JAY SCHWEIKERT, CATO INSTITUTE
The Cato Institute has been engaged in a strategic campaign to abolish qualified immunity for over two years now. In all that time, the closest I’ve seen to an actual defense of the doctrine is a 2018 law review article by Professors Aaron Nielson and Chris Walker called A Qualified Defense of Qualified Immunity. As the title would suggest, this is hardly a robust defense, but rather a limited, measured argument that the legal case against qualified immunity isn’t quite as strong as its critics suggest. The article doesn’t really defend qualified immunity as a policy matter, but argues primarily that the Supreme Court should simply leave any reforms to Congress. And that, I have said on several occasions, is the furthest that anyone has been willing to go to defend the doctrine.
In the wake of George Floyd’s death, with both the Supreme Court and Congress considering whether to reform or abolish qualified immunity, the International Association of Chiefs of Police (“IACP”) has put out a short “IACP Statement on Qualified Immunity.” In a way, I’m quite grateful that they’ve done so — by setting out such a hollow and misleading defense of the doctrine, the IACP has actually done a tremendous service to our campaign, by revealing such how indefensible qualified immunity actually is. Let’s go line‐by‐line and explain in detail exactly what’s wrong with each argument put forward in this statement:
What is qualified immunity? Qualified immunity provides police officers with protection from civil lawsuits so long as their conduct does not violate clearly established law or constitutional rights of which a reasonable officer would have known.
This is, technically, a correct summary of how the Supreme Court has characterized qualified immunity doctrine. Of course, another way of stating this point is that, even if police officers violate someone’s constitutional rights, they cannot be held liable unless the victim can show that the police violated “clearly established law.” And as I have discussed many times, “clearly established law” is an exacting standard, which generally requires would‐be civil rights plaintiffs to identify not just a clear legal rule, but a prior case with functionally identical facts. Thus, whether a victim can get redress for their injuries turns not on whether their rights were violated, nor even on how serious the violation was, but rather on the happenstance of the fact patterns in prior cases in their jurisdiction.
Further, qualified immunity does not prevent individuals from recovering damages from police officers who knowingly violate an individual’s constitutional rights.
This is a highly misleading statement. The IACP here is presumably paraphrasing the Supreme Court’s statement that “qualified immunity protects all but the plainly incompetent or those who knowingly violate the law.” But whether a defendant “knowingly” violated the law in this context doesn’t actually turn on the defendant’s personal knowledge or intent; rather, it turns entirely on the defendant’s presumed “knowledge” of “clearly established law.” In other words, courts will not find that a defendant “knew” they were violating someone’s constitutional rights unless the victim can show a prior case where someone else’s rights were violated in a nearly identical manner.
To illustrate this point concretely, here are some examples of police officers who received qualified immunity, and thus were not found to have “knowingly” violated someone’s rights:
- In Jessop v. City of Fresno, the Ninth Circuit granted immunity to police officers who stole over $225,000 in cash and rare coins while executing a search warrant. The court said that while “the theft [of] personal property by police officers sworn to uphold the law” may be “morally wrong,” the officers could not be sued for the theft because the Ninth Circuit had never specifically decided “whether the theft of property covered by the terms of a search warrant, and seized pursuant to that warrant, violates the Fourth Amendment.” This case in particular illustrates just how facile the IACP’s above statement is. Of course these officers knew they were violating the law — but because there was no prior case involving such outlandishly illegal misconduct, they received qualified immunity.
- In Baxter v. Bracey, the Sixth Circuit granted immunity to officers who deployed a police dog against a suspect after he had already surrendered and was sitting on the ground with his hands up. In this case, the victim actually did find a prior case with nearly identical facts, in which the Sixth Circuit had held that it was unconstitutional for police to deploy a dog against a suspect who had surrendered by laying on the ground. But the court nevertheless held that the police had not “knowingly” violated Baxter’s rights, because in that prior case, the suspect was laying on the ground, whereas Baxter was sitting on the ground with his hands up.
- In Kelsay v. Ernst, the Eighth Circuit granted immunity to a police officer who grabbed a small woman, Melanie Kelsay, in a bear hug and slammed her to ground, breaking her collarbone and knocking her unconscious — all because she walked away from him after he told her to “get back here.” To make matters worse, the only reason the police were talking to Ms. Kelsay in the first place is because they mistakenly believed she was the victim of an alleged assault (in actuality, she was just playing around with a friend in a public pool, but onlookers misinterpreted what was happening and called the police). Nevertheless, the court held that this officer did not “knowingly” violate Ms. Kelsay’s rights, because no prior cases specifically held that “a deputy was forbidden to use a takedown maneuver to arrest a suspect who ignored the deputy’s instruction to ‘get back here’ and continued to walk away from the officer.”
So yes, the IACP is correct that, according to the Supreme Court, qualified immunity doesn’t protect officers who “knowingly” violate people’s constitutional rights. But that’s only because “knowingly” in this context is defined in reference to the Kafkaesque “clearly established law” standard.
Qualified immunity is an essential part of policing and American jurisprudence.
This statement is just stupendously wrong. As Professor Will Baude has demonstrated at length — and as Cato has argued in many of our amicus briefs on the subject — qualified immunity is completely untethered from both the text of Section 1983 and the common‐law history against which that statute was passed. With limited exceptions, the baseline assumption at both the founding and throughout the nineteenth century was that public officials were strictly liable for unconstitutional misconduct. The Supreme Court itself rejected the application of a “good faith defense” to Section 1983 in a 1915 case called Myers v. Anderson. It wasn’t until the Court effectively reversed Myers in 1967 (without acknowledging that they were doing so) that we saw anything like qualified immunity. And the “clearly established law” standard — which is the key feature of modern qualified immunity — wasn’t invented until 1982.
So, on the one hand, we have an atextual legal rule conceived through raw judicial policy‐making by the Supreme Court 38 years ago. And on the other, we have Chief Justice Marshall’s statement in Marbury v. Madison that: “The government of the United States has been emphatically termed a government of laws, and not of men. It will certainly cease to deserve this high appellation, if the laws furnish no remedy for the violation of a vested legal right.” Only one of these two contradictory principles is “essential” to American jurisprudence.
[Qualified immunity] allows police officers to respond to incidents without pause, make split‐second decisions, and rely on the current state of the law in making those decisions.
This statement is either a reckless mistake or an outright lie. It is true, of course, that police officers do have to make split‐second decisions under dangerous, uncertain, and evolving conditions, and in novel circumstances that may have never arisen before. But that is exactly why our legal standards for determining whether a constitutional violation occurred in the first place are highly deferential to on‐the‐spot police decision‐making. In Graham v. Connor, the Supreme Court has made clear that the Fourth Amendment’s “unreasonableness” standard must “allow for the fact that police officers are often forced to make split‐second judgments—in circumstances that are tense, uncertain, and rapidly evolving” and cannot be judged with “the 20/20 vision of hindsight.” Qualified immunity is entirely unnecessary to ensure that police can make quick, split‐second decisions, because that protection is already baked into our Fourth Amendment jurisprudence. If we eliminated qualified immunity tomorrow, that protection would remain untouched.
[Qualified immunity] is essential because it ensures officers that good faith actions, based on their understanding of the law at the time of the action, will not later be found to be unconstitutional.
Wrong again. If an officer is truly acting in “good faith” — i.e., arresting someone with probable cause, or using an amount of force they reasonably believe is necessary under the circumstances — then they have not broken the law at all. Just because police arrest someone who turns out to be innocent, or conduct a search that turns up nothing, or use force that — with the benefit of hindsight — was unnecessary to effect an arrest, doesn’t mean the police have violated anyone’s constitutional rights. The touchstone of most Fourth Amendment questions is reasonableness, and “good faith” policing decisions, basically by definition, are inherently reasonable. So again, qualified immunity is entirely unnecessary to protect officers in this regard, because “good faith actions” generally do not violate people’s rights in the first place.
The loss of [qualified immunity] would have a profoundly chilling effect on police officers and limit their ability and willingness to respond to critical incidents without hesitation.
Consider for a moment what it would actually mean if the IACP were correct about this point. According to the IACP, it is absolutely essential that police officers be held to a lower standard of accountability then ordinary citizens and all other professions. According to the IACP, most police officers are either so cowardly or so vicious that they will just stop doing their jobs if they are actually held accountable for violating people’s constitutional rights. I, apparently, have far greater faith in members of law enforcement than the IACP does, because I’m quite confident that they’re wrong on this account, and that the vast majority of police would continue protecting the public even in the absence of qualified immunity. And if there are some individuals deterred from the profession by the prospect of actual accountability, well, that is a feature, not a bug, of our civil rights laws.
Calls to limit, reduce, or eliminate qualified immunity do not represent a constructive path forward. In fact, these efforts would most certainly have a far‐reaching, deleterious effect on the policing profession’s ability to serve and protect communities.
The conclusion to the IACP’s statement is not just wrong, but entirely backwards. As we have explained time and time again in many of the Cato‐led “cross‐ideological” amicus briefs, qualified immunity harms not only the victims of police misconduct, but the law enforcement community itself, by depriving officers of the public trust and credibility they need to do their jobs safely and effectively. Policing is made far more difficult and far more dangerous when law enforcement lacks cooperation and respect from the communities they police. And there is perhaps no quicker and more effective way to undermine police‐community relations than by holding police to a lower standard than everyone else and regularly excusing egregious misconduct on the basis of lawless technicalities.
For this reason, more thoughtful members of law enforcement — like the Law Enforcement Action Partnership — have actually joined Cato’s briefs urging the Court to reconsider qualified immunity and have put out their own policy recommendations calling for an end to the doctrine. In the words of Police Major Neill Franklin (Ret.): “Accountability measures that show an agency is serious about respecting the rights of all of its residents help the police as much as they help the communities we serve. There’s no better way to restore community trust. And we cannot do our jobs without trust.” Just so.
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In conclusion, the IACP’s defense of qualified immunity is, at best, misleading, counter‐productive, and short‐sighted, and at worst, full of outright misrepresentations. Nevertheless, I can’t help but pity whatever poor soul was charged with the task of actually writing this statement — it’s hard to defend the indefensible.
Jay Schweikert is a policy analyst with the Cato Institute’s Project on Criminal Justice. His research and advocacy focuses on accountability for prosecutors and law enforcement, plea bargaining, Sixth Amendment trial rights, and the provision and structuring of indigent defense. Before joining Cato, Jay spent four years doing civil and criminal litigation at Williams & Connolly LLP. He holds a J.D. from Harvard Law School, where he was an Articles Editor for the Harvard Law Review, and chaired the Harvard Federalist Society’s student colloquium program. Following law school, Jay clerked for Judge Diane Sykes of the U.S. Court of Appeals for the Seventh Circuit, and Judge Laurence Silberman of the U.S. Court of Appeals for the D.C. Circuit. He holds a B.A. in political science and economics from Yale University.