Yet another federal judge tears into qualified immunity, citing Cato Institute & Will Baude

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

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

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

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

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

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

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

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

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

The campaign against qualified immunity is steadily expanding

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

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

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

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

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

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


The Tenth Circuit’s cowardly refusal to decide whether 20 years in solitary violated prisoner’s constitutional rights

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

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

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

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

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

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

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

The Basics of Qualified Immunity: The Four U’s

Qualified immunity is a legal doctrine invented out of whole cloth by the U.S. Supreme Court that protects government agents, including particularly law enforcement officers, who violate someone’s constitutional rights from federal civil liability. This website is dedicated to explaining how and why the qualified immunity doctrine needs to be eliminated.

There are many technical aspects to the doctrine, which are discussed in more detail elsewhere on this site, but the general public needs to know these four basic facts.

Qualified immunity is:

  1. Unfair: When a government official violates your civil rights, you should be compensated. Qualified immunity denies compensation to individuals who have been wronged by the government.
  2. Unaccountable: Law enforcement agencies at every level of government have proven unable or unwilling to appropriately discipline officers who violate people’s constitutional rights. Likewise, it is nearly impossible to convict an officer for violating someone’s rights while they were on duty. Thus, in most cases, suing an officer is the only viable means a victim has of seeking redress for a constitutional violation. But qualified immunity shields officers from lawsuits even when the court finds that they violated an individual’s constitutional rights.
  3. Unjustifiable: Qualified immunity is based on flimsy, historical rationale that has no legitimate basis in the law. There is no ambiguity in the text of federal civil rights law or the relevant legislative history that supports the qualified immunity doctrine.
  4. Unlawful: Qualified immunity eviscerates the nation’s most important civil rights law. Specifically, it undermines a part of the U.S. Code—lawyers refer to it simply as “Section 1983”—that was enacted after the Civil War to make sure state and local government officials were held accountable for violating people’s constitutional rights.

For these reasons, we call qualified immunity the “unlawful shield” for officers who violate your rights.

What Happened to

The National Police Misconduct Reporting Project (NPMRP) and ( were the products of a non-governmental, non-partisan project by the Cato Institute. NPMRP attempted to determine the extent of police misconduct in the United States, identify trends affecting police misconduct, and report on issues about police misconduct in order to enhance public awareness on issues regarding police misconduct across the country.  NPMRP used media reports detailing both alleged and confirmed cases of police misconduct. All information gathered was manually validated to determine the credibility of the report, whether the report is a duplicate of an existing report, and how each report should be categorized before recording each report to the police misconduct database.

After several years of collecting data, Cato discontinued the day-to-day collection for in July 2017. We simply lacked the resources to continue our policy work and maintain such a database at a level we find appropriate.

All posts from website are archived on this website. Spreadsheets of combined data for calendar years 2015 and 2016 will be posted soon and are currently available upon request.

Cato continues to work on the subject of police misconduct. is our re-purposed police misconduct website to focus on the doctrine of qualified immunity because it improperly protects officers who violate the constitutional and civil rights of individuals.

All media inquiries about qualified immunity or any other police misconduct should be directed to

Openings in the Front in the Campaign Against Qualified Immunity

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

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

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

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

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

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

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

This post was originally written at Cato At Liberty.

Challenging Qualified Immunity for Prison Officials Who Kept a Man in Solitary for No Reason

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

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

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

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

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

This post was originally written for Cato at Liberty.

“There Is Nothing Right or Just under the Law about This”

Qualified immunity is a doctrine that can shield police officers and other public officials from civil suits when they violate individual rights in the course of their official duties. According to the doctrine, courts are supposed to first determine whether an individual’s right was violated and then proceed to determine whether the violation was “clearly established” in the jurisdiction—that is, whether the circumstances had happened before. This can lead to perverse outcomes in which a court can find an officer violated someone’s rights, but if the officer did so in a way completely novel, then the officer cannot be held liable for the violation. In other cases, courts can find that similar sounding circumstances aren’t the same and thus officers may prevail because those differences render the right not “clearly established.”

This morning, the Supreme Court ordered a summary reversal of a Ninth Circuit Court of Appeals opinion that had denied qualified immunity to an officer for shooting and injuring a woman. The woman, Ms. Amy Hughes, had a knife at her side and she posed no immediate threat to the officers or the person she was speaking to at the time she was shot. Other officers on the scene held their fire and were trying to gain Hughes’ cooperation before Officer Andrew Kisela shot at her four times. Unfortunately, such decisions have become all too familiar at SCOTUS.

Justice Sonia Sotomayor, joined by Justice Ruth Bader Ginsburg, wrote a scathing dissent of the per curiam order:

If this account of Kisela’s conduct sounds unreasonable, that is because it was. And yet, the Court today insulates that conduct from liability under the doctrine of qualified immunity, holding that Kisela violated no “clearly established” law. I disagree. Viewing the facts in the light most favorable to Hughes, as the Court must at summary judgment, a jury could find that Kisela violated Hughes’ clearly established Fourth Amendment rights by needlessly resorting to lethal force. In holding otherwise, the Court misapprehends the facts and misapplies the law, effectively treating qualified immunity as an absolute shield.

This Court’s precedents make clear that a police officer may only deploy deadly force against an individual if the officer “has probable cause to believe that the [person] poses a threat of serious physical harm, either to the officer or to others.” It is equally well established that any use of lethal force must be justified by some legitimate governmental interest. Consistent with those clearly established principles, and contrary to the majority’s conclusion, Ninth Circuit precedent predating these events further confirms that Kisela’s conduct was clearly unreasonable. Because Kisela plainly lacked any legitimate interest justifying the use of deadly force against a woman who posed no objective threat of harm to officers or others, had committed no crime, and appeared calm and collected during the police encounter, he was not entitled to qualified immunity.

In sum, precedent existing at the time of the shooting clearly established the unconstitutionality of Kisela’s conduct. The majority’s decision, no matter how much it says otherwise, ultimately rests on a faulty premise: that those cases are not identical to this one. But that is not the law, for our cases have never required a factually identical case to satisfy the “clearly established” standard. It is enough that governing law places “the constitutionality of the officer’s conduct beyond debate.” Because, taking the facts in the light most favorable to Hughes, it is “beyond debate” that Kisela’s use of deadly force was objectively unreasonable, he was not entitled to summary judgment on the basis of qualified immunity.

[The majority’s] decision is not just wrong on the law; it also sends an alarming signal to law enforcement officers and the public. It tells officers that they can shoot first and think later, and it tells the public that palpably unreasonable conduct will go unpunished. Because there is nothing right or just under the law about this, I respectfully dissent. (Citations omitted)

Today’s order was disappointing, but not surprising. Regular readers know that Cato’s Project on Criminal Justice is now dedicating resources to fighting the doctrine of qualified immunity, and it’s clear that most of the sitting justices support the doctrine. But the fight is worth it because qualified immunity effectively guts the best civil rights protection in federal law and, more broadly, police officers must be held accountable for their unconstitutional actions.

If you’re interested in learning more, you can view the launch event of our qualified immunity effort here. You can read our first amicus brief in the effort here. You can also read Will Baude’s excellent law review article that Justice Sotomayor cited in her dissent, “Is Qualified Immunity Unlawful?” here, (spoiler alert: Yes it is!). And more here, here, and here.

Qualified Immunity: The Supreme Court’s Unlawful Assault on Civil Rights and Police Accountability

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

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

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

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

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

Looking Beyond Racist Police Officers

This week I made my debut at In Justice Today, a blog founded by the Fair Punishment Project at Harvard Law School. My first post warns reformers not to focus solely on individual racist officers because color-blind policies can also have terrible impacts on communities of color:

While it is entirely fair to say that more crime justifies a greater police presence in a segment of a city, that crime does not — or, rather, should not obviate the constitutional rights of the people who live in that area. If statistics showed there were more child pornography producers and distributors in white neighborhoods, the police would not be justified going door to door to intimidate presumptively innocent residents to get consent to search their computers to combat child pornography. Residents would be outraged to be treated as criminal suspects and intimidated to surrender their rights. Yet the GRU eviscerates Fourth Amendment protections for young black men walking down the street as policy, irrespective of any racial prejudice by the officers.

If a policy is damaging a community, the good intent in the officers’ heart is functionally irrelevant.

You can read the whole post here.