Qualified Immunity

Is the Supreme Court Preparing to End Qualified Immunity?

Experts disagree on whether this is likely or not. The answer remains unclear. But, either way, reform advocates should pursue both litigation and legislative reform. The two approaches are mutually reinforcing, not mutually exclusive.

|

Criminal justice reformers have long advocated abolishing or at least greatly curbing the doctrine of "qualified immunity," which prevents people from suing government officials (including law enforcement officers) for violating constitutional and other legal rights unless the violation is contrary to "clearly established" law. That latter concept is defined so narrowly, that courts often give law enforcement officers a pass on horrific conduct whose illegality would be blatantly obvious in any other context.

Today, there are important prospects for change. But experts opposed to qualified immunity disagree on the extent to which it is realistic to expect the Supreme Court to abolish or severely limit the doctrine.

In its November ruling in Taylor v. Riojas, the Supreme Court rejected a qualified immunity defense for the first time in years. On February 22, the justices vacated another qualified immunity ruling from the same court (the Fifth Circuit) and instructed the lower court to reconsider the case in light of Taylor. In Tanzin v. Tanvir, issued in December, a unanimous Supreme Court ruled that a group of Muslim plaintiffs could use the Religious Freedom Restoration Act to sue the FBI for money damages for engaging in religion-based discrimination against them. Although not a qualified immunity case, Tanzin perhaps signals an increased willingness to hold law enforcement agents accountable for abusing citizens' rights.

These developments have led Anya Bidwell and Patrick Jaicomo of the Institute for Justice (a libertarian public interest law firm extensively involved in the effort to abolish qualified immunity), to conclude that the Court may be about to abolish or greatly restrict the doctrine:

Last week, the U.S. Supreme Court provided the most recent signal that it's rethinking the doctrine of qualified immunity — a rule the Court created in 1982 to shield government workers from constitutional accountability. The case, McCoy v. Alamu, was filed by a Texas prisoner named Prince McCoy. Four years ago, a prison guard pepper-sprayed McCoy for no reason….

Until recently, the Supreme Court was not giving the courts any room to maneuver. In almost every case it considered on the issue of qualified immunity, the high court sided with the lower courts that shielded government officials from accountability and reversed lower courts that demanded it. To the Supreme Court, hypothetical policy concerns — such as the need to protect officials from being distracted by lawsuits — outweighed the need to provide plaintiffs with a legal remedy….

But the Supreme Court may now be entering a new dawn on qualified immunity, and judges of all levels should take notice….

These are still early days in the reconsideration — if not ultimate rejection — of the court-created doctrine of qualified immunity. But at a time when Americans of all philosophical stripes seek greater government accountability, the Supreme Court is stepping up to deliver by reintroducing some common sense to the law.

By contrast, Jay Schweikart of the Cato Institute—who has also been heavily involved in efforts to abolish qualified immunity—is much more pessimistic:

I know and admire Anya and Patrick, and I have great respect for their work challenging qualified immunity, and their advocacy for liberty generally. But their op-ed is profoundly mistaken in its suggestion that the Court is preparing to reconsider qualified immunity. The orders in Taylor and McCoy vacated especially egregious grants of immunity, which does suggest the Justices want to curb the worst excesses of the doctrine. But they also suggest the Supreme Court is not going to take up the larger question of whether qualified immunity itself should be reconsidered. And to suggest otherwise is not just wrong, but counter-productive—raising the false hope that the Court may rescue us from qualified immunity risks distracting Congress from the urgent goal of eliminating the doctrine through legislation…

As compared to the alternative of doing nothing, I'm glad the Supreme Court at least made some effort to curb the worst excesses of the doctrine.

But, as should hopefully be clear by now, the Court [granted, vacated, and remanded] this case [without opinion] instead of reconsidering qualified immunity. The Court had the perfect opportunity to reconsider qualified immunity [in several cases] in June 2020, but turned it down. The Court had another opportunity to reconsider qualified immunity in October, but again turned it down. The Taylor opinion clearly reads to me as the Court's recognition that the situation has gotten out of hand, and that the Justices would like lower courts to slightly dial back the harshest applications of the "clearly established law" standard. But it is just as clearly an indication that the Court is not going to take up the fundamental question of whether the doctrine itself should be reconsidered….

At this point, the only realistic prospect of actual qualified immunity reform is from legislatures, not the Supreme Court. And indeed, that's exactly why I find the mistaken conclusion in this op-ed so troubling.

Elsewhere in his article, Schweikert argues that Tanzin tells us little, if anything, about the Court's intentions on qualified immunity because it is not actually a qualified immunity case.

Who is right?  It is too early to tell. Schweikert is correct to point out that the Court's recent rulings are consistent with an effort to pare back some of the worst excesses of qualified immunity, without disturbing the fundamental premises of the doctrine. But I think he goes too far when he contends that the Court's failure to do more than that over the last year is an indication that the justices have no desire to go further.

There is a long history of the Court gradually eroding a legal doctrine as a prelude to eventually eliminating it, or at least radically revising it. And such transformations rarely happen all at once. The most famous example is the gradual erosion of legal doctrine upholding "separate but equal" racial discrimination in public education and other settings. Early on, the Court struck down only a few of the most egregious examples of Jim Crow discrimination. It took many years to get to Brown v. Board of Education, and even longer to get to Loving v. Virginia (1967). One can tell a similar story about the gradual erosion and eventual fundamental transformation of legal doctrines in areas such as freedom of speech, privacy rights, property rights, and elsewhere.

Thus, it is entirely possible that the Court will go further, and justices as varied as Clarence Thomas and Sonia Sotomayor have already advocated doing exactly that. Whether they can swing a Supreme Court majority in their favor still remains to be seen.

In the meantime, reform advocates would do well to pursue both litigation and political efforts simultaneously. Schweikert worries that focusing on the former might detract from the latter. But, historically, successful constitutional reform movements have usually relied on a combination of both. Far from being mutually exclusive, the two strategies are actually mutually reinforcing. Victories in court can help galvanize political reform, and vice versa. That's exactly what happened with the civil rights movement, the women's rights movement, same-sex marriage, gun rights, and property rights, among other cases.

Even high-profile defeats in court can help attract public attention to an issue. As discussed in my book, The Grasping Hand: Kelo v. City of New London and the Limits of Eminent Domain, defeat in the high-profile Supreme Court decision in Kelo v. City of New London (2005) attracted widespread public attention to the problem of eminent domain abuse, that led to the adoption of reform laws in 45 states. Although many of the new laws were weak, there was still a major net improvement in the situation. The negative political reaction generated by Kelo, in turn might help lead the Court to eventually reverse or limit the decision. Recent progress on asset forfeiture reform has also been achieved through a synergistic combination of litigation and political efforts.

Since the killing of George Floyd and last year's protest movement attracted new attention to the issue, two states—Colorado and Connecticut—have enacted laws severely limiting qualified immunity for violations of their state constitutions. Similar efforts are under consideration in other states. The House of Representatives recently passed a bill that would abolish qualified immunity for law enforcement officers, though its prospects of getting through the Senate are highly uncertain.

In sum, it may be some time before we know what the Supreme Court is really up to in this field. But even if all it does is incrementally pare back some of the worst abuses, that will still be a valuable gain.  Regardless, reformers should not pursue either litigation or political efforts to the exclusion of the other. Instead, do both.

NEXT: Testifying on "What's Wrong with the Supreme Court: The Big Money Assault on Our Judiciary"

Editor's Note: We invite comments and request that they be civil and on-topic. We do not moderate or assume any responsibility for comments, which are owned by the readers who post them. Comments do not represent the views of Reason.com or Reason Foundation. We reserve the right to delete any comment for any reason at any time. Report abuses.

  1. All immunities must be cancelled. The sovereign does not speak with the voice of God. Immunity also justifies violence in formal logic. The biggest crimes are committed by government, and immunity suborns them.

    1. Are you not concerned about it becoming a new and gigantic wealth generation vector for the parasite class of lawyers?

      On the other hand, they will be tearing at the hand that feeds them, government. Which will triumph? Dedication to their keepers? Or “Well, what have they done for us lately?”

      As always, follow the money. The top ruler class won’t be affected, and will continue to receive kickbacks, I mean, legal political donations, while the working stiffs get attacked so they can be blown through to get at the deep pockets.

      1. If torts replace endless cycles of violent retaliation making life unlivable, immunity is a major failure of torts. Accurate torts, with 100% successful verdicts is a benefit. Most claims now lose and are frivolous harassing extortion. They use costly procedures to harass. They are based on foreseeability, a nutty, psychotic, supernatural ability, attributed to God in the Medieval catechism. Your profession stinks.

        1. JOIN PART TIME JOB FOR USA Making money online more than 15$ just by doing simple work from home. I have received $18376 last month. Its an easy and simple job to do and its earnings cvx are much better than regular office job and even a little child can do this and earns money. Everybody must try this job by just use the info
          on this page…..VISIT HERE

    2. You know “We the People” are the sovereign, not govt officials, right?

      1. In respondit superior, the people must pay for their awful choices in government officials.

  2. “All immunities must be cancelled” is the title of my new rock album. I’d say get a grip but…

    I predict no broad revision of QI, but perhaps some whack-backs on egregious facts. Some around here might even call that virtue signaling. At least they’re signaling something

  3. “But they also suggest the Supreme Court is not going to take up the larger question of whether qualified immunity itself should be reconsidered.”

    No, there should not be a blanket removal or QI – there should be a drastic paring down though.

    Almost down to the equivalent of if a civilian did the same action (e.g. a person pepper-sprayed another person for no reason as in the case listed above).

    If it’s illegal/unconstitutional for a regular person then it must be illegal/unconstitutional for law enforcement.

    QI still should be available for unavoidable cases, e.g. a cop shoots an innocent bystander during robbery shootout, etc.

    Custodial cases should be NOT be considered for QI.

    Those are situations where law enforcement must have full control.

    1. There are plenty of things that it’s illegal for civilians to do that it is perfectly legal for cops to do in the course of their job.

      Speeding down the highway, for example.

      1. They also kidnap people and keep them in cages. Those are authorized acts.

        1. You mean “arresting” people?

            1. When immunities are all removed, the officials should be held to a professional standard of due care. Their experts can provide self regulation. Liability will not undermine the purposes of government. It will enhance its public trust and esteem. Technology is the most effective remedy, of course, not torts.

            2. Ohh…Kay….

      2. Speeding down the highway is illegal also for cops.

        There are incidents were cops have arrested other cops for this, drunk driving, etc.

        Speeding down the highway for an official reason and with appropriate warning signals (lights, sirens, etc.), is authorized.

        1. “Speeding down the highway for an official reason and with appropriate warning signals (lights, sirens, etc.), is authorized.”

          Yes, but if a civilian tried speeding down the highway with lights and sirens, they’d be arrested. Cops are allowed to do things for official purposes that civilians would be arrested for.

          1. If a civilian breaks the law, he can invoke the Law of Necessity. No one would fine him for speeding to get his wife in labor to a hospital. An officer may escort him to clear the road to increase his speed.

          2. “Yes, but if a civilian tried speeding down the highway with lights and sirens,”

            IIUC civilians aren’t even allowed to drive a vehicle with functioning blue lights. If a civilian is driving a law enforcement vehicle, I believe the lights are supposed to be covered.

        2. “In the course of their job”

    2. If it’s illegal/unconstitutional for a regular person then it must be illegal/unconstitutional for law enforcement.

      But of course it’s not unconstitutional for a regular person to (for example) pepper spray someone for no reason.

    3. While I’m all for a significant curtailment of what is covered by QI, this hyper-simplistic statement…

      If it’s illegal/unconstitutional for a regular person then it must be illegal/unconstitutional for law enforcement.

      …is ridiculous. The COTUS simply does not apply to the actions of regular citizens in the ways that it applies to the actions of agents of the state. Similarly, it is not even remotely practical to legally restrict law enforcement and non-LEOs in exactly the same ways. To do so you must, for example, advocate for one of the following:

      1) Regular citizens be granted the ability to obtain and execute search warrants, or

      2) All law enforcement be stripped of the ability to obtain and execute search warrants.

      While there are certainly areas in which the rights/authorities of LE should not exceed that of the ordinary citizenry, there are clearly areas in which there cannot practically be overlap in the two sets of rights/authorities.

  4. There’s a lot of ranting about QI. Can it be abused? Yes. Should the abuse be limited? Yes.

    However, it’s important to understand that cops aren’t lawyers (Generally speaking). They don’t have several hours or days to peruse the legal documentation on a grey issue before making a decision in the field. And yet, they still have to do their jobs.

    The original QI decision was Pierson v Ray, where the cops arrested several priests under Mississippi code 2087.5, for breach of the peace. The judge in the case convicted them under the same code. Ultimately, the case was overturned on appeal, and the law declared unconstitutional.

    How were the cops to know that this state law, on the books would be held to be unconstitutional? How is that reasonable, when even the original judge upheld the law? Should the cops be civilly liable for something they had no way of knowing was unconstitutional?

    1. I could live with QI in which there really is a doubt as to what the law says. But that’s not what we have. What we have is a situation in which law enforcement does things that anybody who has had a high school civics class should know is unconstitutional, and gets away with it because there is no Supreme Court case with precisely identical facts.

      And if the cops aren’t being provided adequate training on what is, and is not, unconstitutional, then maybe their agency is negligent and should be sued for that.

      1. What we see are the extreme cases. The ones where the court, for whatever reason, has overinterpreted what “clearly established” means. These are the abuses I mentioned, and yes, they should be limited.

        What we don’t see are the grey or opportunistic cases. The cases where the cop is generally in the right, but a lawyer thinks “if I can just get it before a sympathetic jury, I have a chance of getting a big payday”. And keep in mind, it’s not the cops who end up paying…it’s the city and/or taxpayers.

        So, should the abuse be limited? Sure. Should “clearly established” be rolled back a little? Perhaps a good faith clause added? Sure.

        But repealing it entirely will be problematic.

        1. I’m not as worried about the consequences of complete abolition as you are, because juries tend to be sympathetic to the police, and anyone suing the police has an uphill battle even if the case goes to a jury. I think you might see insurance companies for the cities tending to settle more cases, but if that makes the police more solicitous of constitutional rights and cities less willing to keep bad apples on the payroll, the trade off may be worth it.

          1. That’s one possibility….

            On the other hand, you may see more of a Ferguson effect instead. Where any potentially controversial interaction is avoided, any pro-active efforts are avoided, and you see a spike in crime rates as a result.

            If someone acting crazy is threatening people with a knife in public, do the police intervene? I don’t know. The police might be sued, they could lose the case for “undue violence.” Is it worth the risk? I’m sure it is for some police officers. I’m sure they intervene. But then 20% of the time, they get sued for “undue violence”, and lose their jobs. So, now you don’t have any police officers willing to risk it….

        2. No, repealing it would not be problematic. QI only dates back to Pierson v Ray which was decided in 1967. The country did quite well for almost 200 years without QI.

          To be blunt, QI needs to be abolished. Most cops aren’t lawyers but neither are most of the people they are arresting. That doesn’t stop cops and prosecutors from arguing that “ignorance of the law is no excuse”. Good faith mistakes get assessed and resolved by juries all the time. QI aborts the process before the evidence can even be collected, much less get to a jury.

          1. Not only that, people who enforce the law for a living should be held to a higher standard for knowing what the law is.

            1. “Not only that, people who enforce the law for a living should be held to a higher standard for knowing what the law is.”

              Right? If you’re enforcing “the law” and don’t know what “the law” is, then how do you know I am breaking “the law”? It’s nonsense.

              1. You ever see “the law”? The entire thing? Have it all memorized, perfectly, with every grey area?

                1. “You ever see “the law”? The entire thing? Have it all memorized, perfectly, with every grey area?”

                  I know, right? That’s exactly what I told the judge, and can you guess what he told me?

                  1. Yep. “You have qualified immunity for your actions”. 😉

              2. If you’re enforcing “the law” and don’t know what “the law” is, then how do you know I am breaking “the law”? It’s nonsense.

                On it’s own, that statement is far too general and sweeping. Nobody knows “the law” in its entirety, as doing so would be a practical impossibility for anyone…especially when you have legal experts routinely disagreeing on how statutes should be interpreted. What LE should be expected to have a firm grasp of are things like general principles of constitutionality…especially is they apply to the sorts of encounters they commonly engage in with citizens…and the particulars of laws that they commonly enforce. For instance, a traffic cop should have a pretty good handle on the parts of the traffic code that are regularly enforced. SWAT officers and other LEOs who spend time breaking down doors should have a better-than-average grasp of how the 4A applies to their activities. Etc, etc.

          2. We have a different, lawsuit-crazy atmosphere now.

            1. Then fix that. Don’t make it worse by intentionally creating incentives for police abuse.

              1. QI does fix that. It makes it so that low probability lawsuits about grey areas of law are automatically dismissed.

                It doesn’t create an incentive for sure. Police don’t get a bonus of any sort if they abuse someone. In Pierson v Ray the cops didn’t get any incentive for upholding what they thought was the law.

                1. No, it does not fix that. QI does nothing about our problems of rampant commercial tort abuse. QI rather self-evidently doesn’t even fix the problem in the narrow area of arguments over “grey” areas of law enforcement.

                  re: incentive – I misspoke. QI does not create affirmative incentives to abuse. QI does, however, destroy the strongest practical disincentive to abuse.

                  And, as many of us are trying to point out, it does so at great social cost in exchange for gains that are at best theoretical and largely unsupported by the historical record.

                  You claim above that we should only reform QI at the margins because the media stories are only about the most egregious and atypical examples. I would argue that cases like Pierson v Ray are the atypical cases and that juries were and still are capable of making correct determinations of relative culpability.

                  1. “QI does nothing about our problems of rampant commercial tort abuse. QI rather self-evidently doesn’t even fix the problem in the narrow area of arguments over “grey” areas of law enforcement.”

                    That’s because you haven’t seen what happens without it.

                    “QI does, however, destroy the strongest practical disincentive to abuse.” It doesn’t even do that. In practice it’s the city and taxpayer who pays out. Almost never the actual cop.

                    “I would argue that cases like Pierson v Ray are the atypical cases and that juries were and still are capable of making correct determinations of relative culpability.”

                    Do you have any evidence for that? In aggregate, not individual examples…

    2. However, it’s important to understand that cops aren’t lawyers (Generally speaking). They don’t have several hours or days to peruse the legal documentation on a grey issue before making a decision in the field. And yet, they still have to do their jobs.

      QI
      (a) is not limited to cops, but applies to all government employees;
      (b) is not limited to split second decisions, but applies to all government actions.

      Moreover, the argument that they don’t have time to study law cuts both ways. Whether cops get QI depend not on whether their conduct is reasonable, but on whether there is a specific case exactly on point that says that their conduct was unconstitutional. If there is, they don’t get QI, even though they didn’t have time to look up the legal question before acting.

      Should the cops be civilly liable for something they had no way of knowing was unconstitutional?

      Why not? The priests in the case would have been criminally liable for something they had no way of knowing was illegal. Why should regular citizens be subject to criminal penalty for purportedly violating an ambiguous statute, but police not be subject to civil liability for enforcing an ambiguous one incorrectly?

  5. QI was intended for cases like Kyllo v. United States. Not for what is routinely granted today.

  6. It would be great if SCOTUS abolished qualified immunity. Unfortunately, I think Bidwell and Jaicomo are unreasonably optimistic to hope that they are going to do so anytime soon. I suspect that this will be part of the Court’s “rebalancing”. Like they did with Heller, they’ll throw the decision out there, make a few vague references to complying with it, then leave the lower courts to keep doing what they want.

    I’m afraid I agree with Schweikart that it’s up to the Legislature to fix this mess. And they’re behaving like a bunch of spoiled kindergarteners.

  7. The Supreme Court could tame or eliminate qualified immunity.

    I believe Congress could, also.

    May the better ideas win (at the expense of qualified immunity, and soon).

    1. I can rarely say this but I agree with you 100% on this issue.

      1. Great! Start voting for Democrats who wish to dismantle qualified immunity and let’s get this done!

        Thank you.

  8. Is the Supreme Court Preparing to End Qualified Immunity? No.
    When all participants of a “system” are feeding from the same nose-bag, free from competition — and are allowed (by your neighbors and friends — hopefully not you) to
    • Make the laws,
    • Enforce the laws,
    • Prosecute the laws,
    • Hire the prosecutors,
    • License the “defense” attorneys,
    • Pay the “judges”,
    • Build the jails,
    • Contract jails out to private entities,
    • Employ and pay the wardens,
    • Employ and pay the guards,
    • Employ and pay the parole officers,
    One can’t honestly call it a “justice” system. It’s a system of abject tyranny.

  9. How about we end qualified immunity for doctors? How about we end QI for educators education – that’s right, violate a students constitutional right and lose your license. Parole boards make a mistake? Gosh, this could be fun holding ppl to absolute perfection!

Please to post comments