IJ Fights Underhanded Expansion of Qualified Immunity

Anya Bidwell
Anya Bidwell
Patrick Jaicomo
Patrick Jaicomo  ·  September 21, 2022

When the U.S. Supreme Court created qualified immunity in 1982, it was making policy, not law. And the policy it was trying to enact through its decision in Harlow v. Fitzgerald was intended to fix what the Court perceived to be a threat—officials being reluctant to do their jobs because of the fear of lawsuits. The Justices acknowledged that they were fundamentally grappling with “two evils.” On the one hand, they would be denying a remedy to victims of unconstitutional conduct. On the other hand, they were worried about deterring government workers from doing the government’s business. 

To balance those concerns, the Supreme Court created qualified immunity to protect government officials from lawsuits, but it limited the defense to officials acting within the scope of their duties. In other words, qualified immunity was not supposed to be available simply because you worked for the government. It was supposed to be available only when you were doing your work for the government—within the limits of your job description. Until now. 

Over the past four years, two federal courts of appeals—the 8th and 10th Circuits, which control the law in 13 states between Minnesota and New Mexico—have unbalanced the Supreme Court’s scale. These courts now apply qualified immunity to government officials just because they happen to work for the government. Even those officials who are off duty or doing something that is not their job are now protected.  

Being IJ, we dove enthusiastically into the mess these two circuits created so that we could start the important work of cleaning it up. This summer, we launched cases challenging this expansion of qualified immunity in both circuits.  

In the 10th Circuit, we brought a challenge against an off-duty police officer who was granted qualified immunity in New Mexico after a road rage incident that ended with the officer pointing a gun at our innocent client, Mario Rosales. After Mario legally passed the off-duty officer on a highway, the officer chased Mario to his home. Wearing flip-flops, and with a child in his passenger seat, the officer blocked Mario’s driveway with his truck, shouted profanities at him, and pointed his gun in Mario’s face. Although the officer was ultimately fired and convicted of two felonies, the lower court granted him qualified immunity from Mario’s constitutional claims.  

In the 8th Circuit, we’re fighting a grant of qualified immunity to a Minnesota county engineer who acted like a traffic cop when he stopped two trucks traveling on a highway because he had a personal grudge against the trucks’ owner. The engineer even admitted that he had no authority to perform traffic stops, but the court of appeals granted him qualified immunity anyhow. We are now challenging this decision at the U.S. Supreme Court

Harlow v. Fitzgerald is a bad decision. Qualified immunity is not needed to shield well-meaning, duty-enforcing officials. There are other robust protections to do just that. So the last thing the courts should be doing is expanding qualified immunity beyond what it was ever intended to do. IJ’s Project on Immunity and Accountability is here to ensure they don’t.

Anya Bidwell and Patrick Jaicomo are IJ attorneys.

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