Because qualified immunity is a federal judicial creation, only the U.S. Supreme Court or Congress can end the doctrine. But state legislators can address accountability in another way. The Institute for Justice offers model legislation that creates a new cause of action to vindicate constitutional rights in state courts. It guarantees that if citizens must follow the law, governments must follow the Constitution. The Institute for Justice’s Project on Immunity and Accountability is devoted to the simple idea that government officials are not above the law; if citizens must follow the law, then government must follow the Constitution.
But a set of legal doctrines makes it nearly impossible for ordinary Americans to hold the government accountable in court when government officials violate our Constitutional rights. These doctrines give law enforcement officers and other government officials near complete immunity from being held accountable for their actions, no matter how egregious.
This is wrong. The Constitution is not an empty promise. It is a promise meant to be kept—and those who take an oath to uphold the Constitution should be required to keep it. And 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. The Constitution’s protections for private property, free speech, economic liberty, and other rights are only meaningful if they are enforceable.
How Official Immunity Works (and How Government Officials Avoid Accountability)
Chief among these barriers to the enforcement of rights is the doctrine of so-called “qualified immunity,” which the Supreme Court created in 1982 as a practical barrier to enforcing whole swaths of the Constitution. Under qualified immunity, many lawsuits claiming that a government official violated someone’s constitutional rights—by, for instance, arresting them for expressing their political opinions or by revoking their firearms permit without cause—grind to a halt before they really begin because with qualified immunity the normal process of litigation is turned upside down.
In a normal court case, a defendant can be held liable if he did something that violated the law. The court’s job is to figure out what the defendant did, decide whether what he did was unlawful, and, finally, what the consequences should be. That’s how it would work if you sued your neighbor for stealing your stuff.
Now imagine your neighbor is a police department and one day an agent intentionally steals your stuff while executing a search warrant. If you sue, you’re likely to lose.
Qualified immunity means the question for the court is different. It is not enough for a government official to have violated someone’s rights. Instead, officials can only be held liable if the constitutional rule was “clearly established.” If there was no previous case saying it was illegal for government agents to steal your stuff, you’d be out of luck.
Qualified immunity was originally pitched as a way to make sure government officials received fair warning of what they were not allowed to do. The notion of “clearly established” law has now turned into a kind of perverse game: Unless a plaintiff can point to a court decision saying that doing a specific thing in a specific way violates the law, courts generally apply qualified immunity and the official is immune from accountability. Even if every reasonable person would agree that what the official did was illegal, the official’s victims find themselves out of luck.
How One Case Illustrates the Problem of Government Immunity
A clear example of this is the case of Shaniz West, who gave police officers permission to go into her house to search for her ex-boyfriend (who Shaniz said was not there). Instead of going into the house (or using the key Shaniz gave them), the officers stood on the sidewalk and bombarded the house with shotgun-fired tear-gas grenades in the hopes of getting the boyfriend to come out. (He did not come out because, as Shaniz had said, he was not there. The police were instead bombarding a house that was empty but for Shaniz’s dog, Blue.)
No reasonable person would think that consent to go into a house is the same as consent to blow up the house from the outside, but when Shaniz sued, an appeals court ruled against her. Not because the officers did not exceed the scope of her consent when they bombed her house, but because no other court had previously held that government officials cannot blow up someone’s house simply because they have been given consent to go inside it.
The upshot of all this is a rule that says government officials can violate your rights with impunity—so long as they do so in a way no one has ever done before. And, perversely, that means that the most outrageous rights violations are the ones that are least likely to be punished: One court, for example, held that officers accused of stealing over $225,000 were entitled to “qualified immunity” and couldn’t be sued. According to the court, “there was no clearly established law holding that officers violate the Fourth or Fourteenth Amendment when they steal property seized pursuant to a warrant.” Therefore, immunity applies, because even though, as the court conceded, “virtually every human society teaches that theft generally is morally wrong,” it was not “obvious” the officers were in the wrong legally.
In another court, a panel of judges ruled that police officers who sicced a dog on a suspect who was sitting down with his hands up were entitled to qualified immunity because—while an earlier case had held that officers were not allowed to sic a dog on someone lying down—no case had ever discussed whether they could do so to a suspect who was sitting down with his hands up.
Judge-made Rules Erode Constitutional Rights
Qualified immunity is not the only doctrine that stands in between citizens’ rights and meaningful remedies. When it comes to federal officials who violate the Constitution, almost every right in the Bill of Rights has been rendered almost meaningless. Outside of a few specific contexts—unwarranted searches, certain kinds of employment discrimination, and cruel and unusual treatment of federal prisoners—courts have made it almost categorically impossible to sue a federal official for violating your rights.
Judge-made rules like these are inconsistent with the Constitution’s text and history, which show 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 officials and recovering damages against them. The practice of dismissing constitutional claims on immunity grounds or because the claim lies against a federal official flies in the face of this history and is contrary to one of our most cherished legal principles that where there is a right, there must be a remedy.
Moreover, these judicial practices are antithetical to the idea of judicial engagement. They often prevent or restrict courts from examining the actual circumstances surrounding a government official’s actions. Judges often justify this judicial abdication by arguing that courtrooms will be clogged with a never-ending line of seemingly frivolous cases challenging arrests or claiming unfounded police brutality. But studies have shown that these judge-made rules do not even serve the policy goals articulated to justify their creation. So, they fail in both theory and practice.
Finally, rules like these 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 wherewithal 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 with no remedy in sight. Allowing government officials 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.
How We’re Holding Government Accountable
The Institute for Justice is dedicated to fighting judge-made rules that make it extremely difficult to hold government officials accountable for violations of constitutional rights. Our efforts include direct lawsuits against government officials, appellate friend-of-the-court briefs in support of individuals who suffered at the hands of government officials, and outreach to members of the public who want to know more about the difficulties of holding government officials accountable. We do all this because of our fundamental belief that following the Constitution means being held accountable for violating it. The judge-made rules that allow government officials to violate the Constitution without consequence have no place in our Constitutional republic.
Learn More about IJ’s Efforts to Make Government Officials Accountable
After Police Brutally Beat & Hospitalized James King, The Government Closed Ranks and Is Using a Legal Shell Game To Avoid Accountability
IJ Asks U.S. Supreme Court to Hold State/Federal Task Forces Accountable For Constitutional Violations.
Sylvia Gonzalez was arrested and thrown in jail for speaking out against the government. Now she’s filed a lawsuit to hold the City of Castle Hills, Texas accountable for violating her rights.
IJ Asks Supreme Court to Hold Government Officials Accountable For Destroying Idaho Home with Grenades
After police had a ten-hour standoff with an empty house—eventually destroying everything inside—a court ruled there wasn’t anything they could do about it. Now the Institute for Justice is launching a new project to ask the courts to reexamine doctrines giving government officials broad immunity from accountability.
IJ joins the Lech family’s fight for compensation after police destroy their house in pursuit of a shoplifter.
We file briefs in support of individuals who suffered at the hands of government officials
The 5th U.S. Circuit Court of Appeals will consider whether a citizen-journalist in Texas can seek justice after a retaliatory arrest and prosecution. We urged the court to hold officers responsible for violating First Amendment rights.
Victory! The Supreme Court adopted IJ’s argument in this brief that (1) damages for constitutional violations are important and often necessary, that (2) damages for constitutional violations have a great historic pedigree, and that (3) it is not within this Court’s purview to import policy concerns into its decision-making. This unanimous opinion repudiates the type of policy decision-making the Court engaged in when it created qualified immunity, undermining the entire foundation of this unlawful doctrine.
Every government official should know that stealing is unconstitutional. It goes to the core of the Fourth Amendment protection against unreasonable searches and seizures by the government. In this amicus brief to the U.S. Supreme Court, we explain that the facts of this case are the very reason why the modern-day doctrine of qualified immunity has to go.
Learn more about the storied history of holding government officials accountable for constitutional violations by imposing damages.
We successfully urged the Seventh Circuit to rehear a case against a county whose prison officials sexually assaulted female prisoners.
Read this brief to learn more about the legal test for qualified immunity in the context of a fascinating fact pattern: after a bystander recorded police officers using excessive force in the performance of their official duties, these officers tried to silence the bystander by attempting to delete his recording.
We educate the public about these injustices
Listen to America’s foremost experts on qualified immunity in this special episode of IJ’s Short Circuit podcast.
Read this highly acclaimed paper that disposes of the main legal justifications for imposing qualified immunity
Read this remarkable paper that provides compelling empirical evidence undermining policy justifications for imposing qualified immunity
Read this fascinating paper that persuasively advocates allowing individuals whose constitutional rights were violated to sue federal officers in federal court
We advocate for legislative reforms
Because qualified immunity is a federal judicial creation, only the U.S. Supreme Court or Congress can end the doctrine. But state legislators can address accountability in another way. The Institute for Justice offers model legislation that creates a new cause of action to vindicate constitutional rights in state courts. It guarantees that if citizens must follow the law, governments must follow the Constitution.