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The Cato Institute's New Civil Rights/Police Accountability Initiative

Canvassing the legal problems and practical effects of qualified immunity from constitutional lawsuits

Last week, the Cato Institute announced the launch of an important new initiative aiming to vindicate civil rights and police accountability by opposing the legal doctrine of qualified immunity. (Qualified immunity is the doctrine that a government official can be held liable for a constitutional violation only if they are "plainly incompetent" or "knowingly violate the law.")

To launch the initiative, Cato hosted a forum, Qualified Immunity: The Supreme Court's Unlawful Assault on Civil Rights and Police Accountability, featuring Cato's Clark Neily, me, Judge Lynn Adelman, and two practicing lawers, Victor Glasberg and Andrew Pincus. It was a lively panel with some great questions, and you can now watch the video here.

And if you want to hear still more, I also recorded this podcast with Cato's Caleb Brown: Why Won't Courts Question Qualified Immunity? and Cato's Clark Neily and Jay Schweikert recorded this earlier episode on The Case against Qualified Immunity.

Having written endless blog posts and this article about the problems with qualified immunity, I was proud to be a part of this, and very happy to see Cato taking this stand.

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  • Vandalia||

    Amen.

    Listen to an account by Dr. Kevin Menes and how he and his colleagues handled the response to the Las Vegas shooting. He specifically mentioned that he was aware of the fact that even in that chaos, with 10 seconds to triage each patient, that if he missed a tourniquet or if they missed an incidental lung nodule they would be sued for millions. Neither he or his colleagues mentioned that they needed immunity in order to do their job, even in the worst chaos and pressure imaginable. It is also worth noting that during this time, they were led to believe that there were in fact multiple shooters and actually expected an attack on the ED at any time.

    As I see it their are two choices: either give everyone "qualified immunity", or hold government employees to the same standard as everyone else. In fact, they should be held to a higher standard.

    The only thing worse than qualified immunity is absolute immunity. There is absolutely no reason to think that if judges and prosecutors were held to the same standard as every other private sector worker there would be chaos. If "frivolous lawsuits" are the problem, the solution is to change the legal system to provide harsh penalties for "frivolous cases."

  • Kyfho Myoba||

    In any case or controversy, the presiding judge will rule for one of the parties over the other. A judge has to have absolute immunity for any decision made in his judicial capacity only, not for decisions made in his administrative or personal capacity.

    Prosecutors, meh, not so much.

  • Rev. Arthur L. Kirkland||

    This is unqualified good news.

    Another point of progress would be development of a national database for law enforcement personnel, enabling defendants, lawyers, prospective employers, judges, and others to have access to reliable information involving abusive conduct, falsehoods, discredited work, discipline, and the like.

  • AlgerHiss||

    It's called a Brady List:

    http://www.latimes.com/local/l.....story.html

    That is, if you can somehow gain access to it.

  • Rev. Arthur L. Kirkland||

    I envision a nationwide database that includes every disciplinary report, every botched laboratory test, every false warrant application, all discredited testimony, every accusation of abuse (with disposition), every arrest, every conviction, and more.

  • MightyMouse||

    The judiciary is afraid of the police.

    They know, in the back of their minds, that their rulings mean nothing without men (and women) with guns.

  • MatthewSlyfield||

    It certainly seems that way at times.

  • Soronel Haetir||

    Unfortunately I see something like QI being necessary, it is one counter-weight against law being constitutionalized by the federal judiciary.

  • David Nieporent||

    The only thing worse than qualified immunity is absolute immunity. There is absolutely no reason to think that if judges and prosecutors were held to the same standard as every other private sector worker there would be chaos.

    Yes, there is, at least with respect to judges. A surgeon can complete surgeries for every patient. A taxi driver can take every passenger to his/her desired destination. An accountant can complete every client's taxes and keep every client's books accurate. A chef can cook edible meals for all customers. But a judge is part of an adversarial system. He can't rule in favor of everyone; by definition he has to rule against roughly half the people who come before him. If half of any private sector worker's customers had reason to sue him, he'd quit his job.

    And we already have a remedy for judges making incorrect decisions: appeals.

  • Vandalia||

    But a judge is part of an adversarial system. He can't rule in favor of everyone; by definition he has to rule against roughly half the people who come before him. If half of any private sector worker's customers had reason to sue him, he'd quit his job.

    First the ability to appeal is irrelevant. The party injured by the judge's negligence still faces substantial attorney fees and economic damages to correct the injury. Physicians also face exactly the same situation: save the mother and the baby dies, you are sued; save the baby and the mother dies, you are sued. Give opioids and the patient's family sues; don't and the patient sues.

    In any case, as long as the judge makes the correct decision, he has nothing to worry about. The legal community consistently proclaims that there are no frivolous lawsuits and people are sued only if they actually committed negligence. See, for example, the Florida SC decision in (SC 15-1885) overturning med mal caps. The majority proclaimed that there was no "malpractice crisis"; well, then there is absolutely no evidence to suggest there would be a crisis if judges could be sued.

    In order to argue that judges face a threat because any angry party can file a frivolous suit, you have to concede that the entire civil litigation system in this country is corrupt and needs to be torn down.

  • David Nieporent||

    No, physicians do not face exactly the same situation. (It's like you didn't read what you were responding to.) Yes, physicians do sometimes get sued for bad outcomes even when they didn't do anything wrong -- but most of the time they don't have bad outcomes. But for a judge, there is a bad outcome for one side in every case.

  • Kyfho Myoba||

    > The party injured by the judge's negligence still faces substantial attorney fees and economic damages to correct the injury.

    Fixed by adopting "loser pays."

  • Alan Beck||

    I practice 1983 and you would be surprised how many cases that I have to turn down solely due to the qualified immunity issue.

  • MightyMouse||

  • MightyMouse||

    Links above broken

    better link

  • AlgerHiss||

    Add to the effort to destroy "qualified" immunity, a few others:

    *Absolute Immunity - destroy it - and don't start with that nonsense that I somehow "don't understand" the consequences of doing so. I understand completely.

    *Jury Nullification - Institute completey. A jury, shall have complete control of a case, be it murder or a broken tail light.

    *Implied Consent - We made a huge mistake ever allowing this concept to take hold. The new truism shall be "Driving is a right, not a privilege."

    And no, I am not an anarchist, and I despise leftism. I am an average, happy mope that is sick and tired of the way things are.

  • Rev. Arthur L. Kirkland||

    Why are you sick and tired of America, AlgerHiss? Seems solid to me. Is there a particular precipitate associated with your disaffection?

  • Sanctimonica||

    "[P]lainly incompetent" or "knowingly violate the law" seem more appropriate to the deliberate indifference standard than to qualified immunity. Qualified immunity generally only protects officers when their conduct is not clearly within the contours of the right in question. FWIW, in the circuit where I practice the only QI rulings going in favor of police officers seem to be in cases where the officer prevails on the merits anyway.

  • David Nieporent||

    FWIW, in the circuit where I practice the only QI rulings going in favor of police officers seem to be in cases where the officer prevails on the merits anyway.

    I don't understand this sentence. If the QI ruling goes in favor of the officers, the merits of the case don't get examined.

  • Sanctimonica||

    That's not how QI works. Despite Pearson v. Callahan, courts generally follow the Katz v. Saucier sequence: first determine whether there was a constitutional violation vel non before turning to whether the contours of the right were sufficiently clear that a reasonable officer would have understood his conduct to be unlawful. So courts do, in fact, determine the merits (as alleged) before making a QI ruling.

  • Sanctimonica||

    I should have written, "... whether there was a PLEADED constitutional violation vel non... ." For instance, if a plaintiff alleges he was punched by an officer after the plaintiff had been placed in handcuffs, he has pleaded a meritorious excessive force claim. In that case, the court moves on to determine, based on the pleadings and/or limited QI discovery, whether the specific circumstances (i.e. was the plaintiff delivering roundhouse kicks to the officer?) present a situation in which a reasonable officer would know that punching an arrestee is unlawful. Fact issues preclude QI. So anyway, I don't see QI excusing much unlawful conduct at all.

  • EveryOtherUsernameWasTake||

    Exactly. If a case gets bounced at the pleadings stage on QI, the chances that the claim would have resulted in a judgment for the plaintiff (absent QI) are pretty slim. Perhaps I'm wrong, but I don't think there are many situations in which QI defeats what otherwise would have been a meritorious claim.

    In my experience, all QI really does is help municipalities dispose of likely-nonmeritorious claims earlier in the process, based on the commonsense notion that you can't be held liable for conduct that you had no reason to believe was illegal in the first place. I don't fully understand why this is a libertarian bete noir.

  • PoxOnBothYourHouses||

    "Perhaps I'm wrong, but I don't think there are many situations in which QI defeats what otherwise would have been a meritorious claim"

    So --- all the exceptions end up in the weekly review of cases at VC?

  • apedad||

    "So anyway, I don't see QI excusing much unlawful conduct at all."

    That seems like a tough conclusion to swallow.

    Isn't that what QI is all about--excusing an officer's illegal/improper action as long as they didn't violate an individual's "clearly established" statutory or constitutional rights?

  • Sanctimonica||

    @apeded That's my first hand experience how QI plays out on the ground. Spit or swallow. :shrug:

    Bottom line is I don't find the defense particularly useful, nor have I seen it applied to cause injustice. It's really just a good faith defense. Should a person go to prison for committing an act outside the clearly defined contours of a criminal statute? Ex post blah blah blah

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