Jay Schweikert is a policy analyst with the Cato Institute’s Project on Criminal Justice. His research and advocacy focuses on accountability for prosecutors and law enforcement, plea bargaining, Sixth Amendment trial rights, and the provision and structuring of indigent defense. Before joining Cato, Jay spent four years doing civil and criminal litigation at Williams & Connolly LLP. He holds a J.D. from Harvard Law School, where he was an Articles Editor for the Harvard Law Review, and chaired the Harvard Federalist Society’s student colloquium program. Following law school, Jay clerked for Judge Diane Sykes of the U.S. Court of Appeals for the Seventh Circuit, and Judge Laurence Silberman of the U.S. Court of Appeals for the D.C. Circuit. He holds a B.A. in political science and economics from Yale University.

Tucker Carlson’s Fanciful Defense of What He Imagines Qualified Immunity To Be

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 herehere). 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 officerspublic school officialscounty 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.

Republican Senator Introduces Legislation To Reform Qualified Immunity

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.

Colorado Passes Historic, Bipartisan Policing Reforms To Eliminate Qualified Immunity

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.

The Most Common Defenses of Qualified Immunity, and Why They’re Wrong

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.”

This objection might sound sensible in the abstract, but in practice, qualified immunity is remarkably ineffective at fulfilling this intended purpose. I come back to the scholarship of Joanna Schwartz, who demonstrated two key points in a 2017 article called How Qualified Immunity FailsFirst, only a small fraction of the cases in which qualified immunity could be raised are ultimately dismissed on these grounds — which indicates that other mechanisms were sufficient to weed out genuinely non‐​meritorious claims. Second, when cases were dismissed on the basis of qualified immunity, this occurred far more frequently at the summary judgment stage of litigation, rather than at the motion‐​to‐​dismiss stage. In other words, even when defendants successfully got a claim dismissed on the basis of qualified immunity, this usually only occurred after discovery, which is generally the longest and most costly stage of litigation anyway. This means that qualified immunity is actually failing at its own goals of preventing government defendants from being subjected to lawsuits in the first place.

If it is actually the case, or it ends up being the case, that non‐​meritorious civil rights litigation is a costly and distracting problem for police officers, then that issue is worth addressing. Perhaps it’s worth investigating whether something like anti‐​SLAPP laws would be useful in the civil rights context, so that factually unsupported claims can be quickly dismissed. But qualified immunity is uniquely ill‐​suited to address this supposed problem; the practical effect of the doctrine is not to weed out bad cases, but to deny relief to victims whose rights have been violated.

* * *

This is not an exhaustive list of all the arguments surrounding qualified immunity, but they are the responses I’ve seen most frequently in the recent political dialogue. Many of the individuals who have raised these objections to eliminating qualified immunity have probably done so in good faith, based on a misunderstanding of what the doctrine actually is and how it works. Indeed, such misunderstanding is understandable, given how much misinformation and fear‐​mongering there is surrounding the issue. But for those who are genuinely trying to understand, I hope this post will be a helpful resource in illustrating just how hollow the defense of qualified immunity truly is.

Yes, Abolishing Qualified Immunity Will Likely Alter Police Behavior

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.

The Supreme Court’s Dereliction of Duty on Qualified Immunity

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.

Rebutting the IACP’s Spurious Defense of Qualified Immunity

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 ImmunityAs 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. AndersonIt 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.

As Qualified Immunity Takes Center Stage, More Delay from SCOTUS

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.

In the wake of George Floyd’s death, all eyes turn to SCOTUS

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.

SCOTUS Continues To Delay Qualified Immunity Cert Petitions

As I discussed last week, the Supreme Court was scheduled to consider ten different qualified immunity cert petitions at its May 21st conference, including three petitions calling for qualified immunity to be reconsidered entirely. Thursday came and went without further reschedulings, and I was expecting that we would learn about the results from this conference when the Court issued orders today. (I discussed these developments — and the problems with qualified immunity generally — with Jordan Rubin and Kimberly Robinson on this week’s “Cases and Controversies” podcast.)

But on Friday, the Court pushed back the question once again. In all ten of the remaining qualified immunity cases, the Court redistributed the petitions for the May 28th conference. Just as a procedural matter, this is somewhat unusual. It’s not uncommon for the Court to “relist” important petitions before deciding whether to grant or deny them, but “relist” decisions are generally announced in the Court’s set of orders following each of their conferences (i.e., the orders we were expecting next Tuesday). But here, the Court announced the redistribution of the petitions immediately, rather than waiting for Tuesday. I honestly have no idea what that indicates, and it’s also possible that things are just working differently now that the Justices are doing all their work remotely.

Nevertheless, the bottom line is that the waiting game continues. As of now, ten qualified immunity petitions are scheduled for consideration at the May 28th conference, which means that we would expect to learn about a possible cert grant on Monday, June 1st. Further delays are definitely possible at this point, but the Justices’ attention on this issue remains undeniable. Stay tuned!