Dobbs, the Democratization of Rights, and the Disaster of Qualified Immunity
2022-07-08 · Guest: Clark Neily (VP for Criminal Justice at Cato) · 51:50
Constitutional implications of the Dobbs decision and judicial immunity
Bob Zadek and Clark Neily discuss the constitutional implications of the Supreme Court’s Dobbs decision and the judicial creation of qualified and absolute immunity. They explore how the court has shifted power back to states regarding abortion while simultaneously insulating government officials from accountability for civil rights violations.
Topics: Dobbs v. Jackson, Abortion, Qualified Immunity, Absolute Immunity, Section 1983, Police Accountability, Judicial Activism
Speakers: Bob Zadek, Clark Neily
Introduction to the 2022 Supreme Court Term [00:22]
Bob Zadek: Hello everyone, welcome to the Bob Zadek Show, the longest-running live, often, libertarian show in all of radio. Thank you so much for joining us this hour. Here we are on the day before our country’s birthday and on the first few days of the month following the end of the current term of the US Supreme Court. And what a term it has been. For many of us, we find that many of us libertarians, we find that a year ago we were somewhat disappointed and let down by many of the decisions. The judges didn’t seem to fulfill the promise we thought we had from them when they ascended to the bench. This year, it’s quite a different story. And there have been many interesting, fascinating, important decisions coming just in the past week or so.
Of course, primary among them was the Dobbs decision, the abortion-related decision which repealed—if repealed isn’t the right word—overruled, undid the effects of the two major abortion cases, including Casey. It ended 50 years of, in effect, Supreme Court-created abortion regime. What does that mean for the country? What does it mean for the political health of the country? And how do we counteract the wrong analysis of that decision offered by many pundits who would announce on the air and in print, “The Supreme Court just took away the right to have an abortion”? Indeed, some elected officials have announced that it is—I remember seeing some tweet, if you can believe it—the end of democracy.
To help us put the Dobbs decision simply in its proper constitutional and federalist context, I’m happy to welcome back to the show Clark Neily. Clark is the Vice President for Criminal Justice at Cato. He is a scholar on constitutional law, over-criminalization, civil forfeiture, police accountability, and gun rights. Clark has written Terms of Engagement: How Our Courts Should Enforce the Constitution’s Promise of Limited Government. And of course, he contributed a chapter to libertarianism.org’s Visions of Liberty. Clark, welcome to the show this morning. And before we turn our audience’s attention over to you, I do want to specifically mention that in your work at Cato, you, together with your colleague Jay Schweikert, published a piece. The target was both libertarians and non-libertarians, explaining better than anything else I have ever read the analysis of the law governing abortion, specifically constitutional law governing abortion, before and after Dobbs. So I’m going to ask you to share with us your views on that as well. But first and most importantly, thank you so much for joining us and welcome to the show.
Clark Neily: Thanks, Bob. It’s great to be back.
The Impact of the Dobbs Decision [04:53]
Bob Zadek: Now, Clark, the Dobbs decision. The hyperbole was—I was going to say astonishing, but really not. It’s predictable. But tell us what the Dobbs decision did and what it didn’t do insofar as abortion from a constitutional law perspective, and what will be the effect on abortion law—I’m creating a concept, abortion law—in this country post-Dobbs.
Clark Neily: Well, that’s a tall order, but we’ll have to work through it together, I think. Very simply, Dobbs v. Jackson Women’s Health Organization held quite simply that there is no constitutional right to abortion. And that overruled about 50 years of Supreme Court precedent, starting with Roe v. Wade, which had protected and had held that there is a constitutional right to have an elective abortion. Now there no longer is. Five justices held that that is simply not a plausible way to read the Constitution. It’s not in there, and therefore Roe and Casey must be overturned.
Bob Zadek: Clark, you said that Roe v. Wade held that the Constitution protected the right to abortion. Is it an overstatement to say that Roe created a right to an abortion? Is that a correction that’s worthy of mention, or am I splitting hairs too much?
Clark Neily: Well, it is certainly the way some people see it. What I have found in almost 25 years doing constitutional law is that when the court protects what we call an unenumerated right—that means a right that is not specifically articulated in the text of the Constitution, like the right to freedom of speech—when the court protects an unenumerated right that somebody likes, they tend to emphasize the fact that we all possess certain unalienable natural rights, some of which are specifically articulated in the text of the Constitution and some of which are not.
I’ll give you a couple of examples. The right to travel around the United States has never been seriously questioned, and it is nowhere mentioned in the text of the Constitution. Another example: the right to guide the upbringing of your own children, to make decisions about where that child goes to school and whether they go to church, etc. Nowhere mentioned in the text of the Constitution, but it has been enforced for over 100 years by the Supreme Court.
So here’s a question: Should the court “invent” those rights since they are not specifically mentioned in the text of the Constitution, or did it instead “recognize” those rights because they are plausibly among the unalienable natural rights that we all possess, whether they are articulated in the text of the Constitution or not? And when we come back to abortion, the answer is some people think that the ability to terminate a pregnancy is among the unalienable natural rights, and other people think that it is not. And as Jay and I explain in the piece that we wrote for Cato’s blog, we think reasonable libertarians can see it either way, and there are powerful arguments on both sides, but also powerful objections to either view.
The Democratization of Abortion Policy [08:45]
Bob Zadek: And what’s most importantly is the one thing for sure. The Supreme Court—and I’d like you to expand upon this a little bit—offered no opinion on abortion, the criminalization or non-criminalization of abortion. The Supreme Court made a constitutional determination that as to the issue of abortion, the Constitution has nothing to say about it. So it said elected officials at the state level, have at it. Make your decision. And so this was, although many politicians in their somewhat immediate reaction were complaining it’s the end of democracy, it’s some kind of a usurpation of the will of the people, it was the profound, emphatic opposite of that. It was giving that decision back to the people, and it was a giant step forward in recognizing this is the province of the democratic process, not the province of the judiciary. So it was, from a democratic (small d) standpoint, it couldn’t have been healthier. It was what, if you believe politicians, what many of them want, which is put the decision back to the people. Now, are the states totally free to enact what they wish insofar as abortion is concerned, without concern for the minute that the Constitution will have anything through the courts to say about the process?
Clark Neily: The short answer is yes, states are basically free to set their own abortion policy. But at least that’s what people are saying about Dobbs. I’m not so sure. Let me give you a couple of examples. Even the two dissenting justices in Roe v. Wade said that a law that made no exception to save the life of the mother would be unconstitutional. So here’s an interesting question: What if a state, in the wake of Dobbs, made no exception to preserve the life of the mother? Would that pass constitutional muster or not? Answer: we don’t know.
Another thing we don’t know: May a state make an exception in cases of rape or incest? Right? So for example, when a woman becomes pregnant as a result of being raped or from incest, some states will allow an exception, others will not. Is that something they’re permitted to do? And if this is human life, right? That’s the rationale for saying, “Hey, look, the supposedly unenumerated right to abortion is not like other unenumerated rights because it involves another human life.” It’s a challenging question whether a state should be able to make an exception for abortion in cases of rape or incest, because if that’s a human being in there, what does it matter how it came into existence, right? So I think that actually these questions are going to be much, much more challenging than people realize.
And I think in all likelihood, states will not have complete free rein. One last point: Would a state have the ability to authorize an abortion all the way up until, let’s say, nine months? Eight months and 29 days, right before the baby is to be delivered? Could a state have a policy that allowed an abortion that late in the pregnancy? Would the courts really stand by and say, “Well, nothing to do with us”? I am not so sure. So I don’t think we’re out of the woods on this by a long shot. And as categorical as Dobbs looks on its face, it leaves some really, really difficult questions unanswered. And I do not think we’ve heard the last of it, and this will not be the last abortion case that comes before the court.
Libertarianism and the “Hard Problem” of Abortion [12:43]
Bob Zadek: I can’t resist commenting on your last observation as to whether a state could authorize an abortion in moments before giving birth. Interesting question. Now, what I found myself reacting to when you said that is a state doesn’t have to authorize it. It just has to not criminalize it. If a state elects to have no law on abortion, so it’s like having a law on taking aspirin—there’s no law—so therefore your question, Clark, would suggest—I know you didn’t mean that—is that unless a state prohibits it, that a state sort of must prohibit it. But of course we don’t mean that, obviously. So therefore—
Clark Neily: Well, now let me interject really quickly. The 14th Amendment obligates all states to guarantee equal protection of the laws to all persons. There are some people who argue that at some point during a pregnancy, the fetus has become a person. And if that is true—now, I’m not taking a position on this, but if that is true—then every state would have a legal obligation to guarantee equal protection of the laws to that entity. And that would certainly include not allowing it to be, you know, sort of gratuitously terminated.
Bob Zadek: Which means the state has to have a law. In effect, its homicide statute or something like that would have to have a law to criminalize or to judicially find that that in fact constitutes homicide. Now, just an observation. So on this subject of libertarianism and abortion. When I have been in meetings, Cato meetings especially, and many others, when this topic comes up, either in social conversation or as part of a presentation, libertarians don’t seem to be in agreement. So your piece was beautifully written, your piece with Jay was beautifully written, addressing what is the libertarian position—absurd concept—what is the libertarian position or how does a libertarian approach the subject of abortion? Putting the question a somewhat different way, imagining what would be the arguments of a pro-choice libertarian and an anti-abortion, if you will, libertarian, if they were sitting around generally enjoying each other’s company but discussing abortion. What would each say to the other to try to persuade?
Clark Neily: Such a great question. And I want to say from the beginning, I wouldn’t presume to know exactly what every libertarian in each camp would say. But most often, here’s the basic argument that you’ll hear. The so-called pro-choice libertarian would likely start with the point that as libertarians, we place at the top of our hierarchy of values individual autonomy. The idea that no one may interfere with your freedom, whether it’s a private individual or a government official, without some extremely strong justification for doing so. And that therefore the presumption is that you get to do what you want with your body. And this would include, you know, taking whatever kind of medicine, ingesting whatever kind of intoxicants, etc. And if the government is going to prevent you from doing something having to do with your body, it has to have a very strong justification. And they would argue that at least, let’s say at the moment of conception, when you just have a fertilized egg, that the case for interfering in somebody’s ability to, for example, ingest a drug that will prevent that fertilized egg from implanting and therefore force the person who is pregnant to carry that fetus to term and accept all of the challenges and the risks that come with that and also with childbirth—that essentially the government just doesn’t have a strong enough justification at that point, and that it may mature into a sufficiently strong justification at some point during the pregnancy, but not early on. That I think is the basic libertarian argument for pro-choice.
And let me just say, we’ve already talked about the fact that I think virtually all libertarians agree that there are unenumerated rights that the Constitution protects, and the right to bodily autonomy and self-defense would be two of those that would be arguably relevant to this setting. The anti-abortion libertarian, as you described them, would I think say this: Look, all of those other rights that you talked about—the right to travel, right to raise your own children, even the right of access to contraception—are different from abortion because none of them results in the termination of a human life or a potential human life. And when it comes to abortion, the government has an obligation to arguably two different morally relevant beings. And if you believe—and this is really more of a moral or a metaphysical question than it is a legal one—but if you believe that from the moment of conception we’re dealing with at least a human life and perhaps also a person, then the government has a very strong reason to protect that human life, including prohibiting the woman inside whom that human life exists from doing anything to end it. And those, I think, are the basic outlines of the two opposing camps here.
Bob Zadek: And I will just—I will ask you if you can to cite our listeners to your piece with Jay. It’s on the Cato website to be sure, because it is—the reason I’m spending this much time on it is as an attorney and indeed as somebody who just participates in policy discussions, I often have observed about myself that I find somebody’s opinion per se to be kind of boring. Sort of, who cares? But how they got there could be fascinating. And it’s how they got there that teaches me something about the process. In other words, let me see your work papers. Let me see how you got there, and maybe the way you reach your conclusion is something I could learn from. So the piece you wrote with Jay tells the world, to the extent that they’re interested, in how we reach the opinions we have. It was the best piece I’ve ever written in that regard. Do you happen to have the citation handy? If not, I’m sure our listeners can find it on the Cato website.
Clark Neily: Yeah, I’m going to put a link in the chat. And then for those who are just listening, it’s pretty simple to find it if you just type in “Cato” (C-A-T-O) and then just “The Hard Problem of Abortion Rights” or even just “Abortion is Hard.” You’ll find it. So either way.
The Origins of Qualified Immunity [20:39]
Bob Zadek: Thank you so much. Now, the other topic I want to take advantage of having your undivided attention for an hour and having my audience have it is you have been, for as long as I have been listening to you and reading what you have written, the subject that is never far from your consciousness is that of qualified immunity. We, you and I, spoke a while ago on my show on that subject. And we have talked about qualified immunity—and I will define these terms in a moment, so audience, if you don’t know what I’m talking about, you’ll find out in about four seconds—and the related topic, even worse if you will, of absolute immunity. And that topic has a fascinating legislative and constitutional history. And it is a subject that has the clear possibility—I hope I don’t think likelihood, but possibility—that many ordinary people going about their life will find themselves confronted with this subject. So the subject is qualified and absolute immunity. Now first, Clark, let’s have the audience understand who gets immunity, whether it’s qualified or absolute, who gets the immunity and immunity from what? And then we will drill down and learn how this immunity was created. So first, who gets it and from what?
Clark Neily: So let’s start with a really simple point, which is that if you injure another person or harm another person through your own misconduct—and just, you know, maybe you’re just driving down the street, you’re messing around with your phone and you run into their car—you have both a moral and a legal obligation to compensate them for the harm that you have done them. So immunity is a concept that essentially is a kind of a free pass. So imagine that in my state—so I’m left-handed—so imagine in my state I lobby for a law and it says that left-handed people have immunity from tort cases arising out of, you know, their use of a motor vehicle. So now I can drive down the street, I can run into people and I’m not going to have to compensate them. Why? Not because it wasn’t my fault, but simply because I’m left-handed.
So that’s the concept of immunity. And that is a pretty actually fair analogy to what happens when a police officer or other government official harms somebody through their own misconduct and gets sued for it. You have a right to sue—you have the ability to sue a rights-violating government official, including a police officer, in federal court that Congress created about 150 years ago. But the judiciary has invented this qualified immunity defense that enables them to say, “Okay, look, I might be at fault and I might well have injured you, but here’s the thing: the particular way in which I injured you has not arisen in this jurisdiction yet, so we don’t have a court ruling that says the specific thing I did to you was improper. And therefore, even though it was, I wasn’t on notice that it was, and therefore I get a free pass and I get to have your suit dismissed even though it may be meritorious.” That is in a nutshell a definition of qualified immunity. It is a “get out of responsibility” free card for rights-violating government officials.
Bob Zadek: Now, you referred to a statute which is about 150 years old, 1871. The statute itself, a post-Civil War statute—indeed, that’s not coincidental, it was because of the abuses during Reconstruction at the state level that the federal government, in order to have Reconstruction carried out lawfully—so this was a statute designed to prevent state and local officials from abusing the rights of Americans. So we start with a statute that’s designed to fix the problem we’re talking about. So the statute was appropriately drafted for a good purpose and designed to fix the abuse in the South of Reconstruction. So the legislature, Congress, did its job. Then what happened to it? How did the courts get involved? Just tell us a quick sort of synopsis of how the courts got involved and how they took a statute that was designed to fix the abuse and how the courts, acting alone—that is, without legislation—how they reversed, if you will, the positive effects of the statute, the Enforcement Act of 1871.
Clark Neily: Yeah, so let’s quickly look at the language of the Enforcement Act of 1871. We call it Section 1983 today because that’s where it appears in the US Code. So I’m going to call it Section 1983. The operative language is quite simple and has not changed for 150 years. And what it says is that any state actor—that means anybody who’s employed by a state or local government—shall be liable to the person injured for the deprivation of any right. It’s quite broad and it was meant to be for exactly the reason that you described.
So up until 1967, courts just applied it as written. And if you violated somebody’s rights, you were going to be liable to them. But in 1967, a case arose where some government officials—police and actually a couple of judges—were involved in the enforcement of a racial segregation law that was later struck down. But they were sued, and their argument was in essence, “Look, at the time we enforced this law, it was on the books and it was valid. And so, you know, we had no reason to know that it would later be struck down and it was just part of the, you know, sort of the law of the land, so we were just doing our jobs.”
And the Supreme Court said in essence, “Yeah, that seems reasonable. You know, you made a—you were acting in good faith. You had no reason to believe that the law would be struck down later. And so, you know, as offensive as segregation may look now, at the time it was the law of the land. And so we’re going to invent this whole—what they called a good faith exception.” Okay, so you violated these people’s rights, that law was struck down, it was not valid, but you were acting in good faith. So it’s a kind of a “fair’s fair” kind of an approach.
Now, keep in mind, Congress could have written this exception into the text of the statute, but it didn’t. And that seems relevant. Most conservatives consider that to be relevant, right? Like, if the language isn’t there, then it’s not for the court to make it up just because it seems like it would be more fair. But that’s what the Supreme Court did in this 1967 case called Pierson v. Ray. That wouldn’t be such a big deal. That’s a really narrow exception. It’s probably illegitimate, but it wouldn’t be doing too much work because that’s a really unique set of, you know, sort of circumstances.
But it was—it represented the judicial—the nose of the judicial camel under the proverbial tent. Because what happened 15 years later is when the Supreme Court made the really big move in a case called Harlow v. Fitzgerald (1982). And the court took this narrow good faith concept and just unbelievably expanded it. And what they did in effect was they rewrote the text of Section 1983 so that instead of being able to sue for the deprivation of any right, which is what Congress said, the Supreme Court in effect inserted two words and said, “Now you can only sue for the deprivation of a clearly established right.” That language doesn’t appear in the text of the congressionally written statute, but the Supreme Court in its infinite wisdom put it in there, again thinking that it was trying to be fair, apparently, and, you know, trying to do better policy than what Congress did, at least in their own minds.
And in order to satisfy this “clearly established” requirement that is now part of the judicially concocted civil rights law, you have to do what I suggested earlier or what I described earlier, which is it’s not enough to show that your rights were violated. You have to show that the particular way in which they were violated has already been the subject of a prior court case in the relevant jurisdiction, and that the courts have already said, “Look, you can’t punch a guy on the left side of the face on a Tuesday when he’s wearing handcuffs behind his back.” And if—and basically courts have said if any one of those facts is different in the next case, then it’s not clearly established and we’re going to hand out free passes. And it’s been a disaster.
The “Clearly Established” Standard [30:34]
Bob Zadek: So what’s happened is the Supreme Court has in effect reversed—ultimately there’s been a reversal of the Enforcement Act of 1871, a sound statute for a sound reason, good public policy to fix a clear abuse at the time. And the Supreme Court has reversed it and has said in effect—and we’ll get into some of the examples in a moment because you have maybe 50 or 60 you could do from memory, including the footnotes—so we’ll get into a few just to put a little flesh on the bones to show how pervasive this abuse is. But for the moment, the Supreme Court has reversed it and has said in effect, “You can violate whatever rights you wish unless it is the violation of that specific right at that—under those specific circumstances is proven to be wrongful.” And I should also mention that it’s not enough for there to be a prior case on the very same facts, but the case has to hold as part of its holding that that was wrongful, not releasing the public official for a different reason. So the bar is very, very high. So just to help the audience understand why this makes you turn blue whenever we even talk about it, give us just a few examples of how the application of qualified immunity—and then we’re going to get into absolute immunity in a moment—but how qualified immunity, the concept created in the courts, in the Supreme Court, has been used to the clear harm of the citizens who are supposed to be protected.
Clark Neily: Yeah, so a really good example to start with was a case that the Supreme Court just recently allowed to stand, meaning the lower court—this is in this case the 10th Circuit Court of Appeals, which covers the mountain states including Colorado. What happened in the case was that a young man was watching the police conduct a particularly violent arrest. They thought that this other person was hiding drugs in his mouth, and so they decided they would try to get the drugs out of his mouth by punching him in the face over and over again. And so he started recording it. And when the police noticed that he was recording, they came over, surrounded him, and demanded that he turn over the recording device so that they could delete the video. And eventually he relented. They actually messed it up, they weren’t able to delete the video, and he ended up turning it over to a TV station and they publicized it.
So he sued, and the theory of the case was, “Look, I have a constitutional right to record police in public.” Interestingly enough, the police who tried to stop him from recording and delete the video had been trained by their own department that in fact citizens do have a right to record them in public and they must not interfere. About half of the federal circuits’ courts of appeal have weighed in on the issue and they have also said that we have a right to record police. The Justice Department has sent letters to police departments saying there’s a right to record police. But guess what? It happens that the 10th Circuit Court of Appeals that covers this particular jurisdiction has not yet weighed in. And so the police asserted qualified immunity and said, “Okay, so here’s the thing: Yes, we were trained that there’s a right to record police in public and we violated our training when we did what we did. And yes, half of the federal courts of appeal have said there’s a constitutional right to record police. And yes, the Justice Department has said there’s a right to record police. But the 10th Circuit, where we live, hasn’t said it yet. And therefore we get a free pass.” And guess what the 10th Circuit said? “Absolutely right. Free passes all around. We have not yet weighed in on this issue, so the issue in this jurisdiction of whether you can record police in public is not clearly established and these officers are entitled to a free pass with qualified immunity.” That is really qualified immunity in a nutshell.
A Market-Based Solution for Police Accountability [34:58]
Bob Zadek: Now, a question. A couple of questions. First of all, is there—look at the overall goal of the Supreme Court in granting qualified immunity unless the public official—and I’m saying something broader than police because I want to remind the audience, it governs all public officials, but we’ll get to judges and prosecutors in a moment—but all—generally all public officials. What’s wrong, asks Bob hypothetically and rhetorically almost, what’s wrong with saying to a police officer, “We’re not going to hold you civilly liable for something which you couldn’t have known was wrong. Maybe you might have guessed it was wrong, maybe it was a close call, but after all, you are a sworn official, your primary job is to maintain public order, and if in the course of doing it you exercised—I’m being super charitable—bad judgment, or you weren’t up on Supreme Court doctrine and you couldn’t have known. Isn’t—if we start there, if we start naively, isn’t there some merit? And if there is, how do you help the courts or the legislature define where the line is?”
Clark Neily: Yeah, so it is a good idea, and perhaps that’s not surprisingly why it’s already baked into the Constitution. So guess what? The Fourth Amendment says that you are not, as a government official, you’re not permitted to make any unreasonable searches or unreasonable use of force. So there’s already this value-laden term that provides that kind of leeway, Bob, that you’re describing. And the Constitution does another really genius thing, which is that it allows or assigns responsibility for making the determination of whether a particular act on the part of a police officer or other government official was reasonable or not. It lets citizens make that decision, not some other government official like a judge, who by the way was probably a former prosecutor, since a wildly disproportionate number of them are.
So you’ve got this judge who used to play for Team Law Enforcement in their prior job. Now they’re a judge, and they’re taking away from citizens the constitutionally assigned job of deciding whether the officer acted reasonably or not and substituting this preposterous fake test where we’re going through the motions of asking whether the right at issue was clearly established. Because Bob, think about it this way: Part of the premise of the qualified immunity doctrine is that police officers are staying up late into the night reading all of the judicial opinions that come down in their jurisdiction. And there’s actually a law review article by my friend Joanna Schwartz who looked into this to determine: Is it in fact the case that police are staying up at night poring over the judicial decisions of the place where they live so they can be up to speed on what’s clearly established and what isn’t? And you will probably not be surprised to find out that the answer is no, they do not.
Bob Zadek: I may be embarrassed at how you answer this question, but your reference to the Fourth Amendment, unreasonable searches and seizures. In all of the judicial history of unreasonable searches and seizures, the way that the courts have tried to limit unreasonable searches and seizures is not by holding the searcher and seizure civilly liable, but by excluding the evidence. So the motive to have an unreasonable search and seizure is diminished. In other words, in search and seizure cases, the way to enforce the Fourth Amendment is through the judicially created exclusionary rule. You’re shaking your head no. I knew I would be embarrassed.
Clark Neily: Well, I’m going to push back gently. No, I’m going to push back very gently. Have you ever heard of the concept of belt and suspenders? Because that’s what we’re talking here. You have two avenues of recourse potentially if a piece of evidence was obtained unreasonably from, let’s say, your home. One is if you are prosecuted, you have at least in theory—although it’s increasingly theoretical—the ability to have that evidence excluded because it was seized illegally. But you also have the separate remedy, which is the ability to sue the officer for violating your right to be free from unreasonable searches. Now, it may be that the courts have put more emphasis on the exclusionary remedy that you mentioned, but that doesn’t mean that the other one, the ability to hold that officer civilly liable, is sort of meaningless or unnecessary. So again, I think of it as belt and suspenders.
Bob Zadek: Point well taken, obviously. I was just myself curious about that issue and you’ve answered it. Now, as to—we’re going to go into absolute immunity in a moment, a whole other area with its own discrete set of abuses and sometimes even more offensive, maybe because prosecutors are theoretically supposed to be smarter, who knows? And they are lawyers, obviously, so they should know better. We’ll get to that in a moment. But as to the subject of qualified immunity, the doctrine of qualified immunity is a doctrine that protects policemen, public officials—I want to be broad—public officials from being civilly sued, putting aside do they get indemnity from their employer, a different issue. That’s a matter for union contracts and stuff like that. But so now they are civilly liable, a serious consequence. They have to write big checks to people. They don’t. Hardly ever. They are almost always indemnified by us, the taxpayer. So in theory they might have to write a check, but it doesn’t work that way in practice. In practice, Bob, you and I pick up the tab for nearly all civil rights violations committed by police.
Bob Zadek: So therefore, shouldn’t it be the—and we’re not—you and I are now seem to be drafting a court decision rather than drafting a statute. But wouldn’t the remedy—would you be happy if the remedy was to simply provide—get rid of this fine line of having a policeman liable, which as you pointed out indirectly holds the employer liable? Would you be content if the remedy was liability without the—this strong carve-out of being on notice, the exact act in the exact judicial district, etc., the one you pointed out? Would you be content if a statute said, “If there is a violation of the constitutional rights of a citizen, there is, let’s say, close to absolute liability on the employer”? That just makes it clear so the citizen has a remedy and it’s the employer through training and employment practices and hiring practices can best eliminate the problem. That getting rid of qualified immunity, assuming there was no qualified immunity, would policemen then be taking night courses on the Constitution? Would then be going online to get training? What if they are given a badge and no training? Who’s at fault?
Clark Neily: No, this is a terrible idea. And unfortunately, it’s an idea that’s been pushed by a number of organizations that I really wish knew better. What you’re talking about, Bob, is taxpayer liability. Let’s not call it employer liability. These are government officials. So when we say that the agency or the police department or the municipality will be liable for the misconduct of the officer in the field, you can tart that up and call it, you know, employer liability, but let’s be clear: it’s taxpayer liability. And it’s really not clear to me why we, the taxpayer, should financially be on the hook for the misconduct of individual officers.
So I think it’s a terrible idea and I think it really muddies the water further and doesn’t solve anything. The ideal policy in my judgment would be this: you hold the police officer and the employer—the department or the municipality—jointly and severally liable. That just means they’re both on the hook for the full amount. That’s normal, by the way. That is the standard common law approach to this kind of liability, tort liability. And then the beautiful thing that will almost certainly happen when police become more liable—and I would eliminate indemnification—they’re on the hook just as much as the city is. Guess what police are going to do? They’re going to go out and they’re going to purchase professional liability insurance, just like doctors, lawyers, engineers, and others.
And this is going to be what blows open the doors on, you know, what you just described, which is better hiring, better retention policies, etc. Why? Because think about it this way: you’ve got—and by the way, police don’t have to pay for this out of pocket. We could take that pot of money that we’re currently using to pay civil damages awards for their misconduct and use that pot of money instead to provide them with an allowance to purchase this insurance. So they go out, they purchase the professional liability insurance, and the police that are doing a great job and not generating any claims, the cost of their policy goes down. Guess what? I’d let them keep that money. I’d let them keep the savings that’s represented by their good behavior. The police that are the bad ones—and there’s usually just a few, fewer than 10%, but the Derek Chauvins of the world—what’s going to happen to the cost of his policy? It’s going up. And I’m going to make him pay that difference because the reason his policy is more expensive is because of his misconduct. And eventually those so-called bad apples, guess what? They’re going to become uninsurable and therefore unemployable. And what a beautiful cause and effect. What a beautiful way to harness the power of the market and the ability of insurance companies to identify risk to do what civil government has been unable to do, which is to identify and eliminate these supposed bad apples. That’s my world vision.
Bob Zadek: Oh my god, I love it. It’s a privatization of the whole issue. So you’ve taken the whole issue of stopping the evil of the abuse of constitutional rights. You’ve simply privatized it and you’ve let the market deal with it. What a perfect solution. I love it.
Clark Neily: Well, guess what? I want to add one thing. My good friend Jeff Harrison is an insurance executive in Fort Worth, Texas. Guess what? His company, Primus Insurance, is selling the policy that I just described. So this is a real thing. It’s here and it’s one of the lowest-hanging pieces of fruit in all of criminal justice reform. All we need is for government officials to say, “Yep, this is a genius way to ensure greater accountability and help identify the good police officers and keep them on the job while eliminating the bad apples.” And I can’t wait to see—I think it’s going to gain momentum. It’s a great idea and how can you say no to it?
The Problem of Absolute Immunity [45:51]
Bob Zadek: No one can object except for the bad actors themselves. And you know, if I had sponsors, that’s the perfect sponsor. So thanks for the lead. Now, we haven’t discussed—we have a few minutes left—we’ve been discussing qualified immunity because as you pointed out, under current dogma, if the plaintiff can show that yes, the public official was on very specific notice of this specific act, they’re liable. So that’s why it’s qualified. Now, I made reference to absolute immunity. Tell us what—who gets the gold standard of immunity and why, and in the few minutes we have left, how could things be different?
Clark Neily: So remember what I said earlier, that we have a judiciary that is wildly disproportionately composed of former prosecutors. The surest way in America to become a judge is to first be a prosecutor. So you want to guess which two vocations have absolute immunity from civil liability? It’s prosecutors and judges. And the rationale for prosecutors especially is preposterously sophomoric. If you really boil it down to its essence, the Supreme Court’s position is, first, well, there are other ways to hold prosecutors accountable for misconduct (false). Second, nobody would want to be a prosecutor if you allowed people to sue them for their misconduct, and so we need to eliminate civil liability altogether. We need to make sure that no matter how badly a prosecutor behaves—and let me be clear, this would include, for example, suborning perjury, knowingly presenting false perjury in court in order to obtain a conviction that you know to be false as an act of personal vengeance against somebody that you don’t like—even if you could prove all of those things and you got convicted and spent 20 years in prison and were finally exonerated, you cannot sue that prosecutor. That is bonkers. And guess what? That’s not a hypothetical. That has happened before. And the Supreme Court has said, “Well, we’re not condoning what happened here, but no, you can’t sue that prosecutor.”
Bob Zadek: What is the, briefly, what is the judicial history of that absolute immunity? Because I don’t believe it’s found in a statute.
Clark Neily: No, it was invented out of whole cloth by the Supreme Court. I don’t know if you’re detecting a pattern here when it comes to letting government officials off the hook, but it was invented out of whole cloth by the Supreme Court in a, I believe it was a 1973 case called Imbler v. Pachtman. And it purports to be an interpretation of that law we talked about earlier, Section 1983, the one that says that all state actors shall be liable to the person injured for the deprivation of any right. And the Supreme Court, besides inventing qualified immunity, somehow saw in that language an exception for prosecutors who commit misconduct on the job and harm people as a result. Again, just a pure example of judicial activism, making up policy that they think would have been better than what Congress came up with.
Bob Zadek: Now, the interesting part of what you just said—and we have only a few minutes—did the Supreme Court in inventing absolute immunity, was their reasoning based upon constitutional law or based upon “we won’t get good prosecutors,” so they were making a policy, pure policy, not legal basis for their decision?
Clark Neily: It’s a little both. They did a little “stone soup” thing where they were like, “Well, you know, back in the day there were certain officials that you couldn’t sue and prosecutors are kind of like those officials, so let’s just throw them in too.” But it wasn’t—it’s not at all persuasive. Justice, I believe it was Justice Stevens, wrote a dissent where he just destroys the majority’s attempt to conjure up this kind of history. And it really is a nakedly policy-oriented decision. They just basically think that because prosecutors are constantly going after people, those people would then push back and sue them and it would be hard to do your job as a prosecutor. But it’s, you know, again, it’s been another disaster. It’s totally indefensible, and the number of people whose lives have been destroyed by misbehaving prosecutors is just, you know, it’s incalculable.
Bob Zadek: Would your solution be for absolute immunity exactly the same as qualified immunity? Just privatize it, a word that I used a little bit earlier, and let them be on their own, exposed for their bad acts, and they would insure it away with insurance.
Clark Neily: Yeah, I think that would work. You know, the good news here is that prosecutors will tell you that they almost never commit misconduct. They are as free from misconduct as any job that you can name. And so if we take them at face value—I’m not sure we should, but if we take them at face value—then what is their liability exposure? It’s close to zero. Why? Because they never mess up. And who will tell you that they almost never mess up? Prosecutors. So that should be fine.
Bob Zadek: Clark, how can our friends out there follow your work on the subject of qualified immunity and absolute immunity and more broadly follow and support, if they choose to do so, the fabulous work of Cato?
Clark Neily: Well, thanks so much, Bob. So first, every scholar at Cato has their own web page. So go to Cato’s website, put in my name, and you’ll find my page. It’s got all my work on it. We also created a website called UnlawfulShield.com (UnlawfulShield.com) that collects all of our work on qualified and absolute immunity, and we invite people to check it out. It’s the best one-stop shopping available on the web for this topic.
Bob Zadek: Clark, thank you so much for your help sharing your knowledge and for giving us a portion of your three-day weekend. And thank you so much, my friends out there, for giving us an hour of your valuable time.