The 14th Amendment to the U.S. Constitution, enacted after the Civil War, was supposed to ensure that the Bill of Rights applied to the states and that individuals could appeal to the federal courts when their rights were abused. Most people think that your rights to worship freely or to criticize the government or to be free from police abuse is the same whether you’re in California or Florida.
But today, whether or not you can sue a government official who takes away your liberty is subject to a judge-made doctrine known as qualified immunity. By U.S. Supreme Court precedent created in 1982 and strengthened over the decades, lower courts determine whether the right a government official violated was “clearly established.” If they determine a right isn’t clearly established, the suit is dismissed before it ever gets in front of a jury.
There is no national, all-encompassing list of clearly established rights. Instead, the standard is set by legal precedents handed down by the Supreme Court and U.S. Circuit Courts of Appeals. Courts can only deal with the cases that come before them, so a “statement of clearly established law” is created only when there is a case with a particular set of facts.
The Institute for Justice sifted through the Supreme Court’s and 12 appeals courts’ decisions for statements of clearly established law and categorized them, a massive undertaking. The results, a tool called the Constitutional GPA, are available in a searchable format online.
Not only does the number of statements vary by circuit, but it roughly corresponds to the population in a given circuit. For instance, the 9th Circuit, the most populous circuit covering nine western states and nearly 70 million Americans, has issued the most statements of clearly established law. In contrast, the 3rd Circuit, the least populous circuit covering only Pennsylvania, Delaware and New Jersey, has issued less than half as many statements.
This is not entirely surprising given that larger circuits hear more cases. But it has disturbing practical implications: In effect, it means that when someone sues a government official for damaging their property in California, their attorneys can reference up to two dozen statements of clearly established law to help overcome qualified immunity. In Pennsylvania, on the other hand, there are only three statements of clearly established law when it comes to property damage. Two cases with nearly identical facts could have different outcomes depending on where the abuse occurred.
Our rights under the U.S. Constitution should not depend on your state. IJ is working across the country to roll back qualified immunity and other court-created immunity doctrines that keep people from holding government officials accountable. If we the people must follow the law, our government must follow the Constitution.