Qualified immunity is a judge-made doctrine that shields government officials — including police officers — from civil liability when they are sued for violating a person’s rights. On The Bob Zadek Show, Clark Neily, vice president for criminal justice at the Cato Institute, described it as “this terrible legal doctrine that’s been kind of hiding in plain sight,” and said the best way to understand it is as the cornerstone of a near-zero accountability policy for law enforcement An Unprecedented Opportunity to Revisit Unqualified Immunity (2020). Bob Zadek introduced the topic as one that most people have never heard of but that affects their life more than perhaps any other public interest topic then in the news.
The doctrine and how it works
Neily explained that a person has the ability to sue a rights-violating government official, including a police officer, in federal court under a law Congress created about 150 years ago. The judiciary, he said, has invented a qualified immunity defense that lets an official say that although he might be at fault and might well have injured the plaintiff, the particular way in which he injured that person had not arisen in that jurisdiction yet, so there was no court ruling saying the specific thing he did was improper. The official therefore was not on notice, gets a free pass, and gets the suit dismissed even though it may be meritorious. Neily called this “a get-out-of-responsibility free card for rights-violating government officials” Judicial Round-Up with Clark Neily (2022).
Zadek described the bar the doctrine sets: it is not enough for there to be a prior case on the very same facts; the case has to hold as part of its holding that the conduct was wrongful, rather than releasing the public official for a different reason. He said the bar is very, very high, and characterized the effect as the Supreme Court having reversed the Enforcement Act of 1871 — a sound statute for a sound reason — and saying in effect that an official can violate whatever rights he wishes unless the violation of that specific right under those specific circumstances is proven to be wrongful Judicial Round-Up with Clark Neily (2022).
Neily said qualified immunity applies everywhere: it is a doctrine announced and enforced by the U.S. Supreme Court, and all lower federal courts are bound to apply it. There is no place in the country where a person can escape it when suing a government official under Section 1983, the federal civil rights law. He noted that some states have state-level civil rights laws and that some of those states also have qualified immunity at the state level, but not all of them do, so there is some variation among the states; generally speaking, however, it is very difficult to sue a state official under state law An Unprecedented Opportunity to Revisit Unqualified Immunity (2020).
Origins and rationale
Neily said qualified immunity is not a constitutional doctrine but purports to be a statutory interpretation, and that it was invented “out of whole cloth” by the Supreme Court and effectively engrafted onto a civil rights law that was actually designed to provide much more protection for rights An Unprecedented Opportunity to Revisit Unqualified Immunity (2020).
Zadek raised the argument that there is some merit in not holding an officer civilly liable for something he could not have known was wrong, and asked how courts or the legislature should define where the line is. Neily answered that the idea is already baked into the Constitution: the Fourth Amendment says a government official is not permitted to make any unreasonable searches or unreasonable use of force, a value-laden term that provides that kind of leeway. He said the Constitution assigns responsibility for determining whether a particular act was reasonable to citizens, not to some other government official like a judge — who, he noted, was probably a former prosecutor, since a wildly disproportionate number of judges are. In Neily’s account, the doctrine substitutes a preposterous fake test asking whether the right at issue was clearly established Judicial Round-Up with Clark Neily (2022).
Neily also addressed the premise that police officers stay up late reading judicial opinions from their jurisdiction. He cited a law review article by his friend Joanna Schwartz, who looked into whether police in fact pore over the judicial decisions of the place where they live so as to be up to speed on what is clearly established; the answer, he said, is no, they do not Judicial Round-Up with Clark Neily (2022).
Examples and application
Neily described a case the Supreme Court recently allowed to stand, from the Tenth Circuit Court of Appeals, which covers the mountain states including Colorado. A young man was watching police conduct a violent arrest — officers thought another person was hiding drugs in his mouth and tried to get the drugs out by punching him in the face over and over again — 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 were unable to delete the video, and he turned it over to a TV station, which publicized it. He sued on the theory that he had a constitutional right to record police in public. The officers had been trained by their own department that citizens do have a right to record them in public and that officers must not interfere; about half of the federal circuits’ courts of appeal have weighed in and said there is a right to record police; and the Justice Department has sent letters to police departments saying there is a right to record police. But the Tenth Circuit had not yet weighed in, so the officers asserted qualified immunity and said that because the Tenth Circuit had not said it yet, they get a free pass. Neily said the Tenth Circuit agreed: “Free passes all around,” because the issue was not clearly established in that jurisdiction Judicial Round-Up with Clark Neily (2022).
Zadek described the case of a woman who had no civil redress against an officer and could not sue for damages. He set out three basic controls on bad police behavior: criminal prosecution, which he called rare to nonexistent because the criminal justice system does not eat its own; internal affairs, which he called a highly ineffective check, often regulated by union contract that tries to neuter its effect and keeps officers’ records from the general public; and a civil lawsuit, which ought to have been effective except that, as a result of qualified immunity, the third and last control is gone An Unprecedented Opportunity to Revisit Unqualified Immunity (2020).
Remedies and reform
Neily said that two years earlier, on March 1st, 2018, he and his colleagues at Cato declared it their mission to eliminate the qualified immunity doctrine, and held a kickoff event with prominent speakers. Since then, he said, they orchestrated the most diverse cross-ideological amicus campaign in the history of the Supreme Court, rounding up ideologically diverse organizations — from the NAACP Legal Defense Fund and the ACLU on one side to Reason, Cato and Alliance Defending Freedom on the other — to submit amicus briefs in qualified immunity cases urging the Court to take up the issue again, reverse its precedents and eliminate the doctrine. He said eight cases involving qualified immunity were taken up at the previous Thursday’s conference, the meeting at which the Supreme Court decides whether to grant review, and that the answer would come Monday morning at 9:30 Eastern Time. Because the doctrine is not constitutional but purports to be statutory interpretation, Neily said, Congress can also fix the problem by amending Section 1983 to make clear that there is no qualified immunity defense; Representative Justin Amash had introduced a bill doing precisely that, and Neily said with 100% certainty that a raft of similar legislation was coming An Unprecedented Opportunity to Revisit Unqualified Immunity (2020).
Neily described what would follow if the Court granted certiorari in one or more qualified immunity cases: a period of briefing in which the parties submit legal arguments, a very aggressive amicus briefing campaign led by Cato, and argument sometime in the fall. He expected one of the most interesting and exciting arguments in many years, with a decision possible as early as early 2021. He said the Court has a moral obligation to accept cert in one of these cases and begin cleaning up the mess it created by inventing qualified immunity, and that it absolutely should not kick the can down the road or try to hand the mess to Congress An Unprecedented Opportunity to Revisit Unqualified Immunity (2020).
Zadek also raised the exclusionary rule, suggesting that in search and seizure cases the way courts have tried to limit unreasonable searches and seizures is by excluding the evidence rather than by holding the searcher civilly liable. Neily pushed back, invoking belt and suspenders: a person whose home was unreasonably searched has, at least in theory, the ability to have evidence excluded if prosecuted, but also the separate remedy of suing the officer for violating the right to be free from unreasonable searches. He said that even if courts have put more emphasis on the exclusionary remedy, that does not make the ability to hold the officer civilly liable meaningless or unnecessary Judicial Round-Up with Clark Neily (2022).
Across episodes
Qualified immunity is treated in the June 2020 episode with Clark Neily and again in the July 2022 judicial round-up with Neily. The 2020 discussion is framed around a pending Supreme Court conference and the possibility of legislative repeal through an amendment to Section 1983; the 2022 discussion is retrospective and doctrinal, adding the Tenth Circuit recording case, the argument from the Fourth Amendment and the jury’s constitutionally assigned role, the Joanna Schwartz law review article, and the belt-and-suspenders exchange about the exclusionary rule. Neily advances the critique in both; Zadek supplies the framing in both, including the three-controls account in 2020 and the exclusionary-rule objection in 2022. A September 2022 episode on license plate readers touches the topic only in passing, when Zadek asks whether a discussion of police malpractice insurance is getting into qualified immunity and the guest, Jonathan Hofer, answers that it is and that it would be a whole other show A PSA on ALPRs (2022).
What the sources do not cover
The excerpts do not state which cases the Supreme Court took up at the conference Neily describes, or what the Court decided on the Monday morning he mentions. They do not give the outcome of the Tenth Circuit recording case beyond the denial of the suit, nor the name of the plaintiff or the officers. The excerpts do not identify the Enforcement Act of 1871 by any other name, do not state the text or fate of the bill Representative Amash introduced, and do not say which states have state-level civil rights laws or state-level qualified immunity.