An Unprecedented Opportunity to Revisit Unqualified Immunity

Civil Liability is the Remedy for Police Brutality, says “Constitutional Law Warrior” Clark Neily, Jr.

How quickly we went from nation-wide lockdown to nation-wide mass demonstrations and riots!

Perhaps pent-up angst from the lockdowns made the powder-keg of rioting particularly violent, but the fuse of injustice was burning long before the COVID-19 epidemic:

Quite simply, Americans are tired of seeing police get away with murder— figuratively, but sometimes also literally.

Clark Neily has been beating the civil liberties drum for his entire career — first as a constitutional litigator with the Institute for Justice, and more recently as vice president for criminal justice at the Cato Institute.

Cato’s new Unlawful Shield website, dedicated to abolishing qualified immunity, is Clark’s latest effort to shine a light on a seemingly obvious reform. Qualified immunity is a 50-year old doctrine that has protected police officers from civil lawsuits — even when they violate citizen’s constitutional rights.

This leads to a “culture of near-zero accountability for law enforcement,” according to Neily, who says the Supreme Court must reconsider its long-standing interpretation of 42 U.S.C. § 1983. This statute prevents plaintiffs from recovering damages for violations of their constitutional rights unless a government official violated “clearly established” law, which usually requires specific precedent on point. Clark and I will discuss the mischief that has resulted from the Supreme Court’s exercise in judicial creative writing, which pulled those two words – clearly established– out of whole cloth.

As my shows on the response to COVID-19 attempted to highlight, there is always an opportunity that comes with crisis. Civil libertarians should not let this one go to waste.

Follow Clark on Twitter – @ConLawWarrior – and tune in or read the transcript:


Bob Zadek: Welcome to the Bob Zadek show, the longest running live libertarian talk radio show in all of radio. We have the perfect guest and the perfect topic this morning. Everybody in the media is talking about this morning’s topic all the time and they do not even know it. We are talking about a topic that most people have never heard of, but it affects their life today, more than perhaps any other public interest topic. We are talking about qualified immunity, two words that affect the life of all of us profoundly now without anybody understanding the concept at all.

I’m delighted to welcome back to the show this morning Clark Neily. Clark is a vice president for criminal justice at the Cato Institute. Clark’s area of interest includes con law, overcriminalization, and civil forfeiture. These are the topics that he has devoted probably the overwhelming portion of his professional life to examining in great detail and with enormous effectiveness. Clark has been a litigator, a writer, a scholar, and a blogger in addition to being a law professor. This morning’s topic is qualified immunity. What is it, how we got to have qualified immunity in the criminal justice jurisprudence, where it came from, the damage it has done and how we can get rid of it. Clark, welcome back to the show this morning.

Clark Neily: Thanks so much, Bob. I really appreciate that introduction.

Qualified Immunity: An Introduction

Bob Zadek: I have read about the George Floyd killing and all the other events and the protests that resulted. I think it’s fair to say that in all of the media written broadcast blogosphere, I have never seen the two words “qualified immunity” in print or even spoken of. What is qualified immunity immunity from what and how is it qualified?

Clark Neily: It is a terrible legal doctrine that has been hiding in plain sight. Now it is finally out in the light where it belongs. I think the best way to understand qualified immunity is that it is the cornerstone of our near zero accountability policy for law enforcement. We clothe police and prosecutors with extraordinary powers. Tragically, as we saw in Minneapolis, the power of life and death. And it matters tremendously how accountable people are when you, when you clothe them with that much power. And unfortunately, as we’ll discuss this morning, through qualified immunity we have effectively chosen a near zero accountability policy for law enforcement. It is not that accurate to say we chose it because in fact qualified immunity is a judge-made doctrine that was invented out of whole cloth by the Supreme Court and is effectively has been grafted onto a civil rights law that actually was designed to provide much more protection for our rights.

Bob Zadek: So the story starts way back around 1871 in the immediate aftermath of the civil war. The statute was enacted to protect civil rights from the bad acts of government officials. Tell us about 42 US code 1983, because that’s where our story starts.

Clark Neily: In the wake of the civil war, Congress was very aware of the systematic abuse and violation of individual rights, particularly in the South by many government actors such as sheriffs and constables and so forth. In response, Congress enacted what was then called the “first enforcement act” also known as the Ku Klux Klan act. And as you correctly note, it is now today referred to as section 1983 because that’s where it appears in the U.S. Code 42 USC section 1983. And it provides the following:

Any state actor, meaning any police officer or any other government official, employed by a state or local government shall be liable to the person injured to the deprivation of any right.” So it was quite a sweeping protection of civil rights. And it provides the ability for individuals whose rights have been violated by government officials, including police, to file a civil rights lawsuit in federal court to vindicate those rights and seek compensation. That is the law that Congress passed. But as we discussed a moment ago, and I’m sure we’ll discuss more, the Supreme Court saw fit to judicially amend it.

Bob Zadek: So we have a statute that nobody can quarrel with. It simply states the obvious, that state actors cannot deprive citizens of any of their constitutional rights without being civilly liable. The thinking is, once people are liable for their bad acts, they are less likely to commit the bad acts, so it is a way to use the civil law system to police bad actors in state and local governments. So Congress passed a good statute. Then what happened next?

Clark Neily: Well, two things happened simultaneously. The Supreme court began to hold that the constitution and specifically the 14th amendment protects a variety of individual rights against violation by state and local actors. There just wasn’t really much case law on that up until the mid 20th century. Right around that time there was case law from the Supreme Court building out the kind of jurisprudence of individual rights that we’re familiar with today, and not long after that happened, the Supreme court began the process of judicially amending section 1983 to limit its scope and make it a less effective accountability mechanism than the one that was designed by Congress. That first started in the 1967 case called Pearson v. Ray, where the Supreme Court took the first step to rewrite the statute in a small way.

What the court said in that case was that if a police officer enforces a law that has been thought to be constitutional and that law is later struck down, then the police officer should not be liable for his acts. But this decision really turned into an avalanche that ultimately caught up with section 1983 and really gutted the statute and rendered it largely ineffective.

Bob Zadek: So that first decision really is not a one really couldn’t question that it kind of makes sense. The Supreme court was simply doing its job, which is helping us understand the statute. It seems to make sense, how could you impose upon a state actor the duty to predict subsequent unconstitutionality is impossible and unfair, and that all makes sense. So then what happened?

Clark Neily: That’s the way, unfortunately, so many things can go wrong, because even though it makes sense, it really was somewhat inconsistent with the language of the statute. So I think it does make sense. You can also make the case that it really was not for the Supreme Court to come up with this immunity, but it should have been left to Congress because Congress has the ability to fine tune these statutes.

What really went haywire was a case called Harlow v. Fitzgerald where the court came up with what is now the heart and soul of the qualified immunity doctrine, which essentially grafted onto the statute the phrase the of “clearly established rights” instead of the deprivation of any rights.

So in order to sue a police officer, you have to show that the right in question was “clearly established.” The courts that have said that you must identify a pre-existing case in your jurisdiction where essentially the exact same thing was done to somebody else, and the courts have already said that it’s impermissible. And if you can’t find a case with nearly identical facts, then your case will be thrown out and dismissed because qualified immunity will apply as a defense — the police officer will get off the hook even if everybody agrees that he violated your rights.

Bob Zadek: The strange thing about that is once that becomes the law, there never will be a first case which becomes a preexisting case because the first case is the first case, which means those two words clearly established in effect totally neuter the statute.

Clark Neily: Your instinct is exactly right. Up until the late 90’s the Supreme Court required lower courts to handle these cases in what you would think was the intuitively correct manner, which was to ask whether there was a constitutional violation in this case. If the answer is yes, only then do we go on and ask whether it was an established right. What the Supreme court did was it allowed lower courts to approach that analysis in whatever order they wish. What many courts now do is exactly what you suggested a moment ago.

They simply skip that first step. They don’t answer whether or not the conduct at issue violated the constitution. They essentially say, putting aside the question of whether this police officer acted unconstitutionally, we know there wasn’t a case on point, so it can’t be clearly established. The law stagnates and the police can continue engaging in blatantly unconstitutional behavior over and over and over again because you never get that first case that says this is unconstitutional. And it’s a huge problem.

Bob Zadek: All of us one-time law students always learned this doctrine of tort law. The first bite is free. What we learned is if one owned a dog and the dog bit somebody and you were sued. Unless you knew your dog had a tendency to bite people, you were not liable in negligence, but once the dog bit someone, subsequent victims could sue you.That’s what the Supreme Court tried to do. They can determine that this specific act violates constitutional rights, but since this policeman didn’t know, he gets to walk, but hereafter, if any policemen does this particular act they are now on notice. But as you have pointed out, that has gone away so there is never the first bite and therefore in a majority of cases police violate rights with total immunity, thus qualified immunity.

Clark Neily: It’s 100% accurate. When the government prosecutes you for an alleged criminal violation, the fact that you didn’t even know that what you did was a crime. In other words, you were not on notice that your conduct was illegal, that is not a defense. Ignorance of the law is no excuse. So you have this incredible double standard where the government can and will prosecute you for doing something that you didn’t know was illegal and put you in a cage. But when the shoe is on the other foot, the government will not allow a police officer to be sued because he didn’t know that what he did was wrong. I think there’s a very good reason why people are so angry right now, because they’re really beginning to catch on to how fundamentally unfair so much of our criminal justice system is and that’s just one example.

Historical Basis for Qualified Immunity: Judicial Bias

Bob Zadek: Clark, there has been a lot written about to what extent do the courts and the Supreme Court most specifically decide cases based upon what they perceive to be, what is good for the country or the right result at this time. That is, they don’t decide cases in a pure constitutional vacuum of just looking at the constitution as the parchment that it is, but they pay attention to, and how I hate this expression, the “real world.” So what is there about the relationship between the Supreme Court and the world they came from and live in that brought us to this point? It is so clearly damaging. How did it happen?

Clark Neily: Fantastic question. I wish I knew the answer. I have some thoughts, but I can’t say that I’m positive about the answer. People throw rocks at each other constantly about who’s making up the laws, who is faithfully applying it, and it’s been very easy to get mired down in. But what is absolutely true is that as an institution, the Supreme Court and the judiciary are relentlessly government favoring. They are constantly coming up with special exceptions and double standards made up out of whole cloth rules like the qualified immunity doctrine that almost without exception point in favor of the government that gives the government more deference, more discretion, more room to put its fingers into every little nook and cranny of our life.

You may remember I wrote a whole book about that called Terms of Engagement. How it manifests here in the qualified immunity area is that it eliminates really the only effective mechanism of accountability for citizens. As you mentioned earlier, criminal prosecution doesn’t work because even though it happens once in a while, like in Minneapolis, and that only happened because of a viral video, prosecutors have a massive conflict of interest when it comes to enforcing criminal laws against police and rarely do it.

And also not all law enforcement misconduct is a criminal violation. You also pointed out that internal accountability mechanisms like internal affairs or citizens review boards don’t work either because you’re essentially asking the police to decide whether the police messed up and they almost always say they did not. So with qualified immunity, the Supreme Court has really gutted the only potentially effective avenue of accountability, which is a civil rights action.

And I’ll say one more thing. You asked why this happened. My intuition is that one of the most distinctive features of the federal judiciary and also state judiciaries, but I can speak more knowledgeably to the federal judiciary, is the wild imbalance among sitting federal judges of former prosecutors and other government advocates. It is a very high proportion.

Nearly half of sitting, federal judges spent their formative professional years advocating for government often as prosecutors. By contrast only a train of sitting federal judges, about 6%, spent their formative years representing individuals either in criminal cases as defense lawyers or doing the kind of work that I did at the Institute for Justice, which was suing the government on behalf of individuals. So when you have an institution that is so wildly imbalanced between people who have chosen a path of advocating for government on the one hand versus people who have chosen the professional path of challenging the government on the other. What sort of the jurisprudence do you think that institution is likely to produce?

Bob Zadek; The bias is not obvious. And indeed justices would, if they were intellectually honest, deny that they have that bias, but there is this unconscious bias when you spend your career on one side of the litigation. Whether you like it or not, in a way that’s almost uncontrollable, you do bring to the bench the life experiences you have had. It’s human. Even those who are determined to do the right thing as a matter of law are influenced by that. In your experience as a litigator,, and you have infinitely more experienced than almost everybody else, have you found that bias to be obvious?

Clark Neily: It’s both. It is absolutely palpable when you’re representing individuals in court. The tendency of judges to favor the government, sometimes just as a matter of following instructions from the Supreme Court and courts of appeals but there is also an informal tendency to defer to the government and to credit the governments representations even when they are not credible. They make it very difficult for individuals who are challenging any sort of government action to meet whatever the required standard. And so in my experience as a constitutional litigator, the pro-government mindset among judges is persistent and almost without exception. I think it’s a huge problem. I think it has influenced jurisprudence.

We are all influenced by our life experiences, including our professional experiences. That doesn’t mean that we can’t be unbiased. It doesn’t mean that we can’t try to be neutral, but think about it this way. If you’re a criminal defense and you get called for jury duty on let’s say a drug prosecution, is there the slightest chance that you’re going to be seated for that jury? No, because the prosecutor is going to strike from that jury pool. Same thing. It’s the other way around if you’re a prosecutor who has been called for jury duty in another criminal prosecution, that defense attorney is going to strike you from the jury. Not because they know for sure that you’re going to sympathize with the side of the case that you worked for, but because it is sufficiently likely that they are not going to take the chance. That’s really what we’re talking about here.

Examples in Qualified Immunity Case Law

Bob Zadek: Share with us some examples of the abstract concept of qualified immunity, as we learned before the break qualified immunity eliminates the ability for a citizen to sue a policeman under a federal statute if the policeman is claimed to have violated a citizen’s constitutional rights. Give us some examples of this in the courtroom.

Clark Neily: Let’s start with a case called Kelsey v. Ernest out of Nebraska. A woman named Melanie Kelsey was swimming at a public pool with her children and her boyfriend. They were horsing around and someone misinterpreted what was going on and called the police. The police arrived. They pulled them out of the pool. They are interviewing Melanie and her boyfriend separately. And it becomes clear that there was no problem, but there was a misunderstanding of what was going on. While she was being interviewed by the police, Melanie Kelsey notices that her 13 year old daughter is being hassled by one of the patrons of the pool. And so she says to the police officer, I need to go help my daughter. And he says, no, you need to stay and talk to me. And keep your mind. She’s supposed to be the victim at this point.

She’s denied that there’s any problem she says, I will talk to you, but I need to go help my daughter. And she turns and begins walking away from the officer and he comes up behind her, wraps her up in a bear hug. And she’s about five feet tall clad only in a bathing suit, not armed, not resisting. The officer wraps her up in a bear hug, lifts her up off the ground, turns her upside down and drives her head first into the ground, knocking her unconscious and breaking her collarbone, severely breaking it to the point where she had to have surgeries and plates installed, so she sued and the eighth circuit court of appeals that covers Nebraska, took the case en banc. The entire court. Usually it’s just three judges this time. It was the whole 12 judges on the court and it held eight to four that because there was not a preexisting case on point where an officer had done the same thing to someone else under the same circumstances that qualified immunity applied and threw her case out. That’s an example of how qualified immunity works in real life.

Bob Zadek: So she had no civil redress against the officer. Now, she could not sue for damages. Now I should point out a few things. I want to go back to an important point you made before the break. There were three sorts of basic controls on bad behavior. The police can be accused. The policemen can be accused of committing a crime that is of battery, attempted murder, or whatever crime fits, that is rare to nonexistent because as Clark pointed out, the criminal justice system does not eat its own in general. The second alternative is internal affairs. A highly ineffective check on bad police behavior.

Internal affairs are often regulated by union contracts. We can predict what the union contract would say about internal affairs operations. It will try to neuter the effect. Also through union contracts, policemen’s bad behavior is often not available to the general public. So there are lots of protections that the unions built in to protect even bad actor policemen. And the last way is a civil lawsuit, which ought to have been effective except now as a result of qualified immunity, the third and last control on bad police behavior has gone. Is the use of qualified immunity to allow police to escape civil liability limited to certain areas of the country? Is it universal that once a policeman gets sued civilly anywhere in the country?

Clark Neily: It applies everywhere. It is a doctrine that is announced and enforced by the U.S. Supreme court. All lower courts are bound. All lower federal courts are bound to apply it. There’s no place in the country where you can escape qualified immunity if you are attempting to sue a government official under this federal rights law. There are some States that have state level civil rights laws. Some of those States also have qualified immunity at the state level, but not all of them do. So there is some variation among the States, but generally speaking, it’s very difficult to sue a state official under state law. So if you don’t have the federal cause of action section 1983, then oftentimes you’re going to be out of luck. And yes, qualified immunity applied in every single section 1983 case in every single part of the country.

Bob Zadek: But here is a question which stumps me. Is it too much to expect that judges in applying the law would find that another case is close enough and let them be re-leased to them, but most cases don’t go through the appellate process. Why isn’t there more of a judicial motivation to just apply that doctrine strictly and find more as in the case you’ve described in favor of the plaintiffs.

Clark Neily: It’s a fantastic question. I wish I knew the answer to it. I don’t know if it’s a mental predisposition that there’s a sort of selection mechanism so that the people who become federal judges are just more likely to be sympathetic to the government or what, but I’ll tell you quickly about a, um, a case that just came out of the fifth circuit, which covers Texas, Louisiana, and Mississippi. I’m a native Texan. This case involves pretrial detention of a man in a facility for six days. The allegation and the complaint is that they in effect lock this man in what amounts to an open sewer, he alleges that every single flat surface of the cell, the floor, the wall, the ceiling was covered in human excrement.

There was no bed, no mattress in the jail cell. There was an open drain that was backing up sewage into it. And he had to sleep on the sewage covered floor and be fed in the cell that amounted to an open sewer. And again, when he sued his case was thrown out by the fifth circuit court of appeals on the premise that there, because there was no sufficiently closed case on point qualified immunity applied because the right to not be held pretrial that in what amounts to an open sewer is not clearly established in that jurisdiction, the case was tossed out.

That is how bad this doctrine has gotten. And that’s the mindset of judges that apply it. It’s hugely problematic because it destroys the only really meaningful accountability mechanism available to people that they can invoke unilaterally without going on bended knee to some bureaucrats or a prosecutor. This was the only way that citizens can enforce their own rights by initially initiating a civil rights lawsuit and qualified immunity presents a significant bar to their ability to do that. And that’s why I call it the cornerstone of our near zero accountability policy for law enforcement.

Judicial Activism is Bad Judging

Bob Zadek: I should mention that qualified immunity has never been part of the public discourse in this country. I learned about it 10 or 11 years ago in my readings of publications such as IJ, such as CATO, within the libertarian ecosystem. But it never captured the attention of the public as such.

The existence of qualified immunity and its aftermath has contributed to these mass protests. You have written quite a bit about judicial activism. In fact, you have spent your career working on the subject of judicial activism. The phrase judicial activism has been at various points in recent history, a pejorative used by either the left or the right in describing activist judges. It was first used probably in the fifties during the Warren court. You have urged for more judicial activism in many ways. Help us reconcile and fit in the concept of judicial activism.

Clark Neily: Thanks for that question. So the most important thing we can do here is to understand that judicial activity is not the same thing as judicial activism. When the government violates people’s rights, when it engages in censorship, when it prevents people from worshiping at the church of their choice. When it imposes arbitrary and unreasonable travel bans, we want and we need a judiciary that will step in and actively enforce our constitutional rights and push back against the other branches of government when they violate the constitution. which they do quite often. To say we don’t want an activist judiciary is not to say that we don’t want an active judiciary. Now activism has a very specific meaning in this context. And what it means properly defined is when a court substitutes, a judge substitutes his or her own personal policy preferences for clearly established law, and qualified immunity is one of the best and most glaring examples of judicial activism.

It simply rewrote the statute in effect, took the statute that Congress had written, rewrote it, and produced a different policy with a narrower scope of liability for right violating government actors. And that is as clear an example of judicial activism as you could ever hope to see.

Bob Zadek: That is simply the Supreme Court taking a statute putting a pen to it, adding two words that the legislature didn’t intend and the court rewriting a statute. That is an unelected branch of government writing or drafting or revising legislation without the authority to do so. That is what is so offensive about the concept.

If I were a cop and I was told that I would be personally liable if I violated a citizens constitutional rights. I have to make decisions quite fast that may affect whether I live or die. I have no time to do legal research to dust off Lexis and figure out if I’m filing somebody’s constitutionally protected rights. If a policeman is liable for not knowing constitutional law, how do you respond to that?

Clark Neily: It is completely overblown and self serving. The truth of the matter is that many, if not most constitutional standards, including the one that comes up the most with civil rights cases against police, which is going to be for excessive use of force, actually have built in subjectivity language. So the fourth amendment prohibits unreasonable searches and seizures, and it is the seizure part that comes into play when we’re talking about excessive force. So a police officer in these cases, will always have the ability to go in front of the jury and try to explain why he did what he did under the circumstances.

So for example, if a police officer can explain why it was that he felt it was necessary to pick up a five foot tall unresisting unarmed woman Turner upside down and driver head first into the ground, maybe he can, maybe he can explain to a jury why he felt it was necessary to do that. If he can’t, if he can’t convince 12 people that the amount of force that he used in that situation was reasonable under the circumstances, then he should be held liable, and he shouldn’t be complaining about being required to submit themselves to a process where ultimately 12 people drawn up from his own community will get to hear his side of the story, get to hear the injured person’s side of the story and decide who behaved unreasonably and who did not.

Why on earth would anybody complained about being required to participate in the civil jury process, which is one of the greatest products, in my opinion of the Western enlightenment tradition? And here you’ve got police and judges and other government officials who just taken it upon themselves to unilaterally say that is not good enough. We shouldn’t be requiring police to have to go in front of juries and explain the basis for their conduct that results in oftentimes very serious physical injuries.

A Possible Change in Constitutional Law

Bob Zadek: What a perfect response. Thank you so much, Clark. The perfect answer. Tell us what is going to happen with the Supreme Court and qualified immunity.

Clark Neily: It may already have happened actually. To take a step back, two years ago on March 1st, 2018, my colleagues at Cato and I declared that it was our mission to eliminate the qualified immunity doctrine. We actually had a kickoff event where we had a number of very prominent speakers join us to commemorate that kickoff. What we did since then is we’ve orchestrated the most diverse cross ideological amicus campaign in history of the Supreme court. Meaning we’ve, we’ve, we’ve rounded up ideologically diverse organizations all the way from the NAACP legal defense fund in the ACLU on the one side, to including reason and Cato and Defending Freedom on the other to submit amicus briefs in qualified immunity cases to the Supreme Court explaining that the court should take up this issue again and reverse its precedent and eliminate the qualified immunity doctrine.

We know that eight cases involving qualified immunity were taken up at last Thursday’s conference. That’s the meeting at which the Supreme Court decides whether to grant review in a particular case. We will find out Monday morning at 9:30 Eastern time, whether the court is going to grant review in a qualified immunity case and begin the process of cleaning up its own mess. Now there’s even better news. And that is that because this is not a constitutional doctrine, but rather a statutory interpretation, it is also possible for the Congress to fix this problem by amending section 1983, to make clear that there is no qualified immunity defense. Justin Amash has introduced a bill that does precisely that, and there will be a raft of similar legislation coming down the pike. And I can tell you that with 100% certainty,

Bob Zadek: We will find out in about 24 hours from now, if the Supreme court will undertake to fix the mess they created.

Clark Neily: if they do accept one or more qualified immunity cases, there’ll be a period of briefing where the parties will submit. There will be legal arguments. There will be a very aggressive amicus briefing campaign. The court will set the arguments for sometime this fall. I would expect it to be one of the most interesting and exciting arguments in many years before the Supreme Court. We could have a decision as early as early 2021. And I agree with you, I think the court has a moral obligation at this point to accept cert in one of these qualified immunity cases and begin cleaning up the mess that it created by inventing qualified immunity out of whole cloth and the court absolutely should not kick the can down the road or try to hand this mess over to Congress.


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