November 23, 2020

The Institute for Justice launched our Project on Immunity and Accountability in January 2020 to fight judge-made doctrines that make it extremely difficult to hold government officials accountable for violations of constitutional rights. Little did we know that in less than 12 months we would have an accountability case before the U.S. Supreme Court—or that people would be marching in the streets denouncing immunity.

As I described when we announced the initiative, IJ kept encountering immunity doctrines in our litigation, especially in property rights cases. Meanwhile, significant legal scholarship and policy work were underway—spearheaded by allies such as former IJ law clerk and University of Chicago law professor Will Baude and the Cato Institute—demonstrating that the idea of government immunity lacked a basis in the Constitution or in common law. IJ drew upon our experiences and this scholarly work to put together a comprehensive public interest legal initiative to challenge qualified immunity and other doctrines that permit government officials to evade accountability for wrongdoing.

When IJ puts together a major initiative like this project, we have strategic and ambitious plans. We also recognize that transforming the law and public opinion takes time. Our initiatives to curtail eminent domain abuse, civil forfeiture, and protectionist licensing schemes, for instance, took years to unfold. But the recent series of deaths and injuries at the hands of law enforcement, combined with the U.S. Supreme Court’s consideration of—and ultimate refusal to hear—a string of truly outrageous qualified immunity cases, thrust this issue into the national spotlight in a way no one anticipated.

Many people in the free-market movement are familiar with the Overton window—a concept named after its creator, the late Joseph Overton of the Mackinac Center, that describes the way that changes in public opinion make formerly unknown or unpopular policy options feasible.

The Overton window on government immunity has shifted quickly, and IJ is perfectly positioned to take full advantage of this opportunity.

As Liberty & Law goes to print, we are representing James King before the U.S. Supreme Court in Brownback v. King, a case that will determine whether the Court will close another big loophole that allows officials who violate constitutional rights to escape accountability for their actions. And, as you can read in this issue’s cover story, we are developing another immunity case from the ground up on behalf of Sylvia Gonzalez.

Both of these cases demonstrate that our project is larger than just the issue of qualified immunity for police officers that captured public attention this past summer. Although we are tackling qualified immunity, our strategy is broader and more ambitious than that issue alone. It is also important to remember that, although much of the recent focus on immunity has been on police misconduct, immunity shields all governmental workers—from city council members (as in Sylvia’s case) to code inspectors to IRS agents to cops on the beat. More than 20 million people are employed by local, state, and federal governments, so the stakes in this fight are enormous and wide-ranging. IJ is and will be on the front lines in this fight to ensure that none of these officials are above the law.

Scott Bullock is IJ’s president and general counsel.

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