John Kramer
John Kramer · July 20, 2022

ARLINGTON, Va.—Qualified immunity—a powerful doctrine that shields government employees who violate someone’s constitutional rights from lawsuits—is among the most contentious issues facing our nation today. But there is one fact that many, including a professor who helped create it, agree on: the doctrine does not protect those who act outside of their job description.

“This makes sense,” said Institute for Justice Attorney Anya Bidwell. “When the Supreme Court created qualified immunity in a case called Harlow v. Fitzgerald, it balanced what it called the ‘two evils.’ On the one hand, having qualified immunity would be bad, since it would deny a remedy to those whose rights were violated. On the other hand, not having qualified immunity could also be bad, since having government officials worry about liability might impact the vigor with which they approach their jobs.”

So, the U.S. Supreme Court came up with a solution: provide qualified immunity to government officials, but only when they exercise their official duties.

This balancing act was all but abandoned several months ago by the U.S. Circuit Court of Appeals for the Eighth Circuit’s decision in Central Specialties v. Large. In that case, the Eighth Circuit granted qualified immunity to a county engineer –Jonathan Large—who, despite having no legal authority to do so, used his government-issued car to block two trucks from peacefully traveling on a highway. He then held the trucks for three hours, forcing state troopers to arrive and ticket the trucks for violating last-minute weight limit restrictions he imposed.

The Institute for Justice (IJ) represents Central Specialties, Inc. and its president Allan Minnerath in their appeal of this decision to the U.S. Supreme Court. Last week, IJ was joined in this fight by Professors Peter Schuck and Brian Pérez-Daple—as well as the Law Enforcement Action Partnership—who filed two amicus briefs in support of IJ’s arguments.

  • Peter H. Schuck is the Simeon E. Baldwin Professor Emeritus of Law at Yale Law School. He has studied and written on qualified immunity for more than 40 years, including in Suing Our Servants: The Court, Congress, and the Liability of Public Officials for Damages, which the Supreme Court relied on to create the modern doctrine of qualified immunity.

    In his brief, Professor Schuck argues that the Eighth Circuit’s decision departs radically from the Supreme Court’s qualified immunity framework, according to which courts must first determine that a government official was acting within the scope of his authority before proceeding to the qualified immunity analysis. This framework, according to Schuck, correctly calculates that the costs of unlawful government action might be acceptable when officials act within their defined duties and make reasonable mistakes. But those costs are unacceptable when officials abuse their positions and act beyond the scope of their official duties, and in those cases, damages may offer the only realistic avenue for vindication of constitutional guarantees.
  • Brian Pérez-Daple is a lecturer in law at the University of Texas School of Law and a former federal prosecutor. The Law Enforcement Action Partnership (“LEAP”) is a nonprofit organization whose members include police, prosecutors, judges, corrections officials and other law enforcement officials.

    In their joint brief, Pérez-Daple and LEAP argue that the scope-of-authority limitation on qualified immunity is necessary because it discourages officials from exercising power in areas where they have no lawful authority or expertise. And since it also reduces the amount of conduct that is immunized, it simultaneously increases the odds that victims will recover for those violations when they do occur. The incentives that the limitation generates are especially important in law enforcement, according to Pérez-Daple and LEAP. Law enforcement officers are highly trained, and they wield considerable power, including the power legally to use force in ways that other people may not. In recognition of the difficulty and importance of the decisions law enforcement officers must make, the Supreme Court precedent shields them from liability through the qualified immunity doctrine. There is no justification for conferring the same protection on a highway engineer who chooses to exercise a highway patrolman’s power.

Both briefs also agree that providing immunity to those who act outside of the scope of their authority conflicts with the history and tradition of this country. Since the Founding, officials were held liable for acts that exceeded the power granted to them by law.

This case is litigated as part of the Institute for Justice’s Project on Immunity and Accountability, which seeks to hold government officials more accountable when they violate individual rights. As part of the Project, IJ will continue to fight against the many special protections that shield government officials from accountability.