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Project on Immunity and Accountability

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

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.

Qualified Immunity

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.

Sylvia Gonzalez, a resident of Castle Hills, Texas, spoke out against her city government and was arrested for it.

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:

  1. When federal police violate the Fourth Amendment during standard law enforcement operations;
  2. When officials at government-run federal prisons violate the Eighth Amendment rights of inmates; and
  3. When members of Congress violate the Fifth Amendment by discriminating against employees on the basis of gender.

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.

In February 2016, federal police working as security at an El Paso VA hospital assaulted José Oliva as he was entering the hospital for a dentist appointment.

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 Sue

Veteran Beaten by Police in Unprovoked Assault at VA Hospital Appeals Case to U.S. Supreme Court

Vietnam War vet was passing through a metal detector at a VA hospital in El Paso, when–without any provocation–he was almost chocked to death by VA security guards. A federal district court denied the guards qualified immunity, but the Fifth Circuit provided the officers with another loophole to avoid accountability. The vet teamed up with IJ and is asking the U.S. Supreme Court to reverse the Fifth Circuit’s decision, which–by the way–departs from decisions by seven other circuit courts of appeals.

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.

After Being Arrested for Speaking Out, a Texas Woman Sues to Hold Gov. Officials Accountable

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.

Homeowners Seek Rehearing in House-Destruction Case

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

Mitchell v. Morton County Sheriff

The Eighth Circuit will decide whether a peaceful, unarmed protester can sue to hold police officers who severely injured him accountable. IJ filed an amicus brief to explain why the dismissal of all charges against the protester (through a pretrial diversion agreement) should not immunize the officers and their employers from liability.

Thompson v. Clark

Innocent-until-proven-guilty is a hallmark of our criminal justice system. But some Courts of Appeals require victims of unconstitutional conduct to prove their innocence before they can enforce their constitutional rights in a lawsuit. In this amicus brief, we urge the U.S. Supreme Court to reject that rule, which immunizes government officials from accountability for their unlawful acts.

Rios v. Redding

Divinity Rios sued prison officials for their deliberate indifference to her need for protective housing, which resulted in her avoidable sexual assault. Now, the Tenth Circuit will decide whether officers are absolutely immune from this long-established Eighth Amendment violation simply because they work for the federal (instead of state) government. IJ filed an amicus brief urging the judges not to abdicate their judicial role and to give Ms. Rios—who has no other remedy for the officers’ constitutional violation—her day in court.

Stewart v. City of Euclid

Some courts have effectively extended qualified immunity from individuals to municipalities. In this brief, we explain why that extension is improper and why the Supreme Court should clarify when municipalities may be liable when their officers inflict constitutional injuries.

Ashaheed v. Currington

For reasons similar to those argued in IJ’s amicus brief, the Tenth Circuit denied qualified immunity to a prison officer who violated a Muslim man’s First Amendment religious exercise rights. The Court refused to require Mr. Ashaheed to produce factually identical precedent to overcome qualified immunity. Instead, it held that religious discrimination is obviously unconstitutional, even if no prior case involved the same misconduct. And it held that qualified immunity was particularly inappropriate because the officer violated the prison’s own religious-practice policy.

Villarreal v. Laredo

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.

Tanzin v. Tanvir

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.

Jessop v. Fresno

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.

Hernandez v. Mesa

Learn more about the storied history of holding government officials accountable for constitutional violations by imposing damages.

J.K.J and M.J.J v. Wisconsin

We successfully urged the Seventh Circuit to rehear a case against a county whose prison officials sexually assaulted female prisoners.

Frasier v. Denver Police Officers

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

Bound By Oath: No Right Without A Remedy

Listen to a documentary-style podcast series on the history of qualified immunity and other doctrines that shield officials from liability for violating the Constitution.

Short Circuit Podcast

Short Circuit Live: Seventh Circuit Edition discussion on Qualified Immunity

Listen to America’s foremost experts on qualified immunity in this special episode of IJ’s Short Circuit podcast.

Police act like laws don't apply to them because of 'qualified immunity.' They're right.

Read this oped on how qualified immunity is a major contributor to the culture of unaccountability that led to the killing of George Floyd.

The Supreme Court might be finding its way to overturning 'qualified immunity'

Read this oped on how a U.S. Supreme Court decision that technically was not about qualified immunity might yet lead to the demise of the doctrine.

Lower courts take notice: The Supreme Court is rethinking qualified immunity

Read this oped on how the U.S. Supreme Court is recalibrating the doctrine of qualified immunity.

Is Qualified Immunity Unlawful?

Read this highly acclaimed paper that disposes of the main legal justifications for imposing qualified immunity.

The Case Against Qualified Immunity

Read this remarkable paper that provides compelling empirical evidence undermining policy justifications for imposing qualified immunity.

Rethinking Bivens: Legitimacy and Constitutional Adjudication

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

Model Protecting Everyone’s Constitutional Rights Act

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.

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