Qualified immunity is a legal doctrine that shields government officials, including police officers, from civil liability for constitutional violations unless the specific right they violated was already clearly established in the relevant jurisdiction at the time of the conduct. Clark Neily, vice president for criminal justice at the Cato Institute, describes it as “the cornerstone of our near-zero accountability policy for law enforcement” An Unprecedented Opportunity to Revisit Unqualified Immunity (2020). The doctrine applies to suits brought under Section 1983, the federal civil rights law, and according to Neily it operates in every single Section 1983 case in every part of the country.
The Doctrine and Its Operation
Neily explains that qualified immunity is a judge-made doctrine “invented out of whole cloth by the Supreme Court” and engrafted onto a civil rights law designed to provide more protection for rights An Unprecedented Opportunity to Revisit Unqualified Immunity (2020). Under the doctrine, a government official can say that even if the conduct was at fault and caused injury, the particular way in which the injury occurred had not arisen in that jurisdiction before, so no court ruling had put the official on notice that the specific act was improper. The suit is dismissed even if meritorious.
The bar is high: it is not enough for there to be a prior case on the very same facts; the case must hold as part of its holding that the conduct was wrongful, not release the official for a different reason Judicial Round-Up with Clark Neily (2022). Neily offers the example of a Tenth Circuit case in which a young man recorded police conducting a violent arrest. The officers surrounded him and demanded he turn over the recording device so they could delete the video. He sued, arguing a constitutional right to record police in public. The officers had been trained by their own department that citizens have that right, about half of the federal circuits had said so, and the Justice Department had sent letters to police departments saying so. But the Tenth Circuit had not yet weighed in. The court granted qualified immunity, saying the issue was not clearly established in that jurisdiction Judicial Round-Up with Clark Neily (2022).
Neily notes that the premise of the doctrine is that police officers stay up late reading judicial opinions to know what is clearly established. He cites a law review article by Joanna Schwartz investigating whether that is in fact the case, and the answer is no Judicial Round-Up with Clark Neily (2022).
Scope and Uniformity
Qualified immunity applies everywhere in the country. Neily states that it is a doctrine announced and enforced by the U.S. Supreme Court, and all lower federal courts are bound to apply it An Unprecedented Opportunity to Revisit Unqualified Immunity (2020). There is no place in the country where one can escape qualified immunity when attempting to sue a government official under Section 1983. Some states have state-level civil rights laws, and some of those states also have qualified immunity at the state level, but not all do. Generally, Neily says, it is very difficult to sue a state official under state law, so without the federal cause of action, plaintiffs are often out of luck.
Bob Zadek frames the doctrine as eliminating the third of three basic controls on bad police behavior. The first is criminal prosecution, which Zadek describes as rare to nonexistent because the criminal justice system does not eat its own. The second is internal affairs, which he calls a highly ineffective check often regulated by union contract that tries to neuter its effect. The third is a civil lawsuit, which Zadek says ought to have been effective except that, as a result of qualified immunity, it is gone An Unprecedented Opportunity to Revisit Unqualified Immunity (2020).
Origins and the Section 1983 Framework
Neily explains that Congress created the right to sue a rights-violating government official in federal court about 150 years ago Judicial Round-Up with Clark Neily (2022). Zadek describes the Enforcement Act of 1871 as a sound statute for a sound reason, good public policy to fix a clear abuse at the time, and says the Supreme Court has in effect reversed it Judicial Round-Up with Clark Neily (2022).
Neily offers an analogy to explain immunity: if you injure someone through your own misconduct, you have both a moral and a legal obligation to compensate them. Immunity is a free pass. He imagines lobbying for a law in his state—he is left-handed—saying that left-handed people have immunity from tort cases arising out of their use of a motor vehicle. He could then drive down the street, run into people, and not have to compensate them, not because it was not his fault but simply because he is left-handed. That, he says, is a fair analogy to what happens when a police officer or other government official harms somebody through misconduct and gets sued Judicial Round-Up with Clark Neily (2022).
Zadek raises the argument that qualified immunity might have merit: if an officer could not have known the conduct was wrong, perhaps it is unfair to hold him civilly liable. Neily responds that this value is already baked into the Constitution. The Fourth Amendment prohibits unreasonable searches and unreasonable use of force, and it assigns responsibility for determining whether a particular act was reasonable to citizens, not to a judge. Neily notes that a wildly disproportionate number of judges are former prosecutors, so the judge was likely on Team Law Enforcement in a prior job and is now taking away from citizens the constitutionally assigned job of deciding whether the officer acted reasonably Judicial Round-Up with Clark Neily (2022).
Zadek asks whether the exclusionary rule, rather than civil liability, is the way courts have traditionally enforced the Fourth Amendment. Neily pushes back, invoking the concept of belt and suspenders: there are two avenues of recourse, the exclusion of illegally seized evidence if one is prosecuted, and the separate remedy of suing the officer. The courts may have put more emphasis on exclusion, but that does not make the civil remedy meaningless or unnecessary Judicial Round-Up with Clark Neily (2022).
Legislative and Judicial Remedies
Neily states that because qualified immunity is not a constitutional doctrine but purports to be a statutory interpretation, Congress can fix the problem by amending Section 1983 to make clear that there is no qualified immunity defense An Unprecedented Opportunity to Revisit Unqualified Immunity (2020). Representative Justin Amash introduced a bill that does precisely that, and Neily says with 100% certainty that a raft of similar legislation is coming.
On the judicial side, Neily describes a cross-ideological amicus campaign that Cato orchestrated, which he calls the most diverse in the history of the Supreme Court. Organizations ranging from the NAACP Legal Defense Fund and the ACLU on one side to Reason, Cato, and Alliance Defending Freedom on the other submitted briefs urging the Court to take up the issue again, reverse its precedents, and eliminate the doctrine An Unprecedented Opportunity to Revisit Unqualified Immunity (2020). Eight cases involving qualified immunity were taken up at a Thursday conference, and the Court was to announce the following Monday morning whether it would grant review. Neily says that if the Court accepts cert, there will be a briefing period, an aggressive amicus campaign led by Cato, and argument in the fall, with a decision possible as early as early 2021. He adds that the Court has a moral obligation to accept cert and begin cleaning up the mess it created by inventing qualified immunity out of whole cloth, and should not kick the can down the road or hand the mess to Congress An Unprecedented Opportunity to Revisit Unqualified Immunity (2020).
Absolute Immunity and Related Doctrines
In a later episode, Zadek introduces the related topic of absolute immunity, which he calls even worse, and notes that it has a fascinating legislative and constitutional history Judicial Round-Up with Clark Neily (2022). He asks Neily who gets immunity, whether qualified or absolute, and from what. Neily begins with the simple point about the moral and legal obligation to compensate those you harm through misconduct, then explains the free-pass concept of immunity. The discussion of absolute immunity and the prosecutor problem is introduced but the excerpt breaks off before Neily addresses it in detail.
Across episodes: no development
Qualified immunity is discussed in the June 2020 episode with Clark Neily and again in the July 2022 judicial round-up with Neily, and is briefly touched on in the September 2022 episode on ALPRs with Jonathan Hofer. The excerpts show no development in the argument between the earlier and later treatment; Neily advances the same critique in both, and the 2022 episode adds the topic of absolute immunity without resolving it.
What the sources do not cover
The excerpts do not state the outcome of the Supreme Court’s Monday morning decision on whether to grant cert in a qualified immunity case, nor do they report whether Representative Amash’s bill or any similar legislation became law. The sources do not describe the holding of any specific Supreme Court case that established or shaped the qualified immunity doctrine, nor do they name the case in which the Tenth Circuit granted immunity to officers who prevented recording. The excerpts do not cover absolute immunity in detail, as the discussion breaks off before Neily addresses it.