January 27, 2020

In January, the Institute for Justice announced an exciting and vitally important new endeavor: IJ’s Project on Immunity and Accountability.

As IJ Senior Vice President and Litigation Director Dana Berliner described in the last issue of Liberty & Law, immunity doctrines shield government officials from having to pay damages even when they blatantly violate someone’s constitutional rights. What’s worse, courts routinely use the fact that officials don’t have to pay to avoid deciding whether anyone’s rights were violated at all. That leaves individuals who have suffered government abuse without any legal recourse.

As with so many IJ issues, when I first explain immunity doctrines to non-lawyers, most are stunned that this exists in America. Here’s an example of one type of immunity—qualified immunity—in action. Last year, Fresno, California, police officers were accused of stealing over $225,000 in cash and rare coins from a home they were searching. Even though the owners were never criminally charged and even though, as the Ninth Circuit later conceded, “virtually every human society teaches that theft generally is morally wrong,” the court granted the officers qualified immunity and ruled that they could not be sued. How is that possible? Because, the court said, “there was no clearly established law holding that officers violate the Fourth or Fourteenth Amendment when they steal property seized pursuant to a warrant.” Therefore, it was not “obvious” the officers were in the wrong legally. Immunity applies.

It is easy to see how this doctrine turns fundamental concepts of American jurisprudence on their heads. If citizens must follow the law, the government must also, and that includes following the Constitution. That means that officials acting with the vast power of government behind them must be held accountable for violating constitutionally protected rights.

When the Constitution was drafted and ratified, there was a rich history of judicial remedies against government officials who violated the law. Through the Project on Immunity and Accountability, IJ will foster a growing legal consensus that current doctrines shielding officers and officials from accountability—qualified immunity, prosecutorial immunity, the severe restriction on Bivens actions, and others—are inconsistent with this history and must be abandoned.

IJ has increasingly encountered immunity in our property rights cases, and we began to lay the groundwork for future challenges with amicus briefs, legal scholarship, and outreach to practitioners and journalists through our Short Circuit newsletter and podcast series.

Now, we are asking the U.S. Supreme Court to consider government accountability in two important cases: one on behalf of Shaniz West (see page 11 for more information on her case) and one on behalf of James King, who was detained and beaten by officials who wrongly identified him as a crime suspect. He filed a lawsuit against them for violating his constitutional rights. However, because the officials were acting as part of a federal-state task force, an intermingling of state and federal authority allows the government to pick and choose what rules and protections apply, making it virtually impossible for James—or any individual who has been wronged—to get a lawsuit against the perpetrators to proceed. IJ’s petition asks the Supreme Court to hold that when the law creates a remedy for individuals seeking to vindicate their rights, that remedy must be enforced. The government can’t simply invoke whatever protection suits its purposes to evade accountability.

Challenges to immunity face long odds. But IJ launches this project with a clearly defined mission and multiple cases that epitomize the problem and what we seek to accomplish. What’s more, we have the lessons of many past uphill fights behind us—from eminent domain abuse to civil forfeiture to occupational licensing—each of which we turned from dead letters in the law to issues garnering widespread interest and support for reform. We will use all the tools of public interest litigation to alter the course of the law on this issue as well.

As Alexander Hamilton noted, “a fondness for power is implanted in most men, and it is natural to abuse it when acquired.” Through this new project, IJ will ensure that when officials abuse their power and violate individual rights, citizens have a meaningful opportunity to take them to court and hold them accountable to the law and the Constitution.

 Scott Bullock is IJ’s president and general counsel.

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