The killing of George Floyd and the protests that have engulfed the nation have only reinforced what so many Americans have long known: We have a problem with government accountability and it is undermining the very foundations of this nation. One cause of this problem is the unlawful doctrine of qualified immunity, which is rightfully getting a lot of attention in the media and from members of Congress. As readers of Liberty & Law know, qualified immunity means that government officials can only be held accountable if a court has previously ruled that the official’s exact actions were unconstitutional.
But as we tackle qualified immunity, we must not forget that it is just one of the obstacles to government accountability, albeit an extremely arduous and entrenched one. Abolishing qualified immunity without tackling these other issues could simply cause the government to adopt a new strategy in its war against accountability.
For instance, the government may seek to exploit the heightened protections for federal officers. While qualified immunity makes it hard enough to sue state and local officials for violations of constitutional rights, federal officials have an additional level of protection: When you sue a federal officer, before you can even make an argument about why qualified immunity does not apply, you must first establish that you have a right to sue in the first place. This is an extremely difficult barrier to overcome. That’s because a statute, the Civil Rights Act of 1871, provides a “right of action” only against state and local officers, not federal ones. Courts have taken that to mean—despite 200 years of practice to the contrary—that there is no automatic right of action against federal officers.
Even in a world where qualified immunity is no longer an obstacle, if plaintiffs cannot file constitutional lawsuits against federal officers, state and local officers will be incentivized to take advantage of federal protections. And there is a way for them to do so. Currently, there are about a thousand joint state-federal task forces operating nationwide. Their murky cooperative format means that officers can pick and choose the rules and powers that are most favorable to them. Membership on a joint task force allows state and local officers to claim the status of federal officers and circumvent the right of action provided against them by the Civil Rights Act of 1871.
That’s why IJ’s Project on Immunity and Accountability takes a holistic approach to the many barriers that exist to suing government officials for violations of constitutional rights. We fight not only qualified immunity, but also the ahistorical court practice that prevents plaintiffs from bringing constitutional claims against federal officials. We also want to lower the barriers to suing municipalities and prosecutors. Other doctrines, too, are in our sights—like the impossibly high standard for bringing retaliatory arrest lawsuits.
With the terrible killing of George Floyd, the nation’s attention has been rightfully gripped by the issue of qualified immunity. It is important to harness this momentum not only to end qualified immunity but also to shine a light on—and to bring down—the myriad other obstacles to government accountability.
Anya Bidwell is an IJ attorney