IJ Is Untangling the Immunity Knots

Since IJ launched our Project on Immunity and Accountability in January 2020, a lot has happened. And as this issue of Liberty & Law shows, we have lots still going on. So it’s worth surveying some of the many issues the Project is focusing on, what they have in common, and how they are different. 

We start, where the Project did, with qualified immunity. The doctrine is the most well known of the judge-made immunity doctrines. It is also the most wide ranging, shielding all government workers—local, state, and federal—from constitutional accountability unless there is an earlier case involving the same facts to “clearly establish” that violating the Constitution is wrong.  

IJ has been taking on qualified immunity since our very first Project cases, in which we represented an innocent Michigan college student who was beaten up by federal task-force members and an Idaho woman whose home was destroyed by a police SWAT team even though she gave them a key to enter. Besides attacking qualified immunity head on in cases like our East Cleveland retaliation case (read more), IJ is trying to expand exceptions to the doctrine and, as in our newly launched cases in the 8th and 10th U.S. Circuit Courts of Appeals (read more), stop the doctrine’s expansion. 

Next, there is federal immunity. This immunity comes in the form of courts making it very hard—or impossible—to sue federal officials simply because they work for the federal government. Unlike qualified immunity, this doctrine is absolute. It doesn’t matter if there is an earlier case; all that matters is a government worker’s employer. This immunity actually laid the conceptual groundwork for the Project and was at play in our first Project case because the officers worked on a federal task force.

Since that initial case, we’ve challenged federal immunity on behalf of a 72-year-old veteran who was beaten by Veterans Affairs police for not handing them his ID quickly enough, a 16-year-old Somali refugee who was framed by a federal task-force member, and a Texas man who was threatened at gunpoint by a U.S. Department of Homeland Security agent after the man asked questions about the involvement of the agent’s son in a drunken crash. And our work against federal immunity continues in our newly launched mask seizures case (read more). 

On top of these, there are different flavors of absolute immunity, including prosecutorial immunity and judicial immunity. These doctrines shield nearly every official act taken by a prosecutor or judge—no matter how obviously unconstitutional or intentionally malicious. We are challenging these doctrines by highlighting egregious abuses by prosecutors, as in our case against a Midland, Texas, prosecutor who moonlighted as an assistant to the judges in his own cases for 20 years. We are also highlighting abuses by judges, as in a recent amicus brief we filed in a case in which a judge jailed two children during a custody dispute. 

These immunities all interact and overlap. And there are, of course (and disappointingly), many other issues and immunities to fight. As we continue to expand our work in the Project, we will always keep you updated. The key thing the Project aims to do is simple: ensure that every constitutional violation has a remedy in American courts. We have come a long way in that fight in just a few years, but much more work must be done. Stay tuned. There are a lot of exciting things to announce in the coming months, and we will have a lot of victories to trumpet in the coming years.  

Onward!

Patrick Jaicomo and Anya Bidwell are IJ attorneys.