The Institute for Justice’s Project on Immunity and Accountability is devoted to a simple idea: If we the people must follow the law, our government must follow the Constitution.
We have a lot of work to do to turn that idea into reality. A web of legal doctrines effectively places government workers above the law by making it nearly impossible for individuals to hold them accountable for violations of constitutional rights. Outside of narrow exceptions, these doctrines give all those employed by the government—police, mayors, school officials, IRS agents, you name it—immunity from lawsuits, even if they act in bad faith.
Since the only way to enforce the Constitution is through courts, these doctrines make the Constitution an empty promise by firmly shutting the courthouse doors. But the Constitution is a promise meant to be kept. Those who take an oath to uphold it should be required to keep it. If they don’t, they should be held accountable for their actions.
To that end, IJ is dedicated to knocking down barriers to the enforcement of our nation’s most fundamental law. Never forget that the Constitution’s protections for private property, free speech, economic liberty, and other rights are only meaningful if they are enforceable.
Frequently Asked Questions About Ending Qualified Immunity
What is Qualified Immunity? How Does It Work? Read the most Frequently Asked Questions about Qualified Immunity.Read the FAQ
Immunity doctrines permit government workers to avoid constitutional accountability.
There are many special doctrines that shield government workers from accountability, but chief among them are: qualified immunity, de facto immunity for federal workers under Bivens, and employer immunity under Monell.
In addition to these, several categories of government workers, including prosecutors, judges, legislators, and high-level officials, enjoy both qualified immunity and absolute immunity—meaning that even if a court finds that absolute immunity does not apply, these workers are still entitled to qualified immunity.
If any of these immunity doctrines apply, victims of government abuse are prevented from holding their abusers accountable in American courts.
Thanks to its common application in instances of police abuse, the most prominent immunity doctrine is qualified immunity. But the doctrine shields more than just police. It protects all government workers from constitutional lawsuits.
The Supreme Court created qualified immunity in 1982 in a case that had nothing to do with police, but involved White House aides in the Nixon Administration who, on the president’s orders, retaliated against a whistleblower. The Court immunized the aides, and all others who worked for the government, for policy reasons, concerned that if government workers were held accountable for violating the Constitution their jobs would be more difficult and costly. Although the Court’s policy assumptions have since been disproven, the doctrine is stronger than ever.
Qualified immunity grants all government workers immunity for violating constitutional and civil rights unless the victims of those violations can show that their rights were “clearly established.” Although innocuous sounding, the clearly-established test is a legal obstacle nearly impossible to overcome. It requires a victim of government abuse to identify an earlier decision by the Supreme Court or a federal appeals court in the same jurisdiction, holding that precisely the same conduct under the same circumstances is illegal or unconstitutional. If none exists, the government worker is immune. It doesn’t matter whether the worker’s actions are unconstitutional, unreasonable, intentional, or malicious.
For example, courts have granted qualified immunity to police who stole hundreds of thousands of dollars because there was no earlier case holding that stealing is unconstitutional (while at the same time noting that “virtually every human society teaches that theft generally is morally wrong”). Courts also use qualified immunity to shield government workers based on absurdly small distinctions between earlier cases. For instance, courts have held that a prison guard who pepper sprayed an inmate for no reason was entitled to qualified immunity because earlier cases had involved punching, or tasing, or striking inmates with a baton for no reason, not pepper spraying.
Importantly, when courts grant government workers qualified immunity, they do so despite the fact that the government worker has violated the Constitution or they simply do not address that issue at all. In the latter cases, courts let the government off the hook and boot the victim out of court without ever considering the limits the Constitution places on government workers. By not reaching constitutional questions, courts avoid establishing law that could guide and bind government workers in the future.
For more information, check out IJ’s page answering frequently asked questions about ending qualified immunity.
De Facto Immunity (Bivens)
In addition to qualified immunity, which shields all government workers—local, state, and federal—there is a de facto absolute immunity for federal workers who violate the Constitution. This two-track system of accountability comes from the Supreme Court’s restriction of something called a Bivens remedy—named from a case the Court decided in 1971. Although Bivens held that individuals could sue federal workers who violate the Constitution, the Supreme Court has severely limited Bivens over the past 50 years.
Today, there are only three very narrow circumstances in which you can sue federal workers:
That means that any other rights violated by federal workers in any other ways have no remedy in court. So, if an official who violates your First Amendment rights happens to work for the federal government, you are simply out of luck. Your rights are unenforceable in American courts.
Even if your rights are violated in a way that falls into one of the categories above, courts will—as with the clearly-established test for qualified immunity—find minor distinctions from earlier cases to hold that a federal worker is entitled to de facto immunity. For example, when federal police working as security at a Veterans Affairs hospital choked and slammed to the ground a 70-year-old veteran for failing to show his ID quickly enough (seriously, watch the video), a court held that the veteran could not sue federal police because he had been choked in a hospital, while the plaintiff in Bivens had been handcuffed in his home.
Worse still, if a plaintiff can get around de facto immunity, federal workers are still able to claim qualified immunity. So, federal workers are doubly insulated from constitutional accountability. For this reason, the steadily growing number of state-federal task forces has eroded constitutional accountability because courts treat their members as federal workers—even when they are employed by state and local governments.
Government Employer Immunity (Monell)
Qualified immunity and de facto immunity prevent victims of abuse from suing government workers individually. Another set of doctrines provides immunity to government employers as well.
Private employers are generally responsible for the actions of their employees. That’s because private employers have a degree of control over their employees through hiring, firing, discipline, and setting employment policies. Although government employers have the same degree of control over their employees, they are generally immune from liability when their employees hurt people by violating the Constitution.
In addition to sovereign immunity—which under the un-American concept of “the King can do no wrong” prevents Americans from suing the federal or state government directly unless the government consents to be sued—the Supreme Court has created another doctrine to protect lower-level government employers. Through a 1978 decision called Monell, the Court held that government employers that are not entitled to sovereign immunity are still immune from liability for the actions of their employees unless a victim can show that those actions flow directly from an official policy or custom of the employer.
Thanks to Monell, short of a government employer formally instructing its employees to violate the Constitution, it is very difficult to hold a government employer accountable. And to make things worse, courts have recently begun using qualified immunity to further erode what little constitutional accountability exists for government employers.
Judge-made immunities erode constitutional rights.
Judge-made immunities like these are inconsistent with American legal history, which shows that the Constitution is meant to provide a government that is limited in fact, not just in theory. At the founding, it was uncontroversial that individuals could enforce their constitutional rights by suing government workers and recovering damages against them. The practice of dismissing constitutional claims on immunity grounds flies in the face of this history and is contrary to one of our most cherished legal principles: where there is a right, there must be a remedy.
Moreover, these judicial immunities are antithetical to the idea of judicial engagement. They often prevent or restrict courts from examining the actual circumstances surrounding a government worker’s actions. Judges frequently justify this judicial abdication by arguing that courtrooms will be clogged with a never-ending line of frivolous cases. But there are already a number of procedures available to courts and parties that allow for the weeding out of frivolous or insubstantial lawsuits, and studies have shown that judge-made immunities do not even serve the policy goals articulated to justify their creation. So, they fail in both theory and practice.
Finally, judge-made immunities hurt the most vulnerable among us: individuals who have already suffered harm and for whom damages are the only way to vindicate their constitutional rights. People who have the rare ability to file a lawsuit before the government violates their rights can generally get a fair hearing in court. But people whose rights have been violated in the past all too often fall into one of the courts’ accountability-free zones, leaving them with their rights violated and no remedy in sight. In other words, courts are generally open to plaintiffs who want to stop the government from violating the Constitution, but once the violation has occurred, judge-made immunities make it nearly impossible to hold government workers accountable.
Allowing government workers to escape accountability for unconstitutional conduct simply because it occurred in the past is an attempt to renege on this nation’s fundamental promises in the Constitution.
We are holding the government accountable.
The Institute for Justice is dedicated to fighting judge-made rules that make it extremely difficult or impossible to hold government workers accountable for violations of constitutional rights. Our efforts include direct lawsuits against government workers, appellate friend-of-the-court briefs in support of individuals who suffered harms at the hands of government workers, legislative efforts at both the state and federal level, and outreach to members of the public who want to know more about the difficulties of holding government workers accountable.
We do all of this because of our fundamental belief that following the Constitution means being held accountable for violating it. The judge-made immunities that allow government workers to violate the Constitution without consequence have no place in our constitutional system.
Learn More about IJ’s Efforts to Make Government Officials Accountable:
We file briefs in support of individuals who suffered at the hands of government officials
Mitchell v. Morton County Sheriff
8th U.S. Circuit Court of Appeals
Thompson v. Clark
U.S. Supreme Court
Rios v. Redding
10th U.S. Circuit Court of Appeals
Stewart v. City of Euclid
U.S. Supreme Court
Ashaheed v. Currington
10th U.S. Circuit Court of Appeals
Villarreal v. Laredo