John Kramer
John Kramer · June 3, 2020

Arlington, Va. —This week, the U.S. Supreme Court will consider whether to accept eight different cases that spotlight how the system of “qualified immunity”—which the Supreme Court created in 1982—has led to the regular and widespread violation of constitutional rights by police and other government officials.

While the nation is focused on the tragic death of George Floyd, qualified immunity cases have allowed government officials to steal, maim, willfully destroy property, and even kill, all without facing any consequence for their actions. If any ordinary citizen of the United States had engaged in such actions, they would face the full weight of the law against them; but because of qualified immunity, government officials are often held to a shockingly lower standard, leaving their victims to suffer insult after injury.

Qualified immunity means that government officials cannot be held accountable for violating the Constitution unless they violate a “clearly established” constitutional rule. In practice, that means that government officials can only be held liable if a federal court of appeals or the U.S. Supreme Court has already held that someone violated the Constitution by engaging in precisely the same conduct under precisely the same circumstances.

How precisely must the violation match? Officers were recently granted qualified immunity when they let their police dog attack a suspect who was seated with his hands raised because the court found that an earlier case in which police let loose their dog on a suspect who was lying down wasn’t a close enough match.

“Qualified immunity means that government officials can get away with violating your rights as long as they violated them in a way nobody thought of before,” explained Institute for Justice (IJ) Attorney Anya Bidwell. “And that means that the most egregious abuses are frequently the ones for which no one can be held to account.”

Qualified immunity applies only in civil lawsuits—not criminal ones. But such civil suits are the only means by which individuals or their surviving family members can get compensation for the violation of constitutional rights. And prosecutors often resist bringing criminal charges against government colleagues, especially police officers who are crucial to the daily work of prosecutors.

One of the eight cases under consideration this week is West v. Winfield, an IJ case in which an Idaho mom handed her keys to local police so they could search for a suspect. Rather than using the keys, officers spent the better part of a day firing tear-gas grenades and other projectiles into the empty home, destroying it and almost everything inside it. (The suspect was not there.) When the mom sued for the warrantless destruction of her home, the government defended itself by saying that no warrant was needed: When she gave the police her consent to get inside the home, that included her consent to destroy it with grenades from outside. The appellate courts did not rule that this was correct—they did not say that inviting someone into your home is the same thing as inviting them to bomb it—but they ruled for the government, nonetheless. No government official had ever made that argument before, and so there was no precise case on point. In the upside-down world of qualified immunity, that meant the government won—and the mom lost.

West is only one case IJ is litigating under its Project on Immunity and Accountability, which litigates to remove barriers to meaningful enforcement of constitutional rights. The U.S. Supreme Court has already granted review in another IJ case, Brownback v. King, where IJ represents an innocent college student who was mistaken for a non-violent suspect wanted by police for a petty crime. Two plain-clothed police officers who never identified themselves as police mercilessly beat James King and choked him until he was unconscious. Then, in a practice often seen among law enforcement to coverup for the misdeeds of officers, prosecutors charged the student with serious felonies, all with the apparent goal of forcing the student into making a plea deal rather than pursuing justice against the officers who put him in the hospital. Confident he had done nothing wrong, the student successfully fought the charges, earned a unanimous not-guilty verdict, then continued his case to bring the two rogue law enforcement officers to justice for what they had done to him. Citing qualified immunity, the trial court dismissed the student’s case, but he miraculously persuaded the appeals court to reverse the trial court’s qualified immunity ruling. Before the student’s case could proceed, however, the government asked the Supreme Court to take the case and create yet another special protection to shield enforcement from accountability. The Supreme Court has taken up the student’s case and will decide whether to grant the government’s request next term.

And later this month, the Justices will consider whether to accept a third case from IJ’s Project on Immunity and Accountability, brought on behalf of a Colorado family whose home was destroyed by police in pursuit of a suspect who had no connection to them.

As the Institute for Justice reported this past week in the definitive oped on the issue of qualified immunity that ran in USA Today:

Four decades on, qualified immunity routinely shields both the incompetent and those who knowingly violate the law. In the past year alone [along with the two cases above] courts have granted qualified immunity to:

“Qualified immunity is a failure as a matter of policy, as a matter of law, and as a matter of basic morality,” said IJ Senior Attorney Robert McNamara, who is lead counsel in the West case and who heads up the Institute for Justice’s Project on Immunity and Accountability. “It is past time for the Supreme Court to admit as much and start expecting government officials to follow the Constitution.”

The drumbeat of voices calling for an end to qualified immunity and a return to basic government accountability has only grown louder in the wake of the killing of George Floyd by Minneapolis police officers. Articles in outlets ranging from USA Today to Fox News Channel to the New York Times editorial page all pointed to the slaying as a symptom of a broader culture of official impunity and called upon the Supreme Court to rethink—if not abandon entirely—its qualified immunity rules.

“There is no shortage of outrageous qualified immunity cases for the Supreme Court to take,” said IJ Attorney Patrick Jaicomo. “It should no longer avoid the issue. The skewed incentives of qualified immunity guarantee that lower courts will continue to generate more examples of injustice, and we will keep bringing those examples back to the courthouse steps until we break through.”

“The principle at stake is simple: If citizens must obey the law, then the government must obey the Constitution,” concluded IJ President and General Counsel Scott Bullock. “The Constitution’s promises of freedom and individual rights are important only to the extent that they are actually enforced—and the Institute for Justice will work tirelessly to ensure that they are.”