The phrase “clearly established” names the central requirement of the modern qualified immunity doctrine in American civil rights litigation. Under Section 1983, the post-Civil War statute originally enacted as the Enforcement Act of 1871, a state actor “shall be liable to the person injured for the deprivation of any right.” As Clark Neily describes the doctrine, the Supreme Court in effect inserted two words into that text, so that a plaintiff may now sue only for the deprivation of a “clearly established” right—language, Neily notes, that does not appear in the congressionally written statute An Unprecedented Opportunity to Revisit Unqualified Immunity (2020).
The statutory text and its judicial rewriting
Neily, speaking with Bob Zadek, describes the operative language of Section 1983 as “quite simple” and unchanged for 150 years: any state actor—anyone employed by a state or local government—is liable to a person injured for the deprivation of any right. Up until 1967, Neily says, courts applied it as written, and a rights violator was liable to the person harmed. The statute was designed to prevent state and local officials from abusing the rights of Americans, a purpose Zadek ties to the abuses of Reconstruction Dobbs, the Democratization of Rights, and the Disaster of Qualified Immunity (2022).
The first judicial modification came in 1967, in Pierson v. Ray. That case, as Neily recounts it, involved government officials—police and a couple of judges—who enforced a racial segregation law that was later struck down. Their argument was that the law was on the books and valid when they enforced it, so they had no reason to know it would later be invalidated. The Supreme Court accepted that reasoning and invented what Neily calls a good faith exception. Neily characterizes Pierson as a narrow exception, probably illegitimate, but not doing much work given its unique circumstances. He calls it the nose of the judicial camel under the proverbial tent Judicial Round-Up with Clark Neily (2022).
The major expansion came fifteen years later in Harlow v. Fitzgerald (1982). Neily describes the Court as taking the narrow good faith concept and unbelievably expanding it, in effect rewriting Section 1983 so that instead of suing for the deprivation of any right, a plaintiff could sue only for the deprivation of a clearly established right. Congress, Neily observes, could have written such an exception into the statute’s text but did not—a point he says most conservatives consider relevant, since if the language is not there, it is not for the court to make it up merely because it seems fairer Judicial Round-Up with Clark Neily (2022).
How the standard operates
To satisfy the clearly established requirement, Neily explains, it is not enough to show that your rights were violated. You must show that the particular way in which they were violated has already been the subject of a prior court case in the relevant jurisdiction. Courts have said that if any one fact is different in the next case, the right is not clearly established and they will hand out free passes. Neily offers the illustration of a court saying you cannot punch a guy on the left side of the face on a Tuesday when he is wearing handcuffs behind his back—and that if any one of those facts differs, the next plaintiff loses Judicial Round-Up with Clark Neily (2022).
Zadek draws out the logical consequence: once the doctrine becomes law, there will never be a first case, because the first case is the first case, and the two words “clearly established” in effect neuter the statute. Neily responds that Zadek is not exaggerating by much. Up until the late 1990s, Neily says, the Supreme Court required lower courts to ask first whether there was a constitutional violation and only then whether the right was clearly established. The Court later allowed lower courts to approach the analysis in whatever order they wished, and many courts now skip the first step entirely—putting aside whether the officer acted unconstitutionally and dismissing on the ground that no case on point exists. The result, Neily says, is that the law stagnates and police can continue engaging in blatantly unconstitutional behavior because the first case that would declare it unconstitutional never arrives An Unprecedented Opportunity to Revisit Unqualified Immunity (2020).
Zadek also notes a further refinement: it is not enough for a prior case to exist on the same facts; the prior case must hold as part of its holding that the conduct was wrongful, not release the official for a different reason. The bar, he says, is very high Dobbs, the Democratization of Rights, and the Disaster of Qualified Immunity (2022).
Applications
Neily describes a case from the Fifth Circuit, which covers Texas, Louisiana, and Mississippi, involving the pretrial detention of a man for six days. The allegation, which Neily says was apparently undisputed, was that the man was held in what amounted to an open sewer: every flat surface of the cell—floor, walls, ceiling—covered in human excrement, no bed or mattress, an open drain backing up sewage, and the man sleeping on the sewage-covered floor and fed in the cell. When he sued, the Fifth Circuit threw out his case on the premise that because there was no sufficiently close case on point, qualified immunity applied—the right not to be held pretrial in what amounts to an open sewer was not clearly established in that jurisdiction. Neily calls this an illustration of how bad the doctrine has gotten and says it destroys the only meaningful accountability mechanism available to people, the one they can invoke unilaterally without going on bended knee to some bureaucrat or prosecutor. He calls qualified immunity the cornerstone of our near-zero accountability policy for law enforcement An Unprecedented Opportunity to Revisit Unqualified Immunity (2020).
In a second example, Neily describes a case the Supreme Court recently allowed to stand from the Tenth Circuit, which covers the mountain states including Colorado. A young man was watching police conduct a violent arrest—officers punching a suspect in the face repeatedly to get drugs out of his mouth—and began recording. When police noticed, they surrounded him and demanded he turn over the recording device so they could delete the video. He eventually relented; they failed to delete it, and he gave it to a TV station, which publicized it. He sued on the theory that he had a constitutional right to record police in public. Neily notes that the officers had been trained by their own department that citizens have that right and must not be interfered with, that about half the federal circuits have said there is a right to record police, and that the Justice Department has sent letters to police departments saying so. But the Tenth Circuit had not yet weighed in. The officers asserted qualified immunity on the ground that the Tenth Circuit had not recognized the right, and the Tenth Circuit agreed, granting what Neily calls free passes all around Dobbs, the Democratization of Rights, and the Disaster of Qualified Immunity (2022).
The rationale and its critics
Neily frames immunity generally as a free pass—a concept under which a person who harms another through misconduct is excused from the obligation to compensate. He offers an analogy: imagine lobbying for a law giving left-handed people immunity from tort cases arising out of their use of a motor vehicle, so that a left-handed driver could run into people without having to compensate them, not because it was not his fault but simply because he is left-handed. He calls that a fair analogy to what happens when a police officer or other government official harms someone through misconduct and is sued Dobbs, the Democratization of Rights, and the Disaster of Qualified Immunity (2022).
Zadek presses the question of judicial motivation, asking whether judges—who go home to families, attend church or synagogue, and have a moral code—might be expected to give lip service to qualified immunity but find another case close enough and let themselves be reversed on appeal, noting that most cases do not go through the appellate process. Neily says it is a fantastic question and that he wishes he knew the answer, speculating about a mental predisposition or a selection mechanism making federal judges more sympathetic to the government An Unprecedented Opportunity to Revisit Unqualified Immunity (2020).
Across episodes: the same argument, twice
The topic is treated at greatest length in the two 2022 episodes with Neily, which develop the statutory history—the Enforcement Act of 1871, Pierson v. Ray, and Harlow v. Fitzgerald—and the operational detail of the standard, including the Tenth Circuit recording case. The 2020 episode with Neily covers the same ground in compressed form, with the Fifth Circuit open-sewer case as its central illustration and Zadek’s question about judicial motivation. The excerpts show no development or change in the argument between the earlier and later treatment; Neily advances the same account of the doctrine’s origin and effect in each, and the later episodes add historical and illustrative detail rather than a new position.
What the sources do not cover
The excerpts do not state the outcome of any legislative or Supreme Court reform effort mentioned in the episode description, nor do they identify any bill by name. They do not give the holding of any case beyond those Neily describes, and they do not state which constitutional amendment any right at issue turns on. The excerpts also break off at several points—including a section headed “The Rationale for Immunity and the Role of Juries” and another headed “A Market-Based Solution for Police Accountability”—where the speakers’ remarks are not preserved.