In the wake of the brutal killing of George Floyd by Minneapolis police officer Derek Chauvin, there have been calls for many types of reform: reducing or eliminating funding for police departments; prohibiting certain practices like chokeholds and no-knock warrants and raids; implicit bias training for police. One measure that has finally garnered attention beyond the libertarian legal community is reforming or eliminating the doctrine of qualified immunity. Qualified immunity is a judicially created doctrine that allows state officials to escape personal liability for violating citizens' constitutional rights unless a court finds those rights are "clearly established"—which they almost never do.
Individuals whose constitutional rights were violated by state actors can bring a federal lawsuit pursuant to 42 U.S.C. 1983, a civil rights statute that allows people to sue officials acting "under color of" state law for violations of their constitutional rights. The Supreme Court's intent in creating qualified immunity was to ensure that public officials could perform their duties without the constant fear of liability for "reasonable but mistaken judgments about open legal questions." In practice, however, the doctrine has come to insulate public officials from liability unless their conduct has explicitly been declared unconstitutional in a case with a nearly identical fact pattern—an impossible standard to meet, and one that has become a significant barrier to justice.
As an attorney defending students and faculty whose free speech and due process rights have been violated by public university administrators, I can attest to the fact that qualified immunity is a huge barrier that limits accountability even in the case of seemingly obvious constitutional violations. Just a few days ago, for example, a federal court in Connecticut dismissed, on qualified immunity grounds, the First Amendment claim of Noriana Radwan, a former University of Connecticut soccer player who lost her scholarship after she was captured giving the finger on national television. In one sentence, the court captured everything that is wrong with qualified immunity, and why it is an albatross around the neck of every lawyer fighting against the abuse of power by state officials:
"While Ms. Radwan does have a viable First Amendment claim, because of qualified immunity, the Defendants' motion for summary judgment on this claim will be granted."
In Radwan v. University of Connecticut, the district court held that it is conceivably possible that the administrators' conduct could have been justified by Bethel Sch. Dist. No. 403 v. Fraser, a Supreme Court decision allowing K-12 schools to regulate "vulgar or offensive" speech among schoolchildren. The court acknowledged that "university students, largely over the age of eighteen, are no longer children," and that the Supreme Court has explicitly stated that there is no reason "First Amendment protections should apply with less force on college campuses than in the community at large." The court even acknowledged that the U.S. Court of Appeals for the 2nd Circuit, of which Connecticut is a part, has "expressed skepticism that universities and colleges have as much latitude to regulate student speech as K-12 schools do." But because the 2nd Circuit has never explicitly held that Fraser does not apply to universities, the court dismissed Radwan's "viable First Amendment claim."
Ladies and gentlemen, qualified immunity.
The Supreme Court currently has the opportunity to review a number of different qualified immunity cases, allowing them to revisit the doctrine. Some of the cases involve alleged excessive force by police. Another involves alleged First Amendment abuses by university administrators. In that case, Hunt v. University of New Mexico, the school disciplined a medical student for an intemperate Facebook post about abortion—something that was clearly constitutionally protected speech. Instead of looking to the decades of case law establishing that university students have robust First Amendment rights and that First Amendment rights apply to online speech, the U.S. Court of Appeals for the 10th Circuit instead looked only for cases specific to the question of whether "sanctioning a student's off-campus, online speech for the purpose of instilling professional norms is unconstitutional." Finding (unsurprisingly) no cases on point, the court held that the university administrators were entitled to qualified immunity.
With the eyes of the nation now on police abuses, it is time to emphasize how qualified immunity has become a shield for government malfeasance of all types, and to reform this toxic doctrine.