of his op-ed suggests this about-face has more to do with politics than policy.

The central substantive theme of Sen. Braun’s op-ed is that the federal government should not be involved in policing reform. Here’s how he begins his piece:

[A]s discussions of policing reform continue to dominate the news and threaten to upend the policing profession and the protections afforded to those who wear the badge, two things are very clear to me: No one does a more difficult job than our nation’s law enforcement, and the federal government is not where these discussions should be taking place.

Except… he then immediately touts the virtues of Tim Scott’s JUSTICE Act, which would have done exactly that:

Last year, I signed on to U.S. Sen. Tim Scott’s JUSTICE Act, a reform bill that had the support of many national and state law enforcement groups.

The JUSTICE Act didn’t address qualified immunity, but it would have implemented a wide array of national policing reforms, including, in Tim Scott’s own words, “ending the use of chokeholds and increasing the use of body worn cameras” and facilitating training on “de-escalation of force and the duty to intervene.” While it didn’t go as far as the Justice in Policing Act and relied more on incentives than direct regulations, this clearly would have been major policing reform by the federal government.

Contradictions aside, it’s one thing to argue that Congress should not—and indeed, is not even constitutionally authorized to—directly regulate all local policing practices. Policing is, in some ways, a quintessentially local matter, and Congress shouldn’t decide every detail of how officers carry out their duties.

But Congress is authorized to protect constitutional rights. Section 1 of the Fourteenth Amendment protects people’s constitutional rights from being infringed by state and local governments, and Section 5 explicitly authorizes Congress to pass legislation to enforce that protection.

While there’s disagreement about the exact scope of this “Section 5 power,” its unambiguous core is Congress’s power to create a federal cause of action against state officials who violate constitutional rights—including police officers. That is exactly what Section 1983 was enacted to provide, and exactly what qualified immunity has severely undermined. Taken to its logical conclusion, Sen. Braun’s assertion that Congress should play no role in checking constitutional violations committed by state and local police is an argument against federal civil rights laws entirely, if not the Fourteenth Amendment itself.

Moving on, Sen. Braun spends several paragraphs criticizing the idea of “defunding the police” and attempting to tie this slogan as closely as possible to various Democratic leaders in Congress. For example:

Though top Democrats in Congress have tried to replace the radical left’s rallying cry of “Defund the police” with bureaucratic baloney as much as they can – likely after discovering the vast majority of Americans know that defunding our police is as foolish as it sounds – their end goal is the same: to divert funds away from police, make our communities less safe and demonize those who protect and serve.

There’s not much to say about this straw man except that yes, “defund the police” was a dumb slogan. But the major policing reform proposals before Congress—e.g., limiting the use of chokeholds and no-knock warrants, requiring body-worn cameras, restricting transfer of military equipment to local police, and of course, qualified immunity reform—have nothing to do with “defunding the police.”

In terms of qualified immunity itself, here’s the one paragraph in the op-ed discussing Sen. Braun’s current position on the issue:

While law enforcement has resoundingly rejected calls to modify or end qualified immunity, Democrats have continued to push for ending this protection. I oppose any reform to the current doctrine of qualified immunity, which I believe extends critical protections for law enforcement officers who are forced to act in split-second scenarios when lives are on the line.

As noted above, the idea that qualified immunity is needed to protect officers from liability for good-faith decisions in “split-second scenarios” is completely wrong. Some defenders of qualified immunity might assert such falsehoods out of genuine ignorance, but Sen. Braun presumably knows better. After all, he acknowledged less than a year ago that qualified immunity is a “misguided protection that has been extended to those who act under the color of the law to illegally deprive citizens of the rights, privileges, and immunities secured by the Constitution and our country’s laws.”

I want to focus now, however, on the first part of Braun’s statement above, where he notes that “law enforcement has resoundingly rejected calls to modify or end qualified immunity.”

As a threshold matter, this assertion is inaccurate. Since last year, groups like the Law Enforcement Action Partnership and National Organization of Black Law-Enforcement Executives have explicitly called upon Congress to eliminate qualified immunity, in part because of their recognition that the doctrine actually harms the law-enforcement community itself. And as I discussed in detail here, the Major Cities Chiefs Association—though once opposed to any qualified immunity reform—recently came out in support of major alterations to the doctrine.

Nevertheless, it is true that the bulk of the law-enforcement lobby does oppose qualified immunity reform (albeit by repeatedly asserting blatant untruths about the doctrine). Sen. Braun takes this opposition as dispositive that qualified immunity reform is a bad idea, asserting that “[a]ny federal reform package that cannot garner the support of law enforcement is not the right solution.” He comes back to this theme at the very end of his op-ed, concluding that:

Federal reform that cannot garner the support of law enforcement will be ineffective and put us further down the path toward defunding the police that has already jeopardized those who protect and serve our communities so much.

This premise, in my view, is about as persuasive as “defense contractors are opposed to any reduction in defense spending; therefore, Congress shouldn’t reduce defense spending.” If the very issue in question is whether a particular subset of government actors are committing routine constitutional violations—with no recourse for their victims—then it should be obvious that those very actors shouldn’t have the final word on whether there’s actually a problem.

Imagine, for example, that lawyers had somehow convinced the Supreme Court that they should be immune from malpractice suits, unless a prior judicial decision already held that the exact conduct they committed was malpractice. Suppose then, that this rule led to widespread attorney misconduct that caused devastating harm to clients, but left them with no legal remedy. And then suppose that Congress finally took up the question of whether this rule should maybe be reconsidered.

Would you take as dispositive “well, the bar associations like this immunity, so we definitely have to keep it”?

* * *

Over the last several years, I have written many pieces responding to bad arguments in favor of qualified immunity. This one, however, was perhaps the most disappointing to write. Mike Braun—once a leader on this issue—has abandoned reasonable, thoughtful policy solutions in favor of partisan posturing, and he has fully embraced the law-enforcement lobby’s chief argument in support of qualified immunity, which he surely knows to be baseless. Hopefully the others in Congress will prove to be made of sterner stuff.

The Major Cities Chiefs Association (“MCCA”) is an organization of 79 police chiefs, commissioners, and sheriffs representing the largest cities in the United States and Canada. Last year, I wrote about how the MCCA put out a misleading “Law Enforcement Reform Policy Statement,” which said that the organization “opposes repealing or amending the qualified immunity statute” (even though, of course, there is no qualified immunity statute).

Now, however, the MCCA has changed its tune. Just yesterday, the organization released an extraordinary “Qualified Immunity Reform Policy Statement” that recommends major alterations to the doctrine, while also arguing it shouldn’t be eliminated entirely. The statement characterizes its suggested reforms rather modestly, explaining that “[w]hile the MCCA opposes the elimination of qualified immunity, the MCCA supports reforming the doctrine to better promote transparency and accountability.” But the details of the statement make clear that the MCCA is effectively suggesting no less than the elimination of the central feature of modern qualified immunity—the notorious “clearly established law” standard.

As a threshold matter, I’ll note that while the MCCA statement is much more accurate than many similar statements from the law‐​enforcement lobby, it’s still misleading in one crucial respect—it repeatedly suggests that qualified immunity protects police officers who are reasonably acting in good faith. For example, in the “Background” section, the MCCA states:

While there have been calls for the complete elimination of qualified immunity, the doctrine should provide law enforcement officers who act in an objectively reasonable manner with the protections necessary for them to discharge their duties effectively.

And the first of the MCCA’s “Key Principles” is:

Law enforcement officers must continue to have access to the necessary protections to allow them to do their jobs without fear of retribution for actions that are objectively reasonable and performed in good faith

As I have explained many, many, many, many, many times, qualified immunity is not a good‐​faith defense. Whether or not defendants receive qualified immunity has nothing to do with whether they were actually acting in good faith, or even with whether they intended to violate someone’s rights—all that matters is whether the defendant violated “clearly established law,” which generally means, whether there’s a prior judicial decision in the relevant jurisdiction concerning the same fact pattern.

Now, the MCCA is entirely correct that police officers are and should be protected from liability “for actions that are objectively reasonable and performed in good faith.” But that protection comes from the Fourth Amendment, not from qualified immunity. Indeed, the “objective reasonableness” standard that the MCCA highlights is taken directly from Fourth Amendment case law, which makes clear that when officers act objectively reasonably, they’re not violating anyone’s rights in the first place. Thus, by definition, officers don’t need qualified immunity to protect them from liability in such cases.

Nevertheless, despite this moderate imprecision, it’s clear the MCCA is keenly aware of exactly what is wrong with qualified immunity—the “clearly established law” standard. Under “Current Challenges” the statement says the following (emphasis added):

The MCCA acknowledges that courts’ current interpretation of qualified immunity has made it difficult for plaintiffs to prove their constitutional rights were violated in some cases. In order for a court to find that qualified immunity does not apply, plaintiffs need to demonstrate that their rights were violated and that it was clearly established at the time of the incident that the officer’s actions violated those rights. To prove this, plaintiffs must point to a previous case in the relevant jurisdiction, with a substantially similar set of facts, in which the court determined an officer’s conduct violated an individual’s constitutional rights.

The MCCA then reinforces its opposition to “clearly established law” in its “Qualified Immunity Reform Policy Statement” section, which says:

Plaintiffs should not have to point to a previous case with a substantially similar set of facts to prove their rights were violated.

I can’t tell you how refreshing it is to see the MCCA correctly recognize that “clearly established law” requires a case with functionally identical facts. My only quibble is with the phrase “courts’ current interpretation of qualified immunity,” which seems to suggest that this requirement is something of an aberration or distortion of the doctrine. To the contrary, this is the ordinary functioning of qualified immunity.

Perhaps the most interesting feature of this statement is that the MCCA doesn’t just describe its position in the abstract. It actually goes on to identify four distinct qualified immunity cases that would come out differently under its proposed “reform” to the doctrine—all of which happen to be cases I’ve previously written about and in which Cato filed amicus briefs. They are:

• Baxter v. Bracey. This is the case where the Sixth Circuit granted immunity to two officers who deployed a police dog against a suspect who had surrendered and was sitting on the ground with his hands up. A prior case had already found unlawful the use of a police dog without warning against an unarmed suspect laying on the ground with his hands at his sides. But despite the apparent factual similarity, the court still held that the law was not “clearly established,” because the suspect in the prior case was laying on the ground, whereas Baxter was sitting on the ground with his hands up.

• Kelsay v. Ernst. This is the case where the Eighth Circuit, in an 8–4 en banc decision, granted immunity to a police officer who grabbed a small woman in a bear hug and slammed her to the ground, breaking her collarbone and knocking her unconscious, all because she walked away from him after he told her to “get back here.” The court held that the law was not “clearly established” because there was no prior case specifically holding that an officer was not permitted to use a “takedown maneuver” on “a suspect who ignored an officer’s command and walked away.”

• Corbitt v. Vickers. This is the case where the Eleventh Circuit granted immunity to a deputy sheriff who shot a ten‐​year‐​old child lying on the ground, while repeatedly attempting to shoot a pet dog that wasn’t posing any threat. The court held that the law was not “clearly established” because there was no prior case law involving the “unique facts of this case,” in which a child was accidentally shot while the officer was intending to shoot someone (or something) else.

• Frasier v. Evans. This is the recent case in which the Tenth Circuit granted immunity to several officers who harassed, threatened to arrest, and conducted an illegal search of Levi Frasier, all because Frasier had been recording them making a drug arrest. These officers had actual knowledge they were violating Frasier’s rights, because they had, for years, received explicit training that citizens have a First Amendment right to record the police in public. But they still received immunity, because even though four circuits had already held that such conduct was unconstitutional, this particular right was not yet “clearly established” in the Tenth Circuit, where this violation occurred.

The MCCA modestly describes its proposed standard as denying qualified immunity “where an officer has fair notice that their conduct violates a constitutional right or the officer’s conduct was not objectively reasonable.” But if Baxter, Kelsay, Corbitt, and Frasier all come out differently under this standard, then this reform is no modest tinkering; it is a fundamental reshaping of what qualified immunity actually is.

On the whole, the MCCA’s fundamental concern seems to be that officers who are acting in good faith and reasonably pursuing lawful objectives should not be civilly liable. I wholeheartedly agree. But as I described above, the hallmark of the Fourth Amendment itself is “reasonableness,” which means that actual good‐​faith mistakes of judgment don’t violate anyone’s rights to begin with, making qualified immunity irrelevant.

So what’s left then? If the MCCA wants to reform, but not eliminate qualified immunity, what’s the zone where they think police officers should still be immune from personal liability, even if they do violate people’s rights? The statement doesn’t give a clear answer, but one possibility would be the sort of “good‐​faith safe harbors” that were included in Senator Mike Braun’s reform bill from last year, and which I discussed at the end of this post. Congress could excise the “clearly established law” standard, create shared liability between officers and departments, but clarify also that officers can’t be individually liable if they were reasonably relying on state law, judicial precedent, or department policy.

In sum, though we can debate the exact details, the MCCA’s statement makes plain that there are “compromise” approaches to qualified immunity that accord with reasonable concerns from police organizations, but that still meaningfully address the most fundamental problems with the doctrine. If even the law‐​enforcement lobby can get on board with such an approach, there’s no reason Congress can’t as well.

At the end of March, the New York City Council passed city-level qualified immunity reform, allowing civil suits against police officers that violate people’s Fourth Amendment rights, and explicitly providing that qualified immunity is not a defense. And though the law has yet to take effect, it has already provoked a clear response from the police unions that represent NYPD officers, in the form of a letter sent to all their members.

This astonishing letter, though it laments the elimination of qualified immunity, actually makes the clearest and most persuasive argument possible in favor of qualified immunity reform. Its core message is to inform officers that, in the absence of qualified immunity, they will now actually have to avoid violating people’s constitutional rights.

I touched on this letter in my post last week on why employer liability is not an adequate solution to qualified immunity, and Chad Reese discussed it in his op-ed on how “New York’s qualified immunity reforms are paying dividends.” But it’s worth examining in detail, both to identify and correct its misrepresentations about qualified immunity, but also to fully explain how this letter is clear evidence that qualified immunity reform is both effective and necessary.

As a threshold matter, the letter correctly explains the mechanics of how the new NYC law will work, but when it describes qualified immunity itself, it does so in terms that are technically accurate, but highly misleading. Let’s go line by line through the relevant paragraph:

Qualified immunity is a judicially created defense that protects all government employees, not just police officers, from liability.

So far so good. Indeed, I appreciate the union attorneys’ implicit recognition that qualified immunity was invented by the Supreme Court, and they’re correct that it applies broadly to all public officials, not just the police.

Qualified immunity means that government employees are immune from lawsuits if they acted reasonably and not in violation of a “clearly established statutory or constitutional right.” It is designed to protect all government employees and officials from lawsuits and liability when they perform their duties in good faith and within what one reasonably believes to be the scope of existing law.

This language is a mostly correct restatement of qualified immunity doctrine, but it’s highly misleading. In Harlow v. Fitzgerald—the 1982 decision that established modern qualified immunity—the Court held that public officials “are shielded from liability for civil damages insofar as their conduct does not violate clearly established statutory or constitutional rights,” and it characterized this as an “objective” good-faith standard. That’s essentially what the letter is saying.

The problem, however, is that “reasonableness” and “good faith”—in the context of qualified immunity—don’t actually have anything to do with whether the defendant was, in fact, acting reasonably or in good faith. As I explained in more detail here, qualified immunity protects defendants who knowingly violate people’s constitutional rights, so long as there’s not a prior judicial decision in the relevant jurisdiction concerning the same fact pattern. So while courts use terms like “good faith” and “reasonableness” to describe the doctrine, those terms don’t mean what any ordinary person would understand them to mean—which is why the unions’ letter is so misleading.

Unless there is clearly established law to the contrary, qualified immunity protects your good-faith actions and allows you the freedom to make decisions and take action without fear of being sued.

Here’s where the letter transitions from misleading to outright misrepresentation (which, unfortunately, is typical for the law enforcement lobby). The union attorneys are clearly drawing on the oft-repeated refrain that qualified immunity is necessary to protect the discretion of officers to make split-second decisions, without being judged with the benefit of hindsight. As I explained in more detail here, this is simply untrue. The discretion of police officers to “make decisions and take action without fear of being sued” is protected by the Fourth Amendment itself, not qualified immunity.

The Supreme Court has made crystal clear that when police officers make reasonable decisions to pursue lawful objectives, they haven’t violated the Fourth Amendment at all—even if, with the benefit of hindsight, those decisions were “wrong.” Officers who are genuinely acting in good faith aren’t violating anyone’s rights in the first place, so by definition, they don’t need qualified immunity to protect them. By suggesting otherwise to their members, these unions are engaged in reckless, dishonest fearmongering.

With those clarifications and corrections out of the way, let’s get to the key advice that the union attorneys are offering to their members. In this respect, the union attorneys actually demonstrated remarkable candor, as they unknowingly made the single most persuasive argument for qualified immunity reform. Here’s what they said (emphasis in original):

As a direct result of the passage of this law, and the unavailability of the defense of qualified immunity under its provisions, we advise that you proceed with caution when taking any police action which could lead to physical engagement with any person, and avoid physical engagement to the greatest extent possible while also assuring your own safety and the safety of others. Also, you are strongly cautioned against engaging in any stop & frisk (unless doing so for your own or others’ safety), search of a car, residence, or person unless you are certain that you are clearly and unequivocally within the bounds of the law . . . . 

In other words, now that officers no longer have qualified immunity, they actually need to be careful to avoid violating people’s rights!

Consider the incredible implications of this advice. Without qualified immunity, officers will now need to “proceed with caution” when using physical force—were they not already exercising caution to begin with? Without qualified immunity, officers should avoid “engaging in any stop & frisk (unless doing so for your own or others’ safety”)—even though a “frisk” (i.e., a patdown) is never justified without reasonable suspicion that a subject is armed and dangerous. And without qualified immunity, officers will need to be “certain” they are acting lawfully before conducting a search—how much consideration were officers previously giving to ensuring their searches were lawful?

The NYPD’s police unions could hardly have given us better evidence that qualified immunity reform is both necessary and effective. In response to those who have claimed that abolishing qualified immunity won’t alter police behavior (which I discussed in more detail here), well, just look at what happened—police unions are instructing officers to change their behavior before this law even goes into effect. In response to those who have claimed that employer liability is a sufficient alternative to qualified immunity reform, again, read the letter—it is precisely because individual officers have skin in the game (and because indemnification is not guaranteed) that this advice was even necessary.

While I find the lack of self-awareness in this letter to be truly stunning, I’m genuinely grateful to these union attorneys for giving us such clear evidence at such a crucial juncture. States around the country are considering qualified immunity reform, and key members of Congress are continuing to negotiate a “compromise” on the issue, the details of which we have yet to see. We are truly on the razor’s edge, to borrow the title of the Reuters panel I participated in today. If national qualified immunity reform is ultimately successful, it may well be due to the critical—albeit unintentional—contribution of the NYPD’s police unions.

In the wake of Derek Chauvin’s conviction for killing George Floyd, policing reform continues to be debated in Congress, and a bipartisan group of legislators is making progress toward a solution on the key issue of qualified immunity. Last week, Republican Senator Tim Scott proposed, as a possible compromise, the idea of shifting financial responsibility away from individual officers and onto police departments themselves. Though his public statements and news reports don’t provide many details at this point, they seem to suggest a view that qualified immunity should not preclude plaintiffs from recovering damages in civil rights cases, but that only police departments, not individual officers, should be financially liable for such damages.

The fact that Tim Scott—who last year introduced a policing reform bill that did not address qualified immunity at all—is proposing even this much is a sign of just how much progress has been made in these discussions. And at first blush, employer liability sounds like a tempting solution to both the practical and political challenges of qualified immunity: it gives victims of police misconduct the ability to recover damages, while sidestepping the political controversy around suing officers personally when they violate people’s rights.

The problem, however, is that relying solely on employer liability also sidesteps the individualized accountability that civil rights laws like Section 1983 are intended to provide, but which qualified immunity has severely undermined. Employer liability is an important part of the solution, but it must be a supplement to qualified immunity reform, not an alternative to it. In the remainder of this post, I’ll explain in detail several related reasons why employer liability alone would be an ineffective and possibly even counter‐​productive “compromise” on this issue.

1. Employer liability doesn’t give officers individualized incentives to respect people’s constitutional rights.

Civil rights laws like Section 1983 have both a remedial and a deterrent purpose. Victims whose rights are violated deserve a remedy, but the existence of that remedy is also supposed to deter individual actors from violating people’s rights in the first place. Qualified immunity has sabotaged both of these purposes, but employer liability only addresses the remedial side of this calculus.

If police officers are told, in essence, not just that they’re protected by qualified immunity, but that they can’t be held liable for rights violations at all, that hardly gives them the best incentives to ensure they respect people’s constitutional rights. To the contrary, it could make matters worse. Even if victims have an easier time recovering money damages under an employer‐​liability‐​only regime, the total number of rights violations might go up, not down, if the officers who commit these violations are off the hook entirely.

Of course, even today police officers are nearly always indemnified by their employers for settlements or judgments in civil rights cases. Thus, one could argue that employer liability doesn’t undercut individualized incentives any more than our current regime, in which officers almost never pay a penny anyways. This is the argument I understand Billy Binion to be making in his recent article on the subject, in which he quotes Joanna Schwartz to say that “requiring the city to bear the costs of these suits, instead of officers … would make transparent what already happens in over 99 percent of cases.”

But there’s a major difference between some skin in the game, and no skin in the game. Yes, officers are usually indemnified, but indemnification isn’t guaranteed, which means officers must keep in mind that there’s still an outer‐​bound of misconduct for which they might actually face personal consequences. As Schwartz herself notes, “indemnification statutes aren’t watertight” and “officers can be denied indemnification in some states it they acted ‘maliciously’ or if punitive damages are awarded against them.” Indemnification may somewhat temper individual officer incentives, but an employer‐​liability‐​only approach removes those incentives entirely.

Indeed, we don’t have to speculate about whether the possibility of individual liability affects officer incentives—we’re already seeing the evidence of that from state‐​level qualified immunity reform. In response to the civil rights law passed by the New York City Council at the end of March, the NYPD’s union recently sent a letter to its members, informing them that—in the absence of qualified immunity—officers will now actually have to avoid violating people’s rights.

Here’s the most critical excerpt from this astonishing letter:

As a direct result of the passage of this law, and the unavailability of the defense of qualified immunity under its provisions, we advise that you proceed with caution when taking any police action which could lead to physical engagement with any person, and avoid physical engagement to the greatest extent possible while also assuring your own safety and the safety of others. Also, you are strongly cautioned against engaging in any stop & frisk (unless doing so for your own or others’ safety), search of a car, residence, or person unless you are certain that you are clearly and unequivocally within the bounds of the law .…

“In other words,” as IJ’s Chad Reese explains in an op‐​ed today, “when you remove qualified immunity, police officers start taking constitutional rights more seriously.”

It is rather stunning to see a police union openly acknowledge that, without qualified immunity reform, officers would not need to “proceed with caution” when using force against citizens, nor worry too much about whether their searches were lawful. It’s likewise stunning to see the law‐​enforcement lobby so candidly characterize the need for officers to respect people’s rights as a lamentable burden—in the union attorneys’ own words, the possibility of officers being sued for rights violations is “a reality of our job that is made worse by this law and the City’s increasing propensity to decline indemnification to our officers.”

What is not stunning, however, is the common‐​sense notion that giving people a financial incentive to avoid unlawful behavior deters that behavior. That is a feature, not a bug, of Section 1983, and any reform of qualified immunity must ensure that these incentives are corrected. Employer liability, on its own, does not do that.

2. Employer liability does not remedy how qualified immunity has undermined public trust in police officers.

It shouldn’t be a surprise to anyone who has turned on the news in the last several years that we are in the midst of a national crisis of confidence in law enforcement. Gallup reported last summer that, for the first time in the history of its polling, a majority of Americans do not have faith in the police. This plummeting confidence is fueled by the fact that police officers are rarely held accountable when they commit misconduct—and that lack of accountability, of course, is largely the product of qualified immunity.

Qualified immunity therefore deprives police officers of the public trust and confidence that is necessary for them to do their jobs. As explained in a recent letter by the Law Enforcement Action Partnership: “Trusting relationships between police and civilians are not just a preference; they are a requirement for public safety. Without these relationships, police are left to investigate crimes with little to no help from the people we serve. People have so little trust in us that a majority of violent crimes go unreported, even by victims themselves.” Thus, far from protecting professional police officers, qualified immunity is actually making their jobs harder.

Making police departments liable instead of individual officers doesn’t fix this problem. Yes, employer liability would at least ensure that victims of misconduct would be financially compensated, but civil rights lawsuits aren’t just about money. They also allow people to vindicate their rights by getting formal recognition from the system when a public official has wronged them. There’s a reason the victims of violent crimes care about whether their offenders are criminally convicted, even though a conviction doesn’t put money in their pocket. The same is true of civil rights plaintiffs, even though their cases also involve money damages.

A “solution” to police accountability that makes it impossible to hold officers liable is not just misguided; it’s a step backwards. Public trust in law enforcement is low enough already, and it will hardly help matters to say to the public, “In response to your concerns, we’re actually going to make it impossible to hold officers liable for rights violations—but don’t worry, you, the taxpayer will now be on the hook financially for their misconduct!” We owe it to both the victims of police misconduct and to professional, rights‐​respecting officers to find a solution that helps restore public trust in the police, not one that will create even more animosity.

3. Shared liability between officers and police departments is better than employer liability only.

As I mentioned above, I absolutely agree that making police departments liable is a crucial component of policing reform. After all, most officers will lack the resources to cover the entirety of a major judgment against them, and it’s perverse to deny compensation to victims only in those cases where the misconduct is so severe that indemnification might be denied. I recognize and share Schwartz’s concern that “[g]overnment attorneys use the threat that they will deny officers indemnification strategically, to negotiate lower settlements, avoid punitive damages awards, or reduce jury verdicts after trial.”

But employer liability should be created in addition to individual liability, not instead of it. The New York City law, for example, makes individual officers liable for Fourth Amendment violations (and clarifies that qualified immunity is not a defense), but it also provides that “[t]he employer of a covered individual … is liable, based upon the conduct of such covered individual.” In other words, the individual officer and the department share liability for rights violations committed by that officer.

A similar shared‐​liability regime could easily be enacted at the federal level, and its benefits are numerous. It guarantees that victims of misconduct will always get a complete remedy. It provides accountability for individual officers while still recognizing that employers will generally be the ones paying for the bulk of any judgments. And, perhaps most importantly, it both permits and incentivizes states and localities to experiment with better alternatives to our present indemnification regime.

For example, in June 2020 Colorado enacted qualified immunity reform that (1) allows individuals to sue officers who violate their constitutional rights, without qualified immunity; (2) presumptively guarantees full indemnification by the officer’s employer; but (3) if the department determines the officer “did not act upon a good faith and reasonable belief” that their conduct was lawful, makes the officer personally responsible for a small portion of the judgment (5% or $25,000, whichever is less). In other words, it gives officers skin in the game, but to a degree they could reasonably be expected to cover.

If Congress created shared liability between officers and departments, it would effectively leave to states and localities the choice about how best to apportion responsibility. Some would presumably adopt Colorado‐​style caps on officer contribution, whether by statute or by contract. Some might employ a system where departments fund individual officer liability insurance, as both Cato and Professor Deborah Ramirez have suggested. And, if a particular jurisdiction truly wanted to avoid individual liability entirely, they could do that too, simply by guaranteeing—as New Mexico recently did—that public employers are always responsible for the entire judgment. Over time, we’d be able to see which approaches were more and less successful, and the better ones would spread.

But if Congress mandates, at the federal level, that it is only police departments that can ever be liable, it will undercut all of these efforts. After all, there’s no use—and indeed, no real possibility—of experimenting with officer contribution or insurance proposals when officers can’t be liable in the first place. Shared liability at the federal level is the approach to policing reform that will best allow us to see the virtues of federalism in action; employer‐​liability‐​only would impose a single ineffective and stagnant solution on the entire country.

* * *

There are several policymakers, scholars, and activists who are deeply committed to the problem of police accountability and have advocated in good faith for an employer‐​liability model. As I’ve mentioned several times, I agree wholeheartedly that employer liability is an essential part of a solution. But I hope this post has helped explain why it’s not a sufficient solution.

This is not about letting the perfect be the enemy of the good. There’s absolutely room to discuss compromise solutions to qualified immunity that would reform the doctrine without abolishing it entirely. Congress could, for example, adopt something akin to the bill introduced by Republican Senator Mike Braun in the last Congress, which would have eliminated the “clearly established law” standard but replaced it with good‐​faith safe harbors for individuals relying on state law or judicial precedent. In the specific context of policing, Congress could even consider a defense for officers relying in good faith on department policy, so long as the department itself was still liable.

But a “compromise” on qualified immunity that ignores individual liability entirely should be a non‐​starter for anyone serious about policing reform. We are in the midst of a national crisis of confidence in law enforcement, and that crisis is fueled by a lack of meaningful accountability. It would be perverse and counter‐​productive to try to remedy that crisis by making it harder than it already is to hold officers accountable for violating people’s constitutional rights.

The Supreme Court has repeatedly characterized qualified immunity as protecting “all but the plainly incompetent or those who knowingly violate the law.” Even taken at face value, that standard of care is depressingly low, especially with respect to law enforcement—i.e., the profession expressly charged with knowing and enforcing the law. But the Tenth Circuit’s recent decision in Frasier v. Evans illustrates how this oft-repeated maxim is itself highly misleading—because even when police officers do, in fact, know that they are violating someone’s rights, they can still receive qualified immunity.

The issue in this case is the First Amendment right to record police officers in the course of their public duty. While the Supreme Court itself has not directly addressed this question, the First, Third, Fifth, Seventh, Ninth, and Eleventh Circuits have all upheld this right (the earliest of these decisions dates back to 1995), and no circuit has held to the contrary. But in 2014, a group of Denver police officers violated this right when they threatened to arrest and conducted an illegal search of Levi Frasier, all because Frasier had recorded them using excessive force in the course of making a drug arrest.

Since 2007, the City of Denver has trained its officers that people have a First Amendment right to observe and record the police in public. This training included multiple courses for officers—which the defendants in this case had completed just a year before the incident—with a slide explicitly instructing that “citizens have a First Amendment right to videotape the actions of police officers in public places and that seizure or destruction of such recordings violates constitutional rights.”

Nevertheless, the Tenth Circuit held that these officers were entitled to qualified immunity. Even though, at the time of the incident, four circuits had already held that such conduct was unconstitutional, this particular right was not yet “clearly established” in the Tenth Circuit. Therefore, according to the court, the fact that the officers were explicitly on notice that their actions were unlawful was irrelevant.

Frasier v. Evans is an important case for understanding qualified immunity because, as appalling as the outcome is, it’s not obvious that the panel’s decision was actually at odds with current doctrine. To the contrary, this case illustrates how qualified immunity applies not in an exceptional case, but in a typical one, and it’s therefore an instructive primer on nearly all of qualified immunity’s perverse features. Consider the following basic tenets of qualified immunity, and how they’re applied in this case.

Constitutional rights can only be “clearly established” by circuit-specific judicial decisions.

As noted above, when Denver police officers violated Levi Frasier’s First Amendment rights in 2014, four circuit courts had already held that such conduct was unconstitutional. But the Tenth Circuit panel here dismissed any reliance on those cases because “those decisions do not indicate that this right was clearly established law in our circuit in August 2014.” In theory, the Supreme Court has indicated that a “robust consensus of cases of persuasive authority” can clearly establish a legal principle for the purposes of qualified immunity, but apparently the uniform out-of-circuit authority here was insufficient.

Nor was it relevant to the Tenth Circuit that the Department of Justice, the City of Denver, and police departments around the country had also explicitly instructed their officers that the First Amendment protects the right to record the police in public. As the panel explained, “judicial decisions are the only valid interpretive source of the content of clearly established law.”

Of course, in principle, the Supreme Court itself could take a case on this question and issue a decision “clearly establishing” this First Amendment right nationwide. The problem, however, is that the Supreme Court only decides a small number of cases every year, and most of these are limited to resolving circuit splits. But in this case, the First Amendment right at issue is sufficiently clear that there is no circuit split—every court that addresses the underlying merits question agrees, so there’s relatively little incentive for the Supreme Court to get involved!

In light of qualified immunity, this leads to the perverse result that the uniform consensus of many circuits on a particular right actually makes that right less likely to be protected in other circuits. If there were a circuit split, the Supreme Court might resolve the issue nationwide. But without one, courts can continue saying, as the Tenth Circuit did in this case, “maybe it’s clearly established over there, but it’s not clearly established here.”

Qualified immunity protects police officers acting in bad faith.

The evidence in this case overwhelmingly demonstrated that the Denver police officers who harassed, threatened, and searched Levi Frasier knew they were violating his First Amendment rights. As noted above, the City of Denver had instructed its officers on the right to record police since 2007, and the defendants here had taken a course covering exactly this subject just a year before the incident.

The record also plainly supported the conclusion that the officers’ subjective motive was retaliation against Frasier for recording them: one of them yelled “Camera!” as Frasier recorded them using force on an arrestee; the officers followed Frasier to his van and demanded both his identification and the video; they threatened to arrest him after he refused to volunteer his video; they illegally searched his tablet for the recording; and they let him leave only when they thought he did not have any video recording of them.

This is about the most damning evidence once could ask for that these officers were acting in bad faith and knowingly violating Frasier’s rights. One could thus be forgiven for thinking these officers shouldn’t receive qualified immunity, given the Supreme Court’s repeated insistence that qualified immunity does not protect those who “knowingly violate the law.” Ashcroft v. al-Kidd, 563 U.S. 731, 743 (2011) (quoting Malley v. Briggs, 475 U.S. 335, 341 (1986)). But as the Tenth Circuit’s decision here makes plain, the way courts conceptualize what it means to “knowingly violate the law” is nothing like what an ordinary person would understand this concept to mean.

The panel here explained that “qualified immunity is judged by an objective standard,” and thus, “what the officer defendants subjectively understood or believed the law to be was irrelevant.” In other words, even if a defendant has actual knowledge that they’re violating someone’s rights, that doesn’t mean they were “knowingly violating the law” for the purposes of qualified immunity. When the Supreme Court says qualified immunity doesn’t apply to those who “knowingly violate the law,” it’s really just restating the “clearly established law” standard, which is defined entirely by the particulars of past judicial decisions, not a defendant’s actual knowledge or intentions.

When the Supreme Court first announced the “clearly established law” standard in Harlow v. Fitzgerald, the Court purported to recast qualified immunity in terms of “objective good faith” (the state of the law at the time the conduct was committed), rather than “subjective good faith” (the defendant’s state of mind as to the legality of their conduct).

A more accurate description, however, would be to say that the Court changed the standard from “actual good faith” to “pretend good faith.” The officers who violated Frasier’s First Amendment rights weren’t actually acting in good faith, because they knew Frasier had the right to record them, and they retaliated against him anyway. But because this particular circuit had yet to address this exact question, they did have “pretend good faith,” and thus were entitled to qualified immunity.

Qualified immunity gives a one-sided procedural advantage to defendants in civil rights cases.

When the defendants in this case asked the district court to grant them summary judgment on the basis of qualified immunity, they lost—the district court denied immunity because the officers knowingly violated Frasier’s rights. And under normal rules of civil procedure, parties can’t appeal the denial of a motion for summary judgment. Federal appellate courts can only hear appeals from “final decisions” of district courts, but denying summary judgment isn’t a final decision—it just means that there’s a genuine issue of material fact, so the case can proceed to trial.

But qualified immunity is different. The Supreme Court has asserted that qualified immunity is not just a defense against liability, but rather is intended to be an immunity from suit altogether. Therefore, denials of qualified immunity are a rare instance of decisions subject to what is called the “collateral order doctrine”—if a district court denies immunity, the defendant can immediately appeal that decision. That’s why the officers in this case were allowed to argue for qualified immunity before the Tenth Circuit, even though the case had not yet gone to trial.

In other words, to even get his day in court, Levi Frasier essentially had to win twice in a row—first he had to convince the district court to deny immunity, and then he had to convince the Tenth Circuit to affirm that denial. In this case, he won the first time, but lost the second. More generally, this procedural aspect of qualified immunity makes civil rights litigation far more expensive, because the time and cost of pretrial appellate litigation can easily exhaust the limited resources of civil rights plaintiffs.

The bar for “obvious” constitutional violations remains high and will generally be difficult for plaintiffs to meet.

The Supreme Court has always officially stated that overcoming qualified immunity does not require a case exactly on point, and that for sufficiently obvious constitutional violation, general constitutional rules may give adequate notice to defendants. In practice, however, lower courts have all but ignored this imperative and essentially required a case on point even for the most egregious violations. In Jessop v. City of Fresno, for example, the Ninth Circuit granted immunity to officers alleged to have stolen over $200,000 in cash and rare coins from a suspect while executing a search warrant, notwithstanding that the unlawfulness of this conduct would seem to be quite obvious.

As I discussed here, recent decisions from the Supreme Court may be attempts to reaffirm to lower courts that qualified immunity can be denied for sufficiently obviously constitutional violations, even without a case exactly on point. For example, in Taylor v. Riojas, the Court vacated a Fifth Circuit opinion granting immunity to prison officials who held an inmate in inhumane conditions—one cell that was covered floor-to-ceiling in human feces, and another kept at freezing temperatures with sewage coming out of a drain in the floor—for six days. In the Court’s brief per curiam opinion, it explained that “no reasonable correctional officer could have concluded that, under the extreme circumstances of this case, it was constitutionally permissible to house Taylor in such deplorably unsanitary conditions for such an extended period of time.”

But while the Court’s recent clarification may help curb the very worst excesses of qualified immunity, Frasier v. Evans indicates that “obviousness” will still be incredibly difficult to show in the mine run of cases. Indeed, the panel here explicitly cited Taylor, noting that “the Supreme Court has reminded us recently that under certain ‘extreme circumstances’ general constitutional principles established in the caselaw may give reasonable government officials fair warning that their conduct is constitutionally or statutorily unlawful.”

Nevertheless, the panel held that this was not a case where constitutional principles applied “with obvious clarity.” According to the court, such cases will be “rare,” generally involving “particularly egregious” misconduct, and the retaliatory conduct by the officers in this case didn’t rise to that level. In other words, whether or not a constitutional violation is “obvious” has nothing to do with whether it was, in fact, obvious to the defendants. Only the most extraordinary and outlandish misconduct will free plaintiffs from the need to identity a prior case on point.

Qualified immunity stagnates the development of the law and creates unequal protection of constitutional rights throughout the country.

When courts grant qualified immunity because a right wasn’t “clearly established,” they have the discretion to decide whether to first address the underlying merits questions, or to grant immunity without addressing the merits question one way or another. In other words, courts can either say (1) “yes, your rights were violated, but those rights weren’t clearly established, so you lose,” or (2) “whether or not your rights were actually violated, they weren’t clearly established, so you lose.”

As unjust and absurd as option #1 is, it’s far preferable to #2, because at least the court is “establishing” the right for future cases. But when courts fail to address the merits entirely, not only does the current defendant get immunity, but future defendants who commit the exact same misconduct will get immunity as well, because the right will still not be “clearly established.” The result is what one federal judge recently characterized as “Section 1983 meets Catch-22”:

Plaintiffs must produce precedent even as fewer courts are producing precedent. Important constitutional questions go unanswered precisely because those questions are yet unanswered. Courts then rely on that judicial silence to conclude there’s no equivalent case on the books. No precedent = no clearly established law = no liability. An Escherian Stairwell. Heads defendants win, tails plaintiffs lose.

In Frasier’s case, the Tenth Circuit not only held that the officers were entitled to qualified immunity, but refused to even hold that Frasier’s First Amendment rights were violated. The first part of this holding was plainly unjust, and clearly contrary to the text and history of Section 1983, but at least has the virtue of being arguably compelled by Supreme Court precedent. But the refusal to at least resolve the First Amendment question was inexcusable. Courts clearly have the authority (though not the obligation) to decide constitutional questions before granting qualified immunity, and there was no good reason not to do so in this case.

Indeed, the failure to hold that Frasier’s rights were violated is especially galling because the particular right at issue—the right to record police in public—is itself a textbook example of the extent to which qualified immunity stagnates development of the law. As noted above, every single appellate court that has addressed this issue on the merits has held that there, in fact, a First Amendment right to record the police. But in several circuits, even before this case, that right has long gone unprotected, precisely because the issue was addressed only in qualified immunity decisions that refused to reach the merits.

For example, the Third Circuit confronted this issue in a 2010 decision called Kelly v. Borough of Carlisle, noting that the court had “not addressed directly the right to videotape police officers.” The panel granted qualified immunity because this right was not clearly established in the Third Circuit (even though it was already clear in several other circuits), it but declined to decide whether there actually was such a right. Nearly a decade later, the Third Circuit faced this exact same question in two additional cases—Karns v. Shanahan and Fields v. City of Philadelphia—and again granted immunity to the police in both cases because, of course, the right was still not “clearly established.”

Thankfully, the Fields opinion did at least recognize that there is a First Amendment right to record the police before it held that the defendant were entitled to immunity. So now that right will finally be protected in the Third Circuit. But there was no justification for that right to go unprotected for as long as it did. Nor is there any good reason that this right is still unprotected in the Fourth Circuit, given that a panel of that court had an opportunity to recognize this right over a decade ago in Szymecki v. Houck, but failed to do so.

In an era where the rising awareness of police brutality has facilitated a crisis of confidence in law enforcement, the right to record the police is as important as it as ever been. But because of qualified immunity, that right is inconsistently protected across the nation, based solely on the happenstance of which circuits have already addressed the issue, and the inclination of judges to actually decide constitutional questions. The Tenth Circuit can now be added to the list of jurisdictions where this right should be protected — even in the face of qualified immunity! — but isn’t.

* * *

To channel my inner G.K. Chesterton, Levi Frasier’s case is extraordinary precisely because of how ordinary it is. It reveals the legal, practical, and moral failures of qualified immunity not through aggressive expansion of the doctrine, but through mundane application. No matter what the Supreme Court does to tinker with the fringes, the Tenth Circuit’s decision here is illustrative of how qualified immunity will continue to apply in the typical case. That is precisely why the elimination of qualified immunity is and must remain a top legislative priority both for Congress and for states across the nation.

Today, New Mexico Governor Michelle Lujan Grisham signed into law House Bill 4, otherwise known as the New Mexico Civil Rights Act. This landmark piece of legislation creates a state-law cause of action against any public official who violates someone’s rights under the New Mexico State Constitution, and it specifically provides that qualified immunity is not available as a defense. The statute is therefore quite similar to both Colorado’s Law Enforcement Integrity and Accountability Act, enacted in June 2020, and the civil-rights legislation approved by the New York City Council last month, both of which also created causes of action that do not allow for qualified immunity. But whereas the Colorado and NYC bills were both limited to police officers, the New Mexico Civil Rights Act applies more broadly to all public officials.

Although many have summarized the effect of HB 4 as “ending” or “eliminating” qualified immunity in New Mexico, that is not exactly correct. In a formal sense, “qualified immunity” is a federal doctrine available in federal lawsuits brought under Section 1983, and states obviously can’t change federal law. But what they can do is create “state analogues” to Section 1983, which is exactly what HB 4 does. Whereas Section 1983 allows individuals whose rights are violated under the federal Constitution to bring a lawsuit for damages in federal court, HB 4 allows individuals whose rights are violated under the state constitution to bring a lawsuit for damages in state court. And because this new cause of action is a matter of state law, the legislature is free to clarify that qualified immunity won’t apply to these state-law claims.

The operative language of the New Mexico Civil Rights Act is simple and straightforward. Section 3 of the law provides that:

A person who claims to have suffered a deprivation of any rights, privileges or immunities pursuant to the constitution of New Mexico due to acts or omissions of a public body or person acting on behalf of, under color of or within the course and scope of the authority of a public body may maintain an action to establish liability and recover actual damages and equitable or injunctive relief in any New Mexico district court.

“Public body” in turn is defined broadly as “a state or local government, an advisory board, a commission, an agency or an entity created by the constitution of New Mexico or any branch of government that receives public funding, including political subdivisions, special tax districts, school districts and institutions of higher education.” In other words, any government entity, or person acting on behalf of such an entity, is liable if they violate someone’s rights under the state constitution, and “no public body or person acting on behalf of . . . shall enjoy the defense of qualified immunity.” (Note, however, that Section 10 of the statute clarifies that HB 4 does not eliminate legislative or judicial immunity, which are separate doctrines from qualified immunity).

The New Mexico Constitution, like most state constitutions, has a bill of rights that largely mirrors the federal Constitution, which means that HB 4 will allow citizens to get redress for the same sort of injuries they could pursue in a federal lawsuit. Section 5 of the statute also allows courts to award “reasonable attorney fees and costs” to prevailing plaintiffs. Section 6 does set a damages cap of $2,000,000, but that cap is actually much higher than any of the damages caps otherwise set by the New Mexico Tort Claims Act. On the whole, this means the new cause of action under HB 4 should provide a robust and meaningful remedy for citizens whose constitutional rights are violated by government agents.

Besides the difference in scope (i.e., police officers vs. all public officials), the one other notable difference between the New Mexico, Colorado, and NYC laws concerns the question of individual liability and indemnification. The Colorado statute presumptively provides that police officers sued under the new law will be indemnified, but if the officer’s employer determines that “the officer did not act upon a good faith and reasonable belief that the action was lawful,” then the officer could be required to personally contribute a small portion of the judgment. The NYC bill creates liability for both the individual who caused the violation and their employer. Section 8 of New Mexico’s HB 4, however, for complete and automatic indemnification, which means the individual defendant can never be personally liable for the injury they cause.

In this particular respect, I think Colorado and NYC actually struck the better balance of competing concerns. Even though indemnification is and will continue to be the norm in civil rights suits, it’s better to ensure that individual government agents — especially police officers — have some skin in the game when it comes to the risk of personal liability. After all, civil rights laws are intended to have both a remedial and a deterrent effect. But removing any possibility at all for personal liability — even modest contributions, like Colorado allowed for — may somewhat undermine the individualized accountability that laws like HB 4 are intended to provide.

Nevertheless, HB 4 gets the most fundamental policy judgment exactly right: a citizen whose rights are violated will get a complete remedy, and qualified immunity will not stand in the way. New Mexico has therefore made history as the first state to enact legislative qualified immunity reform for all public officials. As both Congress and other states around the country continue to debate policing reform in general and qualified immunity in particular, the enactment of the New Mexico Civil Rights Law is a welcome beacon of hope.

Qualified immunity is a judicial doctrine invented by the Supreme Court that shields public officials from liability, even when they violate people’s constitutional rights, unless a court determines those rights were “clearly established.” Yesterday, USA Today ran an op-ed by Anya Bidwell and Patrick Jaicomo, two attorneys with the Institute for Justice, arguing that the “Supreme Court is rethinking qualified immunity.” They base this conclusion on the outcomes in three recent Supreme Court cases — Taylor v. Riojas, McCoy v. Alamu, and Tanzin v. Tanvir — gleaning from them that “the Supreme Court is stepping up to deliver by reintroducing some common sense to the law.”

I know and admire Anya and Patrick, and I have great respect for their work challenging qualified immunity, and their advocacy for liberty generally. But their op-ed is profoundly mistaken in its suggestion that the Court is preparing to reconsider qualified immunity. The orders in Taylor and McCoy vacated especially egregious grants of immunity, which does suggest the Justices want to curb the worst excesses of the doctrine. But they also suggest the Supreme Court is not going to take up the larger question of whether qualified immunity itself should be reconsidered. And to suggest otherwise is not just wrong, but counter-productive — raising the false hope that the Court may rescue us from qualified immunity risks distracting Congress from the urgent goal of eliminating the doctrine through legislation.

* * *

To fully grasp why the Supreme Court is almost certainly not preparing to reconsider qualified immunity, a bit of background is necessary.

The key feature of modern qualified immunity doctrine — the “clearly established law” standard — was created by the Supreme Court in 1982, in Harlow v. Fitzgerald. Our primary federal civil rights law, Section 1983, plainly provides that any state actor who causes the “deprivation of any rights, privileges, or immunities secured by the Constitution . . . shall be liable to the party injured.” But the Harlow decision effectively rewrote this statute, inserting the words “clearly established” between “any” and “rights.” In doing so, the Court did not even pretend to be faithfully interpreting the statute; rather, it justified this decision based solely on its own evaluation of good public policy.

The call for the Supreme Court to reconsider qualified immunity began in earnest in 2017, for two related reasons. First, Professor Will Baude published his game-changing article Is Qualified Immunity Unlawful?, explaining in detail how qualified immunity is not only inconsistent with the text of Section 1983, but also unsupported by common-law history. Second, Justice Thomas wrote a concurring opinion in Ziglar v. Abbasi, explaining the legal shortcomings with qualified immunity (relying on Will Baude’s article) and explicitly calling for the Court to reconsider the doctrine.

When the Cato Institute launched its campaign to eliminate qualified immunity in March 2018, our initial strategic priority was to convince the Supreme Court to take a case raising exactly this question. We did so in large part by assembling a vast, cross-ideological coalition of public policy groups opposed to qualified immunity — including, for example, the ACLU, the NAACP, the Alliance Defending Freedom, and the Second Amendment Foundation — and filing amicus briefs on behalf of this coalition, in support of cert petitions that asked the Court to reconsider qualified immunity.

Those efforts came to a head in 2020. As I discussed in many, many, many, many, many, many blog posts that spring, the Justices were repeatedly rescheduling (but grouping together for consideration) cert petitions in three major qualified-immunity cases — Baxter v. Bracey, Zadeh v. Robinson, and Corbitt v. Vickers. All three raised the fundamental question of whether qualified immunity should be reconsidered, and they were supported by the Cato-led cross-ideological amicus brief. But on June 15th, the Court unexpectedly denied cert in all of these cases, with only Justice Thomas dissenting. At the time, I called these denials a “dereliction of duty,” and I stand by that criticism — especially because the Court’s failure to take action on this issue came in the midst of a national crisis over the lack of police accountability.

That brings us to Taylor v. Riojas, the first of three decisions that Anya and Patrick cite as a “signal that [the Court is] rethinking the doctrine of qualified immunity.” In this case, the Fifth Circuit had granted immunity to prison officials who subjected an inmate to inhumane conditions — keeping him for several days in a cell covered floor to ceiling with the feces of the previous occupant, and then moving him to another cell kept at freezing temperatures, where a clogged drain on the floor caused raw sewage to flood the cell. This was the last case, chronologically, to raise the question of whether qualified immunity itself should be reconsidered, and it was also supported by the Cato-led cross-ideological brief. But because of when the petition was filed, it wasn’t up for consideration by the Supreme Court until October 2020.

Given that the Court had denied cert in all of the other major qualified-immunity cases, we weren’t optimistic that the Court would grant cert in Taylor either. And indeed, the Court did not agree to hear the case on the merits. Instead, the Court issued what’s called a “GVR” (grant, vacate, and remand), meaning that the Fifth Circuit’s decision was vacated, and the lower court was instructed to reconsider the case.

Anya and Patrick correctly note that the Court also issued a short per curiam opinion, holding that “any reasonable officer should have realized that Taylor’s conditions of confinement offended the Constitution.” As I discussed here, this opinion was a significant development. It was the first time in sixteen years, and only the third time ever, that the Court expressly found official misconduct to violate “clearly established law.” The decision also restored some vitality to the principle announced in Hope v. Pelzer, that when a constitutional violation is sufficiently obvious, qualified immunity can be denied without a prior case exactly on point. As compared to the alternative of doing nothing, I’m glad the Supreme Court at least made some effort to curb the worst excesses of the doctrine.

But, as should hopefully be clear by now, the Court GVR’ed this case instead of reconsidering qualified immunity. The Court had the perfect opportunity to reconsider qualified immunity in June 2020, but turned it down. The Court had another opportunity to reconsider qualified immunity in October, but again turned it down. The Taylor opinion clearly reads to me as the Court’s recognition that the situation has gotten out of hand, and that the Justices would like lower courts to slightly dial back the harshest applications of the “clearly established law” standard. But it is just as clearly an indication that the Court is not going to take up the fundamental question of whether the doctrine itself should be reconsidered.

The subsequent order in McCoy v. Alamu — another of the cases the op-ed cites — simply underscores this point. This was a case where the Fifth Circuit granted immunity to a prison official who was alleged to have gratuitously assaulted an inmate with pepper spray. As in Taylor, the lower court granted qualified immunity simply because there was no case with exactly similar facts. And as in Taylor, the Supreme Court declined to hear the case on the merits. But it did GVR the case for “further consideration in light of Taylor v. Riojas” (although this time with no opinion).

In other words, McCoy suggests the Justices are serious about reining in the worst excesses of qualified immunity — lower courts should not continue to grant immunity in especially egregious cases, just because there’s no prior case with identical facts. But it also suggests that this “clarification” of the doctrine, rather than an outright reconsideration of the doctrine, is as far as the Court will go on this issue. The very fact that the Court thought a GVR “in light of Taylor v. Riojas” was sufficient to address McCoy is itself a sign that the Court sees Taylor as a sufficient clarification of the doctrine. As Clark Neily and I discussed in this episode of the Cato Daily Podcast, that clarification is better than nothing, but it’s a band-aid on a gaping wound.

Finally, Anya and Patrick cite the Court’s recent decision in Tanzin v. Tanvir — but this wasn’t even a qualified immunity case. The issue in Tanzin simply how to interpret the remedy provisions of the Religious Freedom Restoration Act. The Court held, unanimously, that the statute does allow for money damages, but the reasoning was based purely on statutory interpretation. The op-ed tries to skirt around this issue, acknowledging that the case didn’t actually involve qualified immunity, but asserting that “the government’s briefing heavily relied on the same arguments it deploys in qualified immunity cases.” But I don’t see how that’s any evidence the Justices are actually preparing to reconsider qualified immunity itself. The fact that they’re trying to avoid rewriting other civil rights laws says nothing about whether they’re willing to reconsider past mistakes.

In sum, the outcomes in these three cases are certainly net-positive developments for those concerned with official accountability. But they are not, as the op-ed argues, a sign that the Court “may now be entering a new dawn on qualified immunity.” To the contrary, two of the cases suggest exactly the opposite — that the Supreme Court has decided to forgo reconsideration of the doctrine in favor of small doctrinal clarifications.

At this point, the only realistic prospect of actual qualified immunity reform is from legislatures, not the Supreme Court. And indeed, that’s exactly why I find the mistaken conclusion in this op-ed so troubling. There are already two proposals before the 117th Congress that would address qualified immunity, and state legislatures around the country are considering state-level civil rights laws that would explicitly preclude qualified immunity as a defense. These legislators should have no doubts whatsoever that they, not the courts, are now fully responsible for ensuring that citizens have the power to vindicate their constitutional rights.

I wanted the Supreme Court to reconsider qualified immunity as much as anybody. I argued again and again — in amicus briefs, blog posts, and public debates — that even though Congress could solve the problem, the Supreme Court was still obligated to fix what it broke. But it looks like the Justices disagreed. Qualified immunity will go down in history as one of the Court’s most egregious and harmful mistakes, but the Court isn’t going to save us from it. And we should be under no illusions to the contrary.

Judicature, a Duke Law-affiliated legal publication, has just published a point-counterpoint article titled “Qualified Immunity: A Shield Too Big?” The piece is structured around six different questions related to qualified immunity, with three sets of answers from different perspectives: one from myself and my colleague Clark Neily; another from Kyle Hawkins, the solicitor general of Texas; and another from Fred Smith, Jr., a constitutional law professor at Emory University. The six questions that we address are:

1. Is qualified immunity justified as a legal doctrine?
2. What is the role of stare decisis in re-evaluating the doctrine?
3. Is the doctrine of qualified immunity judicially administrable?
4. What does the empirical data tell us about the efficacy of qualified immunity?
5. The qualified immunity discussion usually focuses on the police context. How does it apply to other kinds of officials, and what do those cases illustrate about the doctrine?
6. If we should change the qualified immunity doctrine, how should we do so?

 

 

 

 

Qualified immunity is a judicial doctrine that shields public officials from liability when they violate people’s constitutional rights, unless those rights were “clearly established” at the time of their violation. Since the Supreme Court invented this “clearly established law” standard in 1982, it has issued 32 qualified immunity decisions, and only twice found that a defendant’s conduct actually violated “clearly established law” (and these two cases were decided nearly two decades ago). Thus, the practical effect of the Court’s decisions has been to make “clearly established law” more and more difficult for plaintiffs to show; today, many lower courts effectively require plaintiffs to find a prior case with nearly identical facts before they will hold that the law was clearly established. 

But this morning, for the first time in sixteen years, the Supreme Court issued a qualified immunity decision in which it held that the defendants’ actions violated “clearly established law.” The case is Taylor v. Riojas, in which the Fifth Circuit upheld a grant of immunity to prison officials who subjected Trent Taylor to horrific and inhumane prison conditions. Taylor was kept for several days in a cell that was covered floor to ceiling with the feces of the previous occupant, and where feces was packed into the water faucets, preventing him from drinking. He was then moved to a second cell, which was kept at freezing temperatures, and where a clogged drain on the floor caused raw sewage to flood the cell, forcing him to sleep in sewage. The prison officials were well aware of these conditions, and at one point laughed that Taylor was “going to have a long weekend.” Notwithstanding this obviously inhumane treatment, the Fifth Circuit granted immunity to these officials, because while “the law was clear that prisoners couldn’t be housed in cells teeming with human waste for months on end,” it had not previously held that confinement in human waste for six days violated the Constitution.

Taylor filed a cert petition asking for the Supreme Court to reverse, and also to reconsider the doctrine of qualified immunity entirely. Cato, on behalf of both itself and a vast cross‐​ideological alliance of public policy groups, filed an amicus brief in support of Taylor’s petition. While the Court did not agree to take up this fundamental underlying question, it did summarily reverse the Fifth Circuit’s decision. In its per curiam opinion, the Court recognized that “no reasonable correctional officer could have concluded that, under the extreme circumstances of this case, it was constitutionally permissible to house Taylor in such deplorably unsanitary conditions for such an extended period of time.” In other words, because this constitutional violation was so egregious and obvious, it was unnecessary for Taylor to identify a prior case with functionally identical facts to demonstrate that the defendants violated his clearly established rights.

Qualified immunity is an inherently unlawful and unjust doctrine, and it should be abolished entirely. But if the Supreme Court is unwilling to reconsider qualified immunity in full, it is encouraging at least that the Justices are cutting back on the worst excesses of the doctrine, and reaffirming the principle announced sixteen years ago in Hope v. Pelzer, that sufficiently obvious constitutional violations do not require cases exactly on point to hold that the law was clearly established.

Since the death of George Floyd this past May, and in the wake of the national turmoil his death provoked, both Congress and state legislatures have turned their attention to policing reform — and in particular, the doctrine of qualified immunity. At the federal level, four separate bills have been introduced (both by Democrats and Republicans) that would eliminate or substantially modify qualified immunity nationwide. Meanwhile, several states have either passed or are currently considering policing reform that would eliminate or limit qualified immunity for state-level civil rights claims.

Unfortunately, the discussion around qualified immunity is plagued by misinformation. Nearly all of the defenses I’ve seen raised in support of the doctrine display a profound misunderstanding of what qualified immunity actually is and how it works, and I increasingly find that almost all of my public comments on this issue are devoted simply to correcting clear mistakes. Perhaps unsurprisingly, the most common peddler of such misinformation is the law enforcement lobby, which appears to be acting out of a combination of knee-jerk defensiveness and profound ignorance as to qualified immunity reform.

I therefore thought it would be helpful to identify and correct some of the most flagrant misrepresentations of qualified immunity by law enforcement organizations and leaders. The purpose of this catalogue is both to correct the object-level errors on these particular issues, but also to put the public in general, and policy makers in particular, on notice that they should take with a grain of salt any statements about qualified immunity made by the law enforcement lobby. As these examples illustrate, those statements are simply not reliable.

A few caveats before I got into the specifics:

• First, I am certainly not suggesting that all, or even most, members of law enforcement are misrepresenting this issue. To the contrary, several major police organizations, such as the Law Enforcement Action Partnership and National Organization of Black Law Enforcement, have explicitly called upon Congress to eliminate qualified immunity, in part because of their recognition that near-zero accountability actually harms the law-enforcement community itself. Not everyone in law enforcement misrepresents qualified immunity, but almost everyone who misrepresents qualified immunity is part of law enforcement.

• Second, I am not suggesting that all of these statements were made in bad faith. Some may have been intended to deceive the public, but many appear to be the product of genuine ignorance on the part of the law enforcement lobby.

• Third, I am not here discussing policy arguments in support of qualified immunity that I find misguided or unavailing, such as the idea that qualified immunity is needed to deter frivolous litigation. I already discussed such arguments in my previous post on “The Most Common Defenses of Qualified Immunity, and Why They’re Wrong.” In this post, I am only discussing blatant, factual misrepresentations about what qualified immunity actually is and how it works.

With those qualifications in mind, let’s dive in. Here are three basic facts about what qualified immunity actually is, and the many statements by law enforcement officials that get them wrong.

I. Qualified immunity does not protect against criminal prosecution.

Qualified immunity is a judicial doctrine that shields public officials from civil liability (i.e., money damages), unless their actions violated “clearly established law.” Mullenix v. Luna, 577 U.S. 7, 11 (2015). It has nothing to do with criminal liability and offers no protection for police officers facing criminal prosecution. Yet a major law-enforcement organization has repeatedly made the erroneous assertion that eliminating qualified immunity would open up police officers to increased criminal prosecution.

The National Association of Police Organizations (“NAPO”) is a coalition of police unions and associations that represents more than 1,000 police units and associations and over 241,000 individual officers. In June 2020, NAPO submitted a letter to Congress to explain their opposition to the George Floyd Justice in Policing Act, which would eliminate qualified immunity for law enforcement officials. The letter said the following (emphases added):

With the change to qualified immunity, an officer can go to prison for an unintentional act that unknowingly broke an unknown law. We believe in holding officers accountable for their actions, but the consequence of this would be making criminals out of decent cops enforcing the laws in good faith.

This letter was written and signed by William F. Johnson, NAPO’s Executive Director and General Counsel. Mr. Johnson is a former prosecutor, and he is responsible for writing and filing NAPO’s amicus briefs in appellate courts. It beggars belief to think that he is unaware that qualified immunity is a civil doctrine, not a bar to criminal prosecution.

Mr. Johnson was also quoted in a Washington Times article as saying (emphasis added):

You’ve got federal lawmakers proposing a federal law that says that even when the federal law is so unclear as to be unknowable by any reasonable officer, that officer can still go to prison for an unintentional act that unknowingly broke an unknown law.

This is just astounding. One of the largest police organizations in the country is opposing qualified immunity reform based on the clearly erroneous assertion that the doctrine has anything to do with criminal prosecution.

II. Qualified immunity shields police officers who violate people’s constitutional rights, unless those rights were “clearly established”; it is not limited to reasonable officers following the law or department rules.

The doctrine of qualified immunity only matters when a public official has, in fact, violated someone’s federally protected rights. If a police officer hasn’t committed any constitutional violation in the first place, then they don’t need qualified immunity, because they haven’t broken the law at all. Thus, the doctrine only does work in the space where a constitutional right has been violated, but a court determines this right was not “clearly established” (which generally requires a prior case with functionally identical facts). See Pearson v. Callahan, 555 U.S. 223, 232 (2009) (describing the “two-step sequence” where a court must first decide whether the facts alleged “make out a violation of a constitutional right,” and if so, then decide “whether the right at issue was ‘clearly established’ at the time of defendant’s alleged misconduct”).

But many police organizations and law enforcement officials have made the erroneous assertion that qualified immunity only protects officers who act “reasonably,” or officers who haven’t violated the law at all. This is not just a mistake — it is, essentially, the exact opposite of what qualified immunity was intended to do.

The Boston Police Patrolman’s Association (“BPPA”) is a police union that represents Boston police officers. In response to proposed policing reform in the Massachusetts legislature, the BPPA made the following statement in July 2020:

To be clear, Qualified Immunity is a bedrock protection extended to all public employees. Not just police officers. It does not protect bad cops. In fact, it only protects police officers who act reasonably and within the rules and regulations of their respective departments.

The BPPA is correct that qualified immunity applies to all public officials, but the rest of this statement is nonsense. The claim that qualified immunity only applies when officers “act reasonably and within the rules and regulations of their respective departments” is a pure invention, directly at odds with actual case law.

For example, in a Sixth Circuit decision called Latits v. Phillips, the court granted immunity to a police officer who ran a suspect off the road with his car, then ran up to the driver’s window and shot him three times, killing him. The court first held that this officer did, in fact, violate Mr. Latits’ Fourth Amendment rights, noting in particular that “although police procedures do not set the bounds of the Fourth Amendment, we consider it relevant that Officer Phillips repeatedly violated police procedures in both ramming Latits and running up to his car.” Nevertheless, the court still granted immunity to Phillips, because previous Sixth Circuit cases “did not involve many of the key[] facts in this case, such as car chases on open roads and collisions between the suspect and police cars.” In other words, the fact that Phillips was violating department policy was irrelevant to the qualified immunity question; all that mattered is that the specific facts of this case were somewhat different from the facts of prior cases.

Moreover, while “bad cops” is obviously a subjective term, I’ll just add that there’s nothing like an exception to qualified immunity for “bad cops.” For example, in Jessop v. City of Fresno, the Ninth Circuit granted immunity to police officers alleged to have stolen over $225,000 in cash and rare coins while executing a search warrant. The court said that while “the theft [of] personal property by police officers sworn to uphold the law” may be “morally wrong,” the officers could not be sued for the theft because the Ninth Circuit had never specifically decided “whether the theft of property covered by the terms of a search warrant, and seized pursuant to that warrant, violates the Fourth Amendment.” Officers who abuse their authority to steal money from citizens would presumably meet anyone’s definition of “bad cops,” but the obvious wrongfulness of their actions was, again, irrelevant to the qualified immunity question — all that mattered was that the Ninth Circuit had never faced this exact scenario before.

The Indiana State Police Association (“ISPA”), an association of Indiana state troopers, has made similar misrepresentations. In response to Senator Mike Braun’s “Reforming Qualified Immunity Act” (which I discussed in detail here), the ISPA put out a statement in opposition to this bill, which said the following (emphases added):

While there is no doubt that bad actors have brought this issue to the forefront, we believe that qualified immunity serves to protect all police officers legitimately performing their duties, and it allows the public to recover damages in cases where an officer has violated the person’s rights.

Again, this is not just wrong; it is basically the exact opposite of what qualified immunity actually does. To reiterate what I said above, qualified immunity only matters when a public official has violated someone’s constitutional rights, but where a court finds that right was not “clearly established.” Police officers who are “legitimately performing their duties” — i.e., acting lawfully — do not need qualified immunity because, by definition, they’re not violating anyone’s rights in the first place. And with respect to recovering damages, the entire point of qualified immunity is to allows courts to say “yes, your rights were violated, but the right wasn’t ‘clearly established,’ so you can’t get damages.” That’s exactly what happened in the Latits case I mentioned above, and too many other cases to count.

The ISPA further conflates the standards for qualified immunity (i.e., the “clearly established law” test) with the substantive constitutional standard that determines whether police have violated the Fourth Amendment in the first place. They said the following in their statement:

[Qualified immunity] allows police officers to perform their duties, to the best of their knowledge and ability, without constant fear of having to defend themselves from frivolous lawsuits. Officers are judged from the perspective of a reasonable officer, given the same set of circumstances, not from 20/20 hindsight. Without qualified immunity, policing presents too much personal risk for officers and their families.

The ISPA is clearly suggesting that this protection from “20/20 hindsight” is a product of qualified immunity. But that’s incorrect. Indeed, the ISPA is quoting nearly word-for-word from a Supreme Court case that has nothing to do with qualified immunity, but rather sets out an “objective reasonableness” standard for excessive force claims under the Fourth Amendment. See Graham v. Connor, 490 U.S. 386, 396 (1989) (“The ‘reasonableness’ of a particular use of force must be judged from the perspective of a reasonable officer on the scene, rather than with the 20/20 vision of hindsight.”).

In other words, police don’t violate the Fourth Amendment just because they make the “wrong call.” Our constitutional standards for Fourth Amendment violations already reflect that police will sometimes arrest people who turn out to be innocent, or use force that turned out to be unnecessary. It is only when officers act “objectively unreasonably” that they have committed a constitutional violation at all; qualified immunity therefore acts a kind of double counting of this deference. If we were to eliminate the doctrine tomorrow, reasonable officers would still be protected from “20/20 hindsight,” because (contra the ISPA’s statement) that protection doesn’t come from qualified immunity in the first place.

Jeffrey Rosen, Deputy Attorney General of the Unites States, recently made similar misrepresentations in an op-ed for the New York Post opposing qualified immunity reform. Mr. Rosen said the following (emphases added):

Qualified immunity is a legal doctrine that prevents law-enforcement officers and other officials from being personally subjected to civil lawsuits when they have acted lawfully and haven’t violated clearly established rights. . . . Officers should be — and are — held accountable when they violate the law. They shouldn’t also have to worry about being personally sued for doing their jobs, when they follow the law.

At the risk of repeating myself, qualified immunity is not limited to officers who have “acted lawfully.” The entire point of the doctrine is to protect officers who have broken the law, but where they violated rights that were not “clearly established.” As the Deputy Attorney General and a former adjunct law professor at Georgetown, Mr. Rosen surely knows better.

Finally, let’s look at a recent op-ed by Timothy C. Carter, Sheriff of Shenandoah County, Virginia and president of the Virginia Sheriffs’ Association. In response to a proposal in the Virginia legislature to reform qualified immunity, Sheriff Carter said the following:

The proponents of the bill — primarily trial lawyers — claim that qualified immunity allows police officers to escape responsibility for misconduct, and it denies justice to those who are injured by police misconduct. They claim that qualified immunity needs to be repealed so that there will be accountability and “justice” for police misconduct. To put it bluntly, those claims are lies.

Whether or not qualified immunity “needs to be repealed” as a policy matter, the first sentence here is just an accurate description of what qualified immunity actually is. So, the claim is not a “lie.” Sheriff Carter also says the following toward the end of his article:

In short, qualified immunity simply doesn’t do what the ‘reformers’ claim it does — it doesn’t protect wrongdoers, and it doesn’t deny justice to anyone who is entitled to it.

Again, this is just untrue. The very nature of qualified immunity is to deny compensation to victims whose rights were violated, but where a court finds those rights weren’t “clearly established.” And as I discussed above in reference to the Jessop decision (which granted immunity to officers alleged to have stolen over $225,000 from a suspect), the doctrine does protect “wrongdoers,” by any plausible definition of the term.

III. Qualified immunity is a judicial creation, not a legislative decision.

This final kind of misrepresentation isn’t quite as serious as those discussed above, but it’s still an important issue to clarify. The doctrine of qualified immunity applies to civil rights suits brought under 42 U.S.C. § 1983. But this statute, which was originally passed in 1871, says nothing about any immunity, qualified or otherwise. It simply provides that any state actor who violates someone’s federally protected rights “shall be liable to the party injured.” Qualified immunity is a judicial doctrine that was essentially grafted onto this statute, and the “clearly established law” standard, which is the key feature of modern qualified immunity doctrine, wasn’t created by the Supreme Court until 1982, in a case called Harlow v. Fitzgerald. Whether or not you think the doctrine has a proper legal basis, it is clearly a judicial creation, not reflected in any federal statute.

But the Major Cities Chiefs Association (“MCCA”) misrepresents this obvious point in a way I’ve never seen before. The MCCA is made up of the police chiefs and sheriffs of the sixty-nine largest law enforcement agencies in the United States and nine largest in Canada. In June 2020, the MCCA put out the following “Law Enforcement Reform Policy Statement,” which included the following about qualified immunity (emphasis added):

Qualified immunity protections are extended to a wide range of government employees, not just law enforcement. Qualified immunity does not prevent officers who engage in misconduct from being convicted for criminal offenses.

The MCCA: • Strongly opposes repealing or amending the qualified immunity statute.

This is the entirety of what the MCCA had to say about qualified immunity, and the first two sentences are accurate. But in their official recommendation, they refer to “the qualified immunity statute.” But there is no qualified immunity statute. Indeed, the legal argument against qualified immunity is premised entirely on this point — the relevant statute says nothing about qualified immunity, and the background common law against which the statute was passed didn’t include anything like the “clearly established law” standard. Congress didn’t create qualified immunity when it passed Section 1983, and it has never adopted the Supreme Court’s qualified immunity doctrine by statute.

This may seem like technical nitpicking, and as I said above, I acknowledge this misrepresentation isn’t as concerning as the others. But it still matters, because it erroneously suggests that qualified immunity is somehow the result of a previous legislative decision, rather than a doctrine created by the courts and imposed onto a civil rights statute that says nothing about the subject. More generally, the fact that the MCCA, in its official policy recommendation, made such an elementary mistake suggests that they likely don’t have a strong understanding of what qualified immunity actually is or how it works.

* * *

In conclusion, a troubling proportion of the statements that the law enforcement lobby makes in support of qualified immunity are not just misguided or misleading, but outright false. Whether these misrepresentations are the product of bad faith or genuine ignorance, they show that the law enforcement lobby isn’t a reliable source of information on qualified immunity. As members of Congress and state legislatures continue to debate policing reform, they ought to be highly skeptical of any such sources.

The doctrine of qualified immunity protects public officials from civil liability, even when they break the law, unless a civil rights plaintiff can show that the defendant violated “clearly established law.” This rule is nominally an interpretation of our primary federal civil rights statute, Section 1983, but that statute says nothing about any immunity, qualified or otherwise. And the recent scholarship of William Baude, which Justice Thomas himself has relied on in calling for qualified immunity to be reconsidered, argues that the background common law against which this statute was passed did not include anything like the across-the-board defense for all public officials that characterizes qualified immunity today. Rather, the general rule was strict liability for public officials who committed constitutional violations, with “good faith” only relevant to the extent that it was an element of particular torts; there was not, however, a generally applicable good-faith defense for state actors who acted unlawfully.

But a forthcoming article by Scott Keller, partner and appellate practice chair at Baker Botts, challenges this conclusion. His article, titled Qualified and Absolute Immunity at Common Law, focuses on four 19th century tort treatises, as well as various 19th century Supreme Court decisions, and concludes that “19th century common law did recognize a freestanding qualified immunity protecting all government officers’ discretionary duties—like qualified immunity today.” He does note, however, that the Court’s modern immunity doctrines nevertheless depart in several ways from the 19th-century common law, most notably in that “qualified immunity at common law could be overridden by showing an officer’s subjective improper purpose, instead of ‘clearly established law.'”

This article is an important and ambitious piece of scholarship, and at first glance, it certainly seems to at least complicate the question of whether there were any free-standing immunities around the time that Section 1983 was passed in 1871. For example, he cites Wilkes v. Dinsman, 48 U.S. 89, 129 (1849), which states that “a public officer, invested with certain discretionary powers . . . cannot be made answerable for any injury, when acting within the scope of his authority, and not influenced by malice, corruption, or cruelty.” Various 19th century tort treatises seem to express a similar point — that executive officials, acting in a “quasi-judicial” capacity (what we would today call “discretionary functions”) generally cannot be sued unless acting with some improper motive.

An in-depth historical evaluation of Keller’s article is beyond my capabilities here, so I’m not going to offer a definite conclusion on how much to take from this. It certainly appears that Keller has mustered a strong case, and I’ll admit substantial confusion on how to reconcile some of his evidence with the historical sources discussed in Will Baude’s article, which seem to suggest just as persuasively the opposite conclusion.

On a first look, one possible explanation for this apparent contradiction may be the fact that 19th-century constitutional law included far fewer limitations on public officials than exists today. The Bill of Rights, of course, did not even apply against state officials until the Fourteenth Amendment was passed, and it would take until the mid-20th century for the Supreme Court to incorporate most of those rights against the states. Therefore, in this context, saying that executive officers could not be sued unless they acted “with malice” doesn’t necessarily imply that they were immune for constitutional violations — because at least for non-federal actors, there were few federal constitutional limitations on them in the first place.

But in any event, I am not a historian, and I will definitely be curious to see if a response from Will Baude or other academics can unravel this confusion with more scholarly acumen. Nevertheless, I will offer two reasons for skepticism about the article’s more general conclusion — that modern qualified immunity doctrine has far more historical justification than has previously been believed (even if it’s not a perfect match):

First, whatever the general state of 19th-century common law, the relevant legal question here is whether Section 1983, which says only that any state actor who violates someone’s rights “shall be liable to the party injured,” nevertheless was understood to incorporate by reference the full scope of these supposed common-law immunities. And on this point, it’s absolutely essential to recognize that the Supreme Court, in a 1915 decision called Myers v. Anderson, rejected the application of any good-faith defense to Section 1983 itself.

Myers involved a Section 1983 suit against city officials who refused to register three black voters under a Maryland “grandfather clause” statute. In a related case, Guinn v. United States, the Supreme Court held that such grandfather-clause exemptions to literacy tests violated the Fifteenth Amendment. So the ultimate question in Myers was whether these particular state officers could be personally liable for damages under Section 1983 for enforcing this unconstitutional statute. And the defendants in Myers made exactly the sort of good-faith, lack-of-malice argument that Keller says was well established in 19th-century common law. They argued before the Court that:

The declarations filed in these cases are insufficient in law, because they fail to allege that the action of the defendants in refusing to register the plaintiffs was corrupt or malicious. Malice is an essential allegation in a suit of this kind against registration officers at common law.

But the Supreme Court rejected this argument, holding as follows:

The nonliability, in any event, of the election officers for their official conduct is seriously pressed in argument . . . . But we do not undertake to review the considerations pressed on these subjects, because we think they are fully disposed of by the ruling this day made in the Guinn case and by the very terms of [Section 1983], when considered in the light of the inherently operative force of the Fifteenth Amendment as stated in the case referred to.

In other words, the Myers Court held simply that the statute was unconstitutional under the Fifteenth Amendment, the city officials were enforcing this unconstitutional statute, so they were liable under Section 1983, QED. Whether or not the officers were acting with “malice” was irrelevant, given the plain terms of the statute. So, even if Keller is right about the general state of 19th-century common law, that itself doesn’t make it obvious that this particular statute was meant to subsume those common-law defenses. And in Myers, the Supreme Court held exactly to the contrary.

Now, Keller does briefly discuss Myers in a footnote, arguing that commentators “frequently overread” this decision “for the proposition that executive officials had no immunity from damages claims even in the early 20th century.” His explanation appears to be that because Myers involved a racial discrimination claim, the defendants here — by enforcing the unconstitutional statute — necessarily had the sort of “discriminatory purpose” that would constitute “common law malice.” In other words, Myers doesn’t stand for the idea that malice is unnecessary to show liability under Section 1983; the defendants here just happened to be acting with malice, given the nature of the claim.

But if you look at what the Court actually said in Myers (the language I quoted above), it’s clear this was not the rationale the Court was adopting. While the Court didn’t go into much detail, note that the defendants explicitly argued that “[m]alice is an essential allegation in a suit of this kind.” The Court could easily have said “yes, this is generally true, but malice is inherent to racial discrimination claims” or “malice is plainly established by the facts alleged.” But that’s not what the Court did. Rather, the Court essentially said this malice argument was irrelevant, given the ruling in the Guinn case (which held that such statutes were unconstitutional) and “by the very terms of [Section 1983].”

I think the only reasonable interpretation of this passage is that the Court was holding that the presence of common-law malice was simply irrelevant to Section 1983 suits — all that matters is whether the defendants violated the plaintiffs’ constitutional rights. Therefore, notwithstanding Keller’s dismissal of this case, I think Myers is powerful evidence that no matter the general state of 19th-century common law, Section 1983 did not incorporate across-the-board good-faith defenses for all public officials.

Second, even if Keller is correct that Section 1983 was meant to incorporate a general, good-faith defense for executive officers, there is a massive difference between this sort of actual good-faith requirement and the “clearly established law” standard that characterizes modern qualified immunity. Keller acknowledges this distinction, of course, and explicitly discusses how it represents a divergence between the 19th-century common law and modern doctrine. But I think he understates just how massive a gulf there is between these two approaches. If we were to replace the “clearly established law” standard with an actual, good-faith defense, that would not be a minor, technical correction — it would be a fundamental reshaping and substantial limitation of what qualified immunity actually is.

Notwithstanding that the Supreme Court has called the “clearly established law” test an “objective good faith” standard, the practical operation of the doctrine has nothing to with what a reasonable person would call “good faith.” Under qualified immunity today, even if officers are explicitly acting in bad faith, even if they are intending to violate someone’s constitutional rights, they can still receive qualified immunity, just because no court has confronted that particular set of facts before.

The clearest example of this point is Jessop v. City of Fresno, in which the Ninth Circuit granted immunity to police officers who were alleged to have stolen over $225,000 in cash and rare coins while executing a search warrant. The court said that while “the theft [of] personal property by police officers sworn to uphold the law” may be “morally wrong,” the officers could not be sued for the theft because the Ninth Circuit had never specifically decided “whether the theft of property covered by the terms of a search warrant, and seized pursuant to that warrant, violates the Fourth Amendment.” Obviously these officers were not acting in good faith, and no one contended otherwise. But because there was no prior case involving such outlandishly illegal misconduct, they received qualified immunity.

Indeed, in the law enforcement context, most police actions that are genuinely carried out in “good faith” will not violate the Constitution in the first place! After all, the touchstone for most Fourth Amendment questions is “reasonableness.” A police officer does not violate the Fourth Amendment just because they arrest someone who turns out to be innocent or use force that, with the benefit of hindsight, was unnecessary. As I discussed in more detail here, the Supreme Court’s decision in Graham v. Connor creates an “objective reasonableness” standard for excessive‐​force claims that is highly deferential to on-the-spot police decision-making. Basically by definition, an officer who is genuinely acting in good faith will not be acting “objectively unreasonably,” which means they won’t be violating the Constitution at all.

Another way of expressing this point is that, at least for police officers, there is not much of a gap between reasonableness and lawfulness. The only obvious example I can think of where you might say an officer is genuinely acting in good faith, but nevertheless violating someone’s constitutional rights, is where they are carrying out a statute they reasonably believed to be constitutional (but which is then held unconstitutional), or acting in accord with judicial precedent that was governing at the time (but which is then modified or reversed). There’s a reasonable case for limiting liability in these context, and it’s for exactly this reason that I suggested a legislative fix to qualified immunity could include safe-harbor provisions in these circumstances. This was also the policy judgment reflected in Senator Mike Braun’s “Reforming Qualified Immunity Act,” which included exactly these safe harbors.

But whether or not police officers should receive immunity in those limited circumstances, such cases make up only a very small fraction of Section 1983 suits. Thus, in the mine run of cases involving law enforcement, replacing the “clearly established law” standard with an actual good-faith standard would be close to eliminating qualified immunity entirely. 

* * *

In conclusion, I commend Scott Keller for a thoughtful and detailed article, and for contributing to the scholarship on such an important question. As I noted above, he makes a powerful argument that the common-law background on governmental immunity is, at the very least, more complicated than a lot of us previously recognized, and I look forward to the academic responses I’m sure this will provoke.

However, even if Keller is right about the 19th-century common law background, I remain skeptical that Section 1983 itself was meant to incorporate any kind of across-the-board defense for all public officials. And Keller himself acknowledges that the “clearly established law” standard, which is the defining feature of modern qualified immunity doctrine, is fundamentally at odds even with his interpretation of 19th-century common law. In my view, the case for eliminating qualified immunity — or at the very least, eliminating the “clearly established law” test — remains as strong as ever.

 

Today, Cato published my official policy analysis on qualified immunity, titled “Qualified Immunity: A Legal, Practical, and Moral Failure.” As the name suggests, this PA explains how the doctrine of qualified immunity lacks any proper legal basis, is incapable of consistent, principled application by lower courts, and regularly denies justice to victims of egregious misconduct. It also discusses practical proposals for eliminating or substantially modifying qualified immunity, and it responds to common objections or misunderstandings related to the doctrine.

A lot of this information is already summarized on our FAQs page here, but the PA is Cato’s comprehensive, detailed analysis of qualified immunity. The executive summary is included below.

* * * 

A good sign that a policy is indefensible is when its proponents cannot bring themselves to describe it accurately. Such is the case with the doctrine of qualified immunity, which is currently the subject of a furious disinformation campaign led by the law‐​enforcement lobby (see here, here). The most recent mouthpiece for this campaign was Tucker Carlson, who two nights ago mounted a spirited defense of an imaginary legal rule that he called “qualified immunity,” but which bears only the faintest resemblance to the actual doctrine. Reason’s Billy Binion and IJ’s Patrick Jaicomo have already done a great job explaining some of Carlson’s biggest mistakes, but there is so much here that is either highly misleading or outright false that it’s worth unpacking in full. Strap in!

By way of background, the inciting incident for Carlson’s segment on qualified immunity was the “Reforming Qualified Immunity Act” introduced by Senator Mike Braun (R-IN) earlier this week. As I discussed here, what this bill would effectively do is eliminate qualified immunity in its current form and replace it with limited safe‐​harbor provisions. The main effect would be that people whose rights are violated would no longer need to find prior cases where someone else’s rights were violated in the same way before being allowed to proceed with their claims. However, if defendants could show that either (1) their actions were specifically authorized by a state or federal law they reasonably believed to be constitutional, or (2) their actions were specifically authorized by judicial precedent that was applicable at the time, then they could avoid liability.

In other words, this bill doesn’t go far as the Amash‐​Pressley “Ending Qualified Immunity Act,” which would eliminate the doctrine entirely. But it is still a significant proposal that both meaningfully addresses and corrects the core absurdity of the current qualified immunity regime (the “clearly established law” standard), while preserving immunity in those relatively rare—but more sympathetic—cases in which defendants are specifically acting in accordance with applicable statutes or judicial precedent. And, unlike the “Justice in Policing Act,” Senator Braun’s bill would reform qualified immunity across the board for all government agents, not just members of law enforcement.

So, what did Tucker Carlson have to say about this bill?

Braun has introduced legislation in the Congress that will make it easier for left‐​wing groups to sue police officers.

I won’t dwell on this point, because Carlson is clearly just being snarky here. But suffice to say, Braun’s proposal is not specific to “left‐​wing groups,” and indeed, not specific to police at all. Rather, it just amends Section 1983 — our primary federal civil rights statute, which permits all citizens to sue government agents who violate their rights — to clarify that defendants cannot escape liability, just because there is no prior case with similar facts.

Under current law, police officers in this country benefit from something that’s called “qualified immunity.”

Again, qualified immunity is not limited to police officers. The defense can be raised by all state and local public officials who have civil rights claims brought against them, including corrections officers, public school officials, county clerks, and other municipal employees. Still, the reason qualified immunity is such a hot topic right now is because of its application to law enforcement, so I’ll stop harping on this issue. Also, the suggestion that police officers actually benefit from qualified immunity is highly suspect, but we’ll get to that later…

Qualified immunity means that cops can’t be personally sued when they accidentally violate people’s rights while conducting their duties. They can be sued personally when they do it intentionally, and they often are.

Here is where Carlson plunges headfirst into fantasy. This “accidental/​intentional” distinction he’s describing has no basis in qualified immunity case law. Indeed, under the “clearly established law” standard, a defendant’s state of mind has no bearing whatsoever on whether they are entitled to qualified immunity — a defendant could be explicitly acting in bad faith, with the express intent to violate someone’s rights, and still receive immunity, so long as there was no prior case involving the precise sort of misconduct they committed.

The best illustration of this point is the Ninth Circuit’s recent decision in Jessop v. City of Fresno, where the court granted immunity to police officers alleged to have stolen over $225,000 in cash and rare coins while executing a search warrant. The court noted that while “the theft [of] personal property by police officers sworn to uphold the law” may be “morally wrong,” the officers could not be sued for the theft because the Ninth Circuit had never specifically decided “whether the theft of property covered by the terms of a search warrant, and seized pursuant to that warrant, violates the Fourth Amendment.” In other words, it didn’t matter that the officers were intending to break the law; not even the defendants here claimed that they “accidentally” stole from this suspect. All that mattered was that the court hadn’t confronted this particular factual scenario before.

In other words, police officers are not above the law.

It is true that police officers are not literally immune from liability for their misconduct (unlike prosecutors, who actually do receive absolute immunity for violating people’s rights). But police officers are held to a vastly lower standard of accountability than the citizens they police. For regular people, it’s a well‐​known legal maxim that “ignorance of the law is no excuse.” Even in cases with serious criminal penalties, courts routinely permit the prosecution and conviction of defendants who had no idea they were breaking the law. If anything, you would expect law enforcement—public officials specifically charged with knowing and enforcing the law—to be held to a higher standard of care than ordinary citizens. But in fact, they’re held to a far lower standard. Ignorance of the law is no excuse—unless you wear a badge.

Cops who commit crimes can be punished . . . . Cops who make lesser mistakes can be disciplined, suspended, or fired, and they often are. That’s the system that we have now. It works pretty well.

If this assertion doesn’t cause you to burst out laughing, then you haven’t been paying attention to our criminal justice system for the last several decades. Suffice to say, no, our system is not working pretty well. It is extraordinarily difficult to convince prosecutors to bring charges against police officers, much less to obtain convictions (see here for a list of especially notable non‐​convictions). And internal discipline measures are feeble, due in large part to the power of police unions. The inadequacy of both criminal prosecution and internal discipline as meaningful accountability measures is exactly why we need a robust civil remedy — and therefore exactly why qualified immunity is such a serious problem (we’ve argued this point in much more detail in our cross‐​ideological amicus briefs before the Supreme Court).

Civil immunity, by the way, has precisely nothing to do with anything that happened in the George Floyd case, just in case you’re wondering. That cop is in jail.

Qualified immunity applies in civil law suits, not criminal prosecutions, so it’s true that qualified immunity will not limit the criminal prosecution of Derek Chauvin. But Carlson is wrong that the doctrine has “nothing to do with anything that happened in the George Floyd case,” for two reasons.

First, if George Floyd’s family does decide to bring a civil rights claim against Chauvin and the other officers on the scene, it is entirely possible that the officers would be able to invoke qualified immunity, depending on whether there’s a prior case in the Eighth Circuit with similar facts (i.e., an officer kneeling on a non‐​resisting suspect’s neck for a long period of time while the suspect says he can’t breathe). Even if Chauvin is convicted of murder, that’s no guarantee that he wouldn’t be entitled to immunity in a civil suit. Whether a prosecutor can prove the elements of murder beyond a reasonable doubt is just a different legal question than whether prior case law would make the violation of George Floyd’s rights “clearly established,” under modern qualified immunity doctrine.

Second, the senseless violence committed by Derek Chauvin and the stunning indifference of the other officers are the product of our culture of near‐​zero accountability for law enforcement. While that culture has many complex causes, one of the most significant is qualified immunity. Section 1983 was supposed to be the primary means of holding accountable government agents who violate our constitutional rights. Qualified immunity has severely undermined the deterrent effect of that statute, and thereby contributed to an environment where police simply do not expect to be held to account when they commit misconduct.

Qualified immunity has worked so well because police officers, maybe more than anyone else in society, must make difficult split‐​second decisions on the job, and a lot. They do it constantly. Whether to arrest someone, whether to conduct a search, whether to use force against a suspect. Sometimes, actions they sincerely and reasonably believe are legal are found later by courts to be unconstitutional.

Here, Carlson regurgitates what is probably the most commonly invoked defense of qualified immunity — that it is necessary to protect the discretion of police officers to make split‐​second decisions. And, no surprise, it is profoundly mistaken. This was the very first issue I addressed in my previous post on “The Most Common Defenses of Qualified Immunity, and Why They’re Wrong,” but the short answer is that our substantive standards for determining what actions do and do not violate the Fourth Amendment already incorporate substantial deference to on‐​the‐​spot police decision‐​making. In other words, when police “sincerely and reasonably” make a decision about whether to arrest someone or use force, they almost certainly will not have broken the law in the first place. Qualified immunity is therefore unnecessary to protect this discretion, because the doctrine, by definition, only applies when a defendant has committed a constitutional violation.

Moreover, as a I discussed above, qualified immunity has nothing to do with whether an officer “sincerely and reasonably” believed their actions to be lawful. It doesn’t turn on their state of mind at all. All that matters is whether a court determines that the facts of prior cases were sufficiently similar to hold that the law was “clearly established.”

The Reason article by Billy Binion aptly notes that Carlson’s assertion here “can only be explained by a lack of familiarity with qualified immunity case law,” and he provides numerous examples of the sort of egregious injustices this doctrine has permitted:

Take the cop who received qualified immunity after shooting a 10‐​year‐​old while in pursuit of a suspect that had no relationship to the child. The officer, sheriff’s deputy Matthew Vickers, was aiming at the boy’s nonthreatening dog. There were also the cops who were granted qualified immunity after assaulting and arresting a man for standing outside of his own house. And the prison guards who locked a naked inmate in a cell filled with raw sewage and “massive amounts” of human feces. And the cop who, without warning, shot a 15‐​year‐​old who was on his way to school. And the cops who received qualified immunity after siccing a police dog on a person who’d surrendered. It doesn’t take much thought to conclude that those courses of action were morally bankrupt.

Just so. Okay, back to Carlson’s defense of what‐​he‐​calls‐​qualified‐​immunity:

Sometimes the very laws [police officers] enforce are struck down. That’s not their fault, obviously, but without qualified immunity, police could be sued for that personally.

Only a tiny fraction of lawsuits against police involve claims that the laws they’re enforcing are themselves unconstitutional. But Carlson actually is correct that, without qualified immunity, police officers could be held liable for enforcing unconstitutional statutes. Indeed, that sort of application was probably the principal evil that Congress had in mind when it enacted Section 1983 in 1871, as part of the Ku Klux Klan Act. Congress was well aware that southern states would continue passing laws infringing on the constitutional rights of recently freed slaves, and they wanted to deter state and local officials from carrying out such laws. Executive officers—no less than legislators or judges—have an independent obligation to enforce and respect constitutional limitations.

Still, one can understand the seeming unfairness in holding defendants personally liable when the only conduct alleged to be unlawful was executing a statute they reasonably believed to be valid. But… for that very reason, this is one of the two explicit safe harbors included in Braun’s bill! His proposal expressly states that a defendant will not be liable under Section 1983 when “the conduct alleged to be unlawful was specifically authorized or required by a Federal statute or regulation, or by a statute passed by the primary legislative body of the State . . . in which the conduct was committed.” In other words, Carlson is either entirely unaware of or willfully concealing the fact that Braun agrees with his own argument here, and has already incorporated it into his bill.

[Police officers] could be bankrupted, they could lose their homes. That’s unfair. It would also end law enforcement. No one would serve as a police officer.

This is another issue I already addressed in my “common defenses” post, but I’ll repeat the main points here. First, it’s crucial to understand that even today, police officers are nearly always indemnified for any settlements or judgments against them in civil rights claims. This means that their municipal employers, not the officers themselves, actually end up paying. Joanna Schwartz, a UCLA law professor and probably the foremost scholar of qualified immunity, demonstrated in a 2014 article called Police Indemnification that, in her study period, “governments paid approximately 99.98% of the dollars that plaintiffs recovered in lawsuits alleging civil rights violations by law enforcement.” In other words, even when plaintiffs do overcome qualified immunity, the individual police officers rarely pay a dime.

I have written elsewhere about how this practice of near‐​automatic indemnification is itself problematic, because it fails to provide for individualized accountability for officers who violate people’s rights. A better practice, as my colleague Clark Neily has also discussed, would be to take some portion of the money that municipalities already spend on civil rights judgments, and instead put that toward an insurance allowance for individual officers. Nevertheless, as things currently stand, officers are almost never required to pay anything personally, and that won’t change if we eliminate qualified immunity. The idea that police would be “bankrupted” or “lose their homes” is reckless fear‐​mongering.

Also, with regard to the idea that eliminating qualified immunity would “end law enforcement,” I wonder whether Carlson is aware that he’s made a testable prediction? After all, as I discussed here, Colorado recently enacted a civil rights law that effectively removes the defense of qualified immunity for officers who violate people’s rights under the state constitution. Will this “end law enforcement” in Colorado? If Tucker Carlson or anyone who agrees with him would like to make a bet on this question, I’ll give generous odds.

And that’s why the Supreme Court has upheld the principle of qualified immunity for decades now, often unanimously, both sides agreeing.

I will give Carlson this — he is absolutely right that the Supreme Court has shown remarkable tenacity in sticking to one of the most embarrassing, egregious mistakes in its history. Section 1983 clearly says that any state actor who violates someone’s constitutional rights “shall be liable to the party injured,” and the common‐​law history against which that statute was passed did not include any across‐​the‐​board defenses for public officials. The Supreme Court’s invention of qualified immunity was a brazen act of judicial policy‐​making that effectively rewrote this statute, and it’s shameful that the Justices have repeatedly declined the opportunity to correct this error.

What is surprising, however, is why Tucker Carlson approves of such blatant judicial activism in this case. After all, Carlson himself recently bemoaned how “courts increasingly have come to see themselves not as interpreters of the law, their constitutional role, but as the country’s main policy makers.” So, does he want the Supreme Court to faithfully interpret the text and history of Section 1983? Or to continue imposing their own policy preferences?

But now, in order to placate the rioters, who he believes have more moral authority than the police, Senator Mike Braun of Indiana would like to gut qualified immunity, and make it easier for cops to be sued personally for mistakes.

I already discussed above how Senator Braun’s bill does not wholly abolish qualified immunity, but rather replaces the “clearly established law” standard with two limited, principled safe‐​harbors. I also discussed how Section 1983 doesn’t make cops liable for “mistakes”; it makes them liable for constitutional violations — and the Fourth Amendment itself is already incredibly deferential to police decision‐​making. An officer hasn’t violated the Fourth Amendment because they made the “wrong” call with regard to an arrest or use of force; they only violate the Fourth Amendment when they act objectively unreasonable, under the circumstances known to them at the time.

But I want to address this idea of “moral authority.” Setting aside the nonsense about “placating rioters,” how does it affect the moral authority of the law enforcement community when we hold police officers to a lower standard of liability than any other profession? As I’ve discussed previously, the proponents of qualified immunity are profoundly mistaken if they think the doctrine is doing the law enforcement community any favors. If you want to restore the moral authority of the police, you can’t let police officers escape liability for egregious and immoral misconduct. If you want people to respect officers as professionals, then the law has to hold them to professional standards.

Qualified immunity, more than any other single rule or decision, has eroded the moral authority of the police, not protected it. And that is exactly why the more thoughtful members of law enforcement — such as the Law Enforcement Action Partnership and the National Organization of Black Law Enforcement Executives — have explicitly called for the elimination of qualified immunity. As Major Neill Franklin (Ret.) has explained: “Accountability measures that show an agency is serious about respecting the rights of all of its residents help the police as much as they help the communities we serve. There’s no better way to restore community trust. And we cannot do our jobs without trust.”

* * *

Carlson finishes his segment with a rant about Charles Koch that would make Nancy MacLean blush, and then asks whether Senator Braun would be willing to defend the absolute immunity that members of Congress enjoy. This latter question is interesting enough on its own, but Carlson obviously just intends it as a “gotcha,” not as a serious point of discussion.

But the bottom line is that Tucker Carlson has done a profound disservice to his viewers and to the country by further propagating blatant misunderstandings of what qualified immunity actually is. It’s honestly hard to say whether Carlson himself has been duped, or whether he is willfully joining the disinformation campaign of the law‐​enforcement lobby. But either way, nobody should take what he’s saying at face value. I remain interested to see whether any self‐​professed advocate of qualified immunity will defend the actual doctrine.

Today, Senator Mike Braun (R-IN) announced that he will be introducing the “Reforming Qualified Immunity Act.” While many other Republicans have already expressed interest in addressing qualified immunity, Senator Braun is the first Republican in the Senate to put forward or join a concrete legislative proposal to fix this egregious doctrine. In contrast to the Amash-Pressley “Ending Qualified Immunity Act,” Senator Braun’s bill would not wholly abolish all vestiges of the doctrine. But it is a significant proposal that meaningful acknowledges and corrects the most fundamental injustices of qualified immunity. Here’s how it works:

By way of background, Section 1983 — the federal statute that was intended to allow people to sue government officials who violate their constitutional rights — provides that:

Every person who, under color of any statute, ordinance, regulation, custom, or usage, of any State or Territory or the District of Columbia, subjects . . . any citizen of the United States . . . to the deprivation of any rights, privileges, or immunities secured by the Constitution and laws, shall be liable to the party injured in an action at law . . . .

In other words, the statute says that anyone acting “under color of” state law — i.e., any state actor — who violates someone’s rights “shall be liable to the party injured.” The statute says nothing about any immunities, and as Professor Will Baude has explained in detail, the common-law history against which this statute was passed did not include any across-the-board immunities for all public officials. But the Supreme Court effectively rewrote this statute by inserting the phrase “clearly established” between “any” and “rights.” Legislative solutions to qualified immunity therefore need to amend Section 1983 to say, in essence, that the statute actually means what it says.

So with that in mind, let’s look at the operative text of Senator Braun’s bill, which amends Section 1983 as follows. To begin, it states:

(b)(1) Except as provided in paragraph (2), it shall not be a defense to any action brought under this section [i.e., under Section 1983] that, at the time of the deprivation—

(A) the defendant was acting in good faith;

(B) the defendant believed, reasonably or otherwise, that his or her conduct was lawful;

(C) the rights, privileges, or immunities secured by the Constitution and laws were not clearly established; or

(D) the state of the law was such that the defendant could not reasonably have been expected to know whether his or her conduct was lawful.

This language, which closely mirrors the exact language used in both the “Ending Qualified Immunity Act” and the “Justice in Policing Act,” effectively eliminates qualified immunity in its present form (i.e., the “clearly established law” standard), and also clarifies that a defendant’s subjective belief in the legality of their conduct is not enough, on its own, to let them avoid liability for violating someone’s rights. Note also that while the “Justice in Policing Act,” as amended, only eliminates qualified immunity for law enforcement, Senator Braun’s bill, like the Amash-Pressley bill, eliminates qualified immunity for all public officials.

However, Senator Braun’s “Reforming Qualified Immunity Act” then goes on to create safe-harbor provisions that would allow defendants to avoid liability under certain conditions. I’m not going to quote the entire text of the bill here (it gets pretty technical), but to summarize, defendants would be able to avoid liability under the following two sets of circumstances:

• If the defendant could show that, at the time they were alleged to have violated someone’s rights, (1) their challenged conduct was specifically authorized by a federal or state statute, or federal regulation, (2) no court had held that this statute or regulation was unconstitutional, and (3) they had a reasonable, good-faith belief that their actions were lawful.

• If the defendant could show that, at the time they were alleged to have violated someone’s rights, (1) their challenged conduct was specifically authorized by then-applicable judicial precedent, and (2) they had a reasonable, good-faith belief that their actions were lawful.

One way to think about these safe-harbor provisions is that they effectively reverse the current application of the “clearly established law” standard. Today, for a civil-rights plaintiff to get redress for a violation of their rights, they have to find prior case law specifically saying that the defendant was not allowed to commit the particular misconduct at issue. Under Senator Braun’s proposal, a defendant who committed misconduct would be liable, unless they could show a prior case or statute authorizing their conduct.

To be clear, there are reasonable arguments that public officials, especially members of law enforcement, should not be able to avoid liability even under these conditions. Executive officers—no less than legislators or judges—have an independent obligation to enforce and respect constitutional limitations, and Section 1983 was originally passed on the explicit understanding that state actors who enforced unconstitutional statutes would be liable. And if an individual’s constitutional rights are violated, they deserve a remedy, whether or not that the injury was the product of an unconstitutional statute.

Still, one can understand the seeming unfairness in holding defendants personally liable when the only conduct alleged to be unlawful was executing a statute they reasonably believed to be valid, or following judicial precedent that was applicable at the time. To that end, Senator Braun’s compromise proposal preserves immunity in those relatively rare—but more sympathetic—cases in which defendants are specifically acting in accordance with clearly established law, but it would still have a major effect on run-of-the-mill civil rights claims, which are typically fact and context-specific and would not fall within one of these “safe harbor” provisions.

Somewhat surprisingly, Senator Braun’s bill also includes a provision that would make local governments directly liable anytime their municipal employees committed constitutional violations. Under current case law, the Supreme Court has held that while local governments can be sued under Section 1983, the government itself must have had a specific “policy or practice” that caused the harm — in other words, local governments are not subject to the rule of respondeat superior (“let the master answer”), where they are liable simply because their employees are. But Senator Braun’s bill would change this state of affairs, by clarifying that “a municipality or other unit of local government shall be liable for a violation . . . by an agent or employee of the municipality or other unit of local government acting within the scope of his or her employment.”

This is, to put it mildly, a very ambitious proposal. On the one hand, there’s a reasonable argument that the Supreme Court erred in concluding that respondeat superior doesn’t apply to Section 1983 claims (see Justice Stevens’ dissent here), and in an ideal world, municipal liability could help augment the deterrent and remedial effects of eliminating qualified immunity. But on the other, this particular proposal has received far less attention and research than the proposal to eliminate qualified immunity itself, and its potential effects are highly uncertain. After all, making every municipality directly liable for the unconstitutional actions of their employees has pretty major financial implications. While I think it’s worth studying this idea going forward, I’m skeptical that it’s going to get much traction in the current political dialogue on qualified immunity.

* * *

In conclusion, Senator Braun’s bill represents a major step forward in the larger discussion about police accountability in general, and qualified immunity in particular. There’s a reasonable debate to be had on whether we should eliminate qualified immunity entirely, or repeal-and-replace it with something limited and principled. I maintain that complete elimination is the most just and sensible policy option, but I also recognize that Senator Braun’s safe-harbor provisions could be appealing to the many Republicans who have expressed interest in compromise solutions. I don’t purport to have any special insight on how the political dynamics here will shake out, but I look forward to the discussion.

Nevertheless, putting aside the details, the bottom line is that no policing reforms will be meaningful if they don’t fix qualified immunity. We can legislate all the rules for law enforcement that we want, but if police officers can break those rules with impunity, then those rules aren’t actually doing us any good. Senator Braun’s bill shows that he recognizes this point, and it’s a clear indication that the rest of Senate won’t be able to ignore it either.

Today, Colorado Governor Jared Polis signed into law Senate Bill 20–217 (“SB-217”), otherwise known as the Law Enforcement Integrity and Accountability Act. SB-217 includes a range of major policing reforms, including a ban on the use of chokeholds, limits on when police are allowed to shoot at fleeing suspects, and requirements that officers use body cameras and that departments release the footage within 45 days. But perhaps most notably, the law ensures that police officers in Colorado will not be able to avoid liability for their misconduct due to the unlawful shield of qualified immunity.

While many are summarizing SB-217 as “ending qualified immunity” in Colorado, what the law formally does is permit individuals to bring claims against police officers who violate their constitutional rights under Colorado law. SB-217 is therefore a kind of “state analogue” to Section 1983, our main federal civil rights statute. Whereas Section 1983 creates a cause of action allowing individuals whose rights are violated under the federal Constitution to bring a lawsuit for damages in federal court, SB-217 allows individuals whose rights are violated under the state constitution to bring a lawsuit for damages in state court.

Colorado, like most states, has a bill of rights that largely mirrors the federal Constitution (and in some ways is even more protective) so this means that SB-217 will cover things like excessive force claims, unlawful arrests, etc. And most importantly, SB-217 specifically provides that “qualified immunity is not a defense to liability pursuant to this section.” So, the law does not technically “eliminate qualified immunity,” insofar as we’re talking about the federal doctrine — if Coloradans bring Section 1983 claims in federal court, those claims will still be subject to qualified immunity. But the law does ensure, at least with respect to police officers, that Coloradans will have a robust alternative remedy to Section 1983 claims for violations of their constitutional rights.

Colorado is not the first state to enact a “state analogue” to Section 1983, but it is the first state to specifically negate the availability of qualified immunity as a defense through legislation. As it turns out, that clarification is crucial, because in nearly all of the other states that have passed similar laws, state courts have incorporated a similar or identical version of federal qualified immunity, even when the relevant statute says nothing about it. For example, a Massachusetts law provides that “[a]ny person whose exercise or enjoyment of … rights secured by the constitution or laws of the commonwealth, has been interfered with … may institute … a civil action for injunctive and other appropriate equitable relief … including the award of compensatory money damages.” But the Massachusetts Supreme Judicial Court has nevertheless held that the legislature “intended to adopt the standard of immunity for public officials developed under 42 U.S.C. § 1983.”

Thus, the proponents of SB-217 — in particular, the ACLU of Colorado — showed tremendous wisdom in recognizing that any civil rights legislation would need to specifically address and negate the defense of qualified immunity, lest the courts assume the doctrine was meant to apply. I was honored to have the opportunity to testify as a subject‐​matter expert on qualified immunity before the Colorado House Judiciary Committee on March 5, 2020, where I explained how qualified immunity has blunted both the deterrent and remedial effects of similar civil rights legislation.

Another noteworthy aspect of SB-217 is that it passed with overwhelming bipartisan support. The Colorado House approved the bill by a vote of 52–13, and the Colorado Senate approved it nearly unanimously by a vote of 32–1. This further demonstrates the extent to which there is a broad, cross‐​ideological consensus against qualified immunity. As members of Congress continue to discuss this issue, I hope they’re paying attention to Colorado.

In the continuing aftermath of George Floyd’s death at the hands of Minnesota police, qualified immunity has come to the forefront. By protecting police officers from liability, even when they violate people’s constitutional rights, this doctrine has become the cornerstone of our near‐​zero accountability policy for law enforcement. Shamefully, the Supreme Court recently declined the perfect opportunity to address the mess that it made by inventing this doctrine. But Congress has also turned its attention to the issue, and there are now several pending legislative proposals to abolish qualified immunity. And that development has compelled the few proponents of the doctrine to actually put forward arguments in its defense.

Some of these arguments may sound reasonable, but they all rest on misunderstandings or misrepresentations about what qualified immunity actually is, and how it works. I’ve already discussed some of these points in this recent post, as well as on Unlawful Shield’s FAQs about qualified immunity. But I thought it would be helpful to collect and rebut in one place all of the most common arguments that I’ve heard come up in recent congressional hearings and other public commentary.

1. “We need qualified immunity so that police won’t hesitate when they have to make split‐​second, life‐​or‐​death decisions.”

It is certainly true that police officers have to make difficult, on‐​the‐​spot decisions under conditions of danger and uncertainty. So, the argument goes, it is both unfair and unwise for courts to second guess these decisions, and holding officers personally liable whenever they make the “wrong call” will deter them from carrying out their duties in the first place.

This argument is reasonable, but it has nothing to do with qualified immunity. Our underlying legal standards for determining whether a constitutional violation occurred in the first place are already highly deferential to on‐​the‐​spot police decision‐​making. The Supreme Court’s decision in Graham v. Connor sets out an “objective reasonableness” standard for excessive‐​force claims, which makes clear that courts cannot second guess on‐​the‐​spot policing decisions:

The “reasonableness” of a particular use of force must be judged from the perspective of a reasonable officer on the scene, rather than with the 20/20 vision of hindsight. The Fourth Amendment is not violated by an arrest based on probable cause, even though the wrong person is arrested, nor by the mistaken execution of a valid search warrant on the wrong premises. With respect to a claim of excessive force, the same standard of reasonableness at the moment applies: “Not every push or shove, even if it may later seem unnecessary in the peace of a judge’s chambers,” violates the Fourth Amendment. The calculus of reasonableness must embody allowance for the fact that police officers are often forced to make split‐​second judgments — in circumstances that are tense, uncertain, and rapidly evolving — about the amount of force that is necessary in a particular situation.

To clarify, this decision has nothing to do with qualified immunity. In Graham, the Court was simply explaining that unless an officer acts objectively unreasonable, under the circumstances known to them at the time, they haven’t violated the Fourth Amendment at all.

Keep in mind that qualified immunity only matters in the circumstance where (1) a civil rights plaintiff can show that the defendant did violate their constitutional rights, but (2) those rights were not “clearly established” at the time of the violation (i.e., there was no prior case involving nearly identical facts). So if a police officer didn’t commit a constitutional violation in the first place, then they don’t need qualified immunity to protect them. Qualified immunity is therefore entirely unnecessary to ensure that police can make quick, split‐​second decisions, because that protection is already baked into our Fourth Amendment jurisprudence. If we eliminated qualified immunity tomorrow, that protection would remain untouched.

Moreover, the very fact that officers do have to make difficult, split‐​second decisions underscores how the “clearly established law” standard rests on a bizarre legal fiction. After all, the way that standard works is that police cannot be held liable for their misconduct unless a previous judicial decision has already held that the particular misconduct they committed was unconstitutional. But this supposes that individual police officers are carefully reading the most recent judicial decisions by their relevant appellate court and comparing the exact fact patterns of those cases to scenarios they encounter on the street when making split‐​second decisions. This is, obviously, not how policing actually works. As one federal judge recently stated:

The Supreme Court’s obsession with the clearly established prong assumes that officers are routinely reading Supreme Court and Tenth Circuit opinions in their spare time, carefully comparing the facts in these qualified immunity cases with the circumstances they confront in their day‐​to‐​day police work. It is hard enough for the federal judiciary to embark on such an exercise, let alone likely that police officers are endeavoring to parse opinions. It is far more likely that, in their training and continuing education, police officers are taught general principles, and, in the intense atmosphere of an arrest, police officers rely on these general principles, rather than engaging in a detailed comparison of their situation with a previous Supreme Court or published Tenth Circuit case. It strains credulity to believe that a reasonable officer, as he is approaching a suspect to arrest, is thinking to himself: “Are the facts here anything like the facts in York v. City of Las Cruces?”

In other words, qualified immunity is not only unnecessary for ensuring that police have discretion to make on‐​the‐​spot decisions, but also practically incapable of providing the sort of protection that proponents claim is needed.

2. “Eliminating qualified immunity would negatively impact recruitment and retention of police officers because they would fear being sued.”

There are many, many things wrong with this argument.

First, as I discussed above, even in the absence of qualified immunity, it is by no means easy to demonstrate that a police officer violated your constitutional rights. Our Fourth Amendment jurisprudence incorporates tremendous deference to police decision‐​making, and officers who genuinely make reasonable, good‐​faith decisions about arrests, use of force, etc., are already protected from being sued. The idea that eliminating qualified immunity would somehow lead to ruinous lawsuits anytime someone disagreed with an officer’s use of force is reckless, inaccurate fear‐​mongering.

Second, even today, police officers are nearly always indemnified for any settlements or judgments against them, meaning that their municipal employers, not the officers themselves, actually end up paying. Joanna Schwartz, a UCLA law professor and one of the foremost scholars of qualified immunity, demonstrated in a 2014 article called Police Indemnification that, in her study period, “governments paid approximately 99.98% of the dollars that plaintiffs recovered in lawsuits alleging civil rights violations by law enforcement.” In other words, even when plaintiffs do overcome qualified immunity, the individual police officers rarely pay a dime.

I have written elsewhere about how this practice of near‐​automatic indemnification is itself problematic, because it fails to provide for individualized accountability for officers who violate people’s rights. A better practice, as my colleague Clark Neily has also discussed, would be to take some portion of the money that municipalities already spend on civil rights judgments, and instead put that toward an insurance allowance for individual officers. That way, officers would have a clear, direct interest in making sure their own behavior conformed to constitutional standards — because unprofessional officers who routinely committed misconduct would see their premiums go up, and would eventually be priced out of the market.

Nevertheless, as things currently stand, individual officers are almost never required to pay anything, even when they are found to have committed a constitutional violation. The immediate effect of eliminating qualified immunity would not be to subject these officers to huge judgments, but rather to ensure that victims whose rights are violated have a remedy. 

Third, keep in mind that qualified immunity means law enforcement is held to a far lower standard of liability than basically any other profession. Imagine, for example, that doctors started arguing that they should no longer be liable for malpractice, unless some other doctor had already been held liable for committing the very same kind of malpractice. Nobody would take this argument seriously, and rightfully so. The reality is that doctors, lawyers, accountants, engineers, architects, and professionals of all sorts expect to face liability if they commit professional misconduct. And in every context except for law enforcement, we comfortably accept the premises that the potential for liability (1) justly compensates the victims of professional misconduct, (2) encourages professionals to conform their behavior to legal standards, and (3) doesn’t discourage people from entering the profession in the first place.

So, the relevant question should not be “would eliminating qualified immunity deter people from becoming police officers?” It should be “why should police officers, unlike every other profession in our society, have special protection against liability, even when they break the law?”

Fourth, the proponents of qualified immunity are profoundly mistaken if they think the doctrine is doing the law enforcement community any favors. To the contrary, qualified immunity has dramatically undermined trust and respect for police officers, by telling the public that members of law enforcement can routinely get away with egregious misconduct. There is ample evidence that policing is far more difficult and dangerous when officers lack community trust, which means that qualified immunity is making it harder, not easier, for police to do their jobs.

Indeed, the more thoughtful members of law enforcement have already recognized as much, and for that very reason (among others) have called for an end to qualified immunity. For example:

• The Law Enforcement Action Partnership (“LEAP”) has joined several of Cato’s amicus briefs calling for the Supreme Court to reconsider qualified immunity, and they recently put out a set of policy recommendations stating that “Congress should pass a law to ensure that the qualified immunity doctrine does not stop officers who break the law from being held legally accountable.” LEAP’s Executive Director, Major Neill Franklin (Ret.), explained that “[a]ccountability measures that show an agency is serious about respecting the rights of all of its residents help the police as much as they help the communities we serve. There’s no better way to restore community trust. And we cannot do our jobs without trust.”

• Ronald Davis, Chair of the Legislative Committee of the National Organization for Black Law Enforcement Executives (“NOBLE”), and a retired chief of police, submitted testimony to the House Judiciary Committee, in which he said that “the first action step in reconstructing a new policing system is to take immediate steps in strengthening police accountability and building trust with communities.” To that end, he recommended that Congress “[e]nd the qualified immunity doctrine which prevents police from being held legally accountable when they break the law.”

3. “Qualified immunity is necessary to prevent frivolous lawsuits against police officers.”

Whether or not you think “frivolous civil‐​rights litigation” is a serious problem, it’s a problem that qualified immunity, by its very nature, is incapable of addressing.

There are basically two things we might mean by saying that a particular lawsuit is “frivolous.” First, it could mean that a lawsuit is not legally meritorious, meaning that the facts alleged, even if true, simply do not make out a constitutional violation at all. If that’s the case, then qualified immunity, by definition, is unnecessary to dismiss the lawsuit, because qualified immunity only matters when the defendant has committed an actual constitutional violation, but where a court nonetheless determines that the law wasn’t “clearly established.” If the underlying lawsuit is meritless, however, then it can be dismissed for “failure to state a claim upon which relief can be granted,” without any need to invoke qualified immunity.

Second, a “frivolous” lawsuit could be one that is not factually supported — in other words, maybe the facts alleged, if true, would make out a constitutional violation, but the plaintiff is either mistaken or lying about the facts. But in that case, qualified immunity does little to help in dismissing the case, because of course, plaintiffs could theoretically lie their way around qualified immunity as well, just by alleging facts that do happen to closely match the fact patterns of prior cases.

The tools that we use to address and deter frivolous litigation are entirely separate from qualified immunity. Heightened pleading standards require plaintiffs to make specific, factual, non‐​conclusory allegations showing that they are entitled to relief. Rule 11 of the Federal Rules of Civil Procedure requires attorneys to attest that they have a good‐​faith basis for the factual and legal arguments in all submitted pleadings, and it provides for sanctions if they fail to meet this standard. Depending on the particular subject matter and context, more stringent requirements may apply. Rule 9(b) of the Federal Rules of Civil Procedure imposes extra pleading requirements for alleging fraud; the “anti‐​SLAPP laws” enacted by many states allow for early dismissal of frivolous defamation claims; and the Prison Litigation Reform Act of 1996 limited the ability of prisoners to bring successive, non‐​meritorious lawsuits.

Assuming there is a problem with frivolous civil rights litigation, addressing it will require rules like these. But qualified immunity does basically nothing to stop “frivolous” lawsuits because, again, the doctrine only kicks in when the underlying lawsuit is meritorious. The idea that eliminated qualified immunity will result in a wave of frivolous litigation is more baseless fear‐​mongering — qualified immunity does nothing now to prevent such litigation, so we shouldn’t expect a major change in this regard if we abolish the doctrine.

4. “Qualified immunity protects police officers from the time and expense of litigation by quickly filtering out bad lawsuits.”

This is a somewhat more sophisticated version of the previous defense, but it’s still mistaken. The argument goes like this: “Yes, in theory, non‐​meritorious lawsuits should still end up failing, even in the absence of qualified immunity. But it will take substantial time and resources for officers to successfully defend themselves against these lawsuits. Therefore, even if qualified immunity ends up catching some meritorious cases as well, the doctrine is worth the cost, because it will let defendants quickly and easily dismiss the frivolous ones.”

Yesterday, the New York Times ran an op‐​ed by Professor Daniel Epps, titled “Abolishing Qualified Immunity Is Unlikely to Alter Police Behavior.” I’m fully aware that op‐​ed authors generally don’t get to pick the titles of their pieces, and I suspect this isn’t the title Epps himself would have chosen, because the actual op‐​ed is much more thoughtful and nuanced than the headline. Indeed, Epps pretty clearly comes out in favor of eliminating qualified immunity, but argues also that doing so “is no surefire solution to police misconduct.” I agree with this, insofar as there are no “surefire solutions” to police misconduct. But eliminating qualified immunity is one of the most practical, promising ways to encourage police to conform their behavior to constitutional limitations. And to the extent Professor Epps disagrees with that, he’s mistaken.

As a threshold matter, I want to note several important points that Epps makes about qualified immunity, which I’m in total agreement with:

Qualified immunity shields government officials from personal liability in federal lawsuits unless they violate “clearly established” federal law.… In theory, this requirement protects government defendants from unexpected liability when law changes. In practice, courts apply the doctrine aggressively to shield officers from lawsuits unless plaintiffs can point to other cases declaring essentially identical conduct unconstitutional — a difficult hurdle, even when police conduct appears clearly wrong.

Epps describes the doctrine exactly correctly. While the “clearly established law” standard may sound reasonable enough in the abstract (even if plainly contrary to the text of Section 1983), when you look at the way courts actually apply it, the practical effect is that whether or not victims of official misconduct can get redress for their injuries turns not on whether their rights were violated, or whether the defendants were acting in good faith, or even on how egregious the violation was, but simply on the happenstance of the particular fact patterns of prior cases. Put simply, this standard makes a mockery of justice, law, and logic.

Indeed, even if the former police officer Derek Chauvin is convicted of murdering Mr. Floyd, it’s quite plausible that a court could refuse to hold him liable for violating Mr. Floyd’s constitutional rights if his lawyers were unable to point to an earlier case making clear that the specific action Mr. Chauvin took — kneeling on a restrained person’s neck for more than eight minutes — was unconstitutional.

Also completely correct. Qualified immunity doctrine has reached the point where a police officer could be criminally convicted of murder, but where the victim’s family would still be unable to get damages in a civil suit, just because no court had previously held that this particular kind of murder was unconstitutional.

In recent years, an unlikely coalition seeking to end qualified immunity has emerged.

Epps is referring in part to the vast, cross‐​ideological coalition of public‐​policy groups that Cato has helped to assemble, all of whom have called for the elimination of qualified immunity. Epps also discusses how, on the judiciary, both Justice Thomas and Justice Sotomayor have criticized the doctrine.

There are compelling arguments against qualified immunity. One is compensation: People who are harmed by the police (or those people’s families, in cases of police killings) should have a way to obtain money for medical bills and for pain and suffering. Whatever one’s approach to legal interpretation, it’s hard to justify letting judges make up rules to deny people remedies for serious violations of their constitutional rights.

Epps correctly point out that qualified immunity regularly results in denying justice to individuals whose rights have been violated, and that the doctrine itself was made up by the judiciary, under no reasonable theory of legal interpretation. If the argument against qualified immunity were “only” as strong as this, that alone would be sufficient grounds to eliminate it.

Nevertheless, we turn now to what I take to be the core of Epps’ argument, and the focus of our disagreement—how much of an impact the elimination of qualified immunity is likely to have on police behavior. Epps thinks that because of (1) Fourth Amendment jurisprudence that is itself very deferential to police, and (2) the widespread practice of indemnifying officers who are held liable in civil rights suits, eliminating qualified immunity, on its own, is unlikely to actually change police behavior on the ground.

Before explaining why I think Epps is wrong, it’s worth pointing out that this is the exact opposite of the most common defense of qualified immunity out there—namely, that if you eliminate qualified immunity, it will have such a big impact on police decision‐​making that officers will just stop doing their jobs entirely. (This is the spurious argument advanced by the International Association of Chiefs of Police, which I already addressed here.) So, even if Epps were correct that abolishing qualified immunity is “unlikely to alter police behavior,” that actually directly rebuts the primary line of defense raised by the doctrine’s few proponents.

Okay, but with all that prefacing out of the way, onto the actual problems with Epps’ position. Why does Professor Epps think eliminating qualified immunity is unlikely to be effective?

Courts interpret constitutional rights against police violence quite narrowly, and it is unlikely they will provide redress for a great deal of troubling police conduct even without qualified immunity. Supreme Court doctrine permits police officers to use deadly force when they have “probable cause” to believe someone “poses a threat of serious physical harm.” The standard is highly deferential.… Even where smarter tactics could have prevented death, courts will find no violation so long as the officer can plausibly argue that he feared he was under threat at the moment he used deadly force. In these cases, ending qualified immunity won’t make a difference.

As my former law professor Charles Fried used to say, “I agree with everything but the ‘therefore.’ ” Epps is definitely right that Fourth Amendment case law is already highly deferential to on‐​the‐​spot police decision‐​making. Indeed, I have made exactly this point myself to explain why qualified immunity is “entirely unnecessary to ensure that police can make quick, split‐​second decisions, because that protection is already baked into our Fourth Amendment jurisprudence.” And Epps is similarly correct that there’s a gap between “best‐​practices policing” and “police conduct that minimally satisfies constitutional standards.” Eliminating qualified immunity will not, on its own, ensure that police conform to “best practices.”

But… there’s also a ton of police misconduct that does fail to meet constitutional standards, but which nevertheless gets excused under the doctrine of qualified immunity (see, for example, the three examples I discuss in this post). Epps himself already acknowledged that Derek Chauvin, even if found guilty of murder, might nevertheless receive qualified immunity. So sure, it’s correct that “minimally meeting constitutional standards” is not the same as “best‐​practices policing” — but law enforcement today regularly fails to satisfy even the most basic constitutional standards! If eliminating qualified immunity “only” gets us to the point where police officers more diligently avoid committing constitutional violations — even if they fall short of best practices — that itself will represent a massive change in police behavior.

Epps next discusses how, even today, police officers are nearly always indemnified for any liability in civil rights cases, meaning that it’s actually their municipal employers, rather than the officers themselves, who have to pay.

If police departments are largely footing the bill, perhaps the increased liability risk would encourage them to take more steps to prevent abuses. But governments are not profit‐​maximizing entities, and they do not respond to costs the way private businesses do. Sometimes, politicians may conclude it’s easier to just keep paying judgments rather than change police culture in meaningful ways. The City of Chicago, for example, over the past 15 years has spent many hundreds of millions of dollars in payouts and legal fees in civil cases involving police. Yet that high bill doesn’t seem to have prompted the city to fundamentally rethink its approach to policing.

But the mere fact that governments are not “profit‐​maximizing entities” doesn’t mean they don’t respond to financial incentives. Indeed, it’s extraordinarily well‐​documented that financial incentives cause cities like Chicago to aggressively raise revenues through criminal fines, fees, and forfeitures, often in ways that violate people’s constitutional rights. For example, the DOJ’s Ferguson Report concluded that “FPD supervisors and line officers have undertaken the aggressive code enforcement required to meet the City’s revenue generation expectations” and that “FPD officers routinely conduct stops that have little relation to public safety and a questionable basis in law.” Or take a look at the Institute for Justice’s “Policing for Profit” report, which focuses on the especially egregious — but lucrative — practice of civil forfeiture.

So, going back to Epps’ example, the Chicago Tribune reports that in 2018, Chicago paid $97.9 million in settlements and judgments involving police misconduct. That certainly sounds like a lot in the abstract, but is it the “right” amount? Is that actually the sum total of all the harm caused by all the misconduct of police officers in such a huge city? How much higher would that total have been in the absence of qualified immunity? And how much higher would it need to be before the city was forced to make meaningful changes? I can’t say for sure, but here’s another figure to put those questions in context — according to Chicago’s 2020 budget, in 2019, the city collected $345 million in fines, forfeitures, and penalties — 7.7% of the city’s total revenue for the year.

I’m not in a position to say with confidence how often those fines and forfeitures were collected unlawfully, or exactly how much of a trade‐​off there is between using law enforcement to extract money from citizens vs. covering judgments against those very officers. But I think it’s reasonable to expect that the increased accountability brought by eliminating qualified immunity—which Epps himself expects to see!—would affect these underlying practices.

Also, as my colleague Clark Neily has explained at length, and as I touched on in a recent op‐​ed, abolishing qualified immunity can and should be paired with requirements that individual police officers carry liability insurance. That way, instead of near‐​automatic indemnification blunting individualized accountability, officers would have a clear, direct interest in making sure their own behavior conformed to constitutional standards — because unprofessional officers who routinely committed misconduct would see their premiums go up, and would eventually be priced out of the market.

And in fact, Epps himself seems to agree with us on the salutary effects of using insurance to help regulate police departments. He actually cites a recent law Chicago Law School study finding that “police insurers encourage departments to improve policies and dismiss offending officers.” In other words, Epps has just put forward what seems like pretty strong evidence that, in fact, the potential for liability does lead police departments to alter their behavior. But he then offers this rather bizarre dismissal of the very evidence he just put forward:

But these effects are not guaranteed. A more effective strategy could be just to require departments to adopt better training and personnel policies to begin with.

“Not guaranteed?” This isn’t a philosophy club, and we’re not trying to solve the problem of induction here. This is a question of public policy, and particular policy outcomes are never “guaranteed.” But there’s certainly good evidence, backed also by common sense, that meaningful accountability would indeed have salutary effects on police behavior.

Moreover, his suggestion that we should “require departments to adopt better training and personnel policies” sure sounds reasonable, but it’s not a primitive action. What are these better policies? Are they the same everywhere? How are “we” going to actually “require” them? And most importantly, what happens if we do “require” these policies, and officers violate them anyway?

Epps doesn’t answer any of these questions, but the difficulty raised by all of them is exactly why meaningful accountability is an indispensable component of police reform—the expectation that officers will be held liable if they violate people’s rights is what will actually compel departments to use better policies in the first place, and the risk of a personal judgment is what will give these policies teeth. Qualified immunity is the main obstacle to this sort of accountability, and that’s why it has to be abolished.

* * *

In conclusion, a lot of the particular points made in Epps’ op‐​ed are reasonable and thoughtful, and despite our disagreements, even he comes down clearly on the side of eliminating qualified immunity, because, in his words, it “routinely requires courts to say that there will be no penalty for a police officer who has violated the Constitution” and therefore “sends the message—to officers and the public—that the police are above the law.” That is certainly true. But eliminating qualified immunity is also one of our most promising means of actually encouraging police officers to respect people’s constitutional rights. It is by no means the only police reform that we need, but it is an indispensable component of meaningful reform.

This morning, the Supreme Court denied all of the major cert petitions raising the question of whether qualified immunity should be reconsidered. This is, to put it bluntly, a shocking dereliction of duty. As Cato has argued for years, qualified immunity is an atextual, ahistorical judicial invention, which shields public officials from liability, even when they break the law. The doctrine not only denies justice to victims whose rights have been violated, but also exacerbates our crisis of confidence in law enforcement. By holding police officers to a far lower standard of accountability than ordinary citizens, qualified immunity deprives the entire law enforcement community of the public trust and credibility they need to do their jobs safely and effectively.

There was simply no excuse for the Court to decline this golden opportunity to begin addressing its mistakes in creating and propagating the doctrine of qualified immunity. The petitions before the Court plainly demonstrated both the moral injustices and practical absurdities of the “clearly established law” standard. In Corbitt v. Vickers, for example, the Supreme Court let stand an Eleventh Circuit decision granting immunity to a police officer who shot a ten‐​year‐​old child in the back of the knee, while repeatedly attempting to shoot a pet dog that wasn’t threatening anyone. And in Baxter v. Bracey, the Court let stand a Sixth Circuit decision which said that a prior case holding it unconstitutional for police to deploy a canine against a suspect who had surrendered by laying on the ground did not “clearly establish” that it was unlawful for police to deploy a canine against a suspect who had surrendered by sitting on the ground with his hands up.

Justice Thomas was the only member of the Court who would have granted any of the petitions. He dissented in the Baxter case, writing that “[b]ecause our § 1983 qualified immunity doctrine appears to stray from the statutory text, I would grant this petition.” It’s especially disappointing that Justice Gorsuch didn’t join this dissent, as he has otherwise demonstrated himself to be a principled advocate of textualism and originalism, and also willing to reconsider misguided precedent. And it’s surprising that Justice Sotomayor had nothing to say regarding these cases, given her previous comments in a dissent (joined by Justice Ginsburg) noting that qualified immunity had become an “absolute shield for law enforcement officers” that has “gutt[ed] the deterrent effect of the Fourth Amendment.” Perhaps one or more of these Justices will agree to hear some future case. But for now, Justice Thomas stands alone.

In the tumultuous wake of George Floyd’s brutal death at the hands of Minneapolis police, this development could not come at a worse time. The senseless violence committed by Derek Chauvin—and the stunning indifference of the officers standing by as George Floyd begged for his life—is the product of our culture of near‐​zero accountability for law enforcement. And while this culture has many complex causes, one of the most significant is qualified immunity. By effectively rewriting and undermining the civil rights law that was supposed to be our primary means of holding public officials accountable, the Supreme Court shares a huge portion of the blame for our present crisis.

It’s impossible to know for sure what motivated the Court to deny all of these petitions. But one possibility is that the Justices were looking closely at developments in Congress—where members of both the House and the Senate have introduced bills that would abolish qualified immunity—and decided to duck the question, hoping to pressure Congress to fix the Court’s mess. It is certainly encouraging that so many legislators have finally turned their attention to qualified immunity. But the mere fact that Congress can fix this mess doesn’t absolve the Supreme Court of its obligation to fix what it broke—the Court conjured qualified immunity out of nothing in the first place, and the Justices had both the authority and responsibility to correct their own blunders, no matter what happens in the legislature.

Qualified immunity will go down in history as one of the Supreme Court’s most egregious, costly, and embarrassing mistakes. None of the Justices on the Court today were responsible for creating this doctrine, but they all had a responsibility to fix it—and except for Justice Thomas, they all shirked that responsibility. It is now all the more urgent that Congress move forward on this issue and ensure that all public officials—especially members of law enforcement—are held accountable for their misconduct.

The Cato Institute has been engaged in a strategic campaign to abolish qualified immunity for over two years now. In all that time, the closest I’ve seen to an actual defense of the doctrine is a 2018 law review article by Professors Aaron Nielson and Chris Walker called A Qualified Defense of Qualified Immunity. As the title would suggest, this is hardly a robust defense, but rather a limited, measured argument that the legal case against qualified immunity isn’t quite as strong as its critics suggest. The article doesn’t really defend qualified immunity as a policy matter, but argues primarily that the Supreme Court should simply leave any reforms to Congress. And that, I have said on several occasions, is the furthest that anyone has been willing to go to defend the doctrine.

Until now.

In the wake of George Floyd’s death, with both the Supreme Court and Congress considering whether to reform or abolish qualified immunity, the International Association of Chiefs of Police (“IACP”) has put out a short “IACP Statement on Qualified Immunity.” In a way, I’m quite grateful that they’ve done so — by setting out such a hollow and misleading defense of the doctrine, the IACP has actually done a tremendous service to our campaign, by revealing such how indefensible qualified immunity actually is. Let’s go line‐​by‐​line and explain in detail exactly what’s wrong with each argument put forward in this statement:

What is qualified immunity? Qualified immunity provides police officers with protection from civil lawsuits so long as their conduct does not violate clearly established law or constitutional rights of which a reasonable officer would have known.

This is, technically, a correct summary of how the Supreme Court has characterized qualified immunity doctrine. Of course, another way of stating this point is that, even if police officers violate someone’s constitutional rights, they cannot be held liable unless the victim can show that the police violated “clearly established law.” And as I have discussed many times, “clearly established law” is an exacting standard, which generally requires would‐​be civil rights plaintiffs to identify not just a clear legal rule, but a prior case with functionally identical facts. Thus, whether a victim can get redress for their injuries turns not on whether their rights were violated, nor even on how serious the violation was, but rather on the happenstance of the fact patterns in prior cases in their jurisdiction.

Further, qualified immunity does not prevent individuals from recovering damages from police officers who knowingly violate an individual’s constitutional rights.

This is a highly misleading statement. The IACP here is presumably paraphrasing the Supreme Court’s statement that “qualified immunity protects all but the plainly incompetent or those who knowingly violate the law.” But whether a defendant “knowingly” violated the law in this context doesn’t actually turn on the defendant’s personal knowledge or intent; rather, it turns entirely on the defendant’s presumed “knowledge” of “clearly established law.” In other words, courts will not find that a defendant “knew” they were violating someone’s constitutional rights unless the victim can show a prior case where someone else’s rights were violated in a nearly identical manner.

To illustrate this point concretely, here are some examples of police officers who received qualified immunity, and thus were not found to have “knowingly” violated someone’s rights:

• In Jessop v. City of Fresno, the Ninth Circuit granted immunity to police officers who stole over $225,000 in cash and rare coins while executing a search warrant. The court said that while “the theft [of] personal property by police officers sworn to uphold the law” may be “morally wrong,” the officers could not be sued for the theft because the Ninth Circuit had never specifically decided “whether the theft of property covered by the terms of a search warrant, and seized pursuant to that warrant, violates the Fourth Amendment.” This case in particular illustrates just how facile the IACP’s above statement is. Of course these officers knew they were violating the law — but because there was no prior case involving such outlandishly illegal misconduct, they received qualified immunity.

• In Baxter v. Bracey, the Sixth Circuit granted immunity to officers who deployed a police dog against a suspect after he had already surrendered and was sitting on the ground with his hands up. In this case, the victim actually did find a prior case with nearly identical facts, in which the Sixth Circuit had held that it was unconstitutional for police to deploy a dog against a suspect who had surrendered by laying on the ground. But the court nevertheless held that the police had not “knowingly” violated Baxter’s rights, because in that prior case, the suspect was laying on the ground, whereas Baxter was sitting on the ground with his hands up.

• In Kelsay v. Ernst, the Eighth Circuit granted immunity to a police officer who grabbed a small woman, Melanie Kelsay, in a bear hug and slammed her to ground, breaking her collarbone and knocking her unconscious — all because she walked away from him after he told her to “get back here.” To make matters worse, the only reason the police were talking to Ms. Kelsay in the first place is because they mistakenly believed she was the victim of an alleged assault (in actuality, she was just playing around with a friend in a public pool, but onlookers misinterpreted what was happening and called the police). Nevertheless, the court held that this officer did not “knowingly” violate Ms. Kelsay’s rights, because no prior cases specifically held that “a deputy was forbidden to use a takedown maneuver to arrest a suspect who ignored the deputy’s instruction to ‘get back here’ and continued to walk away from the officer.”

So yes, the IACP is correct that, according to the Supreme Court, qualified immunity doesn’t protect officers who “knowingly” violate people’s constitutional rights. But that’s only because “knowingly” in this context is defined in reference to the Kafkaesque “clearly established law” standard.

Qualified immunity is an essential part of policing and American jurisprudence.

This statement is just stupendously wrong. As Professor Will Baude has demonstrated at length — and as Cato has argued in many of our amicus briefs on the subject — qualified immunity is completely untethered from both the text of Section 1983 and the common‐​law history against which that statute was passed. With limited exceptions, the baseline assumption at both the founding and throughout the nineteenth century was that public officials were strictly liable for unconstitutional misconduct. The Supreme Court itself rejected the application of a “good faith defense” to Section 1983 in a 1915 case called Myers v. Anderson. It wasn’t until the Court effectively reversed Myers in 1967 (without acknowledging that they were doing so) that we saw anything like qualified immunity. And the “clearly established law” standard — which is the key feature of modern qualified immunity — wasn’t invented until 1982.

So, on the one hand, we have an atextual legal rule conceived through raw judicial policy‐​making by the Supreme Court 38 years ago. And on the other, we have Chief Justice Marshall’s statement in Marbury v. Madison that: “The government of the United States has been emphatically termed a government of laws, and not of men. It will certainly cease to deserve this high appellation, if the laws furnish no remedy for the violation of a vested legal right.” Only one of these two contradictory principles is “essential” to American jurisprudence.

[Qualified immunity] allows police officers to respond to incidents without pause, make split‐​second decisions, and rely on the current state of the law in making those decisions.

This statement is either a reckless mistake or an outright lie. It is true, of course, that police officers do have to make split‐​second decisions under dangerous, uncertain, and evolving conditions, and in novel circumstances that may have never arisen before. But that is exactly why our legal standards for determining whether a constitutional violation occurred in the first place are highly deferential to on‐​the‐​spot police decision‐​making. In Graham v. Connor, the Supreme Court has made clear that the Fourth Amendment’s “unreasonableness” standard must “allow[] for the fact that police officers are often forced to make split‐​second judgments—in circumstances that are tense, uncertain, and rapidly evolving” and cannot be judged with “the 20/20 vision of hindsight.” Qualified immunity is entirely unnecessary to ensure that police can make quick, split‐​second decisions, because that protection is already baked into our Fourth Amendment jurisprudence. If we eliminated qualified immunity tomorrow, that protection would remain untouched.

[Qualified immunity] is essential because it ensures officers that good faith actions, based on their understanding of the law at the time of the action, will not later be found to be unconstitutional.

Wrong again. If an officer is truly acting in “good faith” — i.e., arresting someone with probable cause, or using an amount of force they reasonably believe is necessary under the circumstances — then they have not broken the law at all. Just because police arrest someone who turns out to be innocent, or conduct a search that turns up nothing, or use force that — with the benefit of hindsight — was unnecessary to effect an arrest, doesn’t mean the police have violated anyone’s constitutional rights. The touchstone of most Fourth Amendment questions is reasonableness, and “good faith” policing decisions, basically by definition, are inherently reasonable. So again, qualified immunity is entirely unnecessary to protect officers in this regard, because “good faith actions” generally do not violate people’s rights in the first place.

The loss of [qualified immunity] would have a profoundly chilling effect on police officers and limit their ability and willingness to respond to critical incidents without hesitation.

Consider for a moment what it would actually mean if the IACP were correct about this point. According to the IACP, it is absolutely essential that police officers be held to a lower standard of accountability then ordinary citizens and all other professions. According to the IACP, most police officers are either so cowardly or so vicious that they will just stop doing their jobs if they are actually held accountable for violating people’s constitutional rights. I, apparently, have far greater faith in members of law enforcement than the IACP does, because I’m quite confident that they’re wrong on this account, and that the vast majority of police would continue protecting the public even in the absence of qualified immunity. And if there are some individuals deterred from the profession by the prospect of actual accountability, well, that is a feature, not a bug, of our civil rights laws.

Calls to limit, reduce, or eliminate qualified immunity do not represent a constructive path forward. In fact, these efforts would most certainly have a far‐​reaching, deleterious effect on the policing profession’s ability to serve and protect communities.

The conclusion to the IACP’s statement is not just wrong, but entirely backwards. As we have explained time and time again in many of the Cato‐​led “cross‐​ideological” amicus briefs, qualified immunity harms not only the victims of police misconduct, but the law enforcement community itself, by depriving officers of the public trust and credibility they need to do their jobs safely and effectively. Policing is made far more difficult and far more dangerous when law enforcement lacks cooperation and respect from the communities they police. And there is perhaps no quicker and more effective way to undermine police‐​community relations than by holding police to a lower standard than everyone else and regularly excusing egregious misconduct on the basis of lawless technicalities.

For this reason, more thoughtful members of law enforcement — like the Law Enforcement Action Partnership — have actually joined Cato’s briefs urging the Court to reconsider qualified immunity and have put out their own policy recommendations calling for an end to the doctrine. In the words of Police Major Neill Franklin (Ret.): “Accountability measures that show an agency is serious about respecting the rights of all of its residents help the police as much as they help the communities we serve. There’s no better way to restore community trust. And we cannot do our jobs without trust.” Just so.

* * *

In conclusion, the IACP’s defense of qualified immunity is, at best, misleading, counter‐​productive, and short‐​sighted, and at worst, full of outright misrepresentations. Nevertheless, I can’t help but pity whatever poor soul was charged with the task of actually writing that statement — it’s hard to defend the indefensible.

I fear I may have become trapped in a time loop, in which every week I am doomed to write the same blog post about how the Supreme Court has delayed consideration of its qualified immunity docket. Back in April, I noted that the Court had scheduled thirteen different qualified immunity cases for its May 15th conference, including three cases explicitly calling for the Court to reconsider the doctrine entirely. Many of these petitions had already been fully briefed and ready for consideration since last October. But the Court then rescheduled the bulk of those cases again, and again, and again.

This morning, the Court kicked the can down the road once more. There were eight different qualified immunity cert petitions that went to conference last Thursday, but none of those petitions were either granted or denied in this morning’s orders. We expect that these petitions will soon be relisted for the Court’s conference this Thursday, June 4th, which means we could get a decision in these cases as soon as Monday, June 8th.

While it’s obviously impossible to know for sure what is motivating the Justices’ continued delay in these cases, I expect that the death of George Floyd, and the continuing outrage and chaos his death has provoked, are weighing heavily on their minds. As my colleague Clark Neily discussed last week, the senseless violence committed by Derek Chauvin—and the stunning indifference of the officers standing by as George Floyd begged for his life—is the product of our culture of near‐​zero accountability for law enforcement. And while that culture has many complex causes, one of the most significant is qualified immunity. As I noted over the weekend, reporters and commentators of all stripes have recognized the profound connection between George Floyd’s death and the Supreme Court’s lawless rewriting of our primary civil rights statute.

The Justices have a critical opportunity now to take the first steps toward correcting the legal and moral perversities of qualified immunity. If they do so, perhaps it will effect some small measure of redemption for the tragic death of George Floyd, and so many like him. If not, it is difficult to overstate how severe our crisis of confidence in law enforcement will become.

This past Monday, George Floyd was killed by a police officer, Derek Chauvin, who pressed his knee against Mr. Floyd’s neck for over eight minutes, while Mr. Floyd and onlookers alike begged for the officer to stop and let Mr. Floyd breathe. George Floyd’s death was no aberrant act of random violence. Rather, as my colleague Clark Neily wrote earlier this week, Mr. Floyd was “the latest victim of our near‐​zero‐​accountability policy for law enforcement.” As such, I expect his death has been weighed with a special kind of gravity on One First Street, where the Justices of the Supreme Court deliberated this week on whether to reconsider qualified immunity—an atextual, ahistorical judicial doctrine that shields public officials from liability, even when they break the law.

Over the last several days, I have observed with grim satisfaction that reporters and commentators of all stripes have appropriately recognized the direct connection between qualified immunity and the senseless murder of George Floyd. For example:

• The New York Times pulls no punches, running an editorial on the subject of “How the Supreme Court Lets Cops Get Away With Murder.” They correctly explain that, while there are a variety of reasons police officers are rarely held to account for their misconduct, “it is the Supreme Court that has enabled a culture of violence and abuse by eviscerating a vital civil rights law to provide police officers what, in practice, is nearly limitless immunity.”

• Fox News also reports that “[t]he death of George Floyd at the hands of a Minneapolis police officer has done more than just trigger massive protests and riots—it’s brought a simmering debate on ‘qualified immunity’ for government officials to a veritable boil.” The Fox piece describes how qualified immunity has “come under fire even from judges on President Trump’s Supreme Court shortlist, like Fifth Circuit Court of Appeals Judge Don Willett,” who wrote in a 2018 concurring opinion that “[t]o some observers, qualified immunity smacks of unqualified impunity, letting public officials duck consequences for bad behavior—no matter how palpably unreasonable.”

• At USA Today, Richard Wolf describes how “Legal immunity for police misconduct, under attack from left and right, may get Supreme Court review.” He notes that “[t]he brutal death of George Floyd at the hands of Minneapolis police has re‐​energized a national debate over misconduct by law enforcement officials that the Supreme Court may be poised to enter.”

• Slate’s Mark Joseph Stern writes that “George Floyd’s killing by Minneapolis police officers shows the damage the court has wrought” through the doctrine of qualified immunity. He further explains how “[a]t their conference on Thursday, the justices will have an opportunity to begin unraveling the catastrophic case law that allows so many officers—including, apparently, Floyd’s killers—to murder civilians with impunity. The court has an obligation to fix what it broke.”

• At Reason, C.J. Ciaramella writes that “The Supreme Court Has a Chance To End Qualified Immunity and Prevent Cases Like George Floyd’s,” and explains that the Court “could announce as early as Monday that it’s taking up several cases involving the doctrine.”

Suffice to say, when both the New York Times and Fox News have basically the same take on such a charged issue, it’s a good sign they’re onto something. On Monday morning, we’ll learn whether the Supreme Court intends to take the first step toward correcting the legal and moral perversities of qualified immunity. If the Court declines to address this issue now, it will not only be a shameful black mark on the Court’s reputation—it will also exacerbate what is already a severe crisis of confidence in law enforcement across the nation.

For the last few weeks, I’ve been detailing the ongoing developments in the Supreme Court’s qualified immunity docket. About three weeks ago, I described how the Court had scheduled thirteen different qualified immunity petitions for its May 15th conference, including several petitions calling for qualified immunity to be reconsidered entirely. But then last week, I noted that the Court had unexpectedly “rescheduled” ten out of those thirteen cases, leaving only three for consideration on May 15th. Well, today the Court issued orders from last week’s conference, and there are two major developments.

First, the bad news: The Court denied cert in the three cases that it considered last week — Kelsay v. Ernst, Jessop v. City of Fresno, and Clarkston v. White — without comment from any of the Justices. This is disappointing, because the Kelsay and Jessop cases in particular involved especially egregious applications of qualified immunity that were crying out for correction, if not summary reversal. In Kelsay, the Eighth Circuit, in an 8–4 en banc decision, granted immunity to a police officer who grabbed a small woman in a bear hug and slammed her to ground, breaking her collarbone and knocking her unconscious, all because she walked away from him after he told her to “get back here.” And in Jessop, the Ninth Circuit granted immunity to police officers who were alleged to have stolen $225,000 in cash and rare coins while executing a search warrant, just for their personal enrichment. By denying cert in these cases, the Supreme Court ensured that these victims would be left without redress for their injuries, and that the police who committed such flagrant misconduct will avoid any liability for their misdeeds. 

Second, the good news: The Court also rescheduled the remaining ten qualified immunity petitions for consideration at its conference this Thursday, May 21st. This means that, barring additional rescheduling, we should get orders on these petitions on Tuesday, May 26th (the day after Memorial Day). Most notably, the cases set for consideration this week include Baxter v. Bracey, Zadeh v. Robinson, and Corbitt v. Vickers, which are the three petitions explicitly calling for qualified immunity to be reconsidered entirely. Thus, the fact that the Justices denied the three petitions today doesn’t necessarily mean they aren’t still interested in revisiting qualified immunity. If anything, the fact that the Court rescheduled the biggest three cases may indicate that the Justices are more interested in addressing this larger question, rather than taking a narrower approach.

Ultimately, it’s hard to say with confidence exactly why the Court decided to approach all of these petitions in the way that it did. I still don’t have a great explanation for why the Court chose to carve out Kelsay, Jessop, and Clarkston for earlier resolution than the other cases. And given the number of unexpected reschedulings we’ve already seen, it’s entirely possible the Court decides to push back some or all of these cases yet again. But for now, it looks like this Thursday is the day the Justices will finally confront the question of whether qualified immunity itself should be reconsidered — and next Tuesday is the day we’ll learn what they decided.

As Yogi Berra famously said, “it’s tough to make predictions, especially about qualified immunity.” Or something like that. Two weeks ago, I discussed how the Supreme Court had scheduled thirteen different cert petitions for its May 15th conference. Several of these petitions had been fully briefed and ready for resolution since last October, so it looked like the Court was finally gearing up to confront the fundamental question of whether qualified immunity should be reconsidered entirely.

George Will further discussed that development this week, describing how qualified immunity “has essentially nullified accountability for law enforcement and other government officers” and urging the Supreme Court to “rethink the mistakes it made regarding qualified immunity.” He also noted how the Cato‐​led cross‐​ideological amicus briefs filed in several of the major cases “represent[] an astonishing ideological diversity” and “have helped to bring qualified immunity’s consequences to the attention of the court.”

But it looks like the Court may be preparing to punt on this question yet again. In the last few days, the Court has rescheduled ten of the thirteen cases that were originally set to go to conference today. (“Rescheduled” here is a bit of a misnomer, because the Court hasn’t yet indicated when they’ll actually consider these petitions — it’s more like an indefinite postponement.) The cases that got rescheduled include all three petitions that explicitly ask the Court to reconsider qualified immunity, and in which Cato organized or filed cross‐​ideological amicus briefs — those three cases are Baxter v. Bracey, Zadeh v. Robinson, and Corbitt v. Vickers. Thus, it looks like we’ll have to wait a little longer to learn whether the Court intends to take up this question.

Curiously, however, the Court did not reschedule the cert petitions in Kelsay v. Ernst, Jessop v. City of Fresno, or Clarkston v. White, which means those petitions will go to conference today. It’s honestly hard to say why the Court would want to make a decision about the petitions in these three cases, but not any of the others. The petitions in Kelsay and Jessop both raise important questions about clarifying and reining in the worst excesses of the “clearly established law” standard, but then, so do the petitions in some of the other cases that got rescheduled. It’s possible that the Court wants to start with some of the narrower QI questions, short of reconsidering the doctrine entirely, and prefers one or more of these three cases as vehicles. Or it’s possible that, for whatever reason, the Court is confident about denying cert in these three cases, but wants to continue the other cases at a future date. It’s also possible that there’s no real rhyme or reason to this decision, and the Court might simply “relist” one or more of these three cases, which would have the same practical effect going forward as rescheduling them.

In short, we really can’t say with confidence why the Court made the scheduling decisions it did this week, nor is it at all clear what will come out of next Monday’s orders with respect to these three cases. But two things do remain certain: first, the Court is paying very close attention to its qualified immunity docket, and second, qualified immunity is desperately in need of reconsideration.

For the last several years, Cato has been leading the campaign to abolish qualified immunity — an atextual, ahistorical judicial doctrine that shields state officials from liability, even when they violate people’s constitutional rights. The most immediate practical goal of this campaign has been to convince the Supreme Court to hear one of the many cases calling for qualified immunity to be either narrowed or reconsidered outright. And over the last seven months, I’ve written several times about how the Court has indicated that it’s preparing to consider several qualified immunity cases, given the manner in which it has repeatedly rescheduled several cert petitions that have been fully briefed and ready for resolution since October of last year. My hypothesis at the time was that the Supreme Court was delaying resolution of these petitions so that it could consider them along with several other high‐​profile cases that also raised the same underlying question of whether qualified immunity should be reconsidered.

Now it would seem that prediction has been vindicated. Just today, the Supreme Court distributed thirteen* different qualified immunity cert petitions for its conference of May 15, 2020. This is obviously no coincidence, and it means that by the morning of Monday, May 18th, we will finally know whether the Justices are prepared to confront one of the most pernicious and legally baseless doctrines in the history of the Court.

Here’s the complete list of the thirteen different petitions that have been distributed for the May 15th conference. In most of these cases, Cato filed an amicus brief in support of the petition, and in many of them, we either helped coordinate or took the lead on a “cross‐​ideological brief,” on behalf of a diverse alliance of organizations opposed to qualified immunity.

• Baxter v. Bracey. In this case, Sixth Circuit granted qualified immunity to two officers who deployed a police dog against a suspect who had already surrendered and was sitting on the ground with his hands up. The ACLU filed a cert petition back in April 2019, asking whether “the judge‐​made doctrine of qualified immunity” should “be narrowed or abolished.” Cato filed a brief in support of the petition, and we also helped to coordinate the filing of a cross‐​ideological brief. This case was originally set to be considered all the way back on October 1, 2019, but it has been rescheduled five times since then. Now, it looks like the Court is finally prepared to resolve Mr. Baxter’s petition.

• Brennan v. Dawson. In this case, the Sixth Circuit granted immunity to a police officer who, in an attempt to administer an alcohol breath test to a man on misdemeanor probation, parked his car in front of the man’s home at 8:00pm; turned the lights and sirens on for over an hour; circled the man’s house five to ten times, peering into and knocking on windows; and wrapped the home’s security camera in police tape. The court held that this warrantless invasion of the curtilage violated the Fourth Amendment, but nevertheless granted immunity due to a lack of “clearly established law.” The cert petition in this case was filed on January 11, 2019, and asks the Court to “reign in the qualified immunity standard to … reflect the common‐​law roots of qualified immunity.”

• Zadeh v. Robinson. In this case, the Fifth Circuit granted immunity to state investigators that entered a doctor’s office and, without notice and without a warrant, demanded to rifle through the medical records of 16 patients.

• Corbitt v. Vickers. This is the case where the Eleventh Circuit granted immunity to a deputy sheriff who shot a ten‐​year‐​old child lying on the ground, while repeatedly attempting to shoot a pet dog that wasn’t posing any threat. The plaintiffs in both Zadeh and Corbitt are now represented by Paul Hughes, who filed cert petitions on November 22, 2019, each of which asks “[w]hether the Court should recalibrate or reverse the doctrine of qualified immunity.” Cato submitted briefs in both cases, this time taking the lead on the cross‐​ideological brief, whose signatories also included the Alliance Defending Freedom, the American Association for Justice, the ACLU, Americans for Prosperity, the Due Process Institute, the Law Enforcement Action Partnership, the MacArthur Justice Center, the NAACP, Public Justice, R Street, and the Second Amendment Foundation.

• Kelsay v. Ernst. This is the case where the Eighth Circuit, in an 8–4 en banc decision, granted immunity to a police officer who grabbed a small woman in a bear hug and slammed her to ground, breaking her collarbone and knocking her unconscious, all because she walked away from him after he told her to “get back here.” The MacArthur Justice Center filed a cert petition on November 26, 2019. While the petition doesn’t ask the Court to reconsider qualified immunity outright, it does ask the Court to “take steps within the confines of current law to rein in the most extreme departures from the original meaning of Section 1983.” Cato filed a brief in support of this petition as well.

• West v. Winfield. In this case, the Ninth Circuit granted immunity to police officers who bombarded an innocent woman’s home with tear‐​gas grenades. The homeowner had given the officers permission to enter her home to look for a suspect, but never consented to anything like the practical destruction of her home that resulted. Nevertheless, the court granted immunity on the grounds that no prior case specifically established that this sort of bombardment exceeded the scope of consent that the homeowner had given. On January 16, 2020, the Institute for Justice filed a cert petition asking the Court to clarify and limit the scope of qualified immunity, and Cato filed a brief in support of this petition.

• Jessop v. City of Fresno. In this case, the Ninth Circuit granted immunity to police officers who stole over $225,000 in cash and rare coins in the course of executing a search warrant. The court noted that noted that while “the theft [of] personal property by police officers sworn to uphold the law” may be “morally wrong,” the officers could not be sued for the theft because the Ninth Circuit had never issued a decision specifically involving the question of “whether the theft of property covered by the terms of a search warrant, and seized pursuant to that warrant, violates the Fourth Amendment.” Neal Katyal filed a cert petition on behalf of Mr. Jessop on February 14, 2020, and Cato, joined by Americans for Prosperity, filed a brief in support of the petition.

• Mason v. Faul. In this case, the Fifth Circuit granted immunity to a police officer who shot a man seven times in response to a 911 call. This is one of the rare cases in which qualified immunity was actually resolved at trial, rather than at the motion‐​to‐​dismiss or summary‐​judgment stage. At trial, the jury found that while Officer Faul’s shooting of Quamaine Mason was objectively unreasonable under the Fourth Amendment, Faul was nevertheless entitled to qualified immunity. The cert petition was filed on November 14, 2019, and it asks the Court to address the “confusion and uncertainty” in qualified immunity case law.

• Cooper v. Flaig. In this case, the Fifth Circuit granted immunity to officers who killed an unarmed man in his parents’ home by tasing him nine times while he was having an acute mental‐​health episode. The cert petition was filed on February 5, 2020, and it explicitly asks whether the Court should “eliminate or significantly revise the judicially created doctrine of qualified immunity.”

• Anderson v. City of Minneapolis. In this case, the Eighth Circuit granted immunity to 911 first responders who were alleged to have prematurely declared a 19‐​year‐​old dead of hypothermia, in violation of their own emergency protocols, thereby depriving him of what could have been life‐​saving medical assistance. The cert petition was filed on November 18, 2019, and it asks the Court to clarify the standards for determining “clearly established law,” especially in the context of the state‐​created danger doctrine.

• Clarkston v. White. In this case, the Fifth Circuit granted immunity to a state education official who was alleged to have caused the denial of a charter school application in retaliation for remarks made by the school’s CEO about disciplinary practices. The cert petition was filed on March 3, 2020, and it asks the Court to clarify that qualified immunity should not apply when a constitutional right is clearly established and the only uncertainty in the case law is whether a particular individual can be sued for its violation.

• Hunter v. Cole. Of all the qualified immunity cases going to conference on May 15th, this is one of only two in which the lower court denied immunity to the defendants. In this case, the Fifth Circuit denied immunity to an officer who shot a 17‐​year‐​old boy without warning. Although the boy was holding a gun, he had made no threatening gestures toward the officers and was facing away from them and unaware of their presence when he was shot. At the en banc stage, this case generated a lively discussion between several Fifth Circuit judges about whether qualified immunity should be reconsidered, which I discussed here. On December 9, 2019, the officer filed a cert petition, asking the Court to hold that his shooting of the teenage boy did not violate clearly established law.

• Davis v. Ermold. The one other case in which the lower court denied immunity involves Kim Davis, the former Kentucky county clerk who refused to issue marriage licenses to same‐​sex couples in the wake of the Supreme Court’s landmark decision in Obergefell v. Hodges. Those couples sued Davis for violating their right to marry, and the Sixth Circuit denied immunity to Davis, finding that the plaintiffs had sufficiently alleged that she violated their clearly established constitutional rights. Davis’s cert petition was filed on January 22, 2020. 

The fact that the Court sent all thirteen of these cases to conference on the same day — especially after repeatedly rescheduling many of them — is unmistakable evidence that the Justices are looking closely at the fundamental question of whether qualified immunity itself needs to be reconsidered. This is a question that Justice Thomas urged the Court to take up all the way back in 2017, and which Cato has been vigorously pushing since it launched its qualified campaign back in March of 2018. It is far past time for the Supreme Court to reconsider qualified immunity, and in less than three weeks, we’ll finally know whether the Court is prepared to take up that question.

For the last couple of years, the Cato Institute, along with other public interest groups, academics, and lower court judges from across the ideological spectrum, has been urging the Supreme Court to reconsider the doctrine of qualified immunity. This atextual, ahistorical doctrine — which shields public officials from liability, even when they break the law — was essentially invented out of whole cloth by the Supreme Court in 1967. And the modern version of the doctrine, in addition to being unjust and unlawful, has proven incapable of consistent, principled application in the lower courts. There is thus every reason for the Court to reconsider its precedent on this subject, as many of the Justices themselves have already suggested. And now, with several major qualified immunity cases on the horizon, it appears the Court may finally be preparing to take up the matter.

The main reason for my suspicion here has to do with recent developments in Baxter v. Bracey. This is the case where the Sixth Circuit granted qualified immunity to two officers who deployed a police dog against a suspect who had already surrendered and was sitting on the ground with his hands up. A prior case had held that it was unlawful to use a police dog without warning against an unarmed suspect laying on the ground with his hands at his sides. But despite the apparent similarity, the Sixth Circuit found this precedent insufficient to overcome qualified immunity because “Baxter does not point us to any case law suggesting that raising his hands, on its own, is enough to put [the defendant] on notice that a canine apprehension was unlawful in these circumstances” (emphasis added). In other words, prior case law holding unlawful the use of police dogs against non-threatening suspects who surrendered by laying on the ground did not clearly establish that it was unlawful to deploy police dogs against non-threatening suspects who surrendered by sitting on the ground with their hands up.

The ACLU filed a cert petition on behalf of Mr. Baxter, asking the Supreme Court to consider whether “the judge-made doctrine of qualified immunity” should “be narrowed or abolished.” The Cato Institute filed a brief in support of this petition, as did a vast, cross-ideological array of other public interest groups and leading scholars of qualified immunity. The petition was originally set to be considered at the Supreme Court’s long conference on October 1st — that is, the first conference of the term, where the Justices resolve a large number of petitions that were submitted over the summer recess. Emma Andersson (one of the ACLU attorneys on the case) and I wrote a joint op-ed discussing the case back in July, and Law360 recently ran a detailed story on Baxter, asking “Could A Dog Bite Bring An End To Qualified Immunity?” All of us were holding our breath as the Supreme Court prepared to start its new term…

But then, something curious happened. On September 23rd, just a week before the Baxter cert petition was set to go to conference, the Court rescheduled the case for the conference of October 11th. (“Rescheduling” means the petition will be considered at a later date, and that the Justices have yet to formally consider it — as opposed to “relisting,” which happens after a petition has already been considered at conference.) Then, on October 8th, the case was rescheduled again — no conference date is listed on the docket yet, but the next scheduled conference would be October 18th.

Why is the Court repeatedly rescheduling Baxter? It’s impossible to know for sure, of course, but I suspect the Court may be waiting to consider the case simultaneously with at least two other cert petitions which will also raise the question of whether qualified immunity should be reconsidered — specifically, those in Zadeh v. Robinson and Corbitt v. Vickers. Zadeh is the case where the Fifth Circuit granted qualified immunity to state investigators that entered a doctor’s office and, without notice and without a warrant, demanded to rifle through the medical records of 16 patients. Judge Don Willett dissented in Zadeh, arguing that the Fourth Amendment violation in this case was “clearly established,” but also discussing his “broader unease with the real-world functioning of modern immunity practice.” And Corbitt is the case I discussed in detail here, in which the Eleventh Circuit granted immunity to a deputy sheriff who shot a ten-year-old child lying on the ground, while repeatedly attempting to shoot a pet dog that wasn’t posing any threat.

Cert petitions have yet to be filed in Zadeh or Corbitt. However, the civil rights plaintiffs in these cases are now both represented by Paul Hughes — co-chair of the Supreme Court and Appellate Practice Group at McDermott Will & Emery — who has filed applications for extensions of time to file a cert petition in both cases. These applications explicitly state that the petitions will raise the question of “whether the doctrine of qualified immunity should be narrowed or revisited entirely,” which is essentially the exact same question in Baxter. And these applications were granted, respectively, on September 17th and September 20th — just days before the Baxter cert petition was rescheduled! Therefore, it seems quite likely to me that Court is planning to hold Baxter until around the time that the Zadeh and Corbitt cert petitions are also filed (which will likely be in mid-November), so that it can consider all three cases together. And that in turn suggests to me that the Justices are, at the very least, seriously considering the fundamental underlying question of whether qualified immunity should be considered.

Of course, this prediction is only speculation at this point, and even if the Justices are holding Baxter for something like the reasons I’ve sketched out above, that’s no guarantee that they’ll grant the petition. But this is, in my view, a promising development, especially in light of the Court’s disappointing denial of the cert petition in Doe v. Woodard (which also asked the Court to reconsider qualified immunity) at the end of the last term. Perhaps, for whatever reason, the Justices preferred Baxter et al. as the vehicle for taking up this question. Or perhaps they’ve realized that this issue is simply not going away. But by the end of this term, I suspect that we’ll have a much clearer sense, for better or worse, of whether the Supreme Court intends to correct the unlawful, unworkable, and unjust doctrine it has foisted upon us all.

The Eleventh Circuit’s decision in Corbitt v. Vickers, handed down last week, constitutes one of the most grotesque and indefensible applications of the qualified immunity I’ve ever seen. The case involves a claim of excessive force against Michael Vickers, a deputy sheriff in Coffee County, Georgia, who shot a ten-year-old child lying on the ground, while repeatedly attempting to shoot a pet dog that wasn’t posing any threat. Without even deciding the constitutional question, a majority of the Eleventh Circuit panel granted qualified immunity to Vickers, simply because there was no case on point with this particular set of facts.

The key facts as alleged in the complaint are as follows: Vickers and other officers were pursuing a criminal suspect, Christopher Barnett, when Barnett wandered into the backyard of Amy Corbitt (who had no relation to Barnett). At the time, one adult and six minor children were in the yard, and the officers demanded they all get on the ground. Everyone immediately complied, and the police took Barnett into custody.

But then, the family’s pet dog Bruce walked into the scene. Without provocation or any immediate threat, Vickers fired his weapon at Bruce. His first shot missed, and Bruce retreated under the home. About ten seconds later, Bruce reappeared and approached his owners, and Vickers fired again – missing once more, but this time striking Corbitt’s ten-year-old child, who was at the time still lying on the ground only 18 inches away. The bullet tore through the back of the child’s knee, causing serious injuries. The child suffered severe pain and mental trauma and has to receive ongoing care from an orthopedic surgeon.

Corbitt, individually and on behalf of her child, filed a lawsuit against Vickers under Section 1983, the text of which guarantees that any state actor who violates someone’s constitutional rights “shall be liable to the party injured.” Vickers filed a motion to dismiss, but the district court held that he wasn’t entitled to qualified immunity, emphasizing that the facts as alleged in the complaint indicated that there was no conceivable safety threat or any need to discharge his weapon at the family’s dog.

But in a split decision, the Eleventh Circuit panel reversed, holding that Vickers was entitled to qualified immunity as a matter of law. Judge R. Lanier Anderson, for the majority, said that there was no prior case law involving the “unique facts of this case,” in which a child was accidentally shot while the officer was intending to shoot someone (or something) else. Although the majority dutifully recited Supreme Court precedent purporting to say that overcoming qualified immunity does not require that “the very action in question has previously been held unlawful,” it is clear from the rest of the opinion that the majority was, indeed, requiring this level of specificity:

No case capable of clearly establishing the law for this case holds that a temporarily seized person—as was [the child] in this case—suffers a violation of his Fourth Amendment rights when an officer shoots at a dog—or any other object—and accidentally hits the person.

Given the shockingly reckless nature of Vickers’ actions here, it is of course unsurprising that no prior case involving precisely this sort of misconduct. The majority’s analysis vindicates the stinging criticism of Fifth Circuit Judge Don Willett, who recently stated in another case that “[t]o some observers, qualified immunity smacks of unqualified impunity, letting public officials duck consequences for bad behavior—no matter how palpably unreasonable—as long as they were the first to behave badly.”

To add insult to injury, the majority here took the common but cowardly option of declining even to decide the constitutional question, ensuring that the law will not be “clearly established” going forward either. In other words, Vickers could commit the exact same sort of misconduct tomorrow and receive qualified immunity yet again. Despite the majority’s reluctant finger-wagging that Vickers “could have acted more carefully” (!), the practical bottom line is the federal judiciary green-lighting some of the most reckless police misconduct imaginable.

The case did provoke a powerful dissent from Judge Charles Wilson, who appropriately began his opinion by noting that “[b]ecause no competent officer would fire his weapon in the direction of a nonthreatening pet while that pet was surrounded by children, qualified immunity should not protect Officer Vickers.” The dissent also took the majority to task for dismissing the “conclusory” allegation that the family pet was non-threatening. To the contrary, the complaint specifically alleged that the dog “posed no threat,” that “[no]one appear[ed] to be threatened by its presence,” and that it was merely “approaching his owners” at the time Officer Vickers fired. Of course, if the case had actually been permitted to go to a jury, Vickers would have had the opportunity to dispute these allegations. But by dismissing the case outright on the basis of qualified immunity, the majority short-circuited the exact mechanism — a public jury trial — that is supposed to ensure accountability for public officials.

The result in Corbitt is especially atrocious, but far from unique. As David French has already noted, this case it is not simply an unfortunate outlier, but rather an illustrative example of why “it’s time to rethink qualified immunity entirely.” The doctrine has no legal basis in either the text or history of Section 1983, severely undermines official accountability, and routinely results in morally indefensible decisions. I hope the Supreme Court is listening.

For over a year, Cato has been leading the charge to challenge the doctrine of qualified immunity: an atextual, ahistorical doctrine invented by the Supreme Court in the 1960s, which shields government agents from liability for misconduct – even when they break the law. Today marks a huge milestone in that ongoing campaign, as Cato has just filed an amicus brief in support of a new cert petition calling on the Court to reconsider this doctrine. So has a diverse, cross-ideological alliance of over a dozen prominent public interest groups, as well a group of leading qualified immunity scholars. In the words of Wyatt Earp: “You called down the thunder. Well, now you’ve got it!”

The case at issue is I.B. and Doe v. Woodard. When I.B. was a four-year-old girl, she was strip searched and photographed at her preschool by April Woodard, a state caseworker. Woodard had neither a warrant, nor the consent of the girl or her mother, nor were there any exigent circumstances requiring such an invasive search. All she had were unfounded abuse allegations (specifically, of a few marks and bruises on I.B.) which easily could have been checked and disproven through a non-invasive search. After I.B. complained to her mother about what happened, Woodard denied having performed a search at all, and continued to lie about that fact for several weeks, until finally admitting what she had done. I.B. suffered severe and ongoing emotional trauma as a result of being strip-searched and photographed against her will.

I.B. and her mother filed a Section 1983 suit against Woodard (and others), alleging violations of I.B.’s Fourth Amendment rights. But a divided panel of the Tenth Circuit held that the defendants were entitled to qualified immunity, because Woodard’s strip search did not violate “clearly established law.” The court failed to even address the Fourth Amendment claims on the merits, noting only that (1) there was a circuit split on whether a warrant was necessary under these circumstances, and (2) assuming a warrant wasn’t necessary, it was still not “clearly established” whether this sort of strip search was permissible. This latter holding is particular shocking, because the Supreme Court itself recently addressed this exact subject matter (warrantless strip searches of children in schools) in Safford Unified School District No. 1 v. Redding. In Safford, the Court even said it was seeking “to make it clear” that an intrusive strip search of a child was justifiable only with “specific suspicions” that evidence of danger or wrongdoing will be found in the area searched. For this reason, Judge Briscoe dissented in part from the Tenth Circuit’s decision, and would have held that I.B.’s strip search violated “clearly established law,” as stated in Safford.

The Tenth Circuit’s decision exemplifies everything that is perverse and unjust about qualified immunity. I.B. had her constitutional rights violated in an egregious manner, yet she was left without a remedy because of a fictitious doctrine, with no grounding in the text or history of Section 1983. The Tenth Circuit refused to even decide whether her constitutional rights were violated in the first place, and it applied the “clearly established law” test so strictly that a seemingly on-point Supreme Court case concerning nearly identical circumstances was still insufficient to overcome qualified immunity.

I.B. and her mother are now represented by Scott Keller, chair of Supreme Court practice at Baker Botts, and they’ve filed a powerful cert petition, asking the Supreme Court both to resolve the Fourth Amendment questions at issue here, but also to reconsider the doctrine of qualified immunity itself. Today, Cato filed an amicus brief in support of that petition, arguing that qualified immunity lacks any proper legal or historical basis, and that it is not entitled to respect under the doctrine of stare decisis. Specifically, we explain how (1) the “clearly established law” standard is so malleable and indefinite that it has failed to create the kind of stability and predictability that justify respect for precedent in the first place; (2) that the Supreme Court itself has already made major modifications to qualified immunity over the years, and therefore should have no qualms about reconsidering the doctrine now (but this time to bring it line with the statute Congress actually passed); and (3) that allowing the status quo to continue severely undermines public accountability and effectively subjects citizens to ongoing constitutional violations.

Ours is far from the only brief being filed today, however – we’ve also helped coordinate the drafting and filing of two additional amicus briefs. The first is on behalf of a group of leading qualified immunity scholars, who discuss the academic consensus that the Court’s qualified immunity doctrine is in serious need of correction. The second is on behalf of a diverse array of groups from across the ideological and professional spectrum, who nevertheless all share a common interest in ensuring that government officials are held accountable for their misconduct. This brief was joined by all of the following groups: the ACLU, Alliance Defending Freedom, American Association for Justice, Americans for Prosperity, Due Process Institute, Institute for Justice, Law Enforcement Action Partnership, MacArthur Justice Center, NAACP Legal Defense Fund, National Association of Criminal Defense Lawyers, Public Justice, R Street Institute, Reason, and the Second Amendment Foundation. Take a moment and consider just how egregiously misguided a Supreme Court doctrine has to be to unite all of these organizations in opposition, on a single brief. (Note also that several other groups have filed additional amicus briefs asking the Court to take the case, although we weren’t specifically involved with those.)

All in all, this case represents one of the most promising opportunities in the ongoing fight against qualified immunity. It highlights the sort of gross injustice that the doctrine regularly permits, demonstrates just how much cross-ideological consensus there is on this issue, and presents the Court with an ideal vehicle for restoring Section 1983 to its proper stature. We can only hope the Court answers the call.

The legal blogosphere has been abuzz with Judge Willett’s recent “dubitante” concurrence in Zadeh v. Robinson, in which the Twitter superstar and Supreme Court shortlister urged reconsideration of the judge-made doctrine of qualified immunity. Yet just one day before that decision was released, another federal judge — James O. Browning, in the District of New Mexico — issued his own blistering criticism of the doctrine, as a four-paragraph footnote to his order in Manzanares v. Roosevelt County Adult Detention Center, 2018 U.S. Dist. LEXIS 147840 (D. N.M. Aug. 30, 2018). To my knowledge, however, that decision has so far flown entirely under the radar, notwithstanding that cross-ideological opposition to qualified immunity is steadily growing.

The Manzanares case involved a municipal employee’s Section 1983 claims against state prison officials, who paired him with a violent inmate to assist in his maintenance work at the prison; these prison officials, in turn, claimed qualified immunity. The plaintiff’s claims here weren’t very strong on the merits, and the district court ended up holding that there wasn’t any due process violation in the first place.

What makes this case extraordinary, however, is Judge Browning’s general discussion of qualified immunity. After he sets forth the relevant legal precedent, he drops a footnote (Footnote 10, if you’re reading along), which consists of a comprehensive, four-paragraph criticism of the doctrine. Not only does he cite Will Baude’s game-changing article on the (lack of) legal justifications for qualified immunity, but he also quotes extensively from Cato’s amicus brief in Pauly v. White. Footnote 10 is worth reading in its entirety, but here’s a cleaned up excerpt of the most important points (with emphases added):

[T]he Supreme Court has sent unwritten signals to the lower courts that a factually identical or a highly similar factual case is required for the law to be clearly established, and the Tenth Circuit is now sending those unwritten signals to the district courts . . . .

Factually identical or highly similar factual cases are not, however, the way the real world works. Cases differ. Many cases have so many facts that are unlikely to ever occur again in a significantly similar way. . . . The Supreme Court’s obsession with the clearly established prong assumes that officers are routinely reading Supreme Court and Tenth Circuit opinions in their spare time, carefully comparing the facts in these qualified immunity cases with the circumstances they confront in their day-to-day police work. It is hard enough for the federal judiciary to embark on such an exercise, let alone likely that police officers are endeavoring to parse opinions. . . . It strains credulity to believe that a reasonable officer, as he is approaching a suspect to arrest, is thinking to himself: “Are the facts here anything like the facts in York v. City of Las Cruces?” . . .

The Court disagrees with the Supreme Court’s approach. The most conservative, principled decision is to minimize the expansion of the judicially created clearly established prong, so that it does not eclipse the congressionally enacted § 1983 remedy. As the Cato Institute noted in a recent amicus brief, “qualified immunity has increasingly diverged from the statutory and historical framework on which it is supposed to be based.” Pauly v. White, No. 17-1078 Brief of the Cato Institute as Amicus Curiae Supporting Petitioners at 2, (U.S. Supreme Court, filed Mar. 2, 2018)()(“Cato Brief”). “The text of 42 U.S.C. § 1983 . . . makes no mention of immunity, and the common law of 1871 did not include any across-the-board defense for all public officials.” Cato Brief at 2. “With limited exceptions, the baseline assumption at the founding and throughout the nineteenth century was that public officials were strictly liable for unconstitutional misconduct. Judges and scholars alike have thus increasingly arrived at the conclusion that the contemporary doctrine of qualified immunity is unmoored from any lawful justification.” Cato Brief at 2. See generally William Baude, Is Qualified Immunity Unlawful?, 106 Cal. L. Rev. 45 (2018)(arguing that the Supreme Court’s justifications for qualified immunity are incorrect).

Moreover, in a day when police shootings and excessive force cases are in the news, there should be a remedy when there is a constitutional violation, and jury trials are the most democratic expression of what police action is reasonable and what action is excessive. If the citizens of New Mexico decide that state actors used excessive force or were deliberately indifferent, the verdict should stand, not be set aside because the parties could not find an indistinguishable Tenth Circuit or Supreme Court decision. . . .

I could scarcely have written a more powerful critique of qualified immunity myself.

Also, for those who care about such things, Judge Browning was appointed by George W. Bush, in 2003. The ideological and jurisprudential breadth of the many judges who have criticized qualified immunity (which now include appointees of every single President since Carter, as well as one of the two remaining LBJ appointees) mirrors the ideological and professional breadth of the huge array of groups that have asked the Court to reconsider the doctrine. Indeed, the increasingly relevant question now may not be who will oppose qualified immunity, but who will defend it?

You would be hard pressed to find an issue that unites a wider and more diverse set of allies than opposition to qualified immunity. Justices Thomas and Sotomayor (joined by Justice Ginsburg) have both criticized the doctrine, as have a growing chorus of diverse lower-court judges — including newly appointed Judge Don Willett, of the Fifth Circuit. And recall that the recent amicus brief urging the Supreme Court to reconsider the doctrine was quite possibly the most diverse brief ever filed with the Court (including, among many others, the ACLU, the Alliance Defending Freedom, the Second Amendment Foundation, Americans for Prosperity, the NACDL, and the Institute for Justice).

And as the Supreme Court sits in recess, the drumbeat only continues to grow louder and more insistent. The Notre Dame Law Review dedicated its most recent issue to the future of qualified immunity, and nearly all of the articles are highly critical. And in the popular press, in the last three days alone, we’ve seen powerful critiques of qualified immunity from a wide range of platforms and commentators.

First, at Above the Law, Tyler Broker has written about how “Qualified Immunity Empowers Constitutional Violations, But That Can Change…“. His piece begins by asking, “What if I told you a statute passed by Congress intended to create a cause of action against public officials for constitutional violations has been transformed by the Supreme Court into a doctrine that immunizes public officials from constitutional violations leaving victims remediless?” That is not an exaggeration or a colorful shading, but an exact description of how the Supreme Court has taken a straightforward statute, plainly providing that any state official who violates someone’s rights “shall be liable to the party injured,” and concocted an atextual, ahistorical doctrine that shields from liability even those officials that break the law.

Next, in the New Republic, Matt Ford asks “Should Cops Be Immune From Lawsuits?” Although qualified immunity protects all public officials, not just law enforcement, it most frequently (and often, most tragically) arises when police officers abuse their authority, commit egregious constitutional violations, but nonetheless escape any consequences. Ford explains how the diverse critics of qualified immunity have “raised concerns about the impact of the [Supreme Court]’s qualified-immunity rulings when it comes to police shootings,” and also how the doctrine is “under siege from originalists, who argue that the court’s purported historical basis for qualified immunity appears to be groundless.”

Finally, just earlier today in the National Review, David French bluntly states “End Qualified Immunity.” In describing the absurdity of the Supreme Court’s “clearly established law” standard, French correctly notes that, under modern qualified immunity doctrine, a plaintiff must show not just that their rights were violated, but also must “find and cite a remarkably similar case, with nearly identical facts, decided by a court of controlling jurisdiction.” As Judge Willett put it: “To some observers, qualified immunity smacks of unqualified impunity, letting public officials duck consequences for bad behavior — no matter how palpably unreasonable — as long as they were the first to behave badly.”

The overall message from these many different voices is quite clear: qualified immunity is unlawful, unjust, and impractical — and its days are numbered.

 

Solitary confinement is one of the cruelest, most severe conditions that our criminal justice system may impose on prisoners. The combination of tiny cells (sealed to block all outside light and sound), lack of human interaction, and extremely limited access to the outside world add up to a treatment that is a mere stone’s throw from outright sensory deprivation torture. The long-term, injurious effects on prisoners for even short periods of such confinement, in terms of both physical and mental health, is extremely well documented. If this practice has any legitimate role in our penal system, it should only be as a last resort in the most extreme and dangerous cases.

But in an act of outright barbarism, Kansas prison officials kept Richard Grissom in extreme solitary confinement conditions for twenty years — for essentially no penological reason. Mr. Grissom was, to be sure, a convicted murderer serving four consecutive life sentences, but his placement in solitary had nothing to do with any history, or even alleged risk, of violence toward prison staff or other inmates. Rather, these decades of practical torture were based entirely on allegations that he was trafficking drugs — in 1996. Over the course of his confinement, twenty-five different segregation reviews gave exactly one “reason” for his continued treatment: “Placement facts still apply.”

In light of this outrageous and unjustified treatment, Mr. Grissom brought a civil rights lawsuit against several prison officials, alleging violations of his constitutional due process rights (among other claims). But when his case came before the Tenth Circuit, the court rejected his claims, and granted qualified immunity to the defendants, based on that all-too-common refrain: that their conduct did not violate “clearly established law,” because Mr. Grissom didn’t identify a Supreme Court or Tenth Circuit case directly on point.

But to make matters worse, the Tenth Circuit refused even to say whether there was a constitutional violation in the first place. Under the doctrine of qualified immunity, plaintiffs must show both that there was a violation of their constitutional rights, and that those rights were “clearly established.” But in the 2009 decision Pearson v. Callahan, the Supreme Court said that courts are allowed to decide these issues in either order. In other words, a court can say “whether or not this was actually unlawful, it didn’t violate clearly established law, so we grant qualified immunity.” The perverse result of this approach is that, by holding only that the law was not clearly established, the law does not become clearly established — a vicious circle.

By refusing to address the merits of Mr. Grissom’s claims, the Tenth Circuit has essentially given the green light to all prison officials in its jurisdiction to proceed with such reckless, abusive treatment of prisoners. The court’s cowardly balk on this question is all the more offensive because it is not even that difficult a question in the first place. One member of the three-judge panel — Carlos Lucero — wrote separately to say that, while he agreed the law was not clearly established, he would have first held that Mr. Grissom’s constitutional rights were, in fact, violated. But the panel majority — although offering no objection to Judge Lucero’s analysis — refused to say as much, which means that prisoners in the Tenth Circuit will continue to have their rights violated with impunity.

Compare this case to that of Allah v. Milling, in which a prisoner alleged due process violations after being kept in solitary confinement for “only” seven months, without justification. There, while the Second Circuit erroneously granted qualified immunity to the defendants, it at least had the decency to first hold that Mr. Allah’s rights were violated. But here, where Mr. Grissom spent, not seven months, but twenty years in solitary — with similarly insufficient justification — the Tenth Circuit refused to even make a decision on the merits.

This case therefore vividly illustrates the grotesque nature of qualified immunity — a made-up doctrine that lacks any valid textual or historical basis. Not only does it deny justice to victims whose rights are violated, but it also eviscerates accountability for public officials — especially when courts, like the Tenth Circuit here, refuse to even decide whether those officials were breaking the law. Until and unless this doctrine is abolished — either by the Supreme Court or Congress — similar injustices will continue to abound.

I’ve blogged several times now about Cato’s ongoing campaign to challenge the doctrine of qualified immunity. This judge-made doctrine — invented out of whole cloth, at odds with the text of Section 1983, and unsupported by the common-law history against which that statute was passed — shields public officials from liability for unlawful misconduct, unless the plaintiff can show that the misconduct violated “clearly established law.” This standard is incredibly difficult for civil rights plaintiffs to overcome, because courts generally require not just a clear legal rule, but a prior case on the books with functionally identical facts. Not only does this doctrine deny relief to victims whose rights have been violated, but at a structural level, it also erodes accountability for government agents (especially law enforcement).

I’m thrilled to report, however, that in the last 36 hours, we’ve had three promising developments in this front:

First, in a Section 1983 case in the Eastern District of New York, Judge Jack Weinstein denied qualified immunity to police officers alleged to have beaten up a man after he refused to allow them to enter his home without a warrant. His comprehensive opinion not only denied immunity in this case, but also discussed recent criticisms of the doctrine, both on legal and policy grounds, and suggested that the law “must return to a state where some effective remedy is available for serious infringement of constitutional rights.” Judge Weinstein thus joins other lower court judges, like Lynn Adelman of the Eastern District of Wisconsin and Jon O. Newman of the Second Circuit, who have criticized the Supreme Court’s qualified immunity jurisprudence. Lower court judges are, of course, obliged to follow Supreme Court precedent with direct application, but this is exactly the kind of criticism and commentary that can help explain to the Court why that precedent should be reconsidered.

Second, Joanna Schwartz, a law professor at UCLA, has just put up on SSRN a forthcoming article in the Notre Dame Law Review, titled The Case Against Qualified Immunity. Professor Schwartz previously published an influential article in the Yale Law Journal called How Qualified Immunity Fails, which empirically demonstrates how the doctrine of qualified immunity is failing to achieve its professed purposes. But her latest piece weaves together the legal, historical, and prudential arguments against the doctrine, and argues that the Supreme Court can and should reconsider it. We know that the Supreme Court pays attention to scholarship in this area, as both Justice Thomas and Justice Sotomayor have recently cited Will Baude’s article Is Qualified Immunity Unlawful?, so I have every expectation that Professor Schwartz’s comprehensive broadside will likewise be taken seriously by the courts. (Professor Schwartz is also blogging about her new article at the Volokh Conspiracy this week.)

Third, this morning the Supreme Court ordered a response to the cert petition in Allah v. Milling, which explicitly asks the Court to reconsider the doctrine of qualified immunity. This is the case I recently blogged about, and in which Cato filed an amicus brief, where a pretrial detainee was kept in extreme solitary confinement for nearly seven months, for no legitimate reason. Although every single judge in his case agreed that Mr. Allah’s constitutional rights were violated, a split panel of the Second Circuit granted qualified immunity to the prison officials, simply because there was no prior case holding that the “particular practice” used by this prison was unlawful. The case is an ideal vehicle for the Court to reconsider the doctrine of qualified immunity, because there are no disputed facts, and Mr. Allah has already won a judgment at trial, so the outcome turns solely on the legal question of whether the defendants should get immunity for their unlawful misconduct.

“Calling for a response” doesn’t necessarily mean that the Court is going to hear the case, but it’s a sign that they’re looking at it closely. The defendants in this case tried to waive their right to respond to the cert petition (a common practice, because respondents want to avoid signaling that the case is important), but the Court basically said “no, this is important enough that we want to hear your argument about why we shouldn’t take the case.” The defendants will therefore be required to put forward actual legal justifications for qualified immunity — so we’ll see what they come up with. The response is due July 11th, and Mr. Allah will then get the chance to file a reply, so I’ll be sure to cover those briefs when they come in.

Overall then, the fight continues, but we’ve got some promising signs of real progress.

This post was originally written at Cato At Liberty.

Our primary federal civil rights statute, colloquially called “Section 1983,” says that any state actor who violates someone’s constitutional rights may be sued in federal court. This remedy is crucial not just to secure relief for individuals whose rights are violated, but also to ensure accountability for government agents. Yet the Supreme Court has crippled the functioning of this statute through the judge-made doctrine of “qualified immunity.” This doctrine — at odds with both the text of the statute and the common law principles against which it was passed — immunizes public officials who commit illegal misconduct, unless they violated “clearly established law.” That standard is incredibly difficult for civil rights plaintiffs to overcome, because courts generally require not just a clear legal rule, but a prior case on the books with functionally identical facts.

In Allah v. Milling, 876 F.3d 48 (2d Cir. 2017), the Second Circuit used qualified immunity to shield prison officials who kept an inmate, named Almighty Supreme Born Allah, in dungeon-like, solitary confinement conditions for seven months — all because Mr. Allah had once asked a question about why prison inmates were being denied access to commissary. For this “offense,” Mr. Allah was placed in “Administration Segregation” for over a year, most of which he spent in solitary confinement. He spent 23 hours a day alone in his cell, was handcuffed and shackled anytime he was removed from his cell, and forced to shower in leg irons and wet underwear. To make matters worse, Mr. Allah was, at this time, merely a pretrial detainee who had yet to be convicted of a crime.

Mr. Allah brought a civil rights claim against these prison officials and won a judgment of $62,650 at trial. On appeal, the Second Circuit unanimously agreed that the defendants had violated Mr. Allah’s constitutional rights. The Supreme Court’s decision in Bell v. Wolfish, 441 U.S. 520 (1979), makes clear that pretrial detainees cannot be subject to punitive restrictions, and that extreme restrictions unsupported by any legitimate governments are inherently punitive. The Second Circuit held that the prison officials here lacked any legitimate interest in throwing Mr. Allah in solitary confinement, and thus violated his due process rights.

Yet a majority of the panel still granted immunity to the defendants — and denied Mr. Allah redress for his injuries — solely because “Defendants were following an established [prison] practice,” and “[n]o prior decision of the Supreme Court or of this Court . . . has assessed the constitutionality of that particular practice.” That analysis is flatly at odds with existing precedent; even the Supreme Court has rejected the idea that overcoming qualified immunity requires a prior case dealing with the very action at issue. Indeed, in Safford Unified School District #1 v. Redding, 557 U.S. 364, 377 (2009), the Court explicitly stated that “there is no need that ‘the very action in question [have] previously been held unlawful.’” 

But more importantly, this case throws into sharp relief the legal, practical, and moral infirmities with qualified immunity in general. Mr. Allah’s petition directly asks the Court to reconsider its qualified immunity jurisprudence, and the Cato Institute has filed an amicus brief in support of this request. This brief is part of Cato’s ongoing campaign to challenge qualified immunity — a doctrine that lacks any legal basis, vitiates the power of individuals to vindicate their constitutional rights, and contributes to a culture of near-zero accountability for law enforcement and other public officials.

This post was originally written for Cato at Liberty.

Our primary federal civil rights statute, colloquially called “Section 1983,” says that any state actor who violates someone’s constitutional rights may be sued in federal court. This remedy is crucial not just to secure relief for individuals whose rights are violated, but also to ensure accountability for government agents. Yet the Supreme Court has crippled the functioning of this statute through the judge-made doctrine of “qualified immunity.” This doctrine, invented by the Court out of whole cloth, immunizes public officials even when they commit illegal misconduct unless they violated “clearly established law.” That standard is incredibly difficult for civil rights plaintiffs to overcome because the courts have required not just a clear legal rule, but a prior case on the books with functionally identical facts.

In Pauly v. White, 874 F.3d 1197 (10th Cir. 2017), the Tenth Circuit used qualified immunity to shield three police officers who brutally killed an innocent man in his home. The officers had no probable cause to think Samuel Pauly had committed any crime, but they stormed his home with guns drawn and shouted that they had him surrounded—yet failed to identify themselves as police. Mr. Pauly and his brother reasonably believed they were in danger and retrieved two guns to defend themselves. After his brother Daniel fired two warning shots to scare away the unidentified attackers, Samuel was shot dead by one of the officers—Ray White—through the front window of his home.

The Tenth Circuit held that Officer White’s use of deadly force was objectively unreasonable and that it “violated Samuel Pauly’s constitutional right to be free from excessive force.” But the court still granted Officer White qualified immunity; there was no prior case with sufficiently similar facts, so the unreasonableness of his conduct was not “clearly established,” in the court’s view. What’s more, the court held that because Officer White had qualified immunity, the other two officers automatically received immunity as well, even though their own reckless conduct caused Officer White to commit the unlawful shooting.

This decision was erroneous even under existing precedent, but it also throws into sharp relief the shaky legal rationales for qualified immunity in general. The text of Section 1983 makes no mention of any sort of immunity, and the common-law background against which it was adopted did not include a freestanding defense for public officials who acted unlawfully; on the contrary, the historical rule was that public officials were strictly liable for constitutional violations. In short, qualified immunity has become nothing more than a “freewheeling policy choice” by the Court, at odds with Congress’s judgment in enacting Section 1983.

The Cato Institute has therefore filed an amicus brief urging the Court to hear Mr. Pauly’s case and to reconsider its misguided qualified immunity jurisprudence. This brief will be the first of many in an ongoing campaign to demonstrate to the courts that this doctrine lacks any legal basis, vitiates the power of individuals to vindicate their constitutional rights, and contributes to a culture of near-zero accountability for law enforcement and other public officials.