Groundbreaking Study Reveals Legal Doctrine Run Amok

What do police officers, social workers, and mayors all have in common? All are government officials who can claim qualified immunity to escape accountability when they violate our constitutional rights.

This will come as no surprise to Liberty & Law readers, who know we have taken on qualified immunity cases involving all these types of government officials—and more. Yet, in most people’s minds, the doctrine is about police and excessive force, and cases like ours that don’t fit that mold are outliers. 

Now a new IJ strategic research report, Unaccountable, challenges this common myth by providing fresh evidence that qualified immunity enables government abuse far beyond police misconduct. And it’s already drawing attention. UCLA law professor and preeminent qualified immunity scholar Joanna Schwartz has called the study “incredibly important” and “a must read.”

We analyzed the largest-ever collection of qualified immunity cases—over 5,500 federal appeals from 2010 through 2020—to find out how the doctrine works in practice. We found that only 23% of cases involved allegations of excessive force by police. 

In fact, a wide array of government officials claimed qualified immunity, including university officials, prosecutors, state ethics commissioners, zoning board members, septic system regulators, and many others. And the allegations they faced were similarly diverse: Excessive force and false arrest were most common, but close behind were First Amendment violations, which appeared in nearly 1 in 5 cases. 

When we looked more closely at these First Amendment cases, we found that nearly 60% alleged premeditated retaliation for speech or other protected activity that government officials didn’t like. Most frequently, victims of retaliation were government workers (including, often, police officers!) or private citizens. 

IJ clients like Sylvia Gonzalez, William Fambrough, and Anthony Novak all suffered premeditated retaliation for speaking critically of local officials, so this finding wasn’t surprising to us. However, it does challenge another part of the prevailing narrative about qualified immunity—that the doctrine is needed to protect officials who make honest mistakes in fast-moving situations. By definition, premeditated retaliation doesn’t fit that bill, and yet qualified immunity remains as a defense.

Unaccountable also shows how difficult it is to get justice when government officials violate our rights. Victims generally must identify a published opinion in a similar case from the U.S. Supreme Court or the federal circuit where they live holding what was done to them unconstitutional. But we found the availability of such precedent depends on a circuit’s population (smaller circuits hear fewer appeals) and publication rate. This means victims’ odds of winning depend, to no small extent, on where they live. 

And whether or not victims can find precedent, their government abusers often use special appeal rights to drag out litigation and wear them down. It’s little wonder that our data show government officials usually win.

It shouldn’t be so hard for victims of government abuse to vindicate their rights. 

Alongside our strategic litigation, research like Unaccountable is one way IJ fights to change that. Unaccountable gives us a vital new tool to convince judges, legal scholars, journalists, and lawmakers of the case against qualified immunity and the pressing need for change.

Elyse Pohl is IJ’s legal research and policy attorney.